sr-092209-7c~J
~;tYOf City Council Report
Santa Monica
City Council Meeting: September 22, 2009
Agenda Item: ~~~'
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: .Ordinance Authorizing Fortune Telling in Specified Areas
Recommended Action
Staff recommends approval on first reading of the attached proposed ordinance that
would modify the current municipal code provision governing fortune telling by
increasing the locations where it is authorized.
Executive Summary
Santa Monica Municipal Code Section 6.14.040(d), governing certain recreational
activities requiring police permits, prohibits fortune telling everywhere in the City except
on the Pier. The California Supreme Court in Spiritual Psychic Science Church v.
Azusa, 39 Cal. 3d 501 (1985) held that fortune telling is a constitutionally protected
activity and that it is illegal for a city to completely ban fortune telling. While the City's
ordinance is facially distinguishable from Azusa's total ban in that the City's ordinance
permits fortune telling in at least one location within the City, there remains a serious
question whether this time, place and manner restriction is reasonable. Consequently,
staff recommends that the Council approve this ordinance on first reading which would
expand the locations where fortune telling would be .permissible to include Santa
Monica Boulevard and Lincoln Boulevard in the C4 District and Ocean Front Walk in the
RVC District in addition to the Pier.
Background
Because fortune telling is constitutionally protected, restricting it to one small area in the
City (the Pier) creates legal risk, particularly if there are no sites available on the Pier.
To address this risk, Council adopted Interim Ordinance Number 1982 (CCS) on August
8, 2000 and adopted Interim Ordinance Number 1986 on September 12, 2000 to
extend this initial interim ordinance to allow fortune telling on Ocean Front Walk in the
RVC District. However, those ordinances have expired.
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The Municipal Code currently prohibits fortune telling and similar activities, except on
the Pier Santa Monica Municipal Code Section 6.14.040(d) provides, in part:
(d) Fortune Telling. Except upon the Santa Monica Pier where, if duly
licensed under the provisions of this Code, a person may engage in
fortune telling for amusement purposes, no person shall carry on, practice
or profess to practice the business or art of astrology, palmistry,
phrenology, life reading, fortune telling, cartomancy, clairvoyance,
clairaudience, crystal gazing, mediumship, oriental mysteries, spirit
photography, spiritwriting, spirit voices, spirit materialization,
etherealization, numerology, physiognomy,- psychometry, seership,
prophecy, augury, divination, magic or necromancy, or other similar art or
business, and demand or receive directly or indirectly, a fee or reward, or
accept any donation for the exercise or exhibition of this art therein, or
give an exhibition thereof at any place where an admission fee, donation
or reward is charged or received, directly or indirectly.
Discussion
The California Supreme Court in Spiritual Psychic invalidated Azusa's ordinance that
prohibited fortune telling and was quite similar to Santa Monica's. The Court determined
that fortune telling was protected speech. In rejecting the argument that fortune telling
constituted nothing more than commercial activity which could be prohibited, the Court
stated:
The act of telling fortunes goes beyond the mere proposal of a
transaction. It involves the passing of ideas and information -- some
valid, some questionable, some false -- between the fortuneteller
and the client. This exchange is unrelated to any consideration the
client pays to receive the communication -the consideration is not
the object of the communication. /d. at 511.
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In response to the City of Azusa's argument that fortune telling should be accorded less
protection because it does not concern the political process, the Court rejected this
argument on two grounds:
First, it is impossible to say that fortunetellers impart no political
message in their communications. In their vision of the future there
may be a view of society as they perceive it may one day be. Such
a communication conceivably could contain the spark of a political
flame. Second, fortunetelling may fire the imagination and stimulate
discussion of the future. That some -- even amajority -- may find
this mode of communication distasteful, ridiculous, or even corrupt
is irrelevant to constitutional concerns. Id. at 512.
Having concluded that fortune telling constituted protected speech, the Court
determined that Azusa's total prohibition on fortune telling was unconstitutional under
the California Constitution. While the Court acknowledged the city's concern of
preventing fraudulent fortune telling, the Court determined that this goal could be
achieved by a less drastic restriction on protected speech than a total ban. Id. at 518-
19. Courts in other jurisdictions have found similar fortune telling ordinances invalid
under the First Amendment. See Argello v. City of Lincoln, 143 F.3d 1152 (8th Cir.
1998); Rushman v. City of Milwaukee, 959 F. Supp. 1040, 1043-44 (E.D. Wis. 1997).
While the Santa Monica's ordinance is facially distinguishable from Azusa's, because it
is not worded as an outright ban., its practical effect may be the same because the Pier
is so small and because it is owned and controlled by the City. The legal risk created by
this situation may be addressed by specifying other areas in the City where fortune
telling is authorized.
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The proposed ordinance would authorize. fortune telling on Santa Monica Boulevard and
Lincoln Boulevard in the C4 District and on Ocean Front Walk in the RVC District. The
Planning staff provided input on this proposal. Ocean Front Walk is a key destination
for visitors and tourists alike. Ocean Front Walk (identified as the Promenade in the
Land Use Element) is located in the Oceanfront land use district, where policies are
intended to provide for a concentration of visitor serving commercial recreation uses.
Specifically, Policy 1.5.4 encourages day and evening pedestrian activity along Ocean
Front Walk "by requiring active uses oriented to walk-in traffic, especially retail and
commercial recreation." Fortune telling is consistent with this land use direction. And,
Zoning Ordinance Section 9.04.08.12.020 permits games and nightclubs and Section
9.04.08.12.030 permits arcades with a Performance Standards Permit in the RVC.
The C4 District is the City's Highway Commercial District. This district authorizes a
wide-range of general commercial and entertainment uses. Fortune telling as a use is
similar to other entertainment-related uses found and/or permitted within these areas.
Zoning Ordinance Section 9.04.08.22.040 conditionally permits. billiard parlors and
nightclubs.
Financial Impacts & Budget Actions
No financial impacts would result from adopting this ordinance.
Prepared by: Marsha Jones Moutrie, City Attorney
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Approved: Forwarded to Council:
f:\atty\muhi\laws\barry\fortuneintord 9-22-09
City Council Meeting 9-22-09 Santa Monica; California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA
MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTION 6.14.040(d) TO
ALLOW FORTUNE TELLING AS A PERMITTED USE ON OCEAN FRONT
WALK WITHIN THE RVC DISTRICT AND ON LINCOLN BOULEVARD AND SANTA
MONICA BOULEVARD IN THE C4 DISTRICT
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN
AS FOLLOWS:
SECTION 1. Findings and Purpose. The City Council finds and declares:
(a) Santa Monica Municipal Code Section 6.14.040(d) prohibits fortune telling
everywhere in the City except for the Santa Monica Pier.
(b) The California Supreme Court in Spiritual Psychic Church v. Azusa, 39 Cal. 3d
501, 217 Cal. Rptr. 225 (1985) held that fortune telling is a constitutionally protected
activity.
(c) The City is authorized to impose reasonable time, place, and manner restrictions
on the conduct of First Amendment activities, including fortune telling.
(d) From a land use and zoning perspective, fortune telling is appropriately located
within the Ocean Front Walk area of the City and in the C4 Districts on Santa Monica
Boulevard and Lincoln Boulevard. Ocean Front Walk is a key destination for visitors and
tourists alike. Ocean Front Walk (identified as the Promenade in the Land Use Element) is
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located in the Oceanfront land use district, where policies are intended to provide for a
concentration of visitor serving commercial recreation uses. Specifically, Policy 1.5.4
encourages day and evening pedestrian activity along Ocean Front Walk "by requiring
active uses oriented to walk-in traffic, especially retail and commercial recreation." Fortune
telling is consistent with this land use direction. The C4 District is the City's Highway
Commercial District. This district authorizes awide-range of general commercial and
entertainment uses. Fortune telling as a use is similar to other entertainment-related uses
found and/or permitted within these areas. Zoning Ordinance- Section 9.04.08.22.040
conditionally permits billiard parlors and nightclubs. In the Residential Visitor-Serving
Commercial District where Ocean Front Walk is .located, Zoning Ordinance Section
9.04.08.12.020 permits games and nightclubs and Section 9.04.08.12.030 permits arcades
with a Performance Standards Permit.
SECTION 2. -Santa Monica Municipal Code Section 6.14:040 is hereby amended
to read as follows:
Section 6.14.040. Recreation and Entertainment Activities
Requiring Police Permits.
The following recreation and entertainment activities require a police
permit:
(a) Arcade. Any general enclosure in which is operated or exhibited
any skee ball, bowling, video game, or any other amusement instrument,
game, device or machine.
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(b) Bowling, Billiard and Pool Halls.
(c) Dance Hall. A place where the business of holding or conducting
public dances is regularly carried on and where a fee is charged. For
purposes of this Code, a dance hall does not include a place where dancing
is held or conducted at an otherwise lawful bar or restaurant even though a
fee or cover charge may be required.
The holder of a license to conduct the business of a public dance hall
shall not be required to procure any additional license to conduct a dancing
academy in the event that such dancing academy is conducted at the same
location and under the management of said public dance hall. The licensee
or his or her agent shall employ the number of police officers deemed
necessary by the Chief of Police to properly preserve the public health,
peace and safety in said dance hall during the hours said dance hall is open.
Each police officer so employed shall be paid the maximum prevailing wage
for special work as established by the City Council. The police officers shall
be under the direction and control of the Chief of Police. Restrictions on
operating a public dance hall are set forth in detail in Chapter. 6.84, Sections
6.84.010 through 6.84.180 of Article 6 of this Code.
(d) Fortune Telling. Except upon the Santa Monica Pier, or along
Ocean Front Walk in the RVC District or along Santa Monica Boulevard and
Lincoln Boulevard in the C4 District where, if duly licensed under the
provisions of this Code, a person may engage in fortune telling for
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amusement purposes, no person shall carry on, practice or profess to
practice the business or art of astrology, palmistry, phrenology, life reading,
fortune telling, cartomancy, clairvoyance, clairaudience, crystal gazing,
mediumship, oriental mysteries, spirit photography, spiritwriting, spirit voices,
spirit materialization, etherealization, numerology, physiognomy,
psychometry, seership, prophecy, augury, divination, magic or necromancy,
or other similar art or business, and demand or receive directly or indirectly, a
fee or reward, or accept any donation for the exercise or exhibition of this art
therein, or give an exhibition thereof at any place where an admission fee,
donation or reward is charged or received, directly or indirectly.
(1) Prohibited Acts. No person shall, by means of occult or psychic
powers, faculties, or forces, spirits, cards, talismans, charms, potions,
magnetism, or magnetized articles or substances, oriental mysteries or any
craft or art described in the preceding subsection purport to or find or restore
lost or stolen property, locate oil wells, gold or silver or other ore or metal or
natural product, restore lost love or friendship or affection, unite or procure
lovers, husbands, wives; lost relatives or friends, or by such means give any
counseling or advice whatsoever, and demand or receive directly or indirectly
a fee or reward or accept any donation therefor.
(2) Advertising Illegal Acts. No person shall advertise by sign,
circular, handbill, or in any newspaper, periodical or magazine, or other
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publication or publications, radio, television, or by any other media or means,
that he or she will do anything which is prohibited by this subsection.
(e) Rides--Manual, Electrical or Mechanical Operated.
(f) Shooting Gallery.
(g) Skill Games, Machines, and Amusement Devices. Manual
games of skill, mechanical and electrical machines, pool tables, shuffle
alleys, bowling, video, or similar games of amusement or skill.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary to
effect the provisions of this Ordinance.
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court
of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would have passed this
Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
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SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within 15 days after its adoption. This Ordinance shall become effective 30
days from its adoption.
APPROVED AS TO FORM:
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