In a late night session December 10, the City Council, despite eloquent pleas from the community, drove a potentially fatal stake through the heart of the Voluntary Guidelines.
Street Performer Voluntary Guidelines:
Consequences? Yes. Unintended? No.
by Emmet Grogan
In a late night session December 10, the City Council, despite eloquent pleas from the community, drove a potentially fatal stake through the heart of the Voluntary Guidelines. While the agenda declared the item to be about receiving and discussing recommendations from the Downtown Commission regarding ordinance revisions that impact street performers, the City Council showed no intention of accepting the findings and research prepared by this all-volunteer advisory body tasked with the job.
Instead, after hearing testimony from 6 of their 7 Downtown Commissioners, the Council entertained a single motion made by Cynthia Mathews, discussion of which then took up the entire time for the agenda item. This ordinance was not on the published agenda and was introduced with no advance notice to the public as required by law.
At the end of this process, the outcome was approval of two near identical ordinances which were left for the Council to consider for a second reading on January 14th. Also, one ordinance revision affecting the language of "solicitation" to exclude street performers was passed. (see Appendix 1). An emergency resolution was to be prepared to prevent a previously passed ordinance from coming into effect on January 15th. The Council encouraged street performers to go ahead with their cooperative process, but it seemed to many performers present that this was merely a bone being tossed to them while the leash was being tightened. (see Appendix 2)
The Mathews introduced ordinance in its final form contained 3 elements: 1) a standard 10 foot setback for display devices; 2) a one hour "move along" provision (see Appendix 3); and 3) a component for "exemption areas" or "opportunity zones." The second ordinance omits the one hour "move along" provision, but is identical otherwise. The first version passed 6-1 (Ed Porter voting no on very narrow grounds), and the second, introduced by Fitzmaurice, narrowly passed 4-3. The Council will choose between these two ordinances on January 14th. At the last minute, City Attorney John Barisone recommended the Council adopt language redefining street performers as non-solicitors under the solicitation ordinance, and this was adopted unanimously with no discussion.
This outcome was the result of a skewed public process in which community participation was repeatedly asked for and then just as repeatedly ignored. Despite pleasant platitudes and conciliatory rhetoric heard from some council members, the reality was that the efforts of the Downtown Commission and the volunteer group of street performers, sometimes referred to as the 'Buskers Guild', were completely irrelevant to the Council's own preordained agenda.
Downtown Commissioners patiently explained the research that led to their recommendations (see Appendix 4), but they mostly fell on deaf ears. To their credit, they inserted themselves into Council deliberations even after the time for their presentations and public comment had passed. Their frustration with the Council was clearly visible. Regarding the uniform 10 foot setbacks, the Commissioners explained why they wouldn't be acceptable: merchants had problems with forcing performers to the edge of the street thereby causing performers to send sound directly into open doorways, and performers all have different needs for their performances and wanted to work these issues out in direct consultation with the merchants and other stakeholders downtown. The one hour "move along" provision was a surprise inclusion and given time constraints wasn't able to be properly addressed. Commissioners also explained why the "exemption areas" component was not wanted. Merchants who are adjacent to or in front of these areas (yet to be designated) would bear the brunt of continuous performances, and performers themselves don't wish to be forced into bureaucratically determined areas.
The Council's decision put the Voluntary Guidelines in critical condition, and depending on what they pass on January 14th, could terminate them permanently. The Voluntary Guidelines are a set of behavioral agreements that have kept the downtown area free of restrictive laws against performers for 22 years. The Downtown Commission, along with street performers, asked the Council for a further delay in any ordinance implementation to allow a voluntary, grass roots effort time to reinvigorate and reinstate the Voluntary Guidelines, and to incorporate any needed changes suggested by downtown stakeholders. While Councilmembers gave lip service to these efforts, no practical consideration was given to this proposal. When it came time for action, no one on the Council was willing to put their words into deeds, thereby undermining the considerable efforts of the community to work out an amicable solution acceptable to all concerned parties downtown. Repeated assertions were made, with no documented evidence whatsoever, that the Voluntary Guidelines were unable to provide the enforcement needed to deal with problematic street performers. In fact, the only evidence in this area was presented was by the Downtown Commission, which relayed figures from Downtown Host contact reports, which showed that less than .05% of total contacts even involved music. But anecdotes and hearsay seemed to sway the Council more than the existing hard data. There was no consideration given to any future gathering of this type of data, and in a "don't confuse us with the facts" approach, the Council let stand the assumption that street performers are raging out of control downtown and the city needs immediate regulation to stem the scourge. They also refused to consider any suggestion that existing laws, (e.g. excessive noise, disturbing the peace, public nuisance, blocking the sidewalk, etc.) were adequate to deal with any street performer problems.
It was an evening of tragedy and comedy. Dave "Woody" Wood sang a song containing the line, "So sing my little ditty, strike a blow for liberty Save the rag tag band of guitar pickers from bureaucracy." Carolyn Heinrich, the owner of Pacific Trading Company felt alone and was emotional as she gave testimony. Neal Coonerty of Bookshop Santa Cruz launched a new campaign with his distribution of bumper stickers proclaiming, "Keep Santa Cruz Weird." Speakers from the Coalition for a Community Commons, the Santa Cruz Peace Coalition, the Downtown Association, and People for a Free and Equal Downtown all lined up and waited patiently for their turn at the microphone. Robert Norse as "Stop-The-War Santa" was gaily decorated and well behaved. Brian Koepke quoted the Joni Mitchell line, "You don't know what you've got 'til it's gone" during his testimony, warning of the continuing disappearance of performers downtown. Responding to the DTC and street performers request that Council instruct the police to "cease and desist" their harassment downtown while the voluntary stakeholder efforts proceeded, a reluctant Chief of Police Steve Belcher (accompanied in the audience by Lt. Patty Sapone and another high-ranking SCPD officer) was summoned to the microphone and explained why he didn't think the Council could legally give him any direction on enforcement policies. His assertion seemed to contradict street performer activist Tom Noddy's understanding from Belcher that the SCPD were cracking down on performers in response to the Council's demand to "rigorously enforce all existing laws" in the area. The Chief of Police apparently can interpret things to his own liking. And I'd like to know why was there was so much SCPD heavy brass present at this particular Council meeting and for this particular agenda item. Their presence was intimidating. Perhaps it was meant to forestall the following story.
Members of a marimba band related to the Council their story of SCPD misconduct at one of their recent performances. According to the band, they had approached the manager of a popular downtown store for permission to play out front. Not that the band needed it, as merchants don't control the public sidewalks, and aren't able to grant or deny permission, but the band consulted him in the spirit of neighborliness. The manager enthusiastically agreed saying the band drew customers to his store and it was more than fine with him. An hour into their performance, a female police officer interrupts, saying there has been a complaint and that they have to stop playing in 20 minutes. The alleged complainant was said to be the manager of the store. The band complied with the police officer's request and inquired of the manager as to the reason for the complaint. It turns out that the manager never complained to the police! As if that wasn't bad enough, the SCPD then called the store manager and read the him the riot act for daring to agree to the band's neighborly request, effectively intimidating him and thereby sabotaging future merchant/performer cooperation. (After the Council meeting, another performer who had recently solicited a store manager's permission said the police pulled exactly the same thing on him.) This testimony and similar concerns about police misbehavior were ignored by the entire Council. Instead, the impression was given that what's really needed is a bigger club for the police to subdue recalcitrant street performers, and the Council is now poised to give them just that via these new ordinances. When asked if there were plans to file a formal complaint against the SCPD with the Citizens Police Review Board, a band member responded that such a filing may well erode the working relationship they are trying to develop with specific officers who are supportive of their ability to play on the mall. They would like to reach such an understanding and want the voluntary approach to have another chance.
With no Councilmembers making an attempt to formally accept the findings of their own Downtown Commission nor making any efforts to introduce any substantively alternative motions, the Mathews ordinance had the look and feel of a backroom deal. There were many proposals for Council consideration which came from City Staff, street performers, and the DTC, all published in the agenda. The Council preferred to ignore almost all of these suggestions and concentrated solely on the surprise Mathews proposal. Why the newly seated Mathews proffered this motion and not Reilly or Porter, the two members most closely associated with theses new ordinances, was not immediately apparent. The final 6-1 vote seemed like a preordained conclusion.
The passing of language redefining street performers as non-solicitors under the solicitation ordinance came as something of a surprise. At the last minute, City Attorney John Barisone waved a piece of paper at the Council and recommended its passage. With no discussion, it was passed unanimously. While it had been one of the DTC's recommendations, it was unexpected because all throughout the evening, Councilmember Rotkin repeatedly expressed his concern about Constitutionally protected expression, and how the City couldn't legally discriminate based on content and warning of lawsuits if the city went in that direction. At one point, Councilmember Ed Porter chimed in to say why exempting some "display devices" such as guitar cases, donation cans and cups, would be preferable to exempting certain types of expression, (such as entertainment for gratuities), again citing Constitutional concerns. Perhaps due to the late hour and exhaustion, or perhaps due to Barisone's desire to create more billable hours, the passage of this language amendment seems to leave the city open for the kind of lawsuit the Council spoke about avoiding.
There were pleas by Councilmember Kennedy and others that given the budget crisis and other concerns, that the street performer issue wasn't the most important, and that Council do what it can do get it off the agenda. However, after the council's final vote, numerous street performers expressed feelings of being betrayed and undermined. There was also talk of protest and legal action, all seeming to indicate that this issue will be on the Council's plate for quite some time. Left completely unaddressed were yet more "unintended consequences" of the ordinances that affect political tablers.
Street performers and other users of public space downtown don't need to be rudely forced into legal boxes. What is needed are creative solutions to craft an integration of the various needs of downtown stakeholders into a functional whole. The street performers and the Downtown Commission asked for that process, and for a sign of good faith from the Council, but they received neither. The Council is apparently willing to pass up the opportunity to encourage a neighborly and uniquely Santa Cruz solution to the perceived problems downtown.
Currently, many street performers are refusing to perform downtown, citing continuous and increasing harassment from the police. And these new laws haven't even been passed yet! Also see street performer activist Tom Noddy's letter to the City Council below. (Appendix 5).
The City Council needs to hear from us on this issue before their next meeting on January 14th. Don't let them further alienate street performers. They are a valuable asset to this community. Help keep Santa Cruz weird!
Contact the Council with your thoughts at: <citycncl (at) ci.santa-cruz.ca.us
> or (831)-420-5020.
"A person is not soliciting for purposes of this Chapter when he or she passively displays a sign or places a collection container on the sidewalk pursuant to which he or she receives monetary offerings
in appreciation for entertainment or a street performance he or she provides." (Proposed change to Sec. 9.10.010)
Action Agenda prepared December 12, 2002 with action taken in bold type
22. Downtown Commission Recommendations Regarding the Impact of Downtown Ordinance Revisions on Street Performers and Other Activities. (CM003)
Version one of Ordinance No. 2002-49 was introduced for publication amending Display Device Ordinance, Chapter 5.43, to provide for 10 foot distance regulations; Version Two of Ordinance No. 2002-49 was introduced for publication amending Display Device Ordinance, Chapter 5.43, to provide for 10 foot distance regulations and one hour sidewalk location limitation; Ordinance No. 2002-50 was introduced for publication amending Display Device Ordinance, Chapter 5.43, to provide for distance regulation “exempt zones”; Ordinance No. 2002-51 was introduced for publication amending the Aggressive Solicitation Ordinance, Chapter 9.10, to clarify that street performing does not constitute “solicitation” for purposes of the Aggressive Solicitation Ordinance; the City Attorney was directed to prepare an emergency ordinance rescinding Ordinance No. 2002-36 and Ordinance No. 2002-43 pertaining to a 14-foot distance regulation for display devices and to return that emergency ordinance to the City Council for final adoption at the Council’s January 14, 2003 regular meeting; and the Downtown Commission review, in a special meeting if necessary, the proposed ordinances, with a map indicating setbacks, and encourage the ongoing discussion among community members, independent of this process, and provide comments prior to the January 14 Council meeting.
This had not yet been published by the time of this article, but Barisone's language contained the following elements: "May not remain in place for longer than 1 hour; must move at least 100 feet away; and may not return to any previously occupied spot for 24 hours."
RECOMMENDATION: The Downtown Commission recommends that the City Council take the following actions:
1. Rescind Ordinance No. 2002-36 amending Section 5.43.020 of the Santa Cruz Municipal Code regarding non-commercial display devices;
2. Instruct the City Attorney to research and, if possible, implement language in the display device and aggressive solicitation sections of the municipal code that will allow street performers to accept donations in guitar cases, hats or other containers;
3. Direct the Downtown Commission to encourage and oversee a process with interested parties who wish to form a street performers’ guild and those who wish to facilitate conflicts arising around street performers. Both of these groups should make monthly reports to the Downtown Commission starting February 27, 2003. The Downtown Commission will evaluate the overall effectiveness of these two groups no later than September 25, 2003. The City Council will consider the Downtown Commission’s recommendation in October 2003;
4. If conflicts are not being resolved by the two aforementioned citizen-formed groups, the process recommended by the June 1996 Downtown Santa Cruz Public Policy Mediation project should be enacted through the guidance of the Downtown Commission; and
5. Request that the Santa Cruz Police Department supply written monthly reports to the Downtown Commission regarding the number of calls, citations and arrests in the Downtown Commercial District with data also reporting on these calls for Pacific Avenue only.
Tom Noddy letter to City Council
From: Tom Noddy
To: citycouncil (at) ci.santa-cruz.ca.us
Street performing now
Contrary to press reports, the City Council did not take a step in the direction of compromise with the concerns of street performers at their December 10 meeting. Their "return to" 10 foot restrictions (no performing within 10 foot of a building, water fountain, kiosk, bench, etc ...) was in fact a brand new restriction that began this past summer. It was put in law in 1994 but cooler heads prevailed then and it has never been enforced, it would have called an end the neighborly agreement that the merchants, residents and performer preferred back then had it been enforced.
The fact that recent moves to create even MORE outrageous restrictions may be rescinded does not convert that attack into a middle ground. The performers were not fooled and the public should not be either.
For over twenty years there was an agreement downtown between the street performers, merchants, and residents to try to work out disputes through a method of mutual respect guided by written guidelines. It worked so well that even when the City looked to pass restrictive downtown laws last summer merchants and residents rose to say that they did NOT wish to have the city impose restrictions on street performers.
Then, through a series of what they themselves called "unintended consequences", Councilmembers antagonized the street performers and then looked for ways to justify their efforts to force performers to accept insulting restrictions ranging from dogtags (okay ... ID tags) to color-coded "opportunity zones" wherein they could crowd together and compete for space with each other and with panhandlers and others. Merchant complaints were solicited and some accommodated.
The performers responded admirably by working with the Downtown Commission to find ways to modify the guidelines if only someone would be good enough to name the problems that needed addressing. Instead the city has now voted to ignore their Commission's advice and impose restrictions thereby abrogating the twenty three year agreement. If they vote for it again on January 14 it will become the new law.
Those in Santa Cruz among the merchants, police, hosts, and Council who cared about maintaining an honorable and friendly relationship with street performers had a friend in me and they had my volunteer service in that regard for a very long time now. They are now on the verge of losing that.
It may not be a big thing. Almost all performers are sweet accommodating people who are concerned about that themselves and very few of them ever needed my help in finding ways to make and keep friendships.
If the city make it clear that they would rather issue orders and enforce them with police than to work out disputes as neighbors I will not be helping.
If city officials then find an increase in animosity among the people on the streets they should know that they went out of their way to earn that. Maybe they are right, maybe the cops are the best solution to their problems.