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~;tYof City Council Report.
Santa Monica
City Council Meeting: October 26, 010
Agenda Item:
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Report on Regulation of Street Performance and Request. for Council
Direction on Potential Revisions
Recommended Action
Staff recommends that City Council: 1) review the information and suggestions
supplied in this report, 2) consider input from the public, 3) give staff direction on
preparing any revisions to the street performance laws considered appropriate in Tight of
the record.
Executive Summary
Santa Monica has along-standing commitment to encouraging expression and the arts,
including street performance, which is allowed in all of the City's public, pedestrian
spaces. Street performance is subject to a permitting requirement only in the Third
Street Promenade, the Pier, and the Transit Mall and only when those very popular,
relatively small and physically constrained spaces are subject to crowding. Several
years have passed since Council last reviewed the efficacy of the substantive
regulations governing the time, place, and manner of performance. In the interim,
changes have occurred in both the use of'the City's public spaces and in the law. And,
legal staff has received a number of complaints and inquiries from police personnel and
the community about the possibility of updating the regulatory system to reflect current
realities. This report is provided to supply information about the current status of street
performance in the City, the complaints and inquiries that staff has received, and the
possibilities for updating the City's regulations. Because street performance is
protected expression, the report is also provided in order to give Council the opportunity
to build a public record to support any modifications that Council may wish to consider.
If Council directs staff to prepare Municipal Code amendments for further consideration,
staff will promptly return with those and any additional legal analysis so that any new
provisions will be in effect by the first of the year.
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Background
The City has encouraged and only minimally regulated street performance for more
than 20 years, beginning in 1989, when the Council adopted Ordinance No. 1495 CCS.
Among other things, it 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.
The Council determined that regulation of street performance was necessary to protect
public safety because the space is very limited, and performers tend to attract stationary
crowds that block passage. The Promenade is a three block walk-street, walled on both
sides by stores and restaurants. Ingress and egress are limited to two cross-streets
and a few narrow pedestrian walkways. Within the Promenade, pedestrian traffic must
flow around various physical installations: street trees, fountains, street furniture, light
standards and statuary, which enhance the environment but can impede circulation.
Crowding on the Promenade is unpredictable and can be severe. Counts by safety
personnel have documented crowds as large as 10,000 persons per block in the
Promenade.
Likewise, the Council adopted regulations for street performance on the Pier because,
like the Promenade, it draws huge crowds and its physical characteristics limit the
ingress and egress available to the public and to emergency personnel. There are no
exits from the Pier for the seaward 540 feet of its length. And, most recently, the
Council added the Transit Mall sidewalks to the small amount of space to which special
performance restrictions apply. Like the Pier, the Transit Mall sidewalks are narrow.
Like the Promenade, they are enhanced with many physical improvements that obstruct
circulation. And, they are bounded on one side by building walls and on the other by
very busy streets with an unusually high volume of bus and other traffic. Thus, when
groups congregate around performers, pedestrians attempting to pass by are often
forced into the streets.
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Over the years, Council has revised the City's street performance regulations and
related laws as necessary to reflect changing circumstances and evolving legal
requirements. These updates ensured maintenance of the best possible balance
between fostering individual expression and protecting public safety and welfare in
crowded spaces. The history of that effort is described most recently and in detail in
reports made to Council on October 13, 2009 and December 8, 2009.
In making these revisions the Council has been mindful of individual legal rights and of
developments in First Amendment law. Though there have been many significant First
Amendment decisions rendered during the time that Santa Monica has regulated
performance, the basic standard has remained the same. Laws governing the time,
place, and manner of expressive activities in streets and parks must be both content
neutral and narrowly tailored to serve a significant government interest; and they must
leave open alternative channels for communication. Ward v. Rock Against Racism, 491
U.S. 781, 791. (1989) quoting Clark v. Cmty. for Creative Non-violence, 468 U.S. 288,
293 (1984). The City has atrack-record of successfully adhering to this challenging
standard. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022
(9rn Cir. 2006) (upholding Santa Monica's law governing parades, demonstrations, and
other events in streets and parks).
Part of the City's past success in regulating expressive activities in general and street
performance in particular probably results from the fact that, whenever Council
considered possible revisions to local Taws, it received significant public input, including
input from the street performance community. Indeed, when Council last adopted
amendments narrowing the regulations, 91 performers submitted a petition requesting
that the City maintain its permitting system for the Promenade, Pier, and Transit Mall
because the system ensures "equitable sharing" of limited public space.
Discussion
Over the last couple of years, staff has received many questions, suggestions, and
some complaints relating to the substance of the City's rules governing performance,
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most arising from changes in the activities occurring in public spaces. This report lists
them in categories and provides basic information for Council's consideration and for
public comment.
Distinctions Between Performance and Other Activities.
The current regulatory system rests on a set of distinctions, including, for instance, a
distinction between street performance (which the City encourages and regulates only
minimally) and street vending (which is closely regulated). There is some overlap
between these activities. Basically, under the current system, those who "perform",
including those who are "creating visual art" may, in conjunction with their performance,
sell inherently communicative items they have created. Council adopted this exception
to the general restrictions on" street vending in order to promote streefi performance
within the City.
In the last few years, new activities have emerged, which may or may not fall within the
City's current definitions of the terms "perform" and "creating visual art." The code
defines the term "perform" as follows: "to engage in a performance including, but not
limited to ... playing musical instruments, singing, dancing, acting, pantomiming,
puppeteering, juggling, reciting or creating visual art in its entirety." "Visual. art" is
defined as "drawings and paintings, applied to paper, cardboard, canvas, or other
similar medium through the use of brush, pastel, crayon, pencil, or other similar object,
and sculptures."
Today, some prospective performers use computers to generate digital sketches or
other images. At the opposite end of the technical continuum, other prospective
performers finger paint, some on glass. Neither activity falls squarely within current
definitions.
Other prospective performers, who characterize themselves as actors, may fall outside
the current code definitions. The most noteworthy examples are persons who wear
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costumes of famous characters., such as Spiderman or Elmo, and charge to have their
pictures taken with children and others.
The City Attorney's Office has received several questions about the "characters" who
work in public spaces wearing costumes of famous comic book and movie characters.
Some of them worked on Hollywood Boulevard and relocated to Santa Monica in the
wake of enforcement efforts undertaken by the City of Los Angeles. Questions about
possibilities for new restrictions have come from at least two sources. Pier Restoration
Corporation (PRC) management asked if the characters could be prohibited from
working at the entrance to the Pier. Police Department personnel asked if the City
could prohibit wearing masks and whether criminal history could be required on
applications for performance permits.
The City Attorney's Office is researching these issues. Staff has found limited authority
for the proposition that masks might be banned. However, the factual context of that
authority was different. Moreover, such a ban would need to be based on an
evidentiary record that demonstrated a significant need for regulation and would need to
be universally applied. There is also some authority to support asking for criminal
history and for prohibiting performers with some types of history from performing. See
Hobbs v. County of Westchester, 397 F.3d 133 (2"d Cir. 2005) (upholding executive
order precluding performance in a public forum areas by a convicted sex offender, if
activity would entice children to congregate).
There is also a question about whether this group's activities fall within the street
performance laws. Basically, they charge to have their pictures taken. However, the
street performance law prohibits "performing" for a charge. Performers may accept
donations in appreciation of their performances, but they may not demand payment in
order to "perform." Additionally, on their applications, the characters tend to list their
performance as "acting." In fact, they may or may not be "acting" since their
"performance" consists mainly of having their picture taken. Also, since they charge for
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photographs, their activity may be more akin to the provision of a "personal service"
(which is specifically excluded from the definition of "perform") than it is to acting to
entertain a crowd. Thus, the distinctions made by the street performance laws may not
allow characters to vvork as performers in the City's public space. However, enforcing
each of these distinctions requires the commitment of enforcement resources.
Another group that has spawned many questions about the City's performance laws is
fortune tellers and psychics. This class encompasses a variety of related activities:
psychics, palm readers, numerologists, tarot card readers, and astrologers to name a
few. And, the "acts" or services vary. Recently, the City was contacted by a
prospective "toe reader" and by a psychic who enters the customer's date and place of
birth on a computer which supplies the planetary alignments for that date, which are
incorporated into the customer's fortune. As with the characters, members of this group
may or may not be providing something more akin to a personal service than to
entertainment for the public, particularly if they only engage in this activity for a charge
(rather than doing so with the hope of receiving a donation). However, drawing this
distinction requires a commitment of enforcement resources. And, any regulation of
fortune tellers and psychics must be carefully undertaken, since fortune telling, like most
traditional performance activities, is accorded First Amendment protection.
What is certain is that fortune telling and related activities tend to proliferate in the City's
public spaces, perhaps because the activities are comparatively easily undertaken and
are lucrative. A recent count by the Bayside District Corp. (BDC) shows that, on
average, about 20% of the performers on the Promenade tell fortunes. Indeed, the
competition is so intense that the City has received a communication requesting more
regulation from a group named Third Street Promenade Psychics. They suggest
additional regulation so as "not to mar the name of the good psychics" and to deter
fraudulent activity. To these ends, the group suggests that the City adopt "a high
licensing fee" to defray the cost of background checks and follow the San Francisco's
lead by requiring police permits. (The Municipal Code already nominally includes such
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a requirement. See SMMC Sections 6.14.020 - 040(d)). Any fee must, of course,
reflect actual processing costs to the City.
Another activity which is difficult to categorize, but which has clearly tended to
proliferate, is calligraphy. This activity may or may not comprise public entertainment,
as opposed to engaging in an activity for a charge or providing a personal service for a
fee. The calligraphers that work on the Promenade and Pier have a catalogue of
options for signs that they produce for customers who order and purchase the signs.
These products are popular with visitors. However, under the City's current regulatory
distinctions, this activity appears to be more akin to the street vending of a craft
produced with limited variation rather than to the performance of visual art. Again,
enforcing this distinction under current law is a labor intensive endeavor.
Noise Regulation
The other large group of complaints and inquiries that the City has received since
Council's last review of the performance laws relates to noise on the Promenade.. More
and more performers and businesses use amplification systems. And, there are
complaints that performers compete with one another by increasing the volume to
drown one another out. Noise enforcement is labor intensive. Local law regulates
decibels, not amplification; and readings are difficult to take on the Promenade, where
ambient noise levels are high and sound echoes off the Promenade "walls." Moreover,
performers- often avoid accurate decibel readings, and the court applies a restrictive
construction of the City's prohibition against interfering with a noise measurement.
Faced with these challenges, many have suggested simply banning amplification. This
approach would create legal risks. Regulation of the volume of protected expression on
public streets is subject to a large body of case law. Sound amplification is protected by
the First Amendment. Blanket prohibitions on amplified sound in downtown districts
have generally been disfavored by the courts even though the prevention of disruption
of normal business activity and of distraction to pedestrian and drivers are proper
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governmental interests. Given this constitutional protection, it is the City's burden to
justify the restriction on speech. Moreover, any amplification ban would have to be
applied to all persons and businesses using amplified sound on the Promenade,
including shops and restaurants.
Another possibility to .consider is adopting San Francisco's standard prohibiting
"unreasonably loud (and) raucous noise." That standard, though nonspecific, was
upheld in the Rosenbaum v. San Francisco, 484 F.3d 1142 (5th Cir.2007). Using that
standard here might reduce enforcement difficulties.
Otherlssues
Other issues that have arisen since Council's last consideration of this regulatory
system include obstructions caused by the equipment of performers who are waiting to
perform and enforcement difficulties. The accumulations of equipment belonging to
performers awaiting spots have been a concern for years. Current law prohibits leaving
such equipment unattended. The basis for this prohibition is that, in the event of an
emergency, a responsible person must be with the equipment to remove it quickly.
However, since the current wording of the law merely requires an attendant, many
performers utilize the expedient of having one performer watch several performers'
equipment or paying someone to stay with it. In either case, the purpose of the law is
likely undermined. This problem and risk could be remedied by changing the law to
require performers to maintain control of their own equipment.
As to enforcement, as noted above, there have been many complaints that the present
resource allocation is inadequate to enforce the standards imposed and distinctions
made by current law. Many of these distinctions and standards can only be enforced
through significant expenditures of enforcement personnel's time. For instance, a
police officer would likely have to observe a character or a fortune teller for some time to
accumulate evidence as to whether she or he was only "performing" upon payment of a
charge. Various measures have been undertaken over the years to address the
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problems of enforcing a complex regulatory system. The use of Performance Monitors
and the provision of training opportunities are examples. Performers themselves have
assisted in these efforts.. Nonetheless, the issue remains. Council may wish to consider
input from the community, including the BDC, PRC and performers about whether the
resources currently devoted to this effort are adequate.
Public Outreach
In preparing this report, staff has received and considered input from the Santa Monica
Police Department, the Bayside District Corporation, the Pier Restoration Corporation
and from street performers.
Financial Impacts & Budget Actions
There is no financial impact attendarit upon directing staff to prepare amendments to
the street performance regulations for Council consideration. If the law were changed,
there could be impacts to enforcement costs. Whether those costs would increase,
decrease or remain relatively constant would depend upon what resources were
allocated to enforcement.
Prepared by: Marsha Jones Moutrie, City Attorney
Approved:
Forwarded to Council:
M rsha Jo s Moutrie
Ci Attorn
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Rod Gould
City Manager
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