ITEM 8-C
City Council Meeting 7-11-00 Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: An Interim Ordinance Of The City Council Of The City Of Santa Monica Amending Section 6.14.040(d) and Modifying The Development Standards In The RVC and BSC Districts To Allow Fortunetelling As A Permitted Use In The BSC-1 Portion Of The BSC District and On Ocean Front Walk
Introduction
Santa Monica Municipal Code Section 6.14.040(d) prohibits fortunetelling everywhere in the City except for the Santa Monica Pier. The California Supreme Court in Spiritual Psychic Science Church v. Azusa, 39 Cal. 3d 501, 217 Cal. Rptr. 225 (1985) held that fortunetelling is a constitutionally protected activity and that it is illegal for a city to completely ban fortunetelling. While the City
=s ordinance is facially distinguishable from Azusa=s total ban in that the City=s ordinance permits fortunetelling in at least one location within the City, there remains a serious question whether this time, place and manner restriction is reasonable. Consequently, this office recommends that the Council adopt this proposed interim ordinance which expand the locations where fortunetelling would be permissible to include Ocean Front Walk and the BSC-1 portion of the BSC District.Discussion
Santa Monica Municipal Code Section 6.14.040(d) provides:
(d) Fortune Telling. Except upon the Santa Monica Pier where, if duly licensed under the provisions of this Code, a person may engage in fortune telling for amusement purposes, no person shall carry on, practice or profess to practice the business or art of astrology, palmistry, phrenology, life reading, fortune telling, cartomancy, clairvoyance, clairaudience, crystal gazing, mediumship, oriental mysteries, spirit photography, spiritwriting, spirit voices, spirit materialization, etherealization, numerology, physiognomy, psychometry, seership, prophecy, augury, divination, magic or necromancy, or other similar art or business, and demand or receive directly or indirectly, a fee or reward, or accept any donation for the exercise or exhibition of this art therein, or give an exhibition thereof at any place where an admission fee, donation or reward is charged or received, directly or indirectly.
(1) Prohibited Acts. No person shall, by means of occult or psychic powers, faculties, or forces, spirits, cards, talismans, charms, potions, magnetism, or magnetized articles or substances, oriental mysteries or any craft or art described in the preceding subsection purport to or find or restore lost or stolen property, locate oil wells, gold or silver or other ore or metal or natural product, restore lost love or friendship or affection, unite or procure lovers, husbands, wives, lost relatives or friends, or by such means give any counseling or advice whatsoever, and demand or receive directly or indirectly a fee or reward or accept any donation therefor.
(2) Advertising Illegal Acts. No person shall advertise by sign, circular, handbill, or in any newspaper, periodical or magazine, or other publication or publications, radio, television, or by any other media or means, that he or she will do anything which is prohibited by this subsection.
The Supreme Court in Spiritual Psychic invalidated an ordinance that was quite similar to Santa Monica
=s. The Court determined that fortunetelling was protected speech. In rejecting the argument that fortunetelling constituted nothing more than commercial activity which could be prohibited, the Court stated:The act of telling fortunes goes beyond the mere proposal of a transaction. It involves the passing of ideas and information -- some valid, some questionable, some false -- between the fortuneteller and the client. This exchange is unrelated to any consideration the client pays to receive the communication -
the consideration is not the object of the consideration. Id. at 511, 217 Cal. Rptr. at 230.
In response to the city
=s argument that fortunetelling should be accorded less protections because it does not concern the political process, the Court rejected this argument on two grounds:B even a majority B may find this mode of communication distasteful, ridiculous, or even corrupt is irrelevant to constitutional concerns. Id. at 512, 217 Cal. Rptr. at 231.First, it is impossible to say that fortunetellers impart no political message in their communications. In their vision of the future there may be a view of society as they perceive it may one day be. Such a communication conceivably could contain the spark of a political flame. Second, fortunetelling may fire the imagination and stimulate discussion of the future. That some
Having concluded that fortunetelling constituted protected speech, the court determined that Azuza
=s total prohibition on fortunetelling was unconstitutional under the California Constitution. While the Court acknowledged the city=s concern in preventing fraudulent fortunetelling, the Court determined that this goal could be achieved by a less drastic restriction on protected speech than a total ban. Id. at 518-19, 217 Cal. Rtpr. at 245-36. Courts in other jurisdictions have found similar fortunetelling ordinances invalid under the First Amendment. See Argello v. City of Lincoln, 143 F.3d 1152 (8th Cir. 1998); Rushman v. City of Milwaukee, 959 F. Supp. 1040, 1043-44 (E.D. Wis. 1997).Given the constitutional protection accorded fortunetelling, the City
=s ordinance is vulnerable to challenge. Current City law only allows fortunetelling on the Pier. Because space on the Pier is limited and because the City owns and controls the Pier, it is unlikely that a court would find the City=s ordinance reasonable, particularly given its impact on constitutionally protected speech.City staff has initiated the process of determining the appropriate zoning districts or areas for fortunetelling. Pending the conclusion of this process, this office recommends that the City Council expand the areas in which fortunetelling can be conducted to forestall a threatened legal challenge to the City
=s existing law.The proposed interim ordinance would authorize fortunetelling on Ocean Front Walk and in the BSC-1 portion of the BSC District. From a land use and zoning perspective, fortunetelling uses are most appropriately located within the Ocean Front Walk and 3rd Street Promenade areas of Santa Monica. The Ocean Front Walk and 3rd Street Promenade areas are key destinations for visitors and tourists alike. The Bayside District is specifically geared toward visitor and tourist-serving uses in that the purpose of the Bayside Commercial District is to provide for a concentration of retail, entertainment, office, and housing uses in addition to complementary uses such as hotels and cultural facilities. Such uses are intended to enhance the area's pedestrian environment while realizing the Goals and General Objectives of the Bayside District Specific Plan. General Objective 3.2 states that the Bayside District should "attract and accommodate a mix of uses which serve the daytime and evening Bayside District residents, City-wide residents, as well as the many tourists and visitors to the Santa Monica area." In addition, Ocean Front Walk (identified as the Promenade in the Land Use Element) is located in the Oceanfront land use district, where policies are intended to provide for a concentration of visitor serving commercial recreation uses. Specifically, Policy 1.5.4 encourages day and evening pedestrian activity along Ocean Front walk "by requiring active uses oriented to walk-in traffic, especially retail and commercial recreation." Fortunetelling is consistent with this land use direction.
Fortunetelling as a use is similar to other entertainment-related uses found and/or permitted within these areas. Zoning Ordinance Section 9.04.08.15.040 conditionally permits billiard parlors, nightclubs, cinemas and theaters in the Bayside District. In the Residential Visitor-Serving Commercial District where Ocean Front Walk is located, Zoning Ordinance Section 9.04.08.12.020 permits games and nightclubs and Section 9.04.08.12.030 permits arcades with a Performance Standards permit. In fact, Bayside Specific Plan Policy 4.1.3 identifies entertainment uses within the 3rd Street Promenade area as uses necessary for maintaining the area's economic viability. The General Plan Land Use Element also provides for uses similar to fortunetelling in its discussion of Downtown policies and objectives in that Objective 1.3 states that the downtown shall be the greatest focus of activity in the City, while Policy 1.3.2 specifies that the Downtown is the "primary location for commercial use ... and uses that encourage street activity after normal business hours." Further, Oceanfront District Objective 1.5 states that visitor accommodations and related uses shall be expanded in this area. Fortunetelling is a visitor serving entertainment type use that meets these land use objectives and policies.
Financial/Budgetary Impact
The recommendation presented in this report will have no budget or financial impacts.
Recommendation
It is respectfully recommended that the accompanying ordinance be introduced for first reading.
Prepared By:
Marsha Jones Moutrie, City Attorney
Barry A. Rosenbaum, Senior Land Use Attorney
Suzanne Frick, Director
Jay M. Trevino, AICP, Planning Manager
Amanda Schachter, Principal Planner