City Softens on Ice-Cream Vendor Liability

In the latest clash between Santa Ana street vendors and city officials, ice-cream truck drivers are demanding a repeal of a long-standing ordinance requiring them to carry $1 million in liability insurance.

The statute is an unfair burden because most of the vendors earn only $30 to $60 a day, said Pedro Vasquez, a former vendor and veteran crusader against local ordinances that target street peddlers. “The city should be trying to help these businesses, not intimidate them. . . . They are just trying to make a living.”

City officials have agreed to not enforce the law for now but will not discuss the possibility of a repeal. Nor have they responded to a request for restitution to ice-cream vendors cited for not carrying the insurance, which costs $1,300 a year.

Vasquez and a small group of ice-cream truck operators met with city attorney’s officials last week about what they say is stepped-up enforcement by police of the 17-year-old ordinance.

On Friday, in a letter to a representative of the group, Deputy City Atty. Kylee D. Odette wrote: “Santa Ana Police Department has agreed for now not to require insurance for ice-cream truck vendors.”

City Attorney Joseph Fletcher said his office is “reacting to this particular issue about the insurance. We’ll be evaluating the issue, but it is too early to say whether we’ll do something else. We’re still studying the options.”

Liability insurance is a common requirement for businesses that may expose the public to danger. Taxicabs in Orange County, for example, must be insured for $1 million in damages in case of an accident.

The ice-cream vendors say their trucks, which usually travel slowly and do not carry passengers, should not be held to the same standard.

Natasha Fooman, legislative representative for the League of California Cities, said municipalities have passed ordinances in recent years restricting the operation of ice-cream trucks, but she was not aware of any that required liability insurance.

Earlier this year, the state passed a law requiring ice-cream trucks to have markings that warn other drivers to watch out for children. The bill was sponsored by state Sen. Nell Soto (D-Ontario) after a San Bernardino girl was struck and killed by a car as she ran after an ice-cream truck.

Soto’s legislative director, Paul Van Dyke, said requiring liability insurance was never considered as part of the legislation.

“What our bill tried to do was what we can do within reason to prevent accidents,” Van Dyke said. “The issue for us was always about prevention.”

Santa Ana officials have been at odds before with street vendors from produce sellers to pushcart merchants. Two years ago, the city tried to ban pushcart sellers from downtown, citing concerns about litter and food safety. The merchants sued the city, and the parties settled last year after the vendors agreed to wear uniforms and follow guidelines regarding the size and appearance of the carts.

Four years ago, after a long legal battle, an Orange County judge invalidated a 1994 ordinance restricting parking for all food vending trucks and requiring them to carry $1 million in liability insurance.

The permanent injunction, which meant the city could not enforce the law, applied only to the 1994 ordinance and not to the earlier ice-cream truck policy, passed in 1984, but the ice-cream vendors say the same principle should apply to them.

City Attorney Fletcher disagreed, saying ice-cream trucks attract children and therefore pose a special hazard. “I understand the economics could be difficult,” he said, but “it is not an outrageous requirement.”

Santa Ana police officials did not have statistics on how many citations have been issued under the ordinance. Vasquez estimated that fewer than 10 operators have been cited this year. The ordinance makes violators liable for a fine up to $1,000 or up to six months in jail, but judges have discretion about how to set the penalty, and no one has ever gotten the maximum, officials said.

Vasquez said many are doing business without city licenses because of the cost of the insurance, which is a licensing requirement.

“People who are just starting their business can’t afford the insurance,” he said.

Vasquez said about 60 ice-cream trucks operate in Santa Ana. The city has only 18 registered vendors.

Juan Mojica has been driving an ice-cream truck in Santa Ana for seven years after a back injury forced him from a job waiting tables at a restaurant. He does not have an operating license.

“I know it is a requirement, but the insurance is too expensive,” said Mojica, 29, as he drove his white truck through city streets one recent afternoon.

The truck played a familiar tune that beckoned children who gathered around, change in their hands, to buy frozen cones, bars and other treats.

“The truck passes by every day, . . . whenever I feel like ice cream,” said Norma Castro, 14, holding a Popsicle.

Mojica said he will register his business now that the insurance is no longer a requirement. But others want more reassurance.

“We appreciate what the city has done with the temporary reprieve,” said Kathy Jurado-Navarro, a community activist who is representing the vendors in ongoing talks with the city. “But this is not enough, and I’m going to suggest strongly to the vendors that we need to file for a permanent injunction.”