DOWNTOWN — A local ordinance regulating street performers in Santa Monica is set to be relaxed following an appellate court decision that ruled a similar yet more stringent permit system in Seattle was unconstitutional. 

The City Council on Tuesday directed its staff to modify the street performer ordinances to allow the activity to take place on public sidewalks without a permit. The law would still require permits on the Third Street Promenade, Santa Monica Pier and Transit Mall, which runs along Santa Monica Boulevard and Broadway between Second and Fourth streets.

Officials said they believe the change would address possible conflicts that the local ordinance would have with the Berger v. city of Seattle decision while maintaining the original intent with the permit system, which is to ensure public safety in some of the busiest areas of Santa Monica. 

“These are very extremely congested but constrained areas,” Mayor Ken Genser said. “It’s real essential that we have regulations in place that have reasonable restrictions on the size of the obstacles — the obstacles being the crowds generated by street performers or their equipment and I think we have done that.” 

The U.S. 9th Circuit Court of Appeals in June struck down a 2002 law 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 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. 

City officials had been following the case to see whether Seattle officials would petition to the U.S. Supreme Court for review, in which case they would have joined in efforts to urge judges to do so. Seattle officials have since decided to forgo the appeal, leaving the Berger decision to stand. 

There are differences between the two ordinances that could protect the local version from being overturned in a legal challenge. 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 spaces, City Attorney Marsha Moutrie said. 

It was concerns over public safety that led to the creation of a permit system. The affected areas — promenade, pier and Transit Mall — are unique in that they’re in constrained spaces that draw high traffic. 

“The street performers contribute both to the wonder of the spaces … but also contribute to crowding problems,” Moutrie said. “What happens to the good performers … is rings of people stand still around the performers to watch them do their work.” 

Moutrie presented the council with several options to consider, including completely abandoning the permit system, maintaining the status quo, or modifying the requirements to respond to the court’s concerns over free speech. 

More than a dozen street performers addressed the council regarding the permit system, the majority of whom asked that the existing regulation remain in place to keep the peace. 

“I feel if you get rid of the permit, you will have one performer on top of the other and it’s going to make it more crowded,” Mark Michalski, a balloon artist, said. 

The existing ordinance requires performers to 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. 

Street artists also have to comply with other regulations concerning noise and spacing, keeping a distance from other performers and maintaining 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. 

Vadim Brunell, a performer on the promenade the past seven years, said that the absence of a permit system would result in anarchy because the street artists could sit wherever they like, play as long as they want and interfere with other musicians. 

“(If) you would like to discontinue the permit system, I strongly recommend to at least keep the rotation rules and distance between the performers,” he said. 

The system hasn’t been embraced by all. Vincent Garofalo, a vendor on the promenade for the past 10 years, said it’s time to move forward without a permit. 

Garofalo said he operates without a permit and refuses to rotate for constitutional reasons. 

“The permit system is not a popularity contest. Whether some performers like it or not, it’s a constitutional and civil issue as we’ve seen in the Berger case,” he said. “It would only take one performer to challenge that and I think a judge would issue a restraining order or something to stop the permit system.” 

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