DOWNTOWN — To celebrate the life and legacy of Dr. Martin Luther King Jr., John Foster planned to set up his drum set on the Third Street Promenade and play some jazz on MLK Day.

But before he could produce one boom-bap, Foster was informed by ambassadors with Downtown Santa Monica Inc., the public-private management company that oversees Downtown for City Hall, that he had to keep the noise at or below the 97-decibel limit established by the City Council.

Foster, who has played on the promenade for the last 11 years, was surprised to learn that even though City Hall, schools and banks were closed Monday for MLK Day, a national holiday first celebrated in 1986, it wasn’t considered a recognized holiday under the street performer ordinance.

If it was, Foster could play at the loudest level allowed — 107 decibels. While a difference of 10 decibels may seem trivial to some, for Foster it was a travesty. He could not believe that in a liberal city like Santa Monica that Martin Luther King Day was not included in the ordinance, yet Columbus Day was, along with Christmas and Thanksgiving, New Year’s Day, President’s Day, Memorial Day, Labor Day, Veterans Day and the Fourth of July.

“I was shocked,” said Foster, who grew up in the South and visited King’s white-marble tomb in Atlanta several times while studying jazz at George State University.

According to the ordinance, performers can play music up to 97 decibels during most weekdays until 7 p.m. Then they can crank it up to the 107 decibel level. On Saturdays and Sundays they can hit the 107 level pretty much all day. Recognized holidays are treated like Saturdays or Sundays, depending on which day of the week the holiday falls on.

For example, 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.

That means a lot to performers like Foster who have a hard time staying at or below the 97 decibel limit. In fear of getting ticketed for violating the ordinance, Foster chooses to set up only on weekends or in the evenings. When it’s a holiday, that provides Foster, who is homeless, a chance to make some money playing.

“Money was a part of it,” he said, explaining why he was so upset about MLK Day not being recognized. “But more so I just couldn’t believe the city would not include this day.

“Here’s a man who did something truly significant, not just in America but the world. Until more people wake up to the significance of this man and embrace this holiday, it’s up to people like me to speak out.”

It’s not that Foster believes members of the City Council are racists. He believes it was merely an oversight on their part to not include MLK Day.

Councilman Kevin McKeown, who lobbied to get MLK Day included on a list of holidays when people can park at meters for free, said the street performer ordinance was intended to recognize days on which there is reduced commercial activity, therefore less pedestrian congestion and less of a need for concern about public safety if performers impede access.

“We could include Martin Luther King Day in the future if the findings can be made that there is less reason to be concerned about emergency access and public safety on that day,” he wrote in an e-mail.

City Hall supports the annual MLK celebration in Santa Monica, both financially and otherwise, said City Attorney Marsha Moutrie, who, along with Mayor Richard Bloom and City Manager Rod Gould, attended the ceremony in honor of King that was held Monday at the SGI-USA Auditorium and featured Congresswoman Janice Hahn, music, dance performances and inspirational readings.

“So the fact that it’s not on the list doesn’t mean the city thinks it’s unimportant,” Moutrie said. “The council could add MLK Day by resolution.”

And Bloom vows to do so soon.

“[An] unfortunate oversight that I will seek to correct,” he said.

Foster hopes the council takes up the issue before 2013 rolls around. If not, he may just play loud in protest.

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