Proposed Ordinance to Revise LAMC 42.15 (Beach Vending)

Community Impact Statement

Date:    September 27, 2004

From:   Grass Roots Venice Neighborhood Council (GRVNC) Board

To:       Los Angeles City Council

Summary [98 words]

GRVNC opposes the draft ordinance in the matter of amending LAMC 42.15 and the related rules proposed to implement the ordinance on the Venice Boardwalk, as identified in Report No. R04-0348 addressed to the City Council by the City Attorney on August 9, 2004. . The draft ordinance and its proposed implementation would unnecessarily and randomly remove access for as many as 200 persons to the “Free Speech Zone” on the Venice Boardwalk and could possibly reduce tourism in Venice. The draft ordinance and its proposed implementation also raise First Amendment issues related to restrictions on free speech.

Full Statement

Venice as a tourist destination
The beach and Boardwalk at Venice as travel and tourist destinations are considered to be among the most visited seaside destinations on the west coast with annual attendance estimated to be as much as 8,000,000 visits resulting in annual spending in excess of $340 million[1]. Unique among California’s beach tourist areas, the beach itself is less important to visitors to Venice, and only 49% of Venice’s overnight guests would not come or would come less often without the surf and sand, compared to 62 to 74% for other southern California beaches[2].

The well-known eclectic ambiance which draws tourists from around the world to Venice must be partially credited to the west side of the Boardwalk. This “Free Speech Zone” is where all of those persons that offer articles of a “religious, political, philosophical, or ideological” nature and artists vending their own signed creations exercise their clearly identified exemptions to the prohibitions against peddling, hawking and vending in Los Angeles beach areas, as set forth in current Los Angeles Municipal Code 42.15 (LAMC 42.15).

Current regulation and practices

LAMC 42.15 currently does not charge a fee or require permits for the exempted activities described above, nor does it dictate an exact location for an individual Free Speech Zone participant or limit the number of such participants. Importantly, LAMC 42.15 as currently written does prohibit all other commercial vending, except for the sale of various news publications, in the Free Speech Zone as well as in other all other beach and boardwalk areas. Venice residents and visitors alike regard the Free Speech Zone as something sacred to the Venice Boardwalk.

The area designated as governed by LAMC 42.15 extends from the southern border of Santa Monica to the northern border of El Segundo. The area in Venice currently used as the Free Speech Zone is less extended, and stretches from the southern border of Santa Monica to just north of Venice Blvd. This Venice Free Speech Zone is occupied each day during the peak tourist season (June through September) by approximately 250 to 300 individuals , who work from behind tables or under umbrellas, or who perform, either from a set location or while moving from one location to another. The Free Speech Zone population during the remaining months of the year is approximately 150 to 200 individuals.

Impact of draft ordinance and proposed implementation

The draft ordinance contained in the cited correspondence from the City Attorney to the City Council would amend LAMC 42.15 by reorganizing it and by adding new “Subsection D.” This new subsection would establish a requirement to hold a “Public Expression Participation Permit” (a “Permit”) in order “receive any payment or accept any donation in connection with any activities not otherwise prohibited” by LAMC 42.15. The new subsection would also codify elements of a “Public Expression Participation Permit Program at the Venice Beach Boardwalk” (the “Permit Program”) as adopted on October 1, 2003 or amended from time to time by the Board of Recreation and Park Commissioners (the “Board”).

The Permit Program adopted by the Board on October 1, 2003 and revised on April 7, 2004 establishes the following policies and procedures, among others:

• Creation of a requirement for filing an application with the City in order to practice “Public Expression activities on the west side of the Venice Boardwalk.” Applicants would pay a one-time fee of $25.00 and would receive a picture identification permit.
• Identification of exactly 44 specific spaces, each 20 feet wide by 8 feet deep, for use for performance; and exactly 62 specific spaces, each 10 feet wide by 8 feet deep, for all other “public expression activities” undertaken by Permit holders, which would include non-performing artists vending their original and signed wares and others engaged in selling of “merchandise constituting, carrying or making a religious, political, philosophical or ideological message or statement which is inextricably intertwined with the merchandise.”
• Initiation of a lottery that will assign, on a monthly basis, each of the above identified spaces to Permit holders. Assignment will be limited to Permit holders and will require that Permit holders be physically present at the time and place of the monthly lottery to qualify.

GRVNC’s opposition to the proposed ordinance is first and foremost grounded in the fact that the majority of persons that currently engage in activities now exempted under LAMC 42.15 will be eliminated from such activities under the draft ordinance and proposed implementing Permit Program. During the peak tourist season up to 200 individuals will be refused participation in the Venice Free Speech Zone. Many of those who would lose this opportunity are serious and full-time artists who rely on the proceeds received for their art for their livelihood. They cannot wait until the next month to hope that they will be selected in the next lottery and then provided with a place in the Free Speech Zone for the next month. They must not be denied the opportunities now protected under LAMC 42.15.

There are other elements of the Permit Program that are also cause for concern, including:

• Some number of current Free Speech Zone participants with extreme financial hardship cannot afford to pay $25.00 for a permit and with therefore be eliminated from participation in the Permit Program.

• Serious full-time artists who are able to purchase a permit, but who do not get picked in the lottery will need to find a new place to paint, sculpt and display their art for donation. Hundreds of artists could be eliminated from participation in the Venice Free Speech Zone and these may or may not return after an absence of one or more months.
• Because the Permit Program would assign locations based entirely on a random drawing and would forbid trading of assigned spaces, full-time artists who are picked in the lottery would be subject to relocation each time they are assigned a space in the Free Speech Zone and could therefore lose customers.
• Part-time hobbyist artists who can afford a permit and who does not mind setting up in the Free Speech Zone whenever picked in the lottery system may systematically replace the more serious full-time artists who require regular access to the public in order to earn a living.

GRVNC’s opposition to the draft ordinance and implementing Permit Program is also based on concerns related the potential long-term reduction in tourist visits, and therefore direct business revenues and tax revenues generated from such visits. As noted above, visitors to Venice are uniquely identified as interested in attributes other than the surf and sand found at any Southern California beach. This more diverse interest of tourists to Venice must be partially credited to the unique nature of the activities in the “Free Speech Zone” on the west side of the Boardwalk. If one of the results of the limitations proposed in the Permit Program is a more homogenous mix of part-time artists and performers on the Venice Boardwalk, it can be argued that the diversity sought by these visitors well be lessened or lost. If less people come to Venice, the businesses on the east side of the Boardwalk will also suffer, and by extension, so will City tax income.

First Amendment issues

GRVNC recognizes that the City of Los Angeles and the Department of Recreation and Parks may perceive a need to establish restrictions on the time, place and manner of the activities of artists, performers, and others engaged in “public expression activities” on the Venice Boardwalk who are currently exempted from the restriction on beach vending in accordance with LUMC 42.15. Nevertheless, the City must be cautious to assure that any such restriction that directly bears on First Amendment free speech rights in a public forum “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.”[3]

It may be that a court would agree that the draft ordinance and implementing Permit Program meet one or more of these requirements in restricting protected and public free speech. It is difficult to conceive, however, how any argument could be made that persons now engaged in “public expression activities” on the Venice Boardwalk would have an “ample alternative channel of communication” when they are told to come back and try again next month.

The City should also, therefore, consider the potential cost of litigation in the event that persons that are removed from their current activities on the Venice Boardwalk or others in the community seek judicial review of any amendment to LAMC 42.15. There is a history of successful lawsuits against the City related to attempts to deny, restrict, or remove people from the Venice Free Speech Zone.[4]

Other approaches

GRVNC communicated in March 2004 to the City Council to express its opposition at that time about the proposed ordinance to amend LAMC 42.15. GRVNC also expressed support for hiring a professional mediator to “identify stakeholder groups on the Boardwalk, including artists and free speech advocates…, vendors and businesses…, residents… and homeless persons in the immediate area.” GRVNC also suggested at that time that the mediator should work with these stakeholders to develop a consensus solution to issues raised on the current use of the Venice Free Speech Zone. GRVNC reiterates these suggestions here.

GRVNC also notes that the April 9, 2004 communication from the City Attorney to the City Council cited above and Board Reports from the Department of Recreation and Parks included in that communication recorded that several government entities have cooperated in the process of developing the draft ordinance and proposed implementing Permit Program that are the subject of this Community Impact Statement. These entities included staff of Council District 11, the Los Angeles Police Department, the City Attorney, and the Department of Recreations and Parks. Notably, and in spite of the fact that the draft ordinance and proposed implementing rules will directly affect residents of Venice, no attempt has been made to include GRVNC in this cooperative effort. GRVNC therefore respectfully requests that each of these other government entities, and the Los Angeles City Council itself, recognize, for the purposes of this activity and all other activities that have a direct bearing on Venice, that the GRVNC is the duly certified neighborhood council fro Venice. The Los Angeles City Charter envisions the neighborhood council system as promoting “public participation in City governance and decision making processes so that government is more responsive to local needs and requests and so that more opportunities are created to build partnerships with government to address local needs and request.”[5] GRVNC therefore additionally requests that the participation of this neighborhood council be actively solicited in this activity and all other activities that have a direct bearing on Venice stakeholders.