At the Council meeting of May 11, 1999, Bayside District staff reported to Council on the recommendations of the group of stakeholders which has been working on proposals for further revisions to the City=s laws governing street performance and street vending. After receiving that report, the City Council directed staff to prepare amendments incorporating as many of the group=s suggestions as possible. The attached proposed ordinance responds to that direction.

For the last ten years, street performers have contributed significantly to the vibrancy and success of the Third Street Promenade and, more recently, the Santa Monica Pier. During that time, the City has worked to create and refine a regulatory system for performance and vending which recognizes performers= contribution and their rights of expression, but which also protects public safety in these crowded spaces and otherwise ensures the welfare of the community.

Since the 1980's, the City=s performance and vending laws have been revised many times to reflect dramatic increases in crowd sizes on the Promenade and Pier, changes in the activities undertaken in these public spaces, burgeoning numbers of street performers and vendors, and the experience of public safety personnel and others. In each instance, revising the laws has been a difficult process which involved the delicate balancing of sharply competing interests. These interests include keeping the City=s streets and other public spaces safe for everyone, protecting the rights of performers and certain vendors to exercise rights of expression, maintaining the aesthetic standards which ensure that the City will remain a pleasant place to live and visit, and protecting the merchant community against unfair competition.

The difficulty of striking a viable balance between these interests is exacerbated by changes in First Amendment case law. In recent years, more and more cities have adopted laws governing street performance and a plethora of reported court decisions have issued interpreting and reinterpreting the First Amendment in this and related contexts. Fortunately, the general legal standard has remained the same: street performance and the vending of communicative materials constitute protected speech which may be regulated as to time, place and manner so long as the city legislates to advance a substantial governmental interest in a manner which serves that interest and leaves open adequate alternative avenues of communication. The City=s interests -- preserving public health and safety, maintaining aesthetics, and limiting unfair competition -- are recognized as Asubstantial@ by the Ninth Circuit Court of Appeals, the federal appellate court with California jurisdiction, and the amendments proposed in recent years by City staff have been written to advance these interests and to satisfy the applicable legal standard. However, spirited debate continues as to the exact meaning of this legal standard and as to the best way to balance competing interests in regulating street performance and street vending. Moreover, attempting to strike this balance has been made even more challenging since performers do not simply seek to perform, and possibly receive donations in return for their performance, performers also wish to sell those items that they create or produce.

The present effort to redraft the performance and vending laws to meet changing circumstances began almost two years ago when staff from various City Departments, including Police, Fire, Resource Management, and Planning, and staff from the City Attorney=s Office, began meeting to assess a variety of complaints and concerns. Safety personnel noted both that the number of performers and vendors had increased dramatically and that many vendors were spreading their wares out over larger areas, using tables, boxes, signs, rugs and blankets which created hazards to pedestrians and which could impede emergency services. They also noted that canopies and umbrellas were being erected and that they created safety hazards by blocking both sight lines and the right of way. Resource Management personnel noted they had received complaints that this proliferation of equipment and paraphernalia was cluttering the Promenade and Pier, making them look like flea markets, and discouraging members of the public from shopping in retail outlets on the Promenade. Resource Management personnel also explained that a City program which affords performers and other AFree Speech Vendors@ the opportunity to utilize free space on the City=s carts was languishing because the performers and vendors did not want to utilize the carts. Police personnel reported a number of problems, including that the existing laws were unduly complex and that the prohibition against all vending except Adonative vending@ was extremely difficult to enforce because of the substantial enforcement effort needed to prove that someone was, in fact, setting or negotiating a price rather than simply accepting whatever amount a member of the public chose to give.

In January of this year, the staff working group recommended various amendments to the City Council. The most significant were eliminating donative vending and limiting the vending of communicative objects by members of the public to designated locations which would be assigned by lottery. Staff believed that this proposal would maximize the orderly flow of pedestrian traffic in the City=s most crowded spaces, preserve aesthetics, establish an orderly and enforceable system of regulation and comply with constitutional requirements.

As reported to the Council on May 15, 1999, representatives of performers and vendors have been meeting with safety personnel, other City staff, and representatives of the merchant community for several months. The group has reached consensus on various issues and formulated majority recommendations on others. Their proposal includes the following key points: (1) all violations should be infractions; (2) umbrellas and canopies should be prohibited or strictly limited; (3) monitors who are not police personnel should be used to remind performers and vendors of their obligations and informally mediate disputes; (4) the concept of Adonative vending@ should be eliminated from the law, but performers and Aheartland vendors@ should be allowed to engage in a limited and specified range of Free Speech vending; (5) paraphernalia should be limited; (6) rotation of both performers and heartland vendors should be required every two hours on even hours; (7) spacing requirements should exist for both performers and heartland vendors but should be changed; and (8) extended performance hours should be authorized for holidays and all weekdays.

The attached proposed emergency ordinance incorporates most of the working group=s recommendations. Briefly and by category, the proposed changes are as follows:

1. Umbrellas, canopies and tents would be prohibited unless specifically authorized by the City.

There was no significant dispute on this point. Making this change would be consistent with the Council=s efforts over the last several years to convert a number of lesser violations from misdemeanors to infractions and thereby conserve prosecutorial resources and court time.

4. The concept of Adonative vending@ would be wholly eliminated; performers would be allowed to sell their art on the Promenade and Pier in conjunction with their performance and Aheartland vendors@ would also be allowed to sell.

5.

Staff had recommended eliminating Adonative vending@ in January because, among other things, it had resulted in a proliferation of vendors, impacted local merchants, and created significant enforcement problems. The working group agreed that donative vending should be eliminated but went further. Under their proposal, which is reflected in the attached ordinance, performers could sell their art in conjunction with performance but other vending (including vending by nonperforming artists) would be prohibited on the Pier and the Promenade, except for Aheartland vending@ (the sale of newspapers, pamphlets, and the like). This proposal has several advantages. It would fulfill the Council=s policy of supporting individual artistic effort and the City=s commitment to the free exchange of ideas. It would also eliminate or diminish the problems of safety, aesthetics and competition attendant upon the present proliferation of vendors because the number of performers who vend would be limited by spacing requirements and heartland vendors tend not to proliferate, presumably because of their limited sales. Finally, the proposal would be easier to enforce than the present system. On the other hand, the drawback to the proposal is that it may be challenged by a vendor who wishes to sell expressive material on the Promenade or Pier without performing.

Present law imposes rotation requirements upon performers during limited hours on the Promenade in order to protect traffic circulation and safety. The working group suggested that both performers and vendors be required to rotate 120 feet, north-south, every two hours on the even hours at all times because substantial crowds are no longer limited to fixed, defined periods. The Promenade and the Pier draw a significant number of people at varying, and often unpredictable, times of the day and week. Rotation also ensures that particular performers or heartland vendors will not monopolize particular spaces to the detriment of public safety or other performers or vendors. This proposal has numerous advantages. It is simple and uniform and therefore easy to understand and enforce. It would allow all performers and vendors the opportunity to utilize the best spots. It would tend to preserve safety and aesthetics by ensuring that vendors do not continuously appropriate particular public space as though it were their own. Also, it will reduce the likelihood of unfair competition by ensuring that a vendor who sells in competition with a local merchant does not simply station him or herself in front of that merchant=s store. A disadvantage of this proposal is that it may be subject to constitutional challenge.

Although, the proposed ordinance reflects most of the suggestions made by the working group and addresses most of their needs, the Council should be aware that the working group=s suggestions were not unanimous and the proposed ordinance does not encompass everything that all stakeholders wanted. For example, there was a suggestion to increase performance hours on weekdays and holidays. However, staff only proposes an extension on holidays to protect the quietude of residents living on or near the Promenade and near the Pier. Additionally, there was controversy within the group as to whether Aheartland vendors@ should be required to rotate every two hours along with performers. The proposed ordinance reflects the majority position which was that both groups should rotate to maximize safety and aesthetics by reducing the likelihood that any particular performer or heartland vendor would monopolize a particular space and spread his or her paraphernalia out over it. There was also a difference of opinion as to whether the present provision authorizing administrative revocation of performance permits should be retained. Legal staff proposed eliminating the authorization because it is difficult to implement and administer in conformity with constitutional standards and because the use of a monitor may reduce the need for this type of remedy. Members of the working group strongly opposed this position, and the authorization was left in place. Finally, the working group wanted a smaller spacing requirement on the Pier. Staff recommends against this because it would allow more crowding on the Pier than on the Promenade, even though the Pier is a smaller space.

Whether all aspects of the proposal would withstand a legal challenge is uncertain because the scope of the City=s power to regulate the time, place and manner of speech in order to control aesthetics and unfair competition is uncertain. However, staff believes that the extensive process utilized makes this proposal the Council=s best option for a regulatory system which balances the competing needs and demands of those who visit or work on the Pier and the Promenade and those who must keep them safe and attractive.

The proposed ordinance, in itself, does not have direct budgetary impacts. Implementation of the monitoring program will involve expenditures, and the Council has made provision for the program in this year=s budget.