SR-703-015
Council Meeting: August 9, 2005Santa Monica, California
To: Mayor and City Council
From: City Staff
Subject: Direct City Attorney to Prepare an Ordinance Restricting the Distribution of
Commercial Product Samples and Promotional Materials on Public
Property to the Santa Monica Pier and the Bayside District.
Introduction
This report recommends that the City Council direct the City Attorney to draft an
ordinance clarifying the authority of the Pier Restoration Corporation (PRC) and the
Bayside District Corporation (BDC) to issue permits for sampling and similar
promotional activities on the Pier and in the Third Street Promenade.
Background
A wide range of commercial enterprises wish to promote their products on the Pier and
Promenade by distributing free samples or promotional materials either from tables or
stands or by paying pedestrian employees to hand out the products or materials to other
pedestrians. Companies favoring this marketing approach range from purveyors of
bubble gum and deodorant to wireless phone and internet companies.
At present the City?s services agreements with the BDC and PRC both permit those
entities to manage product sampling. However, the Zoning Code does not authorize
doing business outdoors unless the business is specifically permitted, and product
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sampling is not. Sampling might also be viewed as an unauthorized form of vending
under the Municipal Code?s definition of vending. SMMC Section 3.36.020(c).
Accordingly, the City Attorney has suggested that staff seek clarification from Council as
to its preference for City policy on sampling on the Pier and Promenade.
Discussion
The Resource Management Department, which serves as liaison to the PRC and BDC,
believes that product promotions and sampling can enhance the visitor?s experience in
these popular venues. Moreover, they also have the potential to generate revenue for
the PRC and BDC which they may use to support other activities.
However, proper management is essential. A permitting process provides a means of
ensuring that samplers comply with rules and regulations, provide set up and break-
down plans which identify where and when they will be working, and submit evidence of
insurance. Absent these safeguards, commercial sampling can become a public
nuisance by generating litter, impairing aesthetics and creating unfair competition with
leased stores. It can also impact safety by impeding the free flow of pedestrian traffic
and emergency ingress and egress. Moreover, it may expose the City to legal risks,
including jeopardizing other regulatory systems.
The PRC has successfully experimented with managing a sampling program for the
Pier. Its permitting process includes operating procedures which promoters must follow
to protect public access and enjoyment of the Pier and to protect against conflicts with
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other stakeholders, including tenants, licensed vendors and street performers. The
PRC permit instructs the promoter how, when and where they can promote their goods
or services. Depending upon the nature of the promotion, the promoter may be asked
to provide a security deposit to cover clean-up costs. All permittees provide certificates
of insurance indemnifying both the PRC and the City.
The BDC would like express authorization to operate a similar program on the
Promenade. At present there are unauthorized promoters who locate temporary
operations on or near and Promenade, creating litter, congestion and conflicts with local
businesses.
The Municipal Code may be amended to expressly authorize commercial product
sampling on the Pier and Promenade only. The activity could be expressly prohibited in
other public spaces, including parks, where commercial activity is inconsistent with the
purpose of the space, and streets, where product sampling may interfere with the flow
of traffic and cause litter.
Budget/Financial Impact
There is no Fiscal Impact to the City. Permit fees charged by the Bayside District
Corporation and the Pier Restoration Corporation to manage the location, time and
manner of events including product sampling in their areas accrue to those
organizations.
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Recommendation
Staff recommends that Council direct the City Attorney to draft an ordinanceto restrict
the distribution of commercial product samples and promotional materials on public
property to the Santa Monica Pier and the Bayside District.
Prepared by: Jeff Mathieu, Director of Resource Management
Miriam Mack, Economic Development Manager
Elana Buegoff, Sr. Administrative Analyst
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