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SR-410-001-02 (6) J( f:\atty\m u ni\strpts\mjm\pie rperformance. wpd City Council Meeting 7-24-01 Iq JUL 2 ~ . Santa Monica, California TO: Mayor and City Council FROM: City Staff SUBJECT: Report on Conditions on the Pier and Proposals for Revisions to Street Performance Regulations and Proposed Emergency Ordinance and Resolution Revising Street Performance Regulations on the Pier I ntrod u ctio n At its meeting on July 10, 2001, the City Council received suggestions from the Pier Restoration Corporation and from the Fire, Police and Resource Management Departments for modification of Municipal Code provisions governing the time, place and manner of street performance on the Pier. The Council directed legal staff to evaluate these proposals and provide Council with recommendations and a proposed emergency ordinance. This staff report and the accompanying proposed ordinance fulfill that directive. The report also notes policy issues which the Council may opt to address. Backqround Safety personnel from both the Police and Fire Departments, the performance Monitor, Pier Restoration Corporation staff, and others have reported that crowding on the Pier poses a significant problem. Crowds are large, particularly during this time of year. The 1 76 JUl2~ . flow of pedestrian and vehicular traffic is often severely obstructed, particularly in the central area of the Pier. The reports indicate that unacceptable congestion results from a combination of factors. A primary factor is the Pier's unique physical characteristics. It is a long narrow space with ingress and egress at only one end. At some points, particularly in the central Pier, pedestrians and vehicles use the same "roadway." The wooden surface is more uneven than a standard sidewalk or roadway. Moreover, a wooden "curb," which separates a walkway adjacent to business from the "roadway," stands several inches above the surrounding surface. The presence of a large and growing number of street performers greatly increases congestion. Some performers are working and entertaining the crowds which stop and gather around them. Others wait in the immediate area with their equipment and paraphernalia for space to work. Present spacing requirements allow performers to work on both the north and south sides of the Pier. Reports indicate that they set up on both the north and south sides at staggered intervals to meet the 35-foot separation requirement. Crowds gather around them in rings, the rings overlap and intertwine, and gridlock results. This situation is exacerbated by the fact that many of the performers who frequent the Pier set up tables and chairs. Safety personnel have expressed concern that, in time of emergency, the situation could become hazardous. Safety risks could be significant if it became necessary to move 2 emergency vehicles on and off the Pier or to evacuate and close the Pier. Both situations have occurred in recent years. Therefore, to plan adequately for preservation of public safety, the City must assume they may occur again. I n order to address these concerns, continue to allow street performance on all parts of the Pier road and walkways, and preserve the present mix of entertainments and opportunities for Pier visitors, the PRC and City staff submitted suggestions to Council for amendments to the laws governing performance on the Pier. These suggestions were formulated after a public process conducted by the PRC and were presented at the last Council meeting. Basically, the PRC made three suggestions: (1) implementing a lottery for performance spaces in the central area of the Pier on summer days, weekends and holidays; (2) extending late night hours by three hours on Sunday and one hour on all other nights; and (3) reducing present spacing between vending carts and performers from 35 to 25 feet. City and Resource Management personnel submitted an initial response to these suggestions. Preliminarily, they agreed with the concept of a lottery. However, they recommended that it apply to the entire Pier and be in effect at all times, in order to minimize confusion. As to hours, they agreed to the proposed extension. As to spacing, they agreed, in order to achieve consensus, that the requirement should be reduced from 35 to 25 feet notwithstanding congestion. Since the Council meeting of July 10th, Chief Hone, the Fire Marshal, and police personnel have done additional work on these issues, including a safety analysis and conducting 3 meetings with City personnel, the Monitor and vending cart operators. The result is a modified proposal from City staff, intended primarily to protect public safety while maintaining both street performance and the City cart program on the Pier. Under this proposal, performance would be allowed in the central Pier area on the north side of the Pier only. Performers would be required to work within 10 feet of the north rail and to be spaced 50 feet apart. On the narrow western portion of the Pier (known as the Breezeway), performers would be allowed to work within 10 feet of both the rails. At both ends of the Pier there would be general performance zones. A layout for this plan drawn to scale is attached to the resolution which accompanies this report. In conjunction with this plan, City carts could be grouped in pairs (a concept that the cart operators have approved). Apart from possible pairing, carts would be restricted in a manner similar to performers. The separation requirement between carts and performers would remain at 35 feet. Additionally, Chief Hone and representatives of the Police Department propose, in lieu of a lottery, one rotation perday at 4:00 p.m. This time was selected because it is during a lull which occurs between afternoon and evening crowds. Also, it would allow for two, approximately equal shifts for performers. Discussion Legal staff has evaluated the various proposals to assess whether they comport with First Amendment requirements and other legal constraints. The issues of spacing, rotation, and 4 penalties are discussed in this section. Other issues, which apply to both the Pier and Promenade area are also noted, including whether penalties should be changed and whether henna tattooing should be prohibited as a personal service. As to spacing, legal staff concurs with the present proposal from Fire and Police personnel because it is intended to protect public safety by maintaining the free flow of traffic and to ensure that emergency vehicies and the public have adequate ingress and egress from the Pier. Requiring performers to work near the north rail only in the central area will ensure that the south side of roadway remains available for traffic circulation. There will be an overall diminution in the number of spaces legally available to performers. Chief Hone calculates that space currently exists for 33 performers and that, underthe proposal, there would be space for 22. On the other hand, performance hours would be extended and opportunities would be maximized through rotation. From a legal perspective, this proposal is not problematic. The City is entitled to regulate the time, place and manner of performance in order to preserve public safety. Moreover, the City has an obligation to keep public spaces safe. If the City were to allow dangerous conditions to arise on the Pier in order to facilitate performers' demands for maximum space, people could be injured and the City could incur liability in the event of injury in a time of emergency or accident. The fact that very large crowds congregate in the more ('lof"\nfinon !:lIro!:ll~ nf tho Dior i~ \Aloll knf'\\Aln- !:linn rO!:llnil\J nornnn~tr!:llhlo i:rnn'\!l 101"1 !J I ....,....,111111....,"" ......1....,......"'" .....,1 "'I"'" I '....,1 I.... YI'_II I"II_I'YII ......11"" 1-......"""1 __II......,..OJ..I............_. . 1_'1' "" '_~10.4' perspective, the City must address this situation to ensure safety. Creating three different performance zones on the Pier to reflect differing physical realities and traffic patterns is 5 a reasonable approach which will protect safety while preserving performance opportunities on all parts of the Pier. As to rotation, the present proposal from safety personnel probably comports with legal constraints. Requiring performers to rotate increases performance opportunities by preventing individual performers from monopolizing any particular space. Moreover, requiring performers to move at least once a day reduces the likelihood that they will obstruct the Pier with excessive paraphernalia. Additionally, and perhaps most important from a practical perspective, requiring rotation helps ensure that street performance on the Pier will be varied and therefore entertaining to visitors. If experience shows that the proposed rotation system proves to be inadequate or problematic, the City could opt for a more restrictive lottery system based on that evidence. Performance hours are not a legal issue. However, the Council may wish to consider possible impacts on neighbors. The ordinance which is attached would implement the current proposal by safety personnel. As to the Pier, it would: (a) create three performance zones on the Pier; (b) create new spacing requirements for each zone; (c) require one rotation on the Pier per day at 4:00 p.m.; and (d) extend late night performance hours. 6 As to the policy question of penalties, the Council has previously considered whether violations should be misdemeanors or infractions. In the past, the Council decided that violations should be handled administratively and that criminal sanctions should be as mild as possible. Additionally, the Presiding Judge has requested consideration of the fact that a misdemeanor charge entitles a defendant to a jury trial, which can be quite time consuming for the court given the nature of the offense. Recently, safety personnel have raised a new concern: sometimes a violation creates an immediate safety hazard. If the police officer only has the power to issue a citation, the violation may continue. In contrast, if a violation is a misdemeanor, the officer has the option of removing the performer (through arrest) and thereby ending the hazard. Based upon the evidence that the present system is sometimes insufficient to maintain safety, legal staff recommends making certain violations misdemeanors. The other policy question is whether henna tattooing should be prohibited. The basis for the change would be that tattooing is, in fact, a personal service and other personal services cannot be undertaken in public space as "performance". Two other issues have also been raised. The first involves how the spacing requirements apply to "Heartland Vendors". As presently worded, the requirements appear to suggest that a Heart!and Vendor can, by situating his or her own table, cause performers who are already working to be in violation of spacing requirements. The second issue relates to the transit mall, and the present rotation requirement for the Promenade which requires 7 rotation on a north-south axis. Obviously, the axis would need to be east-west for the Transit Mall. These two concerns can, for the time being, be addressed administratively. Corrections to the law can be made with the next set of amendments. FinancialfBudqet Impact No direct financial impact is anticipated. Recommendation Staff recommends that the Council adopt the attached emergency ordinance and provide policy direction on the issue of penalties and henna tattooing. PREPARED BY: Marsha Jones Moutrie, City Attorney Barry Rosenbaum, Senior Land Use Attorney 8