SR-410-001-02 (6)
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City Council Meeting 7-24-01
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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