Who gets to make a living? Street vending in America

• Author: Joseph Pileri
• Position: Chief Legal Officer at Mission Driven Finance, an impact investment firm headquartered in San Diego, California
• Pages: 215-259

WHO GETS TO MAKE A LIVING? STREET

VENDING IN AMERICA

JOSEPH PILERI*

ABSTRACT

Street vending has long provided those at the margins of American society

with the opportunity for economic advancement. A key segment of the infor-

mal economy, street vending has low barriers of entry and attracts entrepre-

neurs who lack the resources, ability, or desire to start brick-and-mortar

businesses or work for someone else. Street vending also contributes to the vi-

tality and safety of urban America.

Despite the pivotal role that street vending plays, cities around the country

criminalize vending by treating the violation of street vending regulations as a

criminal offense. Recent high-profile vendor arrests in New York City and

Washington, DC touched off protests and advocacy to decriminalize street vend-

ing. By attaching criminal violations to micro-enterprises like hot dog carts or

fruit stands, localities place higher regulatory burdens on the smallest businesses

in our communities. Criminalization carries with it collateral consequences such

as the increased risk of deportation or loss of immigration status. Further, crimi-

nalization leads to unnecessary interactions with armed police officers that dispro-

portionately affect vulnerable populations: low-income individuals, immigrants,

both documented and undocumented, and returning citizens. Street vending pro-

vides entrepreneurial opportunities for these individuals when barriers to legal

vending are not prohibitive but presents substantial risks when criminalized.

Protecting the rights of street vendors has taken on new urgency during

the COVID-19 public health crisis. Many vendors have not been able to vend

on city streets or have seen large reductions in business due to local stay-at-

home orders. Street vendors around the country have joined the ranks of

excluded workers. Unable to earn a living, many have been barred from pro-

grams meant to support individuals and small businesses on account of immi-

gration status or because they operate a cash business.

* Chief Legal Officer at Mission Driven Finance, an impact investment firm headquartered in San

Diego, California. Previously taught in legal clinics at Georgetown University Law Center and American

University Washington College of Law. J.D. 2010, Harvard Law School; B.A. 2007, University of

California, Los Angeles. I would like to thank Susan Bennett, participants of the Mid-Atlantic Clinicians’

Writing Workshop, and Paul Tremblay and the Clinical Law Review Writers’ Workshop for their helpful

comments and feedback, Busola Ogunyode, Atticus Yondorf, Jana Moss, and Nora Elmubarak for their

assistance with research, and the street vendors of Vendedores Unidos for sharing their experiences and

their food with me. © 2021, Joseph Pileri.

215

This Article explores the state of sidewalk vending in America. Special

focus is given to Washington, DC, which has a small but robust street vending

culture. Vending without a license in Washington, DC is a crime, and police

heavily enforce this prohibition. The city has had a permitting regime for ven-

dors for a long time, but costs and other permitting requirements render

licenses unobtainable for many street vendors.

TABLE OF CONTENTS

INTRODUCTION ......................................... 217

I. THE CURRENT STREET VENDING LANDSCAPE . . . . . . . . . . . . . . . . . 220

A. What Is Street Vending?......................... 220

B. Who Are Street Vendors?. . . . . . . . . . . . . . . . . . . . . . . . 223

C. Who Regulates Street Vending?. . . . . . . . . . . . . . . . . . . . 225

D. What Street Vending Laws Say. . . . . . . . . . . . . . . . . . . . . 227

1. Content of Regulations ....................... 228

2. Penalties ................................. 229

E. Effects of Criminalization . . . . . . . . . . . . . . . . . . . . . . . . 232

II. HISTORY OF STREET VENDING REGULATIONS . . . . . . . . . . . . . . . . . 234

A. Why Is Street Vending Criminalized? . . . . . . . . . . . . . . . . 239

1. Health Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . 240

2. Controlling Public Space . . . . . . . . . . . . . . . . . . . . . 242

3. Discrimination and Local Immigration Control. . . . . . 244

4. Gentrification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

III. WASHINGTON, DC: A CASE STUDY . . . . . . . . . . . . . . . . . . . . . . . 249

A. DC’s Street Vending Ecosystem .................... 250

B. DC Street Vending Laws. . . . . . . . . . . . . . . . . . . . . . . . . 251

C. Enforcement of DC Street Vending Laws ............. 253

IV. REFORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

A. Decriminalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

B. Removing Barriers to Entry....................... 255

216 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:215

C. Education-First . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

D. Participatory Processes ......................... 257

E. Protecting Public Health . . . . . . . . . . . . . . . . . . . . . . . . . 257

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

POSTSCRIPT ........................................... 258

INTRODUCTION

The Columbia Heights neighborhood in Washington, DC is one of the

densest and most diverse neighborhoods in the city. Streets around the

Columbia Heights Metro Station bustle with commuters, shoppers, and

locals. The businesses on 14th Street Northwest, which runs through the heart

of Columbia Heights, match the demographics of the diverse but changing

neighborhood. Big box stores, a vegan bakery, pupuserı

´as, corner stores, and

Latino and Ethiopian groceries all share this busy commercial corridor. The

neighborhood is also home to a large number of street vendors. Most days,

vendors set up tables and carts on sidewalks and sell bottled drinks, food, and

assorted items to passersby. Pedestrians can buy refreshing agua fresca dur-

ing sweaty DC summers and warm atol de elote on cold winter days. Some of

the vendors specialize in homemade tamales and taquitos; others sell hats, t-

shirts, and, in 2020, bottles of hand sanitizer and masks.

In November 2015, 15-year-old Genesis Lemus finished school and went

to watch her mother’s vending table on 14th Street while her mother stepped

away to run errands. Genesis’s brother sat nearby doing his homework and

playing with friends. The children’s mother, Ana, was selling plantain chips

and atol de elote that day, as she had been doing for years. While Ana was

away, a Metropolitan Police Officer approached Genesis and told her that she

had to leave. Vending without a license was a crime, the officer said, and was

grounds to call the Department of Children and Family Services and take

Genesis’s brother away from her. The officer grabbed Genesis’s brother. Ana

tried to protect her brother and cried for the officer to stop. A video, captured

by a bystander and posted to social media, shows the officer shoving Genesis

to the ground. Injured and traumatized, Genesis had to be taken to the

hospital.

1

The video of the incident went viral, local media picked up the story, and

community outrage ensued. But, as outrageous as the officer’s conduct was,

his description of the law in DC was correct. Street vending without a license

is a crime in the District, punishable by up to ninety days in prison. Indeed,

1. Peter Hermann & Marissa J. Lang, D.C. Police Stopped a Teen Selling Street Food. Now There’s

an Investigation into the Incident, WASH. POST (Nov. 20, 2019), https://perma.cc/7LXJ-5C7H.

2021] WHO GETS TO MAKE A LIVING? 217