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SR-02-27-2007-7C f) _ J City of . Santa Monica" City Council Report City Council Meeting: February 27,2007 Agenda Item: :::r c- To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Introduction for First Reading of an Ordinance Regulating Sampling on the Pier and Third Street Promenade Recommended Action Staff recommends that the City Council introduce for first reading the attached, proposed ordinance clarifying that permits are required to conduct sampling activities on the Pier and Third Street Promenade and that the Pier Restoration Corporation and the Bayside District Corporation may authorize temporary sampling activities pursuant to their services agreements with the City and on certain conditions which protect the public safety and welfare. Executive Summary The City Council has directed staff to prepare an ordinance on sampling. The attached, proposed ordinance would clarify that the Bayside District Corporation (BCD) and the Pier Restoration Corporation (PRC) have the authority to authorize temporary sampling activities on the Third Street Promenade and Pier, respectively. 1 Discussion As reported to the City Council last year by the Resource Management Department, a wide range of commercial enterprises seek to promote their products on the Pier and the Third Street Promenade by distributing free samples or promotional materials from tables or stands or by utilizing pedestrian employees to hand out their products or materials to other pedestrians. Services agreements with the BDC and PRC permit both of those entities to manage product sampling. However, the Municipal Code has, in the past, been interpreted to prohibit sampling as unlawfully conducting business outdoors. Moreover, sampling might also be viewed as unauthorized vending. Accordingly, Resource Management staff sought clarification from the Council of its policy preference on sampling. The Council considered the matter and voted to expressly allow sampling on the Pier and Promenade subject to licensing or permitting requirements. The attached, proposed ordinance would provide the necessary clarification. It would authorize sampling on the Promenade and Pier subject to permit or license conditions ensuring compliance with applicable laws and protection of pedestrian traffic, emergency ingress and egress, access to buildings and services, and aesthetics. When it considered sampling last year, the Council also voted to prohibit sampling on other public property. Because the Zoning Code already prohibits doing business outdoors in the City without specific legal authorization, that prohibition may already be in place. Moreover, the Council can consider making a general prohibition against 2 sampling explicit when the Code is updated in conjunction with the update to the Land Use and Circulation Elements of the General Plan. For the time being, sampling on property other than the Pier and Promenade is apparently not a problem. Alternatives The Council could decline to approve the proposed ordinance, in which case the possible conflict between the services agreements with the BDC and PRC and the Municipal Code would remain unresolved. Budget/Financial Impact There would be no direct fiscal impact to the City attendant upon the adoption of the proposed ordinance. Permit or license charges for sampling would be paid to the BDC and PRC to help cover the expenses of administering the program and to generate revenue to support their other work. Prepared by: Marsha Jones Moutrie, City Attorney Approved: Forwarded to Council: amont Ewell ity Manager 3 f:\atty\muni\laws\mjm\sampling-1.doc City Council Meeting 2-27-07 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA ADDING SECTION 6.36.110 TO THE SANTA MONICA MUNICIPAL CODE RELATING TO SAMPLING ON THE PIER AND PROMENADE WHEREAS, Santa Monica's Third Street Promenade and the Pier are popular public spaces offering a variety of recreational and commercial opportunities for residents and visitors; and WHEREAS, because these spaces attract large crowds, many businesses seek to conduct sampling activities there; and WHEREAS, sampling activities yield economic benefits and enliven these spaces; and WHEREAS, unless regulated to protect the free flow of pedestrian traffic, emergency ingress and egress, access to buildings, and aesthetics, sampling activities may impact public safety and welfare; and WHEREAS, requiring sampling permits, issued by the Bayside District Corporation and Pier Restoration Corporation pursuant to their Services Agreements 1 and in keeping with the terms of this Ordinance, will avert risk to public safety and welfare, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 6.36.110 is hereby added to the Santa Monica Municipal Code to read as follows: Section 6.36.110. Sampling on the Pier and Third Street Promenade. No person may engage in the activity of distributing samples of goods, wares, merchandise, products or services on the Municipal Pier, Newcombe Pier or Third Street Promenade without a permit or license from the Bayside District Corporation or Pier Restoration Corporation issued in accordance with the corporation's Services Agreement with the City. Any such license or permit shall be conditioned so as to ensure compliance with applicable laws and to protect the free flow of pedestrian traffic, emergency ingress and egress, the aesthetic qualities of these public spaces, and public access to all businesses and services. SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such 2 inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 3. 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 4. 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: u 3