SR-072308-7D~~r
c;cvor City Council Report
Santa Monica
City Council Meeting: July 23, 2008
Agenda Item: ~"~
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Proposed Ordinance Prohibiting Soliciting Donations From Benches On
The Third Street Promenade
Recommended Action
Staff recommends that the City Council approve the attached proposed ordinance which
would help promote shared use of the street furniture in the Third Street Promenade by
prohibiting soliciting donations from chairs and benches in the Promenade.
Executive Summary
Representatives of both the Bayside District Corporation and the Police Department
have reported that the use of chairs and benches on the Third Street Promenade is
often monopolized by persons soliciting donations. That use tends to be protracted,
with the result that persons who need to use the benches and chairs for their intended
purpose of temporary respite are unable to do so. Accordingly, to ensure shared use of
these public facilities, staff recommends adoption of the ordinance.
Background
At the Council. meeting of February 26, 2008, staff requested direction as to whether an
ordinance should be prepared prohibiting soliciting from benches and chairs in the
Promenade. Council voted, unanimously, to have the ordinance prepared for its
consideration. Staff's understanding is that, since then, the Bayside District Corporation
Board voted that it would not support such an ordinance but would support an ordinance
prohibiting soliciting from all chairs and benches on all. sidewalks in the District.
Discussion
The Third Street Promenade is a unique and uniquely popular public space. It attracts
the largest crowds in the City. On summer weekends there may be more than five
thousand and as many as ten thousand people in each of the Promenade's three, long
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blocks: Street furniture is very limited: It provides seating for only about 100 people.
And, many of the Promenade's visitors have special needs for respite, including the
very young, the elderly and the disabled. However, the Promenade's limited seating is
often unavailable to them and to others because it is being monopolized by persons
who use it for hours at a time for the purpose of soliciting donations.
In an update submitted to Council at its meeting of May 13th, staff and a consultant
reported that one type of solicitation, panhandling, is particularly prevalent in Santa
Monica .because it is so lucrative here. Because the Promenade attracts so many
people, it is a preferred location; and the street furniture provides a convenient means of
panhandling in the Promenade for extended periods of time.
The activity of panhandling is constitutionally protected by the- First Amendment. The
proposed ordinance would not preclude the exercise of that right. Rather, the purpose
is to regulate the location of solicitation to ensure that the street furniture is not
monopolized. Thus, if the ordinance were adopted and became law, a person visiting
the Promenade to panhandle or engage in some other form of solicitation, would be free
to use the `street furniture to take breaks from that activity. However, he or she would
be prohibited from. conducting the. activity from the street furniture. This prohibition
would be directly analogous to the current prohibition in the street performance law that
precludes performing from aCity-owned chair or bench -the purpose of both laws .
being to prevent monopolization and ensure shared use for the purpose of respite.
As written in the proposed ordinance, the prohibition would be content neutral. It would
apply to all types of solicitation, without regard to the content of the solicitors' message.
Thus, the proposed ordinance would prohibit seeking charitable donations or selling Girl
Scout cookies from the benches and chairs on the Promenade, just as it would prohibit
panhandling.
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The ordinance would also allow ample alternatives; solicitors could still seek donations
on the Promenade and elsewhere in the City. Thus, the restriction is narrowly tailored
to achieve its purpose of preserving public seating for shared use.
Alternatives
The purpose of ensuring shared use of the street furniture on the Promenade could also
be achieved by establishing time limits for the use of the furniture, but such a prohibition
would be difficult, if not impossible to enforce. Also it might suffer from the same defect
as a law prohibiting loitering. That is, there could be a significant risk of discriminatory
enforcement.
As noted above, the Bayside District Corporation favors banning solicitation from all
street furniture in the Bayside District. StafFs proposal mirrors the Council's direction.
However, the Council could consider a broader prohibition if the circumstances warrant
such action. It is not clear to staff that street furniture off the Promenade is monopolized
by solicitors.
Financial Impacts & Budget Actions
No direct financial costs are anticipated as existing personnel would enforce the
proposed ordinance if it were adopted.
Prepared by: Marsha Jones Moutrie, City Attorney
Approved:
Forwarded to Council:
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Mar ha Mo tri
Ci A orn
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m
P. La o Ewell
City Manager
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F:\atty\muni\share\laws\mjm\PromenadeBenchesOrd
City Council Meeting: July 22, 2008 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA ORDINANCE PROHIBITING SOLICITING FROM PUBLIC CHAIRS
AND BENCHES ON THE THIRD STREET PROMENADE
WHEREAS, the Third Street Promenade is a three-block pedestrian street in the
heart of Santa Monica's downtown and a major attraction for residents, workers and
visitors; and
WHEREAS; tens of thousands of people visit the Promenade every week; and
WHEREAS, among the visitors to the Promenade are many elderly people,
young children, persons with limited mobility and others who need to sit and rest during
visits to the Promenade: and
WHEREAS, the Promenade has a very limited seating capacity relative to its
number of visitors; and
WHEREAS, the public benches and chairs on the Promenade provide seating for
only about 100 people; and
WHEREAS, during more crowded times, there are as many as 5,000 to 10,000
people per block on the Promenade; and
WHEREAS, because the amount of public seating is so very low relative to the
number of visitors and because many visitors have special needs for respite, the City
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must preserve the shared use of the limited seating for its purpose of facilitating
temporary respite; and
WHEREAS, panhandling and other forms of solicitation are very common on the
Promenade; and
WHEREAS, persons soliciting donations have begun using the Promenade
chairs and benches as a location for their activity; and
WHEREAS, such persons tend to locate on one chair or bench and use it for an
extended period of time as long as several hours or more; and;
WHEREAS, this extended use of the public seating for extended periods of time
for personal gain monopolizes the limited seating and defeats its purpose of shared
temporary use; and
WHEREAS, in order to preserve shared use of the Promenade seating, the City
Council has already prohibited use of the public seating for street performance; and
WHEREAS, in order to further protect shared usage of the limited seating, it is
also necessary to prohibit solicitation from public benches and chairs on the
Promenade; and
WHEREAS, prohibiting solicitation from the chairs and benches will not prohibit
any person or groups of persons, including panhandlers and other solicitors from using
the street furniture for temporary respite; it will merely ensure shared use; and
WHEREAS, prohibiting solicitation from the street furniture will not discriminate
based upon the content of any solicitors message; rather, it will simply restrict the
location of the activity of solicitation; and
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WHEREAS,. prohibiting solicitation from street furniture will not prohibit anyone
from soliciting on the Promenade or elsewhere; merely from using the street furniture for
that activity; and
WHEREAS, enacting this prohibition will ensure that the chairs and benches on
the Third Street Promenade are available for shared use by all who need temporary
respite.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Chapter 4.54 is hereby amended by
adding Section 4.54.035 to read as follows:
4.54.035 Soliciting while seated on or otherwise
using a public bench or chair on the Third Street Promenade
is prohibited.
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
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,
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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:
MARSf~A JONE,,B N10UTRI~
City A ney (J
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