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~;tYOf City Council Report.
Santa Monica
City Council Meeting: October 13, 2009
Agenda Item: ~` a
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Study Session on Possible Modifications to Street Performance
Regulations Including Those Governing Permits
Recommended Action
Staff recommends that Council holds a public hearing and consider whether or not to
modify Municipal Code provisions governing street performance, including Section
6.112.030(b), which requires a permit to perform on the Third Street Promenade, the
Pier, the Transit Mall and City sidewalks.
Executive Summary
For many years, the City has encouraged street performance because it provides a
public amenity that significantly enhances the City's most popular public spaces -- the
Third Street Promenade and the Pier -- and because performance is protected
expression. At the same time, the City. has also worked to ensure public safety within
the narrow confines of these often crowded spaces, and preserve their aesthetic
qualities. To these ends, the City has adopted and repeatedly revised a regulatory
system that limits the time, place and manner of street performance but only to the
extent necessary to achieve the City's legitimate public purposes. This system includes
City permitting for performance on the Third Street Promenade, the Pier, the Transit
Mall and on City sidewalks. Recently, in Berger v. Seattle, 563 F.3d 1029 (2009), the
Ninth Circuit Court of Appeals decided that Seattle's performance permit requirement
violated the First Amendment. Though the facts of thaf case differ significantly from
Santa Monica's, the Seattle decision may call into question the validity of Santa
Monica's performance permit requirement. Accordingly, staff recommends that Council
study the issue of whether the City's permit system should be retained, modified or
eliminated and provide direction to staff:
Background
The Third Street Promenade, Pier and Transit Mall
The Third Street Promenade, the Pier and the Transit Mall are unique public spaces.
All three are long, narrow, and confined. The Promenade, a pedestrian mall, is akin to a
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three-block long outdoor room. It is walled on both sides by the buildings. Streets cross
the Promenade at two points and bound its north and south ends. Public ingress and
egress and emergency access are limited to the these streets and a few pedestrian
walkways that connect the Promenade to 2nd and 4th Courts, the alleys that run parallel
to the Promenade behind the buildings that line it. Many of the older commercial
structures that line the Promenade do not have rear exits.
Ingress, egress and emergency access are even more restricted on the Pier and are
limited to its landward end. The Pier is about 800 feet long. Its narrowest segment is
only 35 feet wide and about 300 feet long. All ingress, egress and emergency access
points are landward of this segment. The Pier extends about 540 feet seaward past
the last pedestrian exit onto the beach.
The Transit Mall includes the western ends of Santa Monica Boulevard and Broadway,
the two streets that cross the Promenade, between Ocean Avenue and Fifth Street: It
consists of widened sidewalks and numerous street improvements on.those sidewalks,
including street trees, transit shelters and arbors, street furniture, and water fountains.
The streets themselves were narrowed to create the Mall, and lanes adjacent to
sidewalks were designated as priority lanes for mass transit. In short, the Transit Mall
has wider sidewalks than the rest of the City, more installations on those sidewalks and
very heavy street and foot traffic.
In addition to their physical characteristics, all three public spaces share the realities
associated with the unique status of the Promenade and Pier as regional, national and
even international attractions. Both frequently draw huge crowds that are attracted by
the unique settings and by the eclectic vibrancy of the street scenes, and the varied
entertainments and amenities available in these special places -including street
performance.
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The City's History of Encouraging and Regulating Street Performance
Because street performance enhances public. spaces, constitutes constitutionally
protected expression, and creates safety and other risks, the City has both encouraged
and carefully regulated it for 20 years. This effort began in 1989, when the Council
adopted Ordinance No. 1495 which, among other things, regulated the location of street
performance on the Third Street Promenade in order to ensure that performance did not
obstruct pedestrian circulation and thereby impair public safety.
In the twenty years since then, the City's street performance and related laws have
been revised many times, after extensive public process, including significant input from
street performers. Each time, there was a significant effort to foster performances,
protect individual rights and maintain public safety. Thus, in August of 1991, street
performance regulations were modified by, among other things, the addition of new
public safety requirements prohibiting the use of dangerous objects in performance and
the construction of stages, which would obstruct circulation. In adopting these
amendments, the Council directed that, to the extent possible, street performers should
participate in regulating performance.
Consistent with that direction, in 1992, a task force working collaboratively on
performance issues, which included performers and representatives of the Bayside
District Corporation, formulated and recommended various changes to the law including
the creation of a permitting system. Amendments adopted in 1993 responded to that
recommendation by establishing a permit requirement. The amendments also
conformed the ordinance to case law developments (by eliminating a ban on amplified
music and substituting a decibel limit) and modified safety requirements by designating
zones for performance in the Promenade that protected traffic flow at the intersections.
Council considered further revisions to the street performance laws in both 1995 and
1997. In 1997, the City hired a pedestrian traffic consultant to assess pedestrian
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circulation on the Promenade. That consultant noted both the very large crowds and
the tendency of audiences to form dense,. stationery rings around performers. The staff
report provided to Council in 1997 is extensive and detailed. It describes then current
conditions on the Promenade and includes. a long list of recommendations. The
description of conditions explains that the combination of very large crowds in this
enclosed space and large audiences for some performers put public safety at risk by
impeding pedestrian -circulation and impairing emergency ingress and egress.
Specifically, the 1997 report described the Promenade as an outdoor room, enclosed by
buildings on both sides. The City's Fire Marshall calculated the maximum occupant
load for the Promenade at 5,000 per block and testified to Council that the "load"
capacity for two blocks of the Promenade was exceeded on the busiest evenings, with
crowds reaching 10,000 per block. In response to this and other information, safety
personnel and other staff recommended numerous amendments, including extending
the permit requirement to the Pier and to City sidewalks, but not to City parks (which are
more spacious and where general park rules appeared adequate to protect safety). In
response, Council adopted various amendments, including extending the performance
permit requirements to the Pier and all City sidewalks, but not to City parks.
In 1999, the Council again modified the street performance laws to address congestion
problems on the Promenade and Pier and thereby protect public safety. Additional
amendments were adopted in 2001 to, among other things, extend performance
regulations to the Transit Mall where newly widened sidewalks on Santa Monica Blvd.
created new opportunities for street performance. The extension of the regulations to
the Transit Mall reflected the. reality that when audiences gathered around performers
on the Transit Mall, pedestrians frequently stepped into the busy streets to get around
them, creating significant safety risks.
In 2002, staff again reported on the efficacy of the regulatory system, which basically
worked well. However, permitting requirements were modified to address perfomers'
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concerns. about undue restrictions and to clarify the application of the requirements.
And, in 2003, laws were amended to, among other things, establish a lottery system
favored by performers for the Pier and protect. circulation and safety by revising spacing
requirements on the Promenade-and Transit Mall. Later that same year, the laws were
again modified to increase performance opportunities on the Pier by increasing the
number of designated performance spaces.
In summary, staff reports and extensive legislative findings document the reasons for
the adoption of this regulatory system and the many amendments. The Council's
actions have been based on the confined nature of the public spaces, the size of
crowds on the Third Street Promenade and Pier, changes in the activities undertaken in
these most popular and limited public spaces, burgeoning numbers of performers and
vendors, the experience of public safety personnel in protecting these spaces, changes
in the First Amendment case law, and the needs of performers for fair and clear Taws
that respect their individual rights and ensure opportunities to perform in an orderly and
safe environment. In each instance, there was a robust public process, a focus on
individual rights, and a careful balancing of competing interests. These interests
include: keeping the City's most crowded and confined public spaces safe; protecting
performers' First Amendment rights and enhancing the vibrancy of public spaces
through performance.
The Seattle Decision Invalidating That City's Performance Permit System
In June of this year, the Ninth Circuit Court of Appeals decided Seattle v. Berger, 569
F.3d 1029. In that case, a street performer sued Seattle, challenging its rules for street
performers at the Seattle Center. The Center is described by the court as a "roughly
80-acre expanse of public space, home to Seattle's iconic Space Needle, and to
museums, sports arenas, theaters, and a performance hall. The Center's grounds also
include twenty-three acres of outdoor public park space." The rules for performance in
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this huge park and entertainment complex required performers to obtain permits before
performing and set out specified locations for performance, .among other things. The
District Court concluded that Seattle's rules violated the First Amendment. The Ninth
Circuit affirmed, holding that Seattle had failed to meet its "burden of justifying the
regulation of expressive activity in a public forum such as the Seattle Center."
As to Seattle's permit requirement, the Ninth Circuit first noted that, because it
functioned as a prior restraint on speech undertaken in a classic public forum (a park),
there was a presumption against its constitutionality. The court then reasoned that the
rule requiring street performers to obtain permits before performing in the park was not
sufficiently narrowly tailored to meet the standards for a valid time, place, and manner
regulation. That is, the rule did not significantly advance Seattle's asserted interests,
which included: (1) protecting the safety of park-goers by reducing territorial disputes
between performers; (2) deterring harassment and hostile behavior by performers; (3)
co-coordinating multiple park uses; and (4) establishing an enforcement mechanism
based on permit revocation. The court pointed out that permit requirement was, in
some regards, unrelated to these goals; and, there were other, less burdensome,
means of achieving them. Thus, the requirement was not narrowly tailored to protect
speech, was both overbroad and under-inclusive, and was more intrusive than
necessary to achieve its stated goals and was, therefore, unconstitutional.
In analyzing the permit requirement, the court noted possible alternative means of
regulation, which the court suggested would pass constitutional muster. These
included: merely enforcing prohibitions against unwanted behavior; banning from
performance those who violated the prohibitions; and/or only requiring permits for
performers who, in fact, attracted large crowds.
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The Efficacy of the Current Regulatory System
Reports from safety personnel, performers' representatives, and the Bayside District
Corporation and the Pier Restoration Corporation indicate that it works well. The
executive directors of the two nonprofits report that performers favor maintaining the
current permitting system, partly because it helps ensure that all performers will be
aware of the rules and follow them. Performances permits are commonly issued by
1:00 p.m. on the day after an application is filed with the City. They are annual permits
commencing on January 15f of each year.
Consistent with that report, in July of this year, the City received petitions signed by 91
Santa Monica street performers supporting the current ordinance and asking that the
performance permit requirement be maintained. The performers deny that the permit
requirement is burdensome and urge that it promotes a sense of community among
performers and helps ensure shared use of the very limited spaces in which they prefer
to perform. The petition says: "we regard the performance permit itself to be of great
value: It promotes community and cohesion among performers, provides the
introduction to the rules and regulations contained in the ordinance and serves as a
symbol of the fair and equitable sharing of a limited resource."
City safety personnel agree with the performers that the current permitting system
should be retained. They explain that the unusual physical circumstances of the Pier,
Promenade and Transit Mall together with the huge crowds leave little or no safety
margin. The current system helps protect safety by preventing performances that are
unsafe for crowded spaces. The current system also gives all performers working in
these special spaces advance notice of the rules that protect traffic circulation and
ingress and egress. Thus, should an emergency occur, emergency personnel will not
be impeded by performers who are, for instance, unaware of the rules limiting the
placement of objects on the Promenade, Pier and Transit Mall. And, the current system
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provides a basis for civil enforcement, through permit revocation, thus lightening the
load on police and on the courts
Ih order to assist Council's consideration of these issues, staff reviewed the information
gathered in 1997 when the current law was enacted. It showed that; at various times,
including Friday and Saturday afternoon and evenings, Sunday afternoons, holidays,
Thursday nights before holiday weekends, the Promenade and Pier are very crowded,
with crowds on the Promenade at those peak times often exceeding the load capacity of
the space. In preparation for this study session, legal staff consulted with both safety
personnel and the Director of the Bayside District Corporation to inquire whether crowds
have decreased in the last twelve years. All consulted agree that they have not.
To confirm this opinion, safety personnel surveyed crowd conditions on the Pier and
Promenade in July-September. They observed that on Saturday and Sunday
afternoons crowds on the Pier ranged between 3500 and 5000: In contrast, on the
Promenade, peak times were on weekend evenings, with crowd sizes in the thousands
per block on the two southerly blocks and lower in the northern block. Based on this
effort, safety personnel .confirm that crowds remain undiminished and .that the peak
hours, identified years ago, have not diminished. Moreover, safety personnel confirm
that spectators on the Promenade and Pier continue to gather around performers in
large, stationery rings that impede the flow of pedestrian traffic, forcing pedestrians to
either squeeze between audience members or try to get around them by walking next to
building walls on the Promenade or-the rails on the Pier. And, the audience for one
performer or group can merge with the crowd watching another in which case passage
becomes almost totally blocked. Given these crowds and the nature of these spaces,
the risks associated with unpermitted performances is substantial.
As to the size of the audiences, on the Promenade safety personnel noted that there
were six or seven acts that continually drew crowds of between 50 and 200 spectators.
These acts included dancers, bands, jugglers and gymnasts. When two such acts
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performed relatively near one another, it was observed that circulation became difficult
or impossible. Police personnel expressed the concern that such conditions would
impair their ability to cope with a safety emergency. Other types of performers drew
smaller spectator groups, usually between 10 and 25. However, as discussed, given
the number of performers and the confined space, the audiences can blend together
and often rotate amongst the various performances, with the size of the audience
constantly changing.
On the Pier; where performance spots are designated and allocated by lottery, all 26
were in use, as is typical during summer months. As on the Promenade, musicians and
dancers attracted the largest crowds -often 50 to 80 people creating a half circle
around the performer, which often completely blocked the narrow Pier roadway. The
same audience patterns are present for the Pier.
This information is consistent with that provided in earlier staff reports. And, it
substantiates that crowds gathering around performers on both the Promenade and the
Pier significantly impair circulation and would impede ingress and egress in a safety
emergency.
Likewise, the risks associated with performance on the Transit Mall have not changed.
Safety personnel note that larger acts do not use the. Transit Mall because the sidewalk
is much narrower than the Promenade. However, even with smaller acts and smaller
crowds, the risks remain apparent. If the audience watching a performer blocks the
sidewalk, pedestrians step off the curb and into the street to walk around the audience.
Due to the very high volume of vehicular traffic in the Transit Mall, this is very
dangerous.
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The Alternatives
Staff has identified several alternatives for consideration in the wake of the Seattle
decision. The Council could:
Eliminate The Permit Requirement -This approach would ensure conformity with
the Seattle decision and thereby avert the possibility of litigation. However, the benefits
of the current system would be lost. It facilitates awareness of the rules, ensures that
acts too dangerous for crowded, confined spaces not occur there, and provides a civil
enforcement system. Thus, it promotes public safety, de-criminalizes enforcement, and
reduces disputes between performers.
Retain But Narrow the Permit Requirement - In lieu of completely eliminating
permits, the City could narrow the permit. This approach might allow the City to achieve
conformity with the Seattle decision, while retaining some of the benefits of the current
system. There are alternatives available under this approach. The permit requirement
could be made applicable only during peak hours, when the Pier, Promenade, and
Transit Mall are most crowded. Or, the permit requirement could be narrowed to apply
only to performers attracting crowds of more than 75 people. And, the permit
requirement could be limited to the Pier, Promenade and Transit Mall by eliminating the
requirement of a performance permit-for any sidewalk except the Transit Mall.
Retain The Present System Based On The Differences Between Santa Monica's
and Seattle's Public Spaces And Laws -The Seattle Center is a very different public
space than the Pier and Promenade. It is a very large park. In Santa Monica, the parks
are much smaller, but performers do not need a permit to perform in them. Santa
Monica's permitting requirement is limited to the Promenade, the Pier and sidewalks, all
of which are narrow and confined spaces in which public safety requires protecting
circulation and emergency access. All-are inevitably impaired when a large crowd.
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gathers and forms a stationery ring around a performer or group, and circulation is also
impaired when a smaller crowd (usually around a single performer) merges with another
crowd around an adjacent performer. Thus, it is particularly important that street
performers working in those parts of the City be aware of regulations that protect safety
and adhere to them. The safety margins are very small. This fact might justify retaining
the current system, particularly if the requirement of permits for performance on
sidewalks is narrowed to the Transit Mall -the sidewalk in the busiest part of the City
with the most street traffic.
Prepared by: Marsha Jones Moutrie, City Attorney
Approved:
Forwarded to Council:
n
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