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sr-101309-3a~~~ ~;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 1 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. 2 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 3 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' 4 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 5 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. 6 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 7 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 8 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. 9 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. 10 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 11