City Council Minutes: //

CITY OF SANTA MONICA
CITY COUNCIL MINUTES

OCTOBER 7, 1997

A regular adjourned meeting of the Santa Monica City Council
was called to order by Mayor O'Connor at 6:37 p.m., on Tuesday,
October 7, 1997, in the Council Chambers.

Roll Call: Present: Mayor Pamela O'Connor
Mayor Pro Tem Robert T. Holbrook
(arrived at 7:10 p.m.)
Councilmember Ruth Ebner
Councilmember Michael Feinstein
Councilmember Ken Genser
Councilmember Asha Greenberg
Councilmember Paul Rosenstein

Also Present: City Manager John Jalili
City Attorney Marsha Jones Moutrie
City Clerk Maria M. Stewart

On order of the Mayor, Item No. 5A will be heard after the
arrival of Mayor Pro Tem Holbrook.

8-A: STREET PERFORMERS AND OTHERS/DISPLAYING OR DISTRIBUTING
MERCHANDISE, GOODS, WRITTEN MATERIALS AND FOOD/OBJECTS ON
SIDEWALKS/SPECIAL ZONES FOR STREET PERFORMERS AND OTHERS/THIRD
STREET PROMENADE/ SANTA MONICA PIER/FILING FEES FOR PERFORMANCE
PERMIT: This matter, continued from September 23, 1997, was
presented for introduction and first reading, an ordinance
modifying and adding regulations concerning street performers
and persons, including vendors, displaying or distributing
merchandise, goods, written materials and food, or placing
objects on public sidewalks; adoption of two resolutions
establishing special zones for street performers and persons,
including vendors, utilizing tables, carts, blankets, or
similar items on the Third Street Promenade and The Santa
Monica Pier; and, adoption of a resolution establishing filing
fees for a performance permit.

Mayor Pro Tem Holbrook reported present at 7:10 p.m.

Staff provided the information and clarification to matters
raised during discussion on September 23, 1997. On the free
speech, or "heartland" matter staff recommended allowing an
exception to sell, for fixed prices, bumper stickers, buttons
and pamphlets that carry a message. Regarding the sale of CDs
and audio tapes, staff confirmed the earlier recommendation
that tangible objects be available by donation and that they
must be created by hand on the day of the performance, not
premanufactured as are tapes and CDs. In regard to the signs
to be used by performers who display their art objects, staff
clarified that the language would be: "Items displayed are
available on a donation basis."

City Attorney Moutrie and Deputy City Attorney Rosenbaum also
provided a summary of recommended changes to the proposed
ordinance, including modification to the language on the sign
to be displayed; modification to the "heartland" exception
language; language for the distance limits to those individuals
using card tables to display goods; deletion or certain
language in order to allow a business owner/operator to
authorize a vendor to be closer to a business than the
ordinance allows; language change from "carry" to "transport" of
no more instruments or props than can legally be carried at one
time; retaining the three-day processing time for a permit
instead of the five previously suggested; and deletion of a
provision regarding maintaining distance within a school,
hospital or library areas, or similar institution, as the
provision already exists generally in other sections of the
Municipal Code.

There was extensive discussion, and questions of staff, by
Council regarding all of the above matters.

Motion by Councilmember Feinstein, seconded by Councilmember
Genser, to adopt the staff recommendation, as modified to 1)
allow an exception to the ordinance that would allow the sale,
for fixed prices, of certain materials, e.g., bumper stickers,
buttons, and pamphlets; 2) confirm that tangible art objects
made available for donation must be created by hand the day of
the performance; 3) confirm that donation only signage be
required of all performers distributing tangible art objects
and all other members of the public wishing to display and
distribute items without charge, with the clarification that
the language of the sign would read in effect, "Items Displayed
Are Available on a Donation Basis."

Motion by Councilmember Feinstein to amend the motion to remove
the word "vestibule," as a point of reference from which
distance can be measured, from Section 6.36.100(a)(1) but give
the ability of discretion to go beyond that where the entryway
is different from an average doorway or entrance to a building.

Substitute motion to the amendment by Councilmember Genser,
accepted as friendly, to change the word "vestibule" to the word
"entryway" in Section 6.36.100(a)(1).

After discussion as to the specifics of the above motion,
Councilmember Genser withdrew his substitute motion, and
Councilmember Feinstein withdrew his amendment.

Motion by Councilmember Feinstein, seconded by Mayor O'Connorto amend the motion to change the week night hours from 10:30
p.m. to 11:00 p.m.

After further discussion on this matter, Councilmember
Feinstein withdrew his amendment.

Motion by Councilmember Greenberg, seconded by Councilmember
Ebner, to amend the motion to delete Section 6.36.030(g) (the
Heartland issue) from the revised staff report. The motion,
after discussion, was approved by the following vote:

Ayes: Councilmembers Ebner, Rosenstein, Greenberg,
Mayor Pro Tem Holbrook
Noes: Councilmembers Genser, Feinstein, Mayor O'Connor
Absent: None

Motion by Councilmember Greenberg, seconded by Councilmember
Ebner, to amend the motion to change the words "objects are" to
"art is" in Section 6.112.030(j), to read: "No performer shall
display tangible art objects unless the art is individually..."

Substitute motion to the amendment by Councilmember Feinstein,
seconded by Mayor O'Connor, to allow performance-related art,
including compact discs and audio and video tapes, to be
available for a donation.

After some discussion on this matter, Councilmember Feinstein
withdrew his substitute motion and accepted Councilmember
Greenberg's amendment as friendly.

Motion by Councilmember Genser, accepted as friendly, to remove
the prohibition relating to animals. It was the consensus of
Council to agree.

Motion by Councilmember Rosenstein, seconded by Councilmember
Greenberg, to amend the motion that the use of amplified sound
equipment on the Promenade be regulated along the lines of the
way it is done in Santa Cruz, which requires people who want to
use amplification to get a permit and in getting the permit
they must explain and justify and prove that they will be able
to use their amplified equipment in an appropriate way so that
they will not create a disturbance.

After some discussion on this matter, Councilmember Greenberg
withdrew her second and the amendment died for lack of a
second.

Motion by Councilmember Genser, accepted as friendly, to amend
the motion to make an exception for the display of materials,
e.g., recordation of the performance for which the performer is
licensed, on a donation basis.

Modification of motion by Councilmember Genser, accepted as
friendly, to stipulate that any performer (including art
performers) may display recordings of his/her performance. The
motion failed by the following vote:

Ayes: Councilmembers Genser, Feinstein, Mayor O'Connor
Noes: Councilmembers Ebner, Rosenstein, Greenberg,
Mayor Pro Tem Holbrook
Absent: None

Motion by Councilmember Feinstein, died for lack of a second,
to amend the motion to allow a sound level of 70 decibels on
weekends.

Motion by Councilmember Feinstein, seconded by Mayor O'Connor,
to amend the motion to allow three citations within a period of
three months rather than the current two months, with a
suspension period of six months. The motion failed by the
following vote:

Ayes: Councilmembers Feinstein, Mayor O'Connor
Noes: Councilmembers Ebner, Rosenstein, Greenberg,
Genser
Mayor Pro Tem Holbrook
Absent: None

Motion by Councilmember Feinstein, seconded by Mayor O'Connor,
to amend the motion to ask cart vendors to change the
orientation of their carts to be perpendicular to the street on
week days and parallel to the streets on weekends. The motion
failed by the following vote:

Ayes: Councilmembers Genser, Feinstein, Mayor O'Connor
Noes: Councilmembers Ebner, Rosenstein, Greenberg,
Mayor Pro Tem Holbrook
Absent: None

On order of the Mayor, the City Council returned to the regular
agenda order and the remainder of Item No. 8-A was tabled until
after the break.

5-A: APPOINTMENTS/PERSONNEL BOARD: Mayor O'Connor announced
that the floor would consider nominations for two appointments
to the Personnel Board.

Councilmember Rosenstein nominated Bert Staggers.
Councilmember Greenberg nominated Thomas Tolman. Councilmember
Genser nominated Margaret Henry. There being no other
nominations, nominations were closed. On a call for the vote,
no one nominee received the requisite four votes.
Councilmembers Rosenstein and Greenberg, and Mayor Pro Tem
Holbrook changed their votes in favor of Margaret Henry thereby
approving her appointment to the Personnel Board for a term
ending June 30, 1999.

Councilmember Greenberg nominated Thomas Tolman. Councilmember
Rosenstein nominated Bert Staggers. Mayor O'Connor nominated
Matt Kanny. There being no other nominations, nominations were
closed. On a call for the vote, no one nominee received the
requisite four votes. Mayor O'Connor changed her vote
resulting in Thomas Tolman being appointed to the Personnel
Board for a term ending June 30, 2001.

On order of the Mayor, the City Council recessed at 9:50 p.m.,
and reconvened at 10:34 p.m., with all members present. On
order of the Mayor, the Council returned to the remainder of
item 8-A.

The amendments to the ordinance were reviewed by the City
Attorney as follows:

1. Elimination of Section 6.112.030(g) - the provision that
prohibited a performer from utilizing an animal as part of
the performance;

2. Section 6.112.030(j) modified to read as follows: "No
performer shall display tangible art objects unless the
art is individually hand produced on-site and during the
day of the performance;"

3. Section 6.36.030(f) revised as follows: "Any individual who
distributes food, goods, written materials, or merchandise
in any public area to any member of the public without
charge, such individual must at all times visibly display
a sign to be issued by the City at no cost, which states
in substance that the items are available on a donation
basis only. If an individual displays or distributes
food, to the extent applicable, a Los Angeles County
Department of Health Permit shall be obtained and
maintained in the individual's possession certifying that
he or she complies with all state and federal laws
regarding food product distribution;"

4. Section 6.112.040(j) revised that performers producing
tangible art objects intended to be available for
distribution to any member of the public shall visibly
display a sign, to be issued at no charge by the City,
which states in substance that the items are available on
a donation basis only.

5. Proposed Section 6.112.030(a)(4) deleted;

6. Section 6.116.010 to be modified as follows: "No person
shall utilize any tables, carts, blankets, or similar
items for the purpose of displaying or distributing
merchandise, goods, written materials, or food on the
Third Street Promenade:
a. Outside designated areas, as established by resolution
of the City Council;
b. In a greater number than can reasonably be transported
or removed at one time;
c. Within ten feet from the outer edge of any entrance of
any business, including, but not limited to, doors,
vestibules, driveways, outdoor dining entries, and
emergency exits, during the hours that any business on
the premise is open to the public or to persons having
or conducting lawful business on those premises;
d. Within ten feet of any bus stop;
e. Within ten feet of any street corner or a marked
pedestrian crosswalk;

7. Additionally, vendors must comply with the requirements of
Chapter 6.36, as applicable. An identical modification
would be made to Section 6.11.040 (page 22) as it pertains
to the Pier.

8. Section 6.36.100(a) (page 17) modified to strike the last
clause, that clause being: "unless the vendor has the
consent of the owner or operator of the establishment."

9. Section 6.112.030(n) (page 6) modified to read as follows:
"No performer shall perform on any public sidewalk with
more instruments or props than the performer can
reasonably transport or remove at one time.

10. Section 6.112.040(c) modified to provide that the
performance permit shall be approved within three business
days instead of the five business days that had been
originally proposed.

Councilmember Genser withdrew his second of the main motion.
Councilmember Rosenstein seconded the motion.

Councilmember Feinstein withdrew his main motion.

Motion by Councilmember Rosenstein, seconded by Councilmember
Greenberg, to adopt the staff recommendation and hold first
reading of the ordinance, as modified by Council this evening
(as reviewed by the City Attorney above). The motion was
approved by the following vote:

Ayes: Councilmembers Ebner, Rosenstein, Greenberg,
Mayor Pro Tem Holbrook
Noes: Councilmembers Genser, Feinstein, Mayor O'Connor
Absent: None

Councilmember Genser requested that the record reflect that he
voted against this motion because he believes that it
unconscionably strikes at what is the heart of the democratic
principles in this community by limiting what is being called
free speech vending, and it also inappropriately restricts the
rights of performers so that they may not display items which
are available for donation as can any other member of the
public.

Councilmember Feinstein requested that the record reflect his
concurrence with Councilmember Genser's statement.

Mayor O'Connor requested that the record reflect that there are
a number of things in the ordinance with which she agrees, but
she is voting against it because of the prohibition on the
heartland vending. She said that she does not see how
prohibiting heartland vending serves any of the purposes of
this ordinance: ensuring the safety of performers and the
general public, preventing unreasonable interference with
residents' enjoyment of peace and quiet in their homes, or the
ability of businesses to operate and conduct their businesses.

By virtue of the above action, an ordinance entitled: "AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
ADDING CHAPTERS 6.112, 6.116 AND SECTION 3.12.375 TO THE SANTA
MONICA MUNICIPAL CODE AND AMENDING CHAPTER 6.36 AND SECTION
3.36.150 OF THE SANTA MONICA MUNICIPAL CODE RELATING TO STREET
PERFORMERS AND PERSONS, INCLUDING VENDORS, UTILIZING TABLES,
CARTS, BLANKETS, OR SIMILAR ITEMS FOR THE PURPOSE OF DISPLAYING
OR DISTRIBUTING MERCHANDISE, GOODS, WRITTEN MATERIALS, OR FOOD
OR PLACING OBJECTS ON PUBLIC SIDEWALKS," was introduced and had
first reading.

Motion by Councilmember Greenberg, seconded by Councilmember
Rosenstein, to adopt Resolution No. 9205(CCS) entitled: "A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
ESTABLISHING SPECIAL ZONES FOR STREET PERFORMERS AND PERSONS,
INCLUDING VENDORS, UTILIZING TABLES, CARTS, BLANKETS, OR
SIMILAR ITEMS FOR THE PURPOSE OF DISPLAYING OR DISTRIBUTING
MERCHANDISE, GOODS, WRITTEN MATERIALS, OR FOOD ON THE THIRD
STREET PROMENADE AND ESTABLISHING THE HOURS THAT CERTAIN BLOCKS
ARE AT OR NEAR MAXIMUM OCCUPANT LOAD," reading by title only and
waiving further reading thereof. The motion was approved by
the following vote:

Ayes: Councilmembers Greenberg, Rosenstein, Ebner,
Mayor Pro Tem Holbrook
Noes: Councilmembers Feinstein, Genser, Mayor O'Connor
Absent: None

Councilmember Feinstein requested that the record reflect that
he thinks that while arguments can be made for consistency,
there is not yet a reason to regulate next to Wilshire and this
could have been revisited later.

Motion by Councilmember Greenberg, seconded by Councilmember
Rosenstein, to adopt Resolution No. 9206(CCS) entitled: "A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
ESTABLISHING SPECIAL ZONES FOR STREET PERFORMERS AND PERSONS,
INCLUDING VENDORS, UTILIZING TABLES, CARTS, BLANKETS, OR
SIMILAR ITEMS FOR THE PURPOSE OF DISPLAYING OR DISTRIBUTING
MERCHANDISE, GOODS, WRITTEN MATERIALS, OR FOOD ON THE SANTA
MONICA PIER," reading by title only and waiving further reading
thereof. The motion was approved by the following vote:

Ayes: Councilmembers Ebner, Rosenstein, Greenberg,
Mayor Pro Tem Holbrook
Noes: Councilmembers Genser, Feinstein, Mayor O'Connor
Absent: None

Motion by Councilmember Greenberg, seconded by Councilmember
Rosenstein, to adopt Resolution No. 9207(CCS) entitled: "A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
ESTABLISHING FILING FEES FOR A PERFORMANCE PERMIT AND A
REPLACEMENT PERFORMANCE PERMIT," reading by title only and
waiving further reading thereof. The motion was approved by
the following vote:

Ayes: Councilmembers Feinstein, Greenberg, Rosenstein,
Ebner,
Mayor Pro Tem Holbrook
Noes: Councilmember Genser, Mayor O'Connor
Absent: None

Motion by Councilmember Greenberg, seconded by Councilmember
Ebner, to authorize the City Manager to negotiate and execute a
revised License Agreement No. 5176 with Promenade Services,
Inc., and authorize the City Manager to take steps to
accommodate "free-speech vendors" on the Promenade and the Pier.
The motion was approved by the following vote:

Ayes: Councilmembers Ebner, Rosenstein, Greenberg,
Genser,
Mayor Pro Tem Holbrook
Noes: Councilmember Feinstein, Mayor O'Connor
Absent: None

Councilmember Feinstein requested that the record reflect that
he believes the matter of free speech could have been handled
in a better manner; there is nothing inherently wrong with this
action in and of itself, it is simply the wrong approach.

Motion by Councilmember Rosenstein, seconded by Councilmember
Greenberg, to direct staff to investigate the problems of the
distribution of samples of commercial products or products
linked to commercial products on the Pier and the Promenade and
return with either a proposal or a report. The motion was
unanimously approved by voice vote.

The Mayor announced that the next two items, 13-A and 13-B,
will be combined and heard concurrently.

13-A: CHRISTOPHER M. HARDING/INCLUSIONARY HOUSING PROGRAM:
Christopher M. Harding, of Lawrence & Harding, addressed
Council on the City's Inclusionary Housing Program and its
preemption by the Costa-Hawkins Rental Housing Act (Act), and
requested that Council take necessary steps for the adoption of
an interim ordinance to modify the inclusionary Housing Program
to bring it into compliance with the Act.

13-B: ROBERT J. SULLIVAN/LOW- AND MODERATE-INCOME HOUSING
UNITS: Robert J. Sullivan, President of the Santa Monica
Housing Council, addressed Council regarding the City's
requirement that new apartment and condominium projects include
low- and moderate-income units on-site and noted that the
requirement conflicts with the Costa-Hawkins Rental Housing
Act.

Members of the public Jay Johnson and Savo Litvinov spoke in
opposition to the proposals of Messrs. Harding and Sullivan.

Member of the public Michael Tarbet urged Council to delay
action on this request until after the next meeting when this
issue will be addressed.

Motion by Councilmember Feinstein, seconded by Mayor Pro Tem
Holbrook, to continue the meeting past 11:00 p.m. The motion,
requiring a two-thirds vote, failed by the following vote:

Ayes: Councilmembers Greenberg, Ebner, Mayor Pro Tem
Holbrook,
Mayor O'Connor
Noes: Councilmembers Feinstein, Genser, Rosenstein
Absent: None

Motion by Councilmember Genser, seconded by Councilmember
Feinstein, to adjourn the meeting after hearing Public Input.

Substitute motion by Councilmember Greenberg, seconded by
Councilmember Ebner, to complete Item Nos. 13-A/13-B, 14-A, and
Public Input. The substitute motion, requiring a two-thirds
vote, failed by the following vote:

Ayes: Councilmembers Greenberg, Ebner, Mayor Pro Tem
Holbrook,
Mayor O'Connor
Noes: Councilmembers Feinstein, Genser, Rosenstein
Absent: None

The main motion was approved by the following vote:

Ayes: Councilmembers Feinstein, Genser, Greenberg,
Ebner,
Mayor Pro Tem Holbrook, Mayor O'Connor
Abstain: Councilmember Rosenstein
Noes: None
Absent: None

14-A: RECONSIDERATION/DECISION/APPEAL 97-001/CUP 96-023/FAST
FOOD RESTAURANT/OUTDOOR SEATING/CONVENIENCE STORE/1410 PICO
BOULEVARD: The request of Mayor Pro Tem Holbrook and
Councilmember Rosenstein to reconsider the July 22, 1997,
decision regarding appeal 97-001 of Planning Commission
approval of Conditional Use Permit 96-023 to allow the addition
of a fast-food restaurant with outdoor seating and a
convenience store to an existing self-service gas station
located at 1410 Pico Boulevard, relative to the existing 14th
Street driveway was continued to the meeting of October 14,
1997.

14-B: AUTOMATIC VOTING SYSTEM/CITY COUNCIL MOTIONS: The request
of Mayor Pro Tem Holbrook to direct staff to purchase and
install, in Council Chambers, an automatic voting system for
City Council motions was continued to the meeting of October
14, 1997.

15: PUBLIC INPUT: Member of the public Brian Hutchings
discussed issues relating to Burma.

Member of the public Clarence Jon Heisler discussed Council
salary.

16: CLOSED SESSION: The following closed sessions were not held
and were continued to October 14, 1997.

16-A: CLOSED SESSION/PUBLIC EMPLOYEE EVALUATION:
Employee Title: City Attorney

16-B: CLOSED SESSION/CONFERENCE WITH LEGAL COUNSEL:
Existing Litigation: City of Santa Monica v. Mobil Oil
Corporation, Case No. 778141.

16-C: CLOSED SESSION/CONFERENCE WITH LEGAL COUNSEL:
Existing litigation: Mark Miskey v. City of Santa Monica,
Case No. CV 97-4325.

16-D: CLOSED SESSION/CONFERENCE WITH LEGAL COUNSEL:
Existing litigation: Santa Monica Housing Council v. City
of Santa Monica, Case No. SS 005191.

16-E: CLOSED SESSION/CONFERENCE WITH LEGAL COUNSEL:
Existing Litigation: Wil-Fourth Partnership v. City of
Santa Monica, Case No. BS 045458.

16-F: CLOSED SESSION/CONFERENCE WITH LEGAL COUNSEL:
Existing Litigation: Charmont Partners, Ltd., v. City of
Santa Monica, Case No. SS 007397.

16-G: CLOSED SESSION/CONFERENCE WITH LEGAL COUNSEL:
Existing Litigation: McNally v. Butts, Case No. CV 95-
8634.

16-H: CLOSED SESSION/CONFERENCE WITH LEGAL COUNSEL:
Potential Litigation: One case.

ADJOURNMENT: At 11:17 p.m., the meeting was adjourned to
Tuesday, October 14, 1997, at 6:30 p.m.

ATTEST: APPROVED:

Maria M. Stewart Pamela O'Connor
City Clerk Mayor