SR-11-26-2013-7ECity Council Meeting: November 26, 2013
Agenda Item: J E
To: Mayor and City Council
From: Gigi Decavalles- Hughes, Director of Finance
Subject: Introduction and First Reading of an Ordinance amending Chapter 6.112
of the Santa Monica Municipal Code Related to Street Performers'
Conditions for Permit Suspension or Revocation and Lottery System to
Perform on the Pier
Recommended Action
Staff recommends that the City Council introduce for first reading an ordinance
amending the conditions related to the suspension or revocation of a street performance
permit and lottery to perform on the Santa Monica Pier.
Executive Summary
Street performance at certain crowded locations in the City is subject to a permitting
requirement that is administered by the Finance Department. A permit is only required
if the performance is to take place on the Third Street Promenade, the Pier, or the
Transit Mall, and only when those very popular, relatively small and physically
constrained spaces are subject to crowding. Local law requires a minimum of two
offenses of the Chapter of the Santa Monica Municipal Code that governs performance
permits to suspend or revoke a performer's permit, even if one of the offenses is severe.
Council's approval of staff's recommendation would allow the Police Department, Code
Enforcement, and Finance Department staff to more effectively address street
performance issues that have a potential public safety impact by amending the SMMC
to allow for the revocation or suspension of a permit after a single violation, depending
on the severity of the violation.
Local law also establishes special regulations for the Santa Monica Pier, which includes
running a lottery system to allocate performance locations. This system is intended to
provide performers fair and equal opportunity to perform, while at the same time
ensuring that circulation on the Pier's limited deck space is not compromised. However,
local law does not explicitly require performers to abide by the results of the lottery, nor
does it specifically ban the sale or transfer of the temporary lottery allocation permit.
Staff recommends amending the Santa Monica Municipal Code to provide more specific
regulations relating to the Pier lottery in order to address these concerns.
Background
The City has encouraged and only minimally regulated street performance for more
than 20 years, beginning in 1989, when the Council adopted Ordinance No. 1495 CCS.
Among other things, it regulated the location of street performance on the Third Street
Promenade in order to ensure that performances did not obstruct pedestrian circulation
and thereby impair public safety. The Council determined that regulation of street
performance was necessary to protect public safety because space on the Promenade,
the Pier, and sidewalk areas of the Transit Mall are very limited, and performers tend to
attract stationary crowds that block passage.
In the twenty -four years since the first regulations were adopted in 1989, the City's
street performance and related laws have been revised many times. For example, in
August of 1991, street performance regulations were modified by the addition of new
public safety requirements prohibiting the use of dangerous objects in performances,
and the construction of stages that would obstruct circulation.
In 1992, a task force including performers and representatives of the Bayside District
Corporation formulated and recommended various changes to the law, such as the
creation of a permitting system. Amendments adopted in 1993 responded to that
recommendation by establishing a permit requirement.
In 1999, the Council again modified the street performance laws to address congestion
problems on the Promenade and Pier and thereby protect public safety. Additional
amendments were adopted in 2001 to, among other things, extend performance
regulations to the Transit Mall.
In 2003, laws were amended to, among other things, establish a lottery system favored
by performers for the Pier, and protect circulation and safety by revising spacing
requirements on the Promenade and Transit Mall. Later that year, the laws were
modified to increase performance opportunities on the Pier by increasing the number of
designated performance spaces. In 2004 the laws were again amended to, among
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other things, add additional regulations related to noise and the placement of objects on
the public sidewalks and streets to reduce the impact on the free flow of pedestrian
traffic.
On October 13, 2009, a study session was conducted in response to Berger v. Seattle,
563 F.3d 1029 (2009), where the Ninth Circuit Court of Appeals decided that Seattle's
performance permit requirement violated the First Amendment. Though the facts of that
case differed significantly from Santa Monica's, staff was concerned that the Seattle
decision might call into question the validity of Santa Monica's performance permit
requirement. After considering the various issues raised during the Study Session,
Council directed staff to return with an ordinance narrowing the City's permit
requirement but retaining it for the purpose of protecting public safety in the City's most
confined and crowded public spaces: the Pier, the Promenade and the Transit Mall.
At its December 8. 2009 meeting, staff returned with a recommended ordinance, and at
its January 19, 2010 meeting, the Council adopted further modifications to the
permitting requirements eliminating the need for permits on public sidewalks, save for
certain congested hours and only at the Pier, the Promenade and the Transit Mall.
Finally, at its December 7. 2010 meeting, the Council approved additional safety
regulations, including prohibiting convicted sex offenders from undertaking certain
activities,. including performances that attract children.
Discussion
Today, street performance in certain congested areas of the city is subject to a
permitting requirement that is administered by the Finance Department. A permit is only
required if the performance is to take place on the Third Street Promenade, the Santa
Monica Pier (Pier), and the Transit Mall, and only during hours when those very popular,
relatively small and physically constrained spaces are subject to significant crowding.
Street performers enliven these public spaces and help attract visitors to Santa Monica,
but their equipment and performances also impact and impair pedestrian circulation.
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Thus, the City's challenge has been to keep these special spaces both successful and
safe by continuing to both attract and protect large crowds.
Suspension or Revocation
Section 6.112.040 (e) of the Santa Monica Municipal Code (SMMC) requires a minimum
of two performance- related offenses of the SMMC to suspend or revoke a performer's
permit, regardless of the severity of the first offense even if one of the offenses is
severe, such as falsifying information on an application. This provision does not take
into account that, in some cases, a single violation of the SMMC could warrant
revocation or suspension of the performer's permit. For example, in a recent case, a
performer falsified his application by indicating "no" to the question of whether or not he
was a registered sex offender. This offense constituted only the first violation of the law,
not the second, and therefore limited the options available to staff to address this issue.
Staff recommends amending the SMMC to allow for the revocation or suspension of a
permit after a single violation, depending on the severity of the violation. Staff would
update the Notice of Violation Processing and Suspension /Revocation of Performance
Permit Administrative Instruction II -4 -9, which is currently in place, to account for this
change and to ensure consistency in the enforcement of these provisions. Staff
anticipates that the revised Administrative Instruction would provide more specific
guidance on the types of offenses that would warrant a one - violation
suspension /revocation. It is expected that only serious offenses (e.g. offenses having
significant public safety consequences) would qualify for a one - offense
revocation /suspension. Any persons charged with permit suspension or revocation
would be entitled to a full administrative hearing, as provided by existing law.
Furthermore, Chapter 3.74 of the SMMC prohibits any individual who has been
convicted of a sexual offense against a minor from performing on public property in
order to entice a minor. Although a person could be cited for violating section 3.74 of
the SMMC, under current law, there would be no impact on the person's performance
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permit. Staff recommends clarifying Chapter 6.112 to include any violation of Chapter
3.74 of the SMMC as grounds for suspension or revocation of a performance permit and
providing the Police Department with the authority to conduct a background check on all
applicants for a performance permit to determine if the person is a registered 'sex
offender. Combined with the recommendation above, this recommended amendment to
the SMMC would provide staff with the authority to revoke or suspend a performance
permit for a single violation of Chapter 3.74 of the SMMC, in addition to the current
authority to issue an administrative citation or criminal prosecution.
Santa Monica Pier Lottery
Section 6.112.050 of SMMC establishes special regulations for the Pier, including
running a lottery system to allocate performance locations. The lottery is intended to
provide performers a fair and equal opportunity to perform, while at the same time
ensuring that circulation on the Pier's limited deck space is not compromised. This
system is necessary because the Pier is very confined. The distance between the Pier
rails is as little as 35 feet. Moreover, ingress and egress are severely restricted. There
are no exits for the seaward 540 feet of the Pier's length. Thus, it is very difficult to
maintain ingress, egress and emergency access when the Pier is crowded.
The Pier currently conducts three lotteries per day to award performers with the location
and authorization to perform on the Pier. The authorization to perform on the Pier
serves as a temporary permit until the next lottery. Pier staff has encountered
performers who do not abide by the results of the lotteries. Although staff has worked to
address these violations within existing law, Section 6.112.050 of SMMCC does not
explicitly require performers to abide by the results of the lottery. Therefore, staff is
recommending that Council clarify the requirement to comply with the lottery results,
which would allow staff to address performers who violate the results of the lottery in a
more effective and efficient manner.
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Additionally, Chapter 6.112 does not specifically ban the sale or transfer of the
temporary permit granted by the lottery system to perform on the Pier. Pier staff has
reported that performers participating in the lottery have in some cases opted to sell the
authorization they were awarded through the lottery system to other performers. This
runs contrary to the spirit and intention of the lottery, which is to provide a fair and equal
opportunity to perform. Pier staff is creating administrative regulations to prohibit the
selling or transferring of a "temporary permit' acquired through the lottery. Should a
performer choose to forfeit their place obtained by the lottery, that place should be
awarded by the lottery system, not an underground market- place.
Financial Impacts & Budget Actions
There is no immediate financial impact or budget action necessary as a result of the
recommended action.
Prepared by: Salvador M. Valles, Business & Revenue Operations Manager
Approved:
fopigi Decavalles- Hughes
Director of Finance
Attachment:
A. Ordinance
Forwarded to Council:
Rod Gould
City Manager
City Council Meeting: November 26, 2013 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 CHAPTER 6.112 CLARIFYING
STREET PERFORMANCE PERMIT REGULATIONS AND RULES GOVERNING THE
STREET PERFORMANCE LOTTERY SYSTEM FOR THE PIER.
WHEREAS, street performers enrich the ambiance of Santa Monica's unique and
stimulating public spaces, and their presence in the City's most popular spaces reflects
Santa Monica's commitment to the arts and to the free exchange of ideas; and
WHEREAS, despite their value to the community, street performance occurring
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on crowded public thoroughfares can jeopardize public safety and welfare by blocking
traffic, impairing emergency ingress and egress, creating unfair competition and
adversely affecting aesthetics; and
WHEREAS, the City of Santa Monica has worked since the late 1980's to create
and refine street performance laws which recognize performers' value to the
community, respect constitutional rights, protect the free flow of pedestrian traffic and
the safety of residents, workers, and visitors in crowded public places, shield local
businesses from unfair competition, and presence the aesthetic qualities of public
spaces; and
WHEREAS, in order to address the needs and concerns of the City's residents,
performers, visitors, merchants, and public safety personnel, the City has undertaken
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revisions to its performance and vending laws many times since they were first adopted;
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WHEREAS, a street performer's permit may be suspended, revoked or denied, if
the performer violates applicable laws or regulations; and
WHEREAS, in certain cases of serious performance violations, such as violations
that significantly affect public safety, prompt enforcement action (e.g. permit
suspension, revocation or denial) must be taken to protect public safety while at the
same time ensuring that the performer's constitutional rights are protected; and
WHEREAS, the Pier is a long, narrow space, only 35 feet wide at some points,
with ingress and egress at only one end; and
WHEREAS, the City conducts three lotteries per day to allocate performance
locations on the Pier; and
WHEREAS, the lottery provides performers fair and equal opportunity to perform,
while at the same time ensures that circulation on the Pier's limited deck space is not
compromised; and
WHEREAS, disruptions of or disregard for the lottery process undermines this
public process, deprives law abiding performers with fair and equal opportunity to
perform and jeopardizes public safety.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Section 6.112.040 is hereby
amended to read as follows:
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6.112.040 Performance permit.
(a) To receive a performance permit, a person must complete and file with the
City a performance permit application on a form approved by the City. The applicant
must provide the following information:
(1) The applicant's name;
(2) The applicant's address;
(3) Proof of the identity of the applicant. This identification must contain a
photograph of the applicant. Acceptable forms of identifications shall include, but not be
limited to, a driver's license, student identification card, or passport;
(4) A detailed description of the nature of the act to be performed;
(5) A detailed description of any instrument(s) or prop(s) which will be used by
the performer(s);
(6) A minor under the age of sixteen shall provide a copy of an entertainment
work permit issued to the minor by the Department of Industrial Relations of the State of
California and shall identify the responsible adult(s) who will be with the minor at all
times that the minor is performing;
(b) The performance permit will be issued annually commencing on January 1st
of each calendar year;
(c) Upon receipt of a written application for a performance permit, a
performance permit shall be approved within three business days of the filing of a fully
completed application, unless one of the following findings is made:
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(1) The applicant has knowingly made a false, misleading, or fraudulent
statement of fact to the City in the application process;
(2) The application does not contain the information required by this Chapter;
(3) The applicant has not satisfied the requirements of this Chapter.
(d) In addition to requiring compliance with all provisions of this Chapter, the
City may condition the approval of a performance permit on the applicant's
compliance with other provisions of the City's Municipal Code which are applicable to
the performance.
(e) The City may revoke or suspend a performance permit upon the
commission of the second violation either of this Chapter, Chapter 3.74 of this Code, or
of permit conditions within a six -month period or one violation of the same if the
violation posed serious risks to public safety, or one violation relating to a false
misleading or fraudulent statement of fact in the performer's permit application. In any
such case, the permit holder shall have the right to appeal from a decision of the City to
revoke or suspend any permit in accordance with Chapter 6.16 of this Code. A
performer's permit may be suspended for up to four months. If the performance permit
of any performer is suspended, no new permit shall be issued during the period of
suspension. Notwithstanding the above if a performer's permit is suspended as a result
of a false misleading or fraudulent statement of fact in the performer's permit
application the permit shall not be reinstated until the false misleading or fraudulent
statement is corrected by the performer. Any revocation of a performer's permit shall be
for six months unless the performer previously had a performance permit revoked and
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the new violations of this Chapter or permit conditions relate to public safety, in which
case, the permit shall be revoked for twelve months. No new permit shall be issued
during a revocation period. The City may shaA establish administrative regulations
guidelines to assist in the implementation of this Section.
(f) No application for a performance permit or the renewal thereof shall be
accepted unless the application is accompanied by a payment of a nonrefundable
annual fee in an amount to be set by resolution adopted by the City Council.
(g) The performance permit shall include a photograph of the performer, shall
not be assignable or transferable, and shall contain the permit number of the applicant
and the year in which the permit expires. Each performer in a group shall obtain his /her
own separate performance permit.
(h) A replacement performance permit may be obtained upon payment of a
nonrefundable fee in an amount to be set by resolution adopted by the City Council.
(i) A performer shall clearly display his or her permit while performing, and shall
allow inspection of the permit by any City police or fire official on request.
(j) The City Council may by resolution adjust the noise limitations established in
this Chapter during public holidays.
(k) When an applicant requests a performance permit application, the City shall
also give the applicant a document which summarizes the rules and regulations
concerning street performances in the City. This document may be, but is not required
to be, a copy of this Chapter.
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SECTION 2. Santa Monica Municipal Code Section 6.112.060 is hereby
amended to read as follows:
6.112.060 Special regulations for the Pier.
In addition to the requirements of Sections 6.112.030 and 6.112.040, no
performer shall perform on the Pier outside of an enclosed building in violation of the
following requirements:
(a) Except as provided in subsection (d) of this Section and subsection (q) of
Section 6.112.030, no performer shall perform except during the following time periods:
(1) Eight a.m. Monday through Thursday to one a.m. of the following day.
(2) Eight a.m. on Friday to one a.m. the following Saturday.
(3) Nine a.m. on Saturday and Sunday to one a.m. of the following day.
(b) No performer shall perform within sixty feet of any special event authorized
by the City.
(c) No performer shall:
(1) Perform after 1:00 p.m. at the same location that he /she was performing
prior to 1:00 p.m. or within one hundred fifty feet of that location.
(2) Perform after 4:00 p.m. at the same location that he /she was performing
prior to 4:00 p.m. or within one hundred fifty feet of that location.
(3) Perform after 7:00 p.m. at the same location that he /she was performing
prior to 7:00 p.m. or within one hundred fifty feet of that location.
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(4) Perform on the Pier in any specific location or within one hundred fifty
feet of that location for more than three hours in any six -hour period. The time required
to set up and to remove any instruments, props, equipment, or other items shall be
considered part of the performance for purposes of this subdivision.
(5) Perform within fifty feet of any other performance or any vendor when
performing in the General Performance Area.
(6) Perform within thirty -five feet of any other performance or any vendor
when performing in the Center Performance Area or the Breezeway Performance Area.
(7) Perform at a distance greater than ten feet from the north railing of the
Pier when performing in the Center Performance Area.
(8) Perform at a distance greater than ten feet from the north or south
railings of the Pier when performing in the Breezeway Performance Area.
(9) Perform at a distance greater than seven and one -half feet in either an
east or west lateral direction from one of the stars that the City has painted on the Pier
surface to effectuate the spacing requirements of this Section and to ensure that the
maximum number of performance locations are provided consistent with spacing
requirements. A lottery or voucher system may be implemented to allocate performance
locations and ensure that all performers participating therein have a fair and equal
opportunity to perform or obtain preferred performance locations. At the times that a
lottery or voucher system is implemented, the distance requirement of subsection (c)(1)
through (4) of this Section shall not apply. Administrative Regulations guidelines may be
established by the City to specify additional requirements, including the conduct and
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timing of the lottery or voucher system, the maximum time period and location in
advance of the lottery or voucher distribution that the performers can line up, and the
duration of the permit, consistent with the provisions of this subsection (c)(9) of this
Section and any other relevant provisions of the Municipal Code.
(10) Fail or refuse to comply with the City's administrative regulations.
(11) Disrupt or impede the City's operation of the lottery.
(d) Notwithstanding subsection (a) this Section, no performer shall perform in
the General Performance Area, which is adjacent to the Carousel Building, except
during the following time periods:
(1) Eight a.m. to ten p.m. Monday through Thursday.
(2) Eight a.m. to twelve a.m. (midnight) on Friday.
(3) Nine a.m. to twelve a.m. (midnight) on Saturday.
(4) Nine a.m. to ten p.m. on Sunday.
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.
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:
MAR A JONES M UTRIE ~4'
City Attorney
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