O2304F:1Mun icipal Law1Sh are\LAWS\BARRYIstreetperformer2009 update011210rd2d.doc
City Council Meeting: 1-12-2010 Santa Monica, California
2304
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTION
6.112.030 RELATING TO STREET PERFORMANCE TO ELIMINATE THE
REQUIREMENT THAT A PERMIT BE OBTAINED BEFORE PERFORMING ON ANY
CITY SIDEWALK THEREBY ONLY IMPOSING A PERMIT REQUIREMENT ON THE
PIER, THE PROMENADE, AND THE TRANSIT MALL
WHEREAS, the City consists of just eight square miles of coastal land which are
home to 90,000 residents, the job site of 300,000 workers, and a destination for as
many as 500,000 visitors on weekends and holidays; and
WHEREAS, the City's unusual density necessitates special efforts to preserve
the free and safe flow of both pedestrian and vehicular traffic, particularly in the City's
bustling downtown business district, its most crowded sector; and
WHEREAS, the City's most popular public spaces in the downtown business
district are the Third Street Promenade, the Santa Monica Pier, and the Transit Mall and
maintaining safe circulation in these spaces is an ongoing challenge; and
WHEREAS, street performers enrich the ambiance of Santa Monica's unique and
stimulating public spaces and their presence in the City's most popular spaces reflects
1
Santa Monica's commitment to the arts and to the free exchange of ideas; and
WHEREAS, the Third Street Promenade, the Pier, and the Transit Mall are the
major performance venues for street performers in the City; and
WHEREAS, it is typical for there to be 26-30 performers on the. Third Street
Promenade and 26 performers on the Pier; and
WHEREAS, most of the performers utilize a .substantial amount of equipment
which may include tables, chairs, keyboards, guitars, amps, microphones, and
costumes; and
WHEREAS, for many performers, their performances at this venues constitutes
their livelihood, and consequently, these performers work at these locations daily, year
in and year out; and
WHEREAS, despite their value to the community,. street performance on
crowded public thoroughfares can jeopardize public safety. and welfare by blocking
traffic and by impairing emergency ingress and egress; and
WHEREAS, the City of Santa Monica has worked since the late 1980's to create
and refine street performance which recognize performers' value to the community,
respect constitutional rights, protect the free flow of pedestrian traffic and the safety or
..residents, workers, and visitors in crowded public places; and
WHEREAS, the difficulty of striking and maintaining the best possible balance
between these often competing goals has been increased by chahging conditions in the
City, changing. activities undertaken by performers working in public spaces and
changes in judicial interpretation of First Amendment guarantees; and
2
WHEREAS, the necessity and difficulty of establishing, maintaining and enforcing
regulations governing street performance and vending in the City's public spaces is
exacerbated by certain of the City's defining characteristics, including its extreme
density and appeal to visitors; and
WHEREAS, the Promenade is a three-block-long portion of a public street which
the City has closed to all but emergency vehicular traffic and improved with plants,
statuary, fountains, and lighting to create an attractive, entertainment-oriented
pedestrian mall in order to revitalize the downtown business district; and
WHEREAS, except for its heavily traveled cross streets and certain narrow
alleyways, the Promenade is enclosed on both sides by two and three story structures;
and
WHEREAS, concerns about maintaining the security of popular public spaces
have continued to grow with heightened world conflict and attendant concerns about
terrorism; and
WHEREAS, the City's safety personnel are cognizant of the need to remain
vigilant and so have increased efforts to protect ingress and egress from public spaces
and monitor property placed in public spaces; and
WHEREAS, emergency vehicle access to the Promenade is by way of a narrow
single lane that runs down the center of the Promenade or by way of the narrow but
heavily utilized alleys behind the buildings which line the Promenade; and
WHEREAS, for purposes of preserving public safety in the event of an
emergency, the City's Fire Marshal has evaluated the Promenade as an "outdoor
enclosure" and has calculated the maximum occupancy load as approximately 5000
3
persons per block; and
WHEREAS, in recent years, the crowds attracted to the Promenade often exceed
this load capacity; and
WHEREAS, the crowds are unpredictable in size and often huge with counts
undertaken by safety personnel documenting crowds as large as 10,000 per block or
more on the Promenade; and
WHEREAS, this number does not include the thousands of people inside the
many theaters, restaurants, and retail establishments who would flood onto the
Promenade in an emergency; and
WHEREAS, the Santa Monica Pier is frequented by the City's residents and is
also among the primary destinations of the approximately 2,350,000 visitors which flock
to the City annually; and
WHEREAS, the Pier is a long, narrow space, only 35 feet wide at some points,
with ingress and egress at only one end; and
WHEREAS, at some points on the Pier, particularly in the central Pier,
pedestrians and vehicles use the same roadway; and
WHEREAS, the flow of pedestrian and vehicular .traffic is often severely
obstructed on the Pier due to this design; and
WHEREAS,- for purposes of preserving public safety. in the event of an
emergency, the. City's Fire Marshal has evaluated the Pier as an "outdoor enclosure"
and has calculated the maximum occupancy load as approximately 8000 persons; and
WHEREAS, the Transit Mall is located in the heart of downtown and is composed
of the wide sidewalks on Santa Monica Boulevard and Broadway from the east side of
Ocean Avenue to the west side of Fifth Street; and
4
WHEREAS, the key component of this improvement is the creation of a
downtown transit loop with transit priority lanes on the south side of Santa Monica
Boulevard and on the north side of Broadway; and
WHEREAS, as part of this improvement, the sidewalks have been widened to 19
feet on Santa Monica Boulevard and 12 to 19 feet on Broadway and new street
furniture, lighting, and landscaping has been installed; and
WHEREAS, the width. of the sidewalks and the new installations have made the
Transit Mall another popular site for street performance; and
WHEREAS, the Transit Mall sidewalks are bounded on one side by building walls
and on the other by very busy streets carrying an unusually high number of buses in
addition to the typical vehicular traffic; and
WHEREAS, the proximity of busy public streets to the Transit Mall has required
monitors and safety personnel to closely observe crowds gathering around performers
working on the Transit Mall sidewalk; and
WHEREAS, audience members typically stand ten (10) to fifteen (15) feet from a
performer. or performance group and often form a dense ring around the performer
measuring forty (40) to fifty (50) feet in diameter,. adjacent buildings and street furniture
notwithstanding; and
WHEREAS, the combination of extremely dense crowds and popular performers
can choke pedestrian flow and severely inhibit police circulation; and
WHEREAS, even with the separation between performances, the crowds often
merge into each other and shift from viewing one act to another; and
WHEREAS, when on the Promenade, pedestrians who are not watching the
5
performance must force their way between the outer rings of spectators and building
walls and when on the Pier, since performers work by both rails, pedestrians must
shove their way through the' middle; and
WHEREAS, stationary crowds gathering around performers on the Transit Mall
sidewalks may force pedestrians into the streets where they would be at risk from
vehicular traffic; and
WHEREAS, the precise time periods when the Promenade, the Transit Mall, and
the Pier will be very crowded have. become extremely difficult to predict because of the.
large number of special events occurring in the City and region, which often attract very
large numbers of visitors to the Pier, the Promenade and the Transit Mall on days and
evenings other than weekends and holidays; and
WHEREAS, maintaining public safety in these spaces presents special
challenges to the City's public safety personnel, particularly in times of emergency,
because of the very large crowds, narrow roadways, limited ingress. and egress, and
fixed impediments to circulation; and
WHEREAS, in recent years, the City has had tb evacuate both the Pier and the
Promenade. and has had to move emergency vehicles on and off of the Pier and the
Promenade and the City must assume that it will have to do so again; and
WHEREAS, due to the physical constraints of the Pier, the Promenade, and the
Transit Mall, the crowds that gather at these venues, and the safety emergencies that
have occurred there over the years, there is little margin for error; and
WHEREAS, the City addresses these concerns by ensuring that performers are
aware of the safety requirements relating to equipment, spacing, and the safety of their
6
acts before the performers commence their performance through the requirement of
obtaining a permit at which time the performers obtain a copy of the City's regulations;
and
WHEREAS, the City processes permit applications expeditiously with permits
issued by the .afternoon of the next business day when applications are filed the
previous morning; and
WHEREAS, the performance permits are issued annually for $37.00 to cover the
City's processing costs; and
WHEREAS, the City must issue a requested performance permit unless very
specific objective findings for denial are made; and
WHEREAS, the City issued approximately 854 performance permits in 2008; and
WHEREAS, the City has issued approximately 1,240 performance permits this
year as of November 30, 2009; and
WHEREAS, on October 13, 2009, the City Council considered the issue whether
the City's permit requirements for street performance should be .modified or eliminated
based on the decision in Berger v. Seattle, 563 F.3d 1029 (9th Cir. 2009); and
WHEREAS, the Council received the staff report, heard public testimony from
many street performers and other members of the public and discussed the. Berger
decision and the differences between Seattle's regulatory purposes and regulated public
areas and the City's; and
WHEREAS, the Council received petitions signed by almost 100 street
performers and supporters expressing strong support for the current regulatory system
including the permit requirement reflective of -the active and ongoing role that
performers have had in the formulation of these regulations; and
7
WHEREAS, the physical realities of the Pier, Promenade, and Transit Mall are
significantly different than the Seattle's Center which is an 80 acre expanse including
numerous entertainment venues and twenty-three acres of outdoor space which had no
record of crowds gathering around street performers; and
WHEREAS, the purpose of the City's regulation is to preserve public safety in the
City's most popular and crowded public spaces while the purpose of Seattle regulations
was to reduce territorial disputes between performers, deter harassment and hostile
behavior by performers, coordinate multiple parks uses, and to establish a mechanism
for permit revocation; and
WHEREAS, the City's performance permit requirements have always been
limited, only applying to crowded or narrow public spaces with safety issues; and
WHEREAS, consequently, the City does not. presently require a permit to
perform in any of the City parks and open spaces thereby providing ample opportunities
for performers to perform in the City without needing a performance permit; and
WHEREAS, Council directed staff to return with an ordinance which further
narrowed the City's permit requirement, but retained it principally for the purpose of
protecting public safety in the Gity's most confined and crowded public spaces, the Pier,
the Promenade, and the Transit Mall; and
WHEREAS, the provisions of this ordinance will effectuate the City's declared
policies of supporting and encouraging street performers consistent with constitutional
requirements while ensuring that the public, safety is maintained,
8
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Section 6.112.030 is hereby
amended to read as follows:
6.112.030 Rules and regulations.
(a) Subject also to Sections 6.112.050 and
6.112.060, no performer may perform:
(1) Within ten feet of any bus stop;
(2) Within ten feet of any street corner or a
marked pedestrian crosswalk;
(3) Within ten feet of the outer edge of any
entrance of any business; including, but not limited to, doors;
vestibules; driveways; outdoor dining area entries; and
emergency exits, during the hours that any business on the
premises is open to the public or to persons having or
conducting lawful business within those premises.
(b) No person may perform on the Third Street
Promenade, the Pier, or the Transit Mall without first
obtaining a performance permit issued by the City pursuant
to Section 6.112:040 unless the performance is conducted
9
on Monday-Friday prior to 12:00 noon and that day is not a
holiday as defined in subsection (q) of this Section.
(c) A performer and the performer's equipment
may not block or obstruct the free and safe movement of
pedestrians. If a sufficient crowd gathers to observe a
performer such that the passage of the public through a
public area is blocked or obstructed, a police officer or fire
official may disperse that portion of the crowd that is blocking
or obstructing the passage of the public. If a performer
cannot conduct a performance in a location without blocking
or obstructing the passage of the public, a police officer or
fire official may cause the performer to leave the location or
require that the performer relocate his/her equipment, but
shall not preveht the performer from occupying another
location in compliance with this Chapter.
(d) A performer who performs for a charge shall
obtain a business license and be subject to all applicable
provisions of Chapter 6.36. A performer who performs
without charge shall not be required to obtain a vendor
permit pursuant to Chapter 6.36 dr a business license
pursuant to Chapter 6.04.
10
{e) No performer shall construct, erect, or
maintain any stage, platform, or similar structure for use
during any performance unless the stage or platform:
(1) Is integral to the performance and the
performance only takes place on the stage;
(2) Does not exceed four feet by four feet and
one-quarter inch in height;
(3) Is removed from the public way when the
performer is not performing;
(4) Has beveled edges:
(f) No performer shall use any knife, sword,
torch, flame, axe, saw, or other object that can cause serious
bodily injury to any person, or engage in any activity,
including but not limited to, acrobatics, tumbling, or cycling,
that can cause serious bodily injury to any person.
(g) No performer shall use any generator, wet cell
battery with removable fill caps, or any other power source
that poses a fire or public safety hazard. No performer shall
connect or maintain an electrical cord to an adjacent building
or to a City power source
11
(h) No performer may litter his or her
performance site.
(i) No performer shall utilize or prevent the public
from utilizing any public benches, waste receptacles, or
other street furniture during the performance.
(j) No minor under the age of sixteen can
perform unless the minor is at all times accompanied by a
responsible adult eighteen. years of age or older, has
obtained an entertainment work permit issued by the
Department of Industrial Relations of the State of California
and maintains the permit in his/her possession at the time of
the performance.
(k) No performer shall place any object on a
public sidewalk which causes less than afour-foot
contiguous sidewalk width being kept clear for pedestrian
passage.
(I) No performer shall perform with more
instruments, props, equipment, merchandise, or other items
than the performer can reasonably transport or remove at
one time.
(m) No performer shall place his/her instruments,
props, equipment, merchandise, or other items on a public
12 _,
sidewalk, public street, or public right-of-way for more than
two hours without performing in accordance with the
provisions of this Chapter.
(n) No performer shall leave his/her instruments,
props, equipment, merchandise, or other items unattended.
(o) No performer shall perform in contravention of
the allowable noise levels established by Chapter 4.12 and
Chapter 6.116 of this Code.
(p) No performer shall block or obstruct a curb
cut.
(q) The following formula establishes the special
performance hours that apply during specified holidays on
the Third Street Promenade, the Transit Mall, and the Pier:
(1) If the holiday follows a weekend and the next
day is a workday, then the holiday shall be treated as if it
were Sunday and the day preceding the holiday shall be
treated as if it were Saturday.
(2) If the holiday precedes a weekend, then the
holiday shall be treated as if it were Saturday and the
preceding day shall be treated as if it were Friday.
13
(3) If the holiday occurs during midweek, and is
surrounded by workdays, then the holiday shall be treated as
if it were Sunday and-the day preceding the holiday shall be
treated as if it were Friday.
The following is a list of holidays which trigger the
application of this subsection: New Year's Day, President's
Day, Memorial Day, Independence Day, Columbus Day,
Labor Day, Veterans Day, Thanksgiving Day, and Christmas
Day. The City Council may by resolution add to this list of
holidays
(r) No performer shall perform outside
designated performance zones on the Third Street
Promenade and the Pier, as established by resolution of the
City Council.
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
14
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:
MA SH/~,J N M RIE
Cit Attolrn y
15
Approved and adopted this 19th day of January, 2010.
~~~
Pam O'Connor, Mayor Pro Tem
State of California )
County of Los Angeles) ss.
City of Santa Monica )
I, Maria Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoing Ordinance No. 2304 (CCS) had its introduction on December 8th, 2009, and
was adopted at the Santa Monica City Council meeting held on January 19th, 2010, by
the following vote:
Ayes: Council members:
Noes: Council members
Abstain: Council members:
Absent: Council members:
Bloom, Davis, Holbrook, McKeown,
Mayor Pro Tem O'Connor.
None
None
Shriver
A summary of Ordinance No. 2304 (CCS) was duly .published pursuant to California
Government Code Section 40806.
ATTEST:
Maria Stewart, City Clerk