Item 8-C

City Council Meeting 10-5-99 Santa Monica, California

TO: Mayor and City Council

FROM: City Staff

SUBJECT: Report on the Implementation of the Street Performance and Vending Ordinance and Recommendation to Adopt Amendments to Certain Sections Of That Ordinance Relating To Street Performance And Heartland Vending.

Since the new ordinance was adopted on July 20, 1999, the following steps have been taken to implement its provisions:

(3) The Licensing Division, working with legal staff, sent out a notice to all street performers that a new law had been adopted and that new permits would be issued to qualified performers. Subsequently new permits were issued and notices were sent to those whose endeavors do not qualify as performances.

(4) The Bayside District Corporation hired a part-time monitor, Steele Smith, who is experienced at working with both artists and law enforcement personnel because he is, himself, an artist, and he works in court as a certified electronic reporter. Mr. Smith has met with performers and police personnel and is now facilitating compliance with the ordinance on the Promenade. According to the Bayside District, performers are cooperating with the monitoring program.

(7) Legal staff has received and answered numerous inquiries from City employees, performers, vendors and the public about the substance and implementation of the new ordinance.

The attached, proposed ordinance fulfills those needs. It would amend the new ordinance in four principal ways. First, it would clarify the meaning of the present rotation requirement by specifying both that a performer or heartland/free speech vendor may not work in one location on the Promenade or Pier for more than two hours and, in addition, if he/she is working in a particular location on the even hour, he or she must stop performing or vending in that location before the next even hour. This revision is necessary because the present language may be read to actually allow performers or heartland/free speech vendors to remain in the same location for almost four hours.

Third, the ordinance would revise the prohibition against wetcell batteries by exempting those which are self-contained and therefore safe for use in crowded spaces. This proposed change merely reflects advances in battery design and is fully consistent with the purpose of the present provision.

Finally, the proposal would revise the remedies provision by establishing that performing without a permit is a misdemeanor, rather than an infraction. This change is necessary because the administrative remedy of permit revocation is inapplicable to those without permits and issuing citations is likely ineffectual since the attendant fines are insufficient (in comparison to the income from performance) to dissuade performers from working without a permit.

The attached ordinance will have no budgetary or financial impact.

City Staff recommends that the City Council introduce the attached ordinance for first reading.

PREPARED BY:
Marsha Jones Moutrie, City Attorney
Barry Rosenbaum, Senior Deputy City Attorney
Claudia Thompson, Legal Admin. Staff Asst.

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City Council Meeting 10-5-99 Santa Monica, California

ORDINANCE NUMBER (CCS)

(City Council Series)

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA

AMENDING SECTIONS 6.112.020, 6.112.030, 6.112.050, 6.112.060, 6.112.070

6.116.050, 6.116.060, AND 6.116.070 OF THE SANTA MONICA MUNICIPAL

CODE RELATING TO STREET PERFORMERS AND VENDORS

WHEREAS, among other revisions, the proposed ordinance clarifies the meaning of the present rotation requirement, the definition of tangible art object and the prohibition on the use of wet cell batteries; and

WHEREAS, the proposed ordinance also amends existing law by establishing that performing without a permit is a misdemeanor; and

WHEREAS, these amendments do not alter the substance of the Ordinance,

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Santa Monica Municipal Code Section 6.112.020 is amended to read as follows:

SECTION 2. Santa Monica Municipal Code Section 6.112.030 is amended to read as follows:

(a) Subject also to Section 6.112.050 and Section 6.112.060, no performer may perform:

(1) Within ten feet of any bus stop.

(2) Within ten feet of any street corner or a marked pedestrian crosswalk.

(3) Within ten feet of the outer edge of any entrance of any business, including, but not limited to, doors; vestibules; driveways; outdoor dining area entries, and emergency exits, during the hours that any business on the premises is open to the public or to persons having or conducting lawful business within those premises.

(b) No person may perform on the Third Street Promenade, the Pier or any public sidewalk without first obtaining a performance permit issued by the City pursuant to Section 6.112.040.

(c) A performer may not block or obstruct the free movement of pedestrians. If a sufficient crowd gathers to observe a performer such that the passage of the public through a public area is blocked, a police officer or fire official may disperse that portion of the crowd that is blocking the passage of the public. If a performer cannot conduct a performance in a location without blocking the passage of the public, a police officer or fire official may cause the performer to leave the location, but shall not prevent the performer from occupying another location in compliance with this Chapter.

(d) A performer who performs for a charge shall obtain a business license and be subject to all applicable provisions of Chapter 6.36. A performer who performs without charge shall not be required to obtain a vendor permit pursuant to Chapter 6.36 or a business license pursuant to Chapter 6.04.

(e) No performer shall construct, erect, or maintain any stage, platform, or similar structure for use during any performance.

(f) No performer shall use any knife, sword, torch, flame, axe, saw, or other object that can cause serious bodily injury to any person, or engage in any activity, including but not limited to, acrobatics, tumbling, or unicycling, that can cause serious bodily injury to any person.

(g) No performer shall use any generator, wet cell battery with removable fill caps, or any other power source that poses a fire or public safety hazard. No performer shall connect or maintain an electrical cord to an adjacent building or to a City power source.

(h) No performer may litter his or her performance site.

(i) No performer shall utilize or prevent the public from utilizing any public benches, waste receptacles, or other street furniture during the performance.

(j) No minor under the age of sixteen can perform unless the minor has obtained an Entertainment Work Permit issued by the Department of Industrial Relations of the State of California and maintains the permit in his/her possession at the time of the performance.

(k) No performer shall place any object on a public sidewalk which causes less than a four foot contiguous sidewalk width being kept clear for pedestrian passage.

(l) No performer shall perform on any public sidewalk with more instruments, props, equipment, merchandise, or other items than the performer can reasonably transport or remove at one time.

(m) No performer shall perform in contravention of the allowable noise levels established by Chapter 4.12 and Chapter 6.116 of this Code.

(n) No performer shall block or obstruct a curb cut.

SECTION 3. Santa Monica Municipal Code Section 6.112.050 is amended to read as follows:

6.112.050 Special regulations for Third Street Promenade.

In addition to the requirements of Section 6.112.030 and 6.112.040, no performer shall perform in the Third Street Promenade outside of an enclosed building in violation of the following requirements:

(a) Except as provided in Subsection (f) of this Section, no performer shall perform except during the following time periods:

(1) Nine a.m. to eleven p.m. daily.

(2) Eleven p.m. on Friday and Saturday to one-thirty a.m. of the following day.

(b) No performer shall perform within sixty feet of any special event authorized by the City unless the special event encompasses one or more City blocks in which case the performance shall be conducted according to any administrative guidelines which shall be adopted by the City.

(c) No performer shall perform with more instruments, props, equipment, merchandise, or other items than the performer can reasonably transport or remove at one time.

(d) No performer shall perform outside Performances shall be limited to designated performance zones, as established by resolution of the City Council.

(e) No performer shall:

(1) Perform in any specific location within a designated performance zone, or within one hundred twenty feet of that location as measured in a north/south direction, for more than two hours in any six hour period. This two hour time limit, which shall commence on each even hour, includes The time required to set-up and to remove any instruments, props, equipment, or other items prior to the performance and to remove any and all instruments, props, or other items after the performance shall be considered part of the performance for purposes of this subdivision and subdivision (2) of this subsection (e).

(2) Perform on an even hour at the same location that he/she was performing on the preceding even hour, or within one hundred twenty feet of that location as measured in a north/south direction.

(2) (3) Perform within ten feet of a vendor operating pursuant to or under the authority of an approved license agreement or within forty feet of any other vendor, performer, or person utilizing a portable table or cart for displaying or distributing merchandise, goods, written materials, food, or other items.

(f) The following formula establishes the special performance hours that apply during specified holidays:

(1) If the holiday follows a weekend and the next day is a workday, then the holiday shall be treated as if it were Sunday and the day preceding the holiday shall be treated as if it were Saturday.

(2) If the holiday precedes a weekend, then the holiday shall be treated as if it were Saturday and the preceding day shall be treated as if it were Friday.

(3) If the holiday occurs during midweek, and is surrounded by workdays, then the holiday shall be treated as if it were Sunday and the day preceding the holiday shall be treated as if it were Friday.

SECTION 4. Santa Monica Municipal Code Section 6.112.060 is amended to read as follows:

6.112.060 Special regulations for the Pier.

In addition to the requirements of Section 6.112.030 and 6.112.040, no performer shall perform on the Pier outside of an enclosed building in violation of the following requirements:

(a) No performer shall perform outside Performances shall be limited to designated performance zones, as established by resolution of the City Council.

(b) Except as provided in Subsection (f) of this Section, no performer shall perform except during the following time periods:

(1) Eight a.m. to ten p.m. Monday thru Thursday.

(2) Eight a.m. to twelve a.m. (midnight) on Friday.

(3) Nine a.m. to twelve a.m. (midnight) on Saturday.

(4) Nine a.m. to ten p.m. on Sunday.

(c) No performer shall perform within sixty feet of any special event authorized by the City.

(d) No performer shall perform with more instruments, props, equipment, merchandise, or other items than that performer can reasonably transport or remove at one time.

(e) No performer shall:

(1) Perform in any specific location within a designated performance zone, or within one hundred twenty feet of that location, for more than two hours in any six hour period. This two hour time limit, which shall commence on each even hour, includes The time required to set-up and to remove any instruments, props, equipment, or other items prior to the performance and to remove any and all instruments, props, or other items after the performance shall be considered part of the performance for purposes of this subdivision and subdivision (2) of this subsection (e).

(2) Perform on an even hour at the same location that he/she was performing on the preceding even hour, or within one hundred twenty feet of that location.

(2) (3) Perform within thirty-five feet of any other performer, vendor or any other person utilizing a portable table or cart for displaying or distributing merchandise, goods, written materials, food, or other items.

(f) The following formula establishes the special performance hours that apply during specified holidays:

SECTION 5. Santa Monica Municipal Code Section 6.112.070 is amended to read as follows:

6.112.070 Penalties.

Any person violating this Chapter shall be guilty of an infraction, which shall be punishable by a fine not exceeding two hundred fifty dollars per violation, except that any person performing without a performance permit as required by Section 6.112.030(b) shall be guilty of a misdemeanor.

SECTION 6. Section 6.116.060 of the Santa Monica Municipal Code is amended to read as follows:

6.116.060 Special Regulations for Vendors On The Third Street Promenade.

No person authorized to vend pursuant to Section 6.36.030(g) and 6.36.030(h) may on the Third Street Promenade or the Pier:

(a) Vend in any specific location, or within one hundred twenty feet of that location as measured in a north/south direction, for more than a two hour period in any six hour period. This two hour time limit, which shall commence on each even hour, includes The time required to set up and to remove equipment and material for vending and to remove all such equipment and materials after vending shall be considered part of the time limit established by this subsection and subsection (b) of this Section.

(b) Vend on an even hour at the same location that he/she was vending on the preceding even hour, or within one hundred twenty feet of that location as measured in a north/south direction.

(b) (c) Vend within ten feet of a vendor operating pursuant to or under the authority of an approved license agreement or within forty feet of any other vendor, performer, or any other person utilizing a portable table or cart displaying or distributing merchandise, goods, written materials, food, or other items.

(c) (d) Vend those items authorized by Section 6.36.030 (h) unless that person is also performing pursuant to Chapter 6.112, the item vended is representative of the work being created during the performance, and no more than five such items are displayed on the table or cart at any one time. All other requirements specified in Section 6.116.010 shall apply except that the performer/vendor shall be limited to utilizing one (1) table or cart of a size not larger than four (4) feet in width by four (4) feet in length by three (3) feet in height.

SECTION 7. Section 6.116.070 of the Santa Monica Municipal Code is hereby amended to read as follows:

6.116.070 Special Regulations for Vendors On The Pier.

No person authorized to vend pursuant to Section 6.36.030(g) and 6.36.030(h) may on the Third Street Promenade or the Pier:

(a) Vend in any specific location, or within one hundred twenty feet of that location for more than a two hour period in any six hour period. This two hour time limit, which shall commence on each even hour, includes The time required to set up and to remove equipment and material for vending and to remove all such equipment and materials after vending shall be considered part of the time limit established by this subsection and subsection (b) of this Section.

(b) Vend on an even hour at the same location that he/she was performing on the preceding even hour, or within one hundred twenty feet of that location.

(b) (c) Vend within thirty-five feet of any other vendor, performer, or any other person utilizing a table or cart for the purpose of displaying or distributing merchandise, goods, written materials, food, or other items.

(c) (d) Vend those items authorized by Section 6.36.030 (h) unless that person is also performing pursuant to Chapter 6.112, the item vended is representative of the work being created during the performance, and no more than five such items are displayed on the table or cart at any one time. All other requirements specified in Section 6.116.040 shall apply except that the performer/vendor shall be limited to utilizing one (1) table or cart of a size not larger than four (4) feet in width by four (4) feet in length by three (3) feet in height.

SECTION 8. Santa Monica Municipal Code Section 6.116.050 is amended to read as follows:

6.116.050. City approved special events Exemptions.

The requirements of this chapter, except for noise standards, shall not apply to City approved special events which have been reviewed by the Police and Fire Departments to ensure that all necessary public safety measures have been imposed as a condition of approving the event and to any vendor operating pursuant to or under the authority of an approved license agreement.

SECTION 9. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance.

SECTION 10. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.

SECTION 11. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective thirty days after its adoption.

APPROVED AS TO FORM:

_________________________

MARSHA JONES MOUTRIE

City Attorney