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Singer/guitarist Alfie Alessandra plays his blues and pop covers on Third Street Promenade on Friday afternoon. Alessandra has been playing on the Promenade for over six months. (photo by Brandon Wise)

DOWNTOWN — The issue of whether a local ordinance regulating street performers is legal will soon come to the City Council after a U.S. appellate court ruled that a Seattle law requiring permits for the artists is unconstitutional.

The council is expected to take up the matter in a yet-to-be scheduled study session where city staff will present options for maintaining or revising the existing ordinance, which requires a $37 renewable permit for performers on the Third Street Promenade, Santa Monica Pier and Transit Mall.

The U.S. 9th Circuit Court of Appeals in June struck down a 2002 ladw that established new regulations for street performers in the Seattle Center, an 80-acre park and entertainment complex, requiring permits and limiting activity to designated spaces. The rules also allowed only passive solicitation, required performers to display a badge and prohibited anyone other than Seattle Center employees from engaging in “speech activities” within 30 feet of where visitors waited in line.

A balloon artist and Seattle Center regular, Mike Berger, filed a lawsuit challenging the regulations on the grounds that they violated free speech protections. The U.S. District Court sided with Berger in 2005 and that decision was later appealed by the city of Seattle.

Santa Monica City Attorney Marsha Moutrie has been following the case to see whether Seattle officials were going to petition the U.S. Supreme Court for review, in which case City Hall would have joined in efforts to urge judges to do so. But Seattle officials have since decided to forgo the appeal, leaving the Berger decision to stand.

She noted that there are significant differences in the Santa Monica and Seattle laws that might leave the former unaffected by the court ruling. Seattle’s old law concerned a large open area, one that doesn’t exist in Santa Monica, and involved a public park, whereas the local ordinance doesn’t require permits for performances in those types of spaces.

“It’s an issue about whether that factual difference would make any difference as to the application of the larger decision to Santa Monica,” Moutrie said.

City Hall has not received any threats of litigation regarding the ordinance.

The board for the Downtown management organization, the Bayside District Corp, recently took a position to support the existing ordinance as written, including the permitting requirements, which officials said have worked well in keeping order on the promenade and Transit Mall.

“Our permits are extraordinarily affordable and it allows the city and Bayside to work with the performer population, to help make things equitable for performers and to ensure that they all have access to the street,” Kathleen Rawson, the CEO of Bayside, said.

Bill Tucker, the board chair, called the permitting process a reasonable method for helping the performers understand what’s expected of them and how to control activity on the street.

“It just can’t be an after-the-fact that people go out there and not know what to do,” Tucker said. “It would be bad policy and it would become chaotic.”

Street performers have for the most part expressed support for the existing law, which they also agree keeps some order on the promenade where competition can become tight.

“They should have people audition to improve the quality to a certain degree,” Jeremy Weinglass, a pianist who has performed on the promenade for three months, said. “There are so many people now, it takes away from the quality.”

Performers seeking permits must fill out an application with their name, address, proof of identity and detail of their act and instrument. The permits must be renewed every year and displayed during the performances.

The street artists have to comply with other regulations concerning noise and spacing, keeping a distance from other performers and maintaining a safe circulation in case of an emergency. Performers are also not allowed to stay in a specific location or within 125 feet for more than two hours during a six-hour period.

Dorian Lopez, a clown from Mexico City who has been performing for just a week, said he would like to see the time limit restriction relaxed.

“The weekends are really crowded,” he said. “It’d be nice to have a change and be allowed to stay longer in the same place.”

Derrick Oliver contributed to this report

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