City Council Meeting
7-24-01 Santa
Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Report
on Conditions on the Pier and Proposals for Revisions to Street Performance
Regulations and Proposed Emergency Ordinance and Resolution Revising Street
Performance Regulations on the Pier
Introduction
At its
meeting on July 10, 2001, the City Council received suggestions from the Pier
Restoration Corporation and from the Fire, Police and Resource Management
Departments for modification of Municipal Code provisions governing the time,
place and manner of street performance on the Pier. The Council directed legal staff to evaluate these proposals and
provide Council with recommendations and a proposed emergency ordinance. This staff report and the accompanying
proposed ordinance fulfill that directive.
The report also notes policy issues which the Council may opt to
address.
Background
Safety
personnel from both the Police and Fire Departments, the performance Monitor,
Pier Restoration Corporation staff, and others have reported that crowding on
the Pier poses a significant problem.
Crowds are large, particularly during this time of year. The flow of pedestrian and vehicular traffic
is often severely obstructed, particularly in the central area of the Pier.
The
reports indicate that unacceptable congestion results from a combination of
factors. A primary factor is the Pier=s unique physical
characteristics. It is a long narrow
space with ingress and egress at only one end.
At some points, particularly in the central Pier, pedestrians and vehicles
use the same Aroadway.@ The wooden surface is more uneven than a standard sidewalk or
roadway. Moreover, a wooden Acurb,@ which separates a walkway
adjacent to business from the Aroadway,@ stands several inches above the surrounding
surface.
The
presence of a large and growing number of street performers greatly increases
congestion. Some performers are working
and entertaining the crowds which stop and gather around them. Others wait in the immediate area with their
equipment and paraphernalia for space to work. Present spacing requirements allow performers to work on both
the north and south sides of the Pier.
Reports indicate that they set up on both the north and south sides at
staggered intervals to meet the 35-foot separation requirement. Crowds gather around them in rings, the
rings overlap and intertwine, and gridlock results. This situation is exacerbated by the fact that many of the
performers who frequent the Pier set up tables and chairs.
Safety
personnel have expressed concern that, in time of emergency, the situation
could become hazardous. Safety risks
could be significant if it became necessary to move emergency vehicles on and
off the Pier or to evacuate and close the Pier. Both situations have occurred in recent years. Therefore, to plan adequately for
preservation of public safety, the City must assume they may occur again.
In
order to address these concerns, continue to allow street performance on all
parts of the Pier road and walkways, and preserve the present mix of
entertainments and opportunities for Pier visitors, the PRC and City staff
submitted suggestions to Council for amendments to the laws governing
performance on the Pier. These
suggestions were formulated after a public process conducted by the PRC and
were presented at the last Council meeting.
Basically, the PRC made three suggestions: (1) implementing a lottery
for performance spaces in the central area of the Pier on summer days, weekends
and holidays; (2) extending late night hours by three hours on Sunday and one
hour on all other nights; and (3) reducing present spacing between vending
carts and performers from 35 to 25 feet.
City
and Resource Management personnel submitted an initial response to these
suggestions. Preliminarily, they agreed
with the concept of a lottery. However,
they recommended that it apply to the entire Pier and be in effect at all
times, in order to minimize confusion.
As to hours, they agreed to the proposed extension. As to spacing, they
agreed, in order to achieve consensus, that the requirement should be reduced
from 35 to 25 feet notwithstanding congestion.
Since
the Council meeting of July 10th, Chief Hone, the Fire Marshal, and
police personnel have done additional work on these issues, including a safety
analysis and conducting meetings with City personnel, the Monitor and vending
cart operators. The result is a
modified proposal from City staff, intended primarily to protect public safety
while maintaining both street performance and the City cart program on the
Pier.
Under
this proposal, performance would be allowed in the central Pier area on the
north side of the Pier only. Performers
would be required to work within 10 feet of the north rail and to be spaced 50
feet apart. On the narrow western
portion of the Pier (known as the Breezeway), performers would be allowed to
work within 10 feet of both the rails.
At both ends of the Pier there would be general performance zones. A layout for this plan drawn to scale is
attached to the resolution which accompanies this report. In conjunction with this plan, City carts
could be grouped in pairs (a concept that the cart operators have
approved). Apart from possible pairing,
carts would be restricted in a manner similar to performers. The separation requirement between carts
and performers would remain at 35 feet.
Additionally,
Chief Hone and representatives of the Police Department propose, in lieu of a
lottery, one rotation per day at 4:00 p.m.
This time was selected because it is during a lull which occurs between
afternoon and evening crowds. Also, it
would allow for two, approximately equal shifts for performers.
Discussion
Legal
staff has evaluated the various proposals to assess whether they comport with
First Amendment requirements and other legal constraints. The issues of spacing, rotation, and
penalties are discussed in this section.
Other issues, which apply to both the Pier and Promenade area are also
noted, including whether penalties should be changed and whether henna tattooing
should be prohibited as a personal service.
As to
spacing, legal staff concurs with the present proposal from Fire and Police
personnel because it is intended to protect public safety by maintaining the
free flow of traffic and to ensure that emergency vehicles and the public have
adequate ingress and egress from the Pier.
Requiring performers to work near the north rail only in the central
area will ensure that the south side of roadway remains available for traffic
circulation. There will be an overall
diminution in the number of spaces legally available to performers. Chief Hone calculates that space currently
exists for 33 performers and that, under the proposal, there would be space for
22. On the other hand, performance
hours would be extended and opportunities would be maximized through rotation.
From a
legal perspective, this proposal is not problematic. The City is entitled to regulate the time, place and manner of
performance in order to preserve public safety. Moreover, the City has an obligation to keep public spaces
safe. If the City were to allow dangerous conditions to arise on
the Pier in order to facilitate performers= demands for maximum space, people could be injured
and the City could incur liability in the event of injury in a time of
emergency or accident. The fact that
very large crowds congregate in the more confined areas of the Pier is well
known and readily demonstrable. From a
legal perspective, the City must address this situation to ensure safety. Creating three different performance zones
on the Pier to reflect differing physical realities and traffic patterns is a
reasonable approach which will protect safety while preserving performance
opportunities on all parts of the Pier.
As to
rotation, the present proposal from safety personnel probably comports with
legal constraints. Requiring performers
to rotate increases performance opportunities by preventing individual
performers from monopolizing any particular space. Moreover, requiring performers to move at least once a day
reduces the likelihood that they will obstruct the Pier with excessive paraphernalia. Additionally, and perhaps most important
from a practical perspective, requiring rotation helps ensure that street
performance on the Pier will be varied and therefore entertaining to
visitors. If experience shows that the
proposed rotation system proves to be inadequate or problematic, the City could
opt for a more restrictive lottery system based on that evidence.
Performance
hours are not a legal issue. However,
the Council may wish to consider possible impacts on neighbors.
The
ordinance which is attached would implement the current proposal by safety
personnel. As to the Pier, it would:
(a) create three performance zones on the Pier; (b) create new spacing
requirements for each zone; (c) require one rotation on the Pier per day at
4:00 p.m.; and (d) extend late night performance hours.
As to
the policy question of penalties, the Council has previously considered whether
violations should be misdemeanors or infractions. In the past, the Council decided that violations should be
handled administratively and that criminal sanctions should be as mild as
possible. Additionally, the Presiding
Judge has requested consideration of the fact that a misdemeanor charge
entitles a defendant to a jury trial, which can be quite time consuming for the
court given the nature of the offense.
Recently,
safety personnel have raised a new concern: sometimes a violation creates an
immediate safety hazard. If the police
officer only has the power to issue a citation, the violation may continue. In contrast, if a violation is a misdemeanor,
the officer has the option of removing the performer (through arrest) and
thereby ending the hazard. Based upon
the evidence that the present system is sometimes insufficient to maintain
safety, legal staff recommends making certain violations misdemeanors.
The
other policy question is whether henna tattooing should be prohibited. The basis for the change would be that
tattooing is, in fact, a personal service and other personal services cannot be
undertaken in public space as Aperformance@.
Two
other issues have also been raised. The
first involves how the spacing requirements apply to AHeartland Vendors@. As presently worded, the requirements appear to suggest that a
Heartland Vendor can, by situating his or her own table, cause performers who
are already working to be in violation of spacing requirements. The second issue relates to the transit
mall, and the present rotation requirement for the Promenade which requires
rotation on a north-south axis.
Obviously, the axis would need to be east-west for the Transit
Mall. These two concerns can, for the
time being, be addressed administratively.
Corrections to the law can be made with the next set of amendments.
Financial/Budget
Impact
No
direct financial impact is anticipated.
Recommendation
Staff
recommends that the Council adopt the attached emergency ordinance and resolution and provide policy direction
on the issue of penalties and henna tattooing.
PREPARED
BY: Marsha Jones Moutrie, City
Attorney
Barry
Rosenbaum, Senior Land Use Attorney
ATTACHMENTS: ORDINANCE