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sr-102610-8a~~ ~;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. 1 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. 2 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, 3 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 4 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 5 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 6 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 7 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 8 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 ~c~-~~~- Rod Gould City Manager 9