I received an e-mail from a man who performs on the Promenade. He has had several run-ins with the local constabulary over his licensed performances. Evidently he is a wind instrument player who occasionally has people sing along with his playing. He allegedly was playing one day, fully complying with the permit requirements of the city and all the various rules and regulations that go with being permitted, when a friend of his joined him and began to sing. He is a street performer for money. As a consequence of his being a business, all of the players with him must be permitted.
Evidently his friend, who just stopped by to see him, was ticketed for performing without a license. This led me to a perusal of the municipal codes and how they impact businesses and why. In this case, street performers.
The most relevant Santa Monica municipal code regarding performing artists that I could find is section 4.12.120 — restrictions in public parks or recreational facilities. The section reads in: (a) No person shall play any drum or other percussion type instrument, or device in or upon any public park or recreational facility maintained by the city of Santa Monica. (b) No person shall play any audio or electronic device including, but not limited to, any radio, tape player, compact disc, musical instrument or electronic keyboard after 10 p.m. or before 8 a.m. in or upon any public park, beach or recreational facility owned or maintained by the city of Santa Monica. (c) This section shall not prohibit the playing of any drum, other percussion type instrument, or any audio or electronic device in any band or orchestra or other musical group which has been granted permission to play or perform in or upon a public park or other public facility by the city.
I find this to be an interesting code because it seems to me that it flies directly in the face of the First Amendment in subsection (a). I think that a person playing a drum in a park is really no different than one who is speaking on a soapbox. One can certainly make a statement with one’s playing. Also, does an empty soda can that I am rapping on with my fingers count as a “percussion type instrument or device?” I’ve been known to do just that at many a boring meeting.
It is this type of wholesale denial of rights and inelegant writing that drives the public crazy, makes it impossible for Santa Monica Police Department Chief James T. Butts to give clear direction to his police for enforcement purposes and keeps criminal defense lawyers in business.
Section (b) is clearly an attempt to keep the amplified musicians off the beach and out of the parks after they are closed. Which makes me wonder why exactly do we “close” them and what does that really mean? Why is a public asset, such as the beach, “closed” after 10 p.m.? There are no lifeguards in the winter, so it clearly can’t be a safety issue. There are always homeless milling about in the parks sucking on their mystery beverages in paper bags, and sleeping on the sand in the morning, so the law is not being enforced, except for when I walk a dog on the beach, then I’ll get a ticket, but that is only because I can pay for it.
Which brings us to subsection (c), the real reason for this code. It’s there, as plain as day, “which has been granted permission to play or perform in or upon a public park or other public facility by the city.” That means you’ve paid the city for the right to perform, and they have given you a piece of paper in exchange for your money. I understand that, for those performers who have a hat out. Someone who is actively using the city to pay their rent should have to contribute to the general upkeep of the city. That is done by the application for and the issuance of a permit.
We have a permit for our business and family law practice. My partner and I both hate having to pay the city for the right to conduct business. It doesn’t seem fair that I have to pay the city, the county, the state and the federal government to work. But that’s the way it is. Someone must foot the bill for the new Public Safety Facility with its open air shower out front for the homeless. Property owners and businesses are forced by taxes and permits to contribute for the funding of the new main library homeless winter warming center.
The supreme court has declared that solicitation of funds is free speech. It is free speech if I just go play, however badly, the drums on the Promenade. It is commercial speech if I have a hat out, with or without a sign, and people give me money. Drumming requires a permit, begging doesn’t. I fail to see what the difference is between a man with a sign that says, “Why lie? I need a beer.” versus a man who is playing a flute that I willingly give a buck to.
They are both a part of local character, one is wanted, and one isn’t. Yet we tax the one who is wanted, and let the unwanted one do whatever they wish. Seems to me that because we can’t force the beggars to get permits, perhaps we should encourage more of the performers by not charging them, and make the business and social environment more artist friendly. After all, it is they who attract the visitors, and that is what keeps our businesses in business, and they will have to pay for the next phase of the City Council’s homeless development plan. (David Pisarra is a partner in the Santa Monica law firm of Pisarra & Grist. He welcomes questions, and (310) 664-9969 or e-mailed at DPISAR-).
Originally published in the Santa Monica Daily Press print edition on January 27, 2004. Read the original PDF.