Item 8-B
Council Meeting: 9/16/97 Santa Monica, CA
To: Mayor and City Council
From: City Staff
Subject: Recommendation to Consider an Ordinance and Resolutions
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.
INTRODUCTION
This staff report recommends that City Council adopt the attached
ordinance revising regulations governing the time, place and
manner of street performance within the City. The report
recommends revisions to existing City-wide street performer
regulations and gives special emphasis to regulations governing
performers on the Third Street Promenade and the Pier. The
report also recommends clarifications of the City's vending
ordinance and addresses certain rights of individuals displaying
or distributing merchandise, goods, written materials or food.
BACKGROUND
Individuals or groups who perform in public areas such as streets
and sidewalks are considered to be engaged in expressive activity
protected by the First Amendment. Restrictions on such
expressive activity are authorized if tailored to serve
significant governmental interest and if alternative channels for
communication are available. A city can legitimately regulate
street performances to ensure the safety of performers, their
audience, and the general public and to prevent unreasonable
interference with residents' enjoyment of peace and the ability
of businesses to operate or conduct their business.
Street performers generally provide a public amenity that
enhances the character of the City. However, street performers
can and do draw crowds to their performances. This can create
problems by impacting the ability of pedestrians to move safely
in public thoroughfares and impeding the response time of safety
personnel. Performers can sometimes perform at excessive volumes
and can also impact access to and egress from businesses. The
recommendations in the attached ordinance are intended as
reasonable time, place and manner restrictions which authorize
performances in a manner consistent with the overall public
interest.
The City Council began regulating vendors and street performers
in September 1989. The City Council adopted Ordinance 1495,
which, in addition to addressing the regulation of vending, also
defined "performer" and established several pedestrian-safety
requirements related to performing. The ordinance included
requirements that performers operate in a manner which does not
obstruct the free movement of pedestrians, that they change their
performance spot by at least one hundred (100) feet every thirty
(30) minutes, and that they observe several locational guidelines
(i.e., no performing within ten feet of a bus stop, within four
feet of a building, or within ten feet of a business entrance).
These requirements are currently applicable City-wide.
In August 1991, the City Council adopted emergency Ordinance
1597, which established special performance regulations for the
Third Street Promenade. This ordinance established restrictions
on the hours when performers may perform on the Promenade, set
forth additional public safety requirements and prohibited
amplified sound equipment.
In November 1993, the City Council adopted further regulations
governing performers. These regulations remain in effect today.
Important features of the 1993 actions (Ordinance 1712 and
Resolution 8680) include the following:
1. Establishment of a registration system for performers and
setting of a $120 annual permit fee.
2. Elimination of the prior ban on amplification and
substitution instead of maximum allowable decibel limits which
varied according to time of day and the day of the week. Higher
decibel limits were permitted during the day, with lower limits
established after 9:00 p.m. on weekdays, and after 10:00 p.m. on
weekends.
3. Designation of specific zones where performers were
authorized to perform. Generally, these zones were established
in the middle half to two-thirds of each of the three blocks of
the Promenade.
4. Revision of some of the spatial requirements from the 1989
Ordinance (i.e., performers must be 20 feet from a business
entrance when performing on the Third Street Promenade) and
clarification of some safety issues (i.e., banned acrobatic,
tumbling and other potentially dangerous acts).
5. Specification that violations of the above requirements would
be an infraction, punishable by a fine not exceeding $250.
In July 1995, City staff recommended further refinements of the
various municipal code sections governing street performers. City
Council continued the matter and directed staff to further
research issues of noise problems and enforcement. An
Information Item was presented to Council in August 1995, which
reported the results of professional noise monitoring. The
August 1995 Information Item noted that an outside noise
consultant had studied noise levels generated by performers on
the Promenade and found no correlation between sound
amplification and whether or not the legal noise limits were
exceeded. Some amplified performers were within legal limits,
while some non-amplified performers exceeded allowable noise
limits. The Information Item also pledged further research and a
return to Council with recommended revisions to the street
performer ordinance.
Since the August 1995 Information Item, staff has worked to
develop revised recommendations on this issue. Staff activity
has intensified since February 1997, with the formation of an
interdepartmental working group comprised of representatives of
the City Attorney's office, City Manager's office and the Fire,
Police and Resource Management Departments. The group has sought
advice from a professional noise expert, a pedestrian traffic
consultant, other affected Departments, the Bayside District
Corporation and the Pier Restoration Corporation. Staff visited
the Promenade and the Pier and studied videotapes of them in
order to more fully understand the dynamics of crowds in those
locations. The working group also received a thoughtful set of
recommendations from a group representing Santa Monica street
performers. The Bayside District Corporation and the Pier
Restoration Corporation are both scheduled to review major
components of the proposed ordinance revision, and staff expects
to have their input prior to Council consideration of this
matter.
In June 1997, the City was sued by a street performer who had
been cited by police on the Pier for failure to observe the
requirement to move his performance every thirty (30) minutes.
The suit questions the constitutionality of this provision
particularly and the Street Performer Ordinance generally. Since
revisions to the challenged provisions were already being
contemplated, the City Attorney advised the Police Department to
refrain from citing performers under this particular provision
until this staff report and ordinance revision could be completed
and presented to City Council for consideration.
DISCUSSION
Current conditions regarding pedestrian flow, noise and illegal
vending are described below:
Pedestrian Flow
Visitors to the Promenade on a Friday or Saturday night will
typically experience a very popular venue. Numerous shoppers,
diners, movie-goers and casual strollers join an eclectic mix of
street performers, vendors, and non-profit and free-speech
groups. The Promenade also features a variety of street
furniture, landscaping features, retail pavilions, the notable
"Dinosaur" topiaries, outdoor dining areas and vending carts, all
of which can combine to obstruct and hinder the flow of
pedestrian traffic. The Promenade is an extremely successful
pedestrian-oriented district that has been cited as a model by
other cities throughout the nation, but there can be times when
the Promenade becomes very crowded.
Street Performers are a common and popular component of the
Promenade. Performances include a wide variety of acts from
single musicians to large bands to jugglers, comedians, artists,
mimes, and even a performer specializing in rhythmic drumming of
empty 5-gallon plastic water bottles. 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. The
combination of extremely dense crowds and popular performers can
choke pedestrian flow. In this environment, public safety can be
compromised. Public safety personnel also must consider the
density of crowds in the event of any major incident.
Fire Department officials have calculated that if the Third
Street Promenade were an enclosed space, the maximum occupant
load would be approximately 5000 persons per block. Staff
retained an expert specializing in crowd size determinations and
found that on weekend evenings, that occupant load is often
approached or exceeded in the 1300 and 1400 blocks of the
Promenade. The expert further advised that visitors typically
stroll from one block to the next, creating a fluid shifting of
crowds on the Promenade, particularly between the 1300 and 1400
block. See the attached Exhibit A for charts showing estimated
crowd conditions on the three blocks of the Promenade. In
addition to the persons on the Promenade, the estimated crowd
counts also included those seated in outdoor dining areas, but
did not include persons inside enclosed business premises.
Fire Department officials also conducted a series of simulated
emergency response exercises designed to determine the length of
time required to get a paramedic squad with a wheeled stretcher
from an east/west cross street (i.e., Wilshire, Arizona, Santa
Monica or Broadway) to a mid-block Promenade location. In
summary, the 1300 block takes more time to respond than the other
blocks; on average, Friday and Saturday crowds can almost double
the response time from under one minute to close to two minutes.
This increased response time can have significant medical
implications in certain emergency situations.
In early July of this year, an attempted armed robbery of a
retail establishment forced the Police Department to close the
Promenade on a busy Friday night. Police personnel implemented
the closure smoothly and successfully. However, the incident
serves as reminder that occurrences may arise when safety
personnel must close the area swiftly in order to preserve public
safety.
Excessive Noise
In recent years, the City has from time to time retained the
services of Mestre Greve Associates, a firm specializing in
monitoring urban noise and advising local governments on
solutions to noise problems, to measure noise levels on the
Promenade. In August 1992, Mestre Greve staff measured noise
levels on the Promenade and recommended certain maximum allowable
decibel levels which were eventually adopted by Council as part
of the November 1993 Ordinance revisions. This ordinance
established a maximum allowable limit of 85 decibels (dBA) until
9:00 p.m. on weekdays and until 10:00 p.m. on weekends.
Thereafter, the Ordinance established a limit of 75 dBA until the
ending time for performers (10:30 p.m. on weekdays and midnight
on weekends). At the time of these measurements, amplified music
was prohibited on the Promenade. Nonetheless, Mestre Greve found
that 17 percent of all performers exceeded the proposed 85 dBA
limit, and 80% of performers exceeded the 75 dBA level.
The Promenade noise limits exceed the standard City-wide noise
limit of 65 dBA in a commercial district. This higher threshold
was established in recognition of the fact that the Promenade
consistently has ambient noise levels exceeding standard City-
wide maximums.
In a return visit on Saturday, July 15, 1995, Mestre Greve found
that six to seven groups consistently exceeded the 85 dBA
standard during hours it was in effect, and, later in the
evening, almost every instrument on the Promenade exceeded the 75
dBA standard. On Thursday, July 20, 1995, Mestre Greve returned
to test during a mid-week lunch hour period. One of three groups
performing at that time exceeded the 85 dBA level.
In July 1997, Mestre Greve conducted further noise testing.
Generally, the consultant found that ambient noise levels (Leq)
ranged between 61 dBA and 67 dBA during weekday daytime and early
evening hours. Ambient noise levels increased to between 65 dBA
and 80 dBA during peak weekend evenings. On several occasions in
recent years, Police Department personnel have tested ambient
noise levels and obtained comparable results. The attached charts
at Exhibit B show the results of Mestre Greve's noise monitoring
on the Promenade.
Staff and the noise consultant engaged in extensive discussions
of proper noise monitoring techniques and issues. The major
purpose of most municipal noise ordinances is to limit
interference with one's ability to converse or carry on business
and to allow reasonably quiet enjoyment of one's residence.
Earlier scientific understanding of noise levels which interfere
with human sleep are currently undergoing re-examination, and
experts do not agree consistently in this area. The consultant
explained that normal human speech occurs at approximately 65 dBA
and that this is a reasonable level for the conducting of
business. In an outdoor location such as the Promenade, people
expect, and will tolerate, higher dBA levels. The consultant
advised that limits could be imposed which recognize current
ambient noise levels and also would typically result in levels
approximating 65 dBA or less inside adjacent premises when doors
and windows are closed. This is because sound attenuation
characteristics of a typical building will reduce noise at these
levels by approximately 20 dBA when doors and windows are closed.
Naturally, different construction methods can cause variations in
this "typical" sound attenuation.
Historically, some members of the public have called for a return
to the 1991 ban on amplification. This solution has been
suggested primarily as a means of simplifying enforcement of the
noise Ordinance. However, banning amplification would not
adequately control excessive noise sources because, as Mestre
Greve found in their 1995 monitoring, "instrument amplification
did not play a significant role in whether or not the noise
standard was exceeded." Some performers use amplification and
turn the volume down quite low. Other performers can
dramatically exceed current noise limits even without
amplification. Further, according to the City Attorney, a ban on
amplification would not survive a legal challenge because it
would constrain performers' First Amendment rights but is not
narrowly tailored to address the real problem of excessive noise.
Illegal Vending
In recent years, staff has received many complaints about the
number of persons who come to the City's pedestrian-oriented
commercial districts for the purpose of selling handicrafts and
other things. Current code allows street performers within the
City to create "tangible art objects", which may then be offered
to the public strictly on a donation basis. This provision
allows the public to enjoy viewing the act of creating art or
crafts. In contrast to those who perform under this provision,
others simply set up a folding table or a blanket, without
obtaining a Performance Permit, and display their handicrafts to
passers-by, seeking to sell these items. Some of these artisans
indicate that they represent a non-profit or religious
organization, while others are simply individuals seeking a
source of personal income.
The City has an interest in controlling this activity for several
reasons. First, these vendors often impede the free flow of
pedestrians in crowded public areas. Indeed, since their purpose
is generally to expose as many of their products or crafts to as
many people as possible, these vendors often set up their
displays in the most crowded pedestrian-oriented venues of the
City (particularly the Promenade and the Pier), at the busiest
times of day and often immediately in the path of the greatest
number of pedestrians. Second, the City has an interest in
regulating vendors (other than licensed street performers who
perform strictly for donations) as businesses and making sure
they comply with Business License regulations as well as public
health laws, State sales tax laws, and other business
regulations. Third, the City has an interest in maintaining high
aesthetic standards on the Promenade and in its commercial
districts. For example, the City's License Agreement for the
Promenade vending cart program goes into great detail in
mandating high quality design, display and operational standards.
Fourth, the City has an interest in preventing unfair competition
from unlicensed, unregulated vendors that would be detrimental to
existing businesses which are legally established, carry proper
business licenses and permits, contribute tax revenue to the City
and are an integral part of the City's strong local economy.
PROPOSED REVISIONS TO CURRENT REGULATIONS
Staff recommends retaining most of the current City-wide
regulations governing street performers, including rules that
performers may not perform within ten (10) feet of a bus stop,
within ten (10) feet of any street corner, or within ten (10)
feet of a business entrance when that business is open. Also,
existing rules such as a ban on potentially dangerous acts and a
prohibition of erecting stages or platforms are retained.
Highlights of the changes to current regulations are as follows:
City-wide Performer Issues:
1. Proposal: Require Performance Permits for all performers who
perform on the Third Street Promenade, the Santa Monica Pier and
on public sidewalks.
Discussion: Current rules require permits only on the
Promenade. Expanding that requirement to also cover performers
on the Pier and all sidewalks will give the City an opportunity
to issue copies of applicable regulations to virtually all
performers, screen Performance Permit applications to prevent
acts which violate the City's guidelines, and to have some basic
contact information on file in the event that enforcement
activity becomes necessary. Staff is not recommending a simple
City-wide Performance Permit requirement because staff believes
other public areas, such as parks, have adequate regulations
governing their use.
2. Proposal: Eliminate the current rule regarding moving
performance locations every 30 minutes.
Discussion: This rule is justified only in very heavily
congested areas and is proposed below only at peak times and for
only two (2) blocks of Third Street Promenade.
3. Proposal: Revise and expand the safety guidelines which
govern locations in which a performer may perform.
Discussion: Current code requires performers to be at least
ten (10) feet from a street corner, ten (10) feet from a bus stop
and ten (10) feet from any business entrance. Staff proposes to
retain these provisions and add a requirement that at least four
(4) feet of sidewalk be kept clear for pedestrian passage. Other
current provisions would be rescinded as essentially unworkable
or unenforceable. The four (4) foot clearance requirement would
codify an accessibility issue for public sidewalks and would be
consistent with guidelines from the Americans With Disabilities
Act of 1991(ADA).
4. Proposal: Prohibit the use of animals in performances.
Discussion: Staff is responding to complaints from members
of the public who believe animals can be mistreated in street
performance acts.
5. Proposal: Prohibit performers from using generators, wet-
cell batteries (i.e., automotive batteries) or other power source
that poses a fire or public safety hazard. Also, prohibit
electrical extension cords connected to adjacent buildings or the
City electrical outlets.
Discussion: This proposal, which is strongly recommended by
the Fire Department, would prohibit gasoline and other liquid
fuel electrical generators, together with batteries that could
leak acid if tipped-over or damaged. Also, the recommendation
seeks to eliminate electrical cords laid out along the public
right-of-way, as these pose an obvious potential tripping hazard.
Dry-cell batteries or gel-cell batteries, which are used by most
Performers with amplification, would continue to be permitted as
they do not pose the same public safety risk.
6. Proposal: No performer shall perform on public sidewalks
with more instruments or props than the performer can reasonably
carry or remove at one time (would also apply on the Promenade
and the Pier).
Discussion: Allowing unlimited amounts of equipment to be
set up for performances can significantly contribute to unsafe
congestion. This provision would also ensure that in the event
of an emergency, performers will be able to quickly and easily
gather their equipment and exit their performance area.
7. Proposal: Require that no performer shall display tangible
art objects unless the objects were created during the day of the
performance.
Discussion: Both current code and the proposed amendments
include in the definition of "performers" those persons who
create tangible art objects. These artists or artisans "perform"
by displaying the act of creating art. It is the performance, or
act of creating the art, which is authorized under the performer
permit. The sale or display of large quantities of artworks or
handicrafts is not authorized. Therefore, to more closely
preserve the public enjoyment of observing the performance of art
creation and prevent illegal vending, staff recommends that all
such artwork be created entirely on site and during the day of
performance.
8. Proposal: Any child under the age of 16 years participating
in a performance would be required to first obtain an
Entertainment Permit from the California Department of Industrial
Relations, Division of Labor Standards Enforcement.
Discussion: Current City regulations do not address this
issue. Staff has received comments from members of the public
concerned about the welfare of children performers. The
California Labor Code regulates the use of minors in any form of
public entertainment. The Labor Code, for example, requires that
children performers work no more than 8 hours per day, or 48
hours per week. The Labor Code also prohibits children from
working after 10:00 p.m. on any day preceding a school day or
until 12:30 a.m. on a non-school day. The staff recommendation
would recognize the State regulations in this area and require
children performers to obtain a State permit and adhere to those
regulations.
9. Proposal: Require all Performers producing tangible art
objects to visibly display a City-issued sign informing the
public that all items displayed are available for free, with
voluntary donations accepted.
Discussion: This provision is intended to help curb illegal
vending activity, especially by producers of tangible art
objects, by informing the public of the strict donation-only
regulations under which street performers are allowed to perform.
10. Proposal: Decrease the Performer Permit Fee from $120.00 per
year (payable quarterly) to $37.00 per year, and extend the
processing time for Performance Permits to five (5) working days,
rather than the current three (3) day rule.
Discussion: Staff currently processes approximately 175
permits per quarter. Staff has completed an analysis of the
administrative cost of issuing such permits, taking into account
the staff time spent on each permit, supplies and overhead costs.
The staff time involved in issuing quarterly permits is
essentially the same as it would be to issue annual permits,
therefore staff recommends that the permits be issued on an
annual basis. It has also been determined that the cost of
issuing a replacement permit, should an original be lost, is
nearly identical to the cost of issuing the original permit.
Therefore, it is recommended that replacement permits also cost
$37.00. All permits would be issued on a calendar year basis and
would expire December 31 of the year issued.
Staff also anticipates an increase in the number of Performance
Permit applications since permits will now be required on the
Promenade, the Pier and for performances on any public sidewalk,
and perhaps due also to the reduced permit cost. This increased
workload can be accommodated without budgetary impact if the
processing period is slightly lengthened.
11. Proposal: Establish an administrative procedure for
revocation or suspension of performance permits upon two (2)
violations of permit conditions within six months.
Discussion: Current regulations call for three (3) criminal
convictions within a year before a performance permit can
revoked. This creates an extremely high standard, and no
revocations have occurred. Staff recommends the proposed
administrative procedure, including the right of appeal to a
hearing officer, as a more realistic enforcement mechanism. This
procedure is similar to the one established for business license
revocation. Police personnel could issue a Notice of Violation
to any performer violating the regulations of the street
performer ordinance, or could, in egregious circumstances, issue
citations.
Special Performer Regulations for Third Street Promenade:
1. Proposal: Extend allowable performance hours allowed as
follows:
Day Time
Sunday - Thursday 9:00 a.m. - 10:30 p.m.
Fri. - Sat. 9:00 a.m. - Midnight
Sat. - Sun. (early morning hours) Midnight - 1:30 a.m.
Discussion: Current regulations are more restrictive in
hours, but staff feels they are not legally justifiable. The
proposed 9:00 a.m. start time is structured to allow the City's
maintenance crew to complete their daily cleaning of the
Promenade sidewalks and roadway. This daily washing is typically
concluded by 9:00 a.m.
As to the evening hours, the 10:30 p.m. stop time on weekdays is
intended to recognize area residents' rights to quiet enjoyment
of their homes at a reasonable hour. The 10:30 stop time has
been in place since 1989, and appears to be working well.
However, the current midnight stop time on weekends is proposed
to be extended to 1:30 a.m., with a strict noise limitation. The
Promenade frequently maintains an active street life into the
early morning hours on weekends due to the presence of late night
movies and outdoor dining areas, among other allowable
activities. Staff recommends performers be allowed to perform on
Friday and Saturday nights from midnight to 1:30 a.m. of the
following day, as this would be consistent with current practice
for bar and outdoor dining closing. The extended late night
hours would only be implemented in conjunction with more strict
noise limits in order to protect the quiet enjoyment of
residential uses on the Promenade (see Proposal #2 below). The
1:30 a.m. stop time is recommended to coincide with the common
1:30 a.m. "last call" in many bars and restaurants and in order
to give performers adequate time to pack up their equipment and
be ready to exit the area at the 2:00 a.m. closure of outdoor
dining areas.
2. Proposal: Establish noise limits on the Promenade as
follows:
Day Time Max. Noise Level (Lmax)
Mon. - Fri. 9 a.m. - 7 p.m. 75 dBA
Mon. - Thurs. 7 p.m. - 10:30 p.m. 85 dBA
Fri. 7 p.m. - Midnight 85 dBA
Sat. 9 a.m. - Midnight 85 dBA
Sun. 9 a.m. - 10:30 p.m. 85 dBA
Sat. - Sun. 12:01 a.m. - 1:30 a.m. 65 dBA
Discussion: Note that these hours include some periods in
which street performing is not allowed. This is because the
proposed Promenade noise limits apply to all persons on the
Promenade, not just street performers. During hours outside
those listed above, normal City-wide noise standards would apply.
Current Promenade regulations allow a maximum of 85 dBA in the
daytime hours, but reduce maximum noise levels to 75 dBA between
9:00 p.m. and 10:30 p.m. on weekdays and between 10:00 p.m. and
midnight on Fridays and Saturdays. Findings in the noise survey
indicate that no reliable enforcement-oriented noise measurement
of a street performer can be taken on weekends between 10:00 p.m.
and midnight because typical ambient noise levels exceed the 75
dBA limit. This condition means that the 75 dBA limit is
effectively unenforceable. The proposed noise limits recognize
the current reality of ambient noise on the Promenade and would
be more enforceable.
The 65 dBA limit for late night weekends would effectively bring
performance volumes down to a level close to the City-wide noise
standards for commercial districts after midnight (the City-wide
limit for commercial districts after midnight is 60 dBA). Staff
recommends this approach as a narrowly crafted restriction which
would create a reasonable late-night noise standard, while still
allowing those performers whose acts are of a very quiet nature.
The noise levels proposed by staff as detailed in the table above
would allow performers to be heard without disrupting the conduct
of business or quiet enjoyment of residents.
3. Proposal: Enable the City Council, by future Resolution, to
adjust the performance hours and noise level requirements for
holidays.
Discussion: Certain holidays are commonly non-work days for
most employees and local residents. The Council may wish to
consider revised performance hours and noise levels for such
holidays. For example, Saturday night rules could apply to the
evening preceding a holiday, even if such holiday fell on a
weekday. This provision would give Council more flexibility in
addressing this issue through a Resolution.
4. Proposal: Amend current prohibition on performing during
City-approved special events. The new proposal would require
that performers remain sixty (60) feet from any City-approved
special event.
Discussion: Some large special events encompass all three
blocks of the Promenade. During such events, the proposed sixty
(60) foot distance requirement would effectively prohibit street
performances during the event, except for those officially
scheduled as part of the approved event. However, other special
events are smaller, comprising just one block or a portion of a
block. In such cases, performers maintaining a sixty (60) foot
separation would not unreasonably interfere with the special
event.
5. Proposal: Noise limits would apply to all persons on the
Promenade, not just licensed street performers.
Discussion: Noise limits are set to protect public health
and common enjoyment of the public right-of-way and should be
equally and equitably applied to all persons.
6. Proposal: Adjust, by Resolution, the authorized performance
zones on the Promenade as shown in the attached maps (Exhibit C).
Discussion: In an effort to explore the issue of where
performance zones should be delineated, staff analyzed the
current performance zones, hired an architect to create scale
drawings of the Promenade, examined existing physical conditions
on the Promenade, tracked pedestrian flow in and around street
performers, established the proximity characteristics of
performers to their audience and observed the current pattern of
preferred performance locations. Staff also considered the hours
and days of the week during which performers should be required
to perform within the authorized zones. Staff eventually decided
to propose the performance zones identified in the maps attached
as Exhibit C to this staff report. Performers would be required
to be within those zones at all times that performing is allowed.
This position was taken due to the constricted 12' roadway width
at the north and south ends of the 1200 and 1400 blocks, the
presence of two major movie theaters at the north end of the 1300
block and the need to prevent potentially unsafe crowd-forming
performances at these locations, which are basically exits and
entrances to the Promenade. Also, changing the allowable
performance zones based solely on "peak-time" analysis would
cause considerable confusion for the performers and also make
clear and consistent enforcement more complicated and less
effective. It was also noted that even at non-peak times, the
Promenade still has the most crowded sidewalks in the City.
7. Proposal: Establish, by Resolution, time periods when
certain blocks of the Promenade approach maximum occupant load
and establish special safety requirements during those periods.
The periods are proposed as follows:
Day Time Blocks Affected
Friday 7 p.m. to 12 a.m. (midnight) 1300 and 1400 blocks
Saturday 7 p.m. to 12 a.m. (midnight) 1300 and 1400 blocks
During these peak periods, and only in those two (2) blocks
affected, performers would be required to move to a new location
every hour and would be required to be at least sixty (60) feet
from another performer and at least thirty-five (35) feet from a
licensed vendor cart or an individual or group setting up a
display of merchandise available for donation.
Discussion: Portions of the Promenade are attracting a dense
crowd during certain peak periods. In recommending the limited
peak periods and locations, staff examined pedestrian count data,
reviewed the Fire Department's paramedic response time studies,
listened to comments of Bayside District Corporation and relied
on observations documented via videotaping.
The requirement to change performance locations every hour is
intended to prevent crowds from forming which can create extended
pedestrian obstructions. Having performers move keeps audience
groups more mobile than would be expected without this
requirement, and will reduce bottlenecks. This will contribute
to overall pedestrian safety. Also, requiring performers to move
ensures fairness to all street performers by preventing the
monopolization of the "best spots" by a small group of
performers. The one hour recommendation is a doubling of the
current thirty (30) minute rule based upon performers' complaints
that thirty (30) minutes was not enough time to set up, perform,
and pack up. This regulation would only be applicable at peak
times (a total of 10 hours per week) and only on the 1300 and
1400 blocks of the Promenade.
The sixty (60) foot performer separation proposal is also a
revision of an existing regulation. Current regulations read, in
part, "No person may vend or perform...within thirty-five (35)
feet of any other vendor." Since at least 1989, the Police
Department has enforced a 35 foot separation rule as applicable
to performers. In recent months, upon advice of the City
Attorney's office, Police personnel have stopped enforcing that
rule, because it is vaguely worded and does not clearly say 35
feet from "any other performer or vendor". As a result, there is
currently no enforceable distance requirement separating
performers. Close proximity of two or more performers can create
dangerous constrictions of the public right-of-way and problems
of one performer "crowding" another performer's area have
occurred.
The proposed sixty (60) foot rule is recommended based on staff's
and consultant's observation that performers often attract crowds
in a dense ring around themselves. These crowd "rings" often
measure forty (40) to fifty (50) feet in diameter. A sixty (60)
foot separation requirement between performers, applicable only
at peak times, would allow safe pedestrian access through areas
of adjacent performance crowds.
The proposed 35 foot separation between performers and licensed
vendors would, because of the typical 20 - 25 foot radius of a
performer's audience, reduce dangerous crowding near vending
carts. Again, this restriction would apply only 10 hours per
week and only on the 1300 and 1400 blocks of the Promenade.
Staff considered, but is not recommending, the establishment of
permanent, specific performance spots for peak times. Staff
believes the current system of larger performance zones allows
more flexibility for performers at peak times. Also, staff
believes assigning specific spots would lead to possible
conflicts among performers competing for the few authorized
spots, or would force the City to issue assignments to the spots
on some sort of lottery-type basis. Such involvement in
assigning spots would entangle the City unnecessarily in the
details of a performer's First Amendment expression and would be
difficult to administer and enforce.
Special Performer Regulations for the Pier
1. Proposal: Staff recommends that Council, by Resolution,
establish performance zones on the Pier as per the attached map
(Exhibit D), within which performers may perform under the
general City-wide performer regulations.
Discussion: Staff retained experts to measure crowd size on
the Pier. Still photography was also used to study and document
pedestrian crowding conditions. Also, Fire Department personnel
determined maximum occupant load figures for the Pier. While
typical Pier crowds did not approach maximum occupant loads, and
therefore no "peak time" restrictions are being proposed, staff
and experts did observe some specific areas of safety concern.
These concerns have motivated this performance zone proposal.
In general, recommended performance zones on the Pier are all
public areas except the following: private leasehold premises,
the Pier deck parking lot, the tollbooth entry area to the
parking lot, the Pier bridge, and the deck area immediately north
of the Carousel Building and extending past the Police Substation
to the eastern edge of the beach access stairs near the Boathouse
Restaurant, which is prudent to keep clear for safe exiting
purposes. These restrictions are motivated by public safety to
ensure pedestrian flow and the ability of public safety personnel
to respond in vehicles to emergencies and calls for service.
2. Proposal: Establish allowable performance hours allowed as
follows:
Day Time
Monday - Thursday 8:00 a.m. - 10:00 p.m.
Friday 8:00 a.m. - Midnight
Saturday 9:00 a.m. - Midnight
Sunday 9:00 a.m. - 10:00 p.m.
Discussion: Recommended morning start times Monday through
Saturday are consistent with City-wide construction start times.
The 9:00 a.m Sunday start time is recommended as consistent with
the Saturday time, even though construction is normally not
allowed on Sundays.
The recommended evening stop times are consistent with the
required summer closing hours for Pacific Park, the Pier's major
visitor attraction.
3. Proposal: Enable the City Council, by future Resolution, to
adjust the performance hours and noise level requirements for
holidays.
Discussion: See discussion of Item 3 in Third Street
Promenade section of this report.
Vending Regulations
1. Proposal: Better control illegal vending by defining vending
to include requiring someone "to pay a fee or to set, negotiate,
or establish a fee before providing goods or services." Require
all persons displaying any food, goods, written materials or
merchandise in any public area, and making such goods available
to the public free of charge, to visibly display a City-issued
sign stating that all items displayed are available for free,
with voluntary donations accepted.
Discussion: Persons using the public streets to display
their products, handicrafts or artwork generally fall into one of
three categories. First, they may be street performers.
Performers will be required to have a valid street performer
permit, follow all applicable performer guidelines, and display a
sign indicating that items displayed are available on a donation
basis. The required signage would be made available at the
Police Information booth on the Promenade and at the Police Sub-
station on the Pier.
They could not "charge" for their products and could only display
products created entirely on site and during the day of the
performance.
Second, they may be legal vendors. Legal vendors are only
allowed under special license agreement as part of the Promenade
vendor cart program, under special License Agreement on the Pier,
at six (6) specific downtown locations, or as mobile, vehicle-
based vendors. Other vendors are illegal, and enforcement action
is needed to keep this group from becoming established at
visitor-oriented venues within the City such as the Promenade and
the Pier. Vending is specifically prohibited in City parks or on
the beach.
A third group of vendors are individuals or organizations that
are selling message-oriented items that express a political,
religious, philosophical or ideological point of view. Recent
court cases give such individuals or groups certain rights to
engage in what staff calls, for lack of a better term, "free-
speech vending". The City has an interest in regulating such
expression in terms of preserving quality aesthetics in public
areas, ensuring public safety, and preventing unfair competition
with local businesses. Staff recommends that the City Manager be
authorized to make accommodations for such free-speech vending
within the existing licensed vending cart programs or through
other similar means. Such free-speech vendors would be required
to obtain a City Business License.
Promenade Vending Carts
Staff recommends a series of changes to the operation of the
Promenade vending cart program. All of the recommendations are
designed to enhance pedestrian safety on the Promenade. These
changes can be administratively implemented by drafting an
amended License Agreement with the current cart program operator,
Promenade Services, Inc.
1. Proposal: Establish a maximum allowable number of vending
carts for each block.
Discussion: No maximum exists in the current Promenade
Services License Agreement. Approximately 32 carts are typically
present at peak times on the Promenade. Staff anticipates
negotiating a substantial reduction in the overall number of
carts and a more even distribution of the carts throughout the
three blocks of the Promenade. Staff will negotiate an
appropriate maximum number of carts per block, taking into
consideration the safe patterns of pedestrian flow, the economic
viability of the overall cart program, the location of street
furniture, street trees, water fountains, and other elements of
the built environment, and will ensure that the number of carts
on the Promenade does not inhibit or restrict other activities,
including street performers.
2. Proposal: Vending carts should be required to operate within
the same performance zones (see Exhibit C) established for street
performers.
Discussion: The same pedestrian safety and other safety
concerns apply to vending carts as apply to street performers.
Staff recognizes the need to keep the ingress and egress areas of
each block as free of obstructions as possible.
3. Proposal: Vending carts should be assigned specific
locations on the Promenade, with such locations carefully planned
to be compatible with the estimated number of street performers
in each block, and in consideration of various elements of street
furniture and other pedestrian blockages, particularly during the
peak weekend evening hours.
Discussion: Specific locations will be selected in an effort
to minimize impact on safe pedestrian flow. Most locations will
be adjacent to street light poles from which licensed vendors are
authorized to draw electrical power. Because the vending carts
are being limited to a maximum number per block and assigned to
specific locations, and because they have limited mobility, they
will be afforded priority in occupying their assigned locations.
During peak periods, any street performer within thirty-five (35)
feet of a designated vendor location will be asked to move to
accommodate the vending cart.
4. Proposal: Carts must be positioned on the sidewalk, and out
of the Promenade roadway, which is the largest unobstructed path
of travel for public use and emergency vehicles. Carts must be
also oriented in a north/south direction in order to minimize
disruption to normal pedestrian flow. Further, no more than two
(2) carts can congregate together.
Discussion: These recommendations are further safety and
pedestrian-flow proposals developed in consultation with Bayside
District staff and the current cart program Licensee and will be
incorporated in the new cart program License Agreement.
Enforcement
Enforcement of the street performer ordinance has always been
difficult, and has been the subject of much public discussion.
Staff recommends several approaches to enhanced enforcement:
1. Proposal: The Police Department should retain enforcement
responsibility.
Discussion: Staff considered other options, but none seemed
appropriate.
2. Proposal: Authorized Police personnel should obtain
additional training in noise monitoring from the City's noise
consultant, Mestre Greve Associates.
Discussion: This training should augment current training
offered by the manufacturer of the Police Department's sound
monitoring equipment, and would emphasize proper procedures for
testing and recording noise levels in the difficult environments
such as the Promenade.
3. Proposal: Additional Police personnel should
administratively be given limited authority to issue Notices of
Violations to performers violating provisions of the adopted
street performer ordinance.
Discussion: This authority, in conjunction with the proposed
City-wide regulation that would allow administrative revocation
or suspension of a street performer's license, with right of
appeal, will greatly aid in the enforceability of the street
performer ordinance. Personnel with authority to write violation
notices could be the Community Service Officers (CSO's) on the
Promenade, and Harbor Guards at the Pier. Such notices are not
official Citations and would not carry monetary fines. The
issuance of a Citation begins a court hearing process, the
Notices of Violation would be part of a City administrative
process, similar to the revocation of a City Business License.
For more serious violations, Citations can be issued. This
proposal would not authorize CSO's or Harbor Guards to take
formal enforcement action against illegal vendors. The current
procedure for CSO's or Harbor Guards who witness an illegal
vending operation is to radio for assistance from a sworn Police
Officer, who is expected to investigate the situation and decide
whether to issue a Citation. That procedure would be retained.
BUDGET/FINANCIAL IMPACT
The recommended action has no direct budget/financial impact
RECOMMENDATION
Staff recommends that City Council introduce for first reading
the attached Ordinance adding Chapters 6.112 and 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 Municipal Code relating
to street performers and persons, including vendors, displaying
or distributing merchandise, goods, written materials and food,
or placing objects on public sidewalks.
Staff also recommends the adoption of the attached Resolutions
which establish designated Promenade performance zones,
designated Pier performance zones, sets the hours and locations
of certain peak periods on the Promenade during which additional
performer regulations become applicable, and sets fees for the
issuance of performance permits.
Staff further recommends that Council authorize the City Manager
to negotiate and execute a revised License Agreement with
Promenade Services, Inc. incorporating the proposals outlined in
this staff report, authorize the City manager to take steps to
accommodate "free-speech vendors" on the Promenade and the Pier
and direct the City Manager to take steps necessary to implement
the recommendations found in the "Enforcement" section of this
staff report.
Exhibits (available in the Santa Monica City Clerk's Office or at
any of the Santa Monica Public Libraries):
A. Charts Showing Estimated Crowd Sizes on the Third
Street Promenade
B. Charts Showing Results of Noise Monitoring on the
Third Street Promenade
C. Maps showing proposed performance zones on the
Third Street Promenade
D. Map showing the proposed performance zone on the
Santa Monica Pier
E. Draft Ordinance
F. Draft Resolution Establishing Special Zones for
Performers, Vendors and Others on the Third Street
Promenade (Resolution #1)
G. Draft Resolution Establishing Special Zones for
Street Performers, Vendors and Others on the Santa
Monica Pier (Resolution #2)
H. Draft Resolution Establishing Filing Fees for a
Performance Permit and a Replacement Performance
Permit (Resolution #3)