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CITY COUNCIL REPORT: Restaurants and Sidewalks on Council Menu:

The City Council chambers were packed to overflowing on Tuesday night, December 8, and it was not just to meet new City Manager Rod Gould, whose appointment and introduction is reported elsewhere in today’s Mirror. Mayor Pro Tem Pam O’Connor had to clear those standing in the aisles and send them to the lobby TV screens downstairs because over a hundred patrons and neighbors came to debate the operations of The Parlor bar/restaurant at 1519 Wilshire Boulevard.

At the request of Stephen Jamieson, new legal counsel for the owner of The Parlor property, the owner’s appeal from the Planning Commission’s restrictions on a conditional use permit and variance for operation of the bar/restaurant was continued to February 2010, but only after several of the patrons and neighbors had their say. In other action, (1) the Council gave first-reading approval to an ordinance that eliminates permit requirements for sidewalk performers everywhere except the Third Street Promenade, the Pier, and the “Transit Mall” near Santa Monica Boulevard and 4th Street downtown and (2) the Council directed staff to prepare a proposed ordinance regulating roll-down curtains at restaurants on Ocean Avenue.

Permits for Street Performers

Current Santa Monica ordinances require street performers to obtain a city permit before operating on any sidewalk or on the Promenade, the Pier, or the Transit Mall, but not for operating in parks or other open spaces. Earlier this year, a federal court struck down an arguably similar Seattle permit ordinance as a limitation on protected expression in Berger v. Seattle, 563 F.3d 1029 (9th Cir. 2009).

Although there are distinctions between the Seattle and Santa Monica ordinances, the City Council considered modifying its law in light of the decision, and the Council heard public comment, largely supportive of current permit requirements, at its October 13 meeting. [Santa Monica Mirror, October 15-21, 2009] The Council then directed the City Attorney’s office to prepare a revised ordinance narrowing the Santa Monica permit requirement in light of the Berger decision.

On Tuesday, December 8, the Council considered that revised ordinance, which eliminates the permit requirement for sidewalks in general but retains the requirement for the Promenade, the Pier, and the Transit Mall. The Council heard testimony from Fire Chief Jim Hone, Deputy Police Chief Phil Sanchez, Bayside Promenade Manager Stephen Bradford, and Pier Restoration Corporation Executive Director Ben Franz-Knight; each spoke in support of the proposal, essentially making a record of the need for permit regulation in the three limited locations to protect public safety.

In response to a question from Councilmember Richard Bloom, City Attorney Marsha Moutrie explained that no permit is required for political speech anywhere. Councilmember Kevin McKeown suggested eliminating permit requirements everywhere for performances before noon on non-holiday weekdays when crowds are smaller, Bayside Executive Director Kathleen Rawson objected that this would pose administrative difficulties, Moutrie said the suggestion would further protect the Santa Monica ordinance from legal challenge, and the Council adopted McKeown’s suggestion as a friendly amendment.

The ordinance was unanimously approved on first reading. It will again be considered on a second reading in the near future before formal adoption.

Roll-down Curtains on Ocean Avenue

The City Council has at different times adopted separate Outdoor Dining Standards for Ocean Avenue, Broadway and Santa Monica Boulevard, and the Third Street Promenade, each governing restaurants’ use of sidewalk areas under City license agreements. (Some restaurants have legal easements for sidewalk tables, the terms of which govern the subject for the life of the easement.) The standards for Broadway and Santa Monica Boulevard expressly prohibit roll-down curtains, but the Ocean Avenue standards do not although City staff has interpreted them as prohibiting roll-downs there as well.

The resulting dispute between some Ocean Avenue restaurants that want to roll down usually transparent curtains in cold or windy weather and City staff that wants to prohibit them “in order to ensure that the streets remain pedestrian friendly” came before the Council on Tuesday, December 8. City enforcement actions against two restaurants have been temporarily stayed pending City Council clarification or revision of the standards.

Restaurant representatives (at least a half-dozen from BOA, from the general manager to a busboy) argued that their Ocean Avenue location was unprotected from the winds off the palisades bluffs, and the curtains were needed for the comfort of patrons. Restaurateurs said they preferred to leave the curtains rolled up and only lowered them when necessary. One self-identified “consumer” said that diners “need weather protection” and that the City’s position amounted to “imposition of political correctness.”

Some questions were raised as to the types of curtains available, whether some might be allowed, and whether temperature or wind-speed cut-offs should be set for lowering any curtains.

In the end, the Council, by a 5-1 vote, directed staff to consider the matter in light of the evening’s comments and come back to the Council with a proposed ordinance. Councilmember Bobby Shriver was the dissenter, believing the staff had better things to do. “[The restaurant] people are good-willed and want to do the right thing, and we don’t need a law to make them do it,” he told the Mirror afterward.

The Battle over The Parlor

The battle has been brewing for some time. The 27-page staff report presented to the City Council at its December 8 meeting by Planning Department Director Eileen Fogarty recounts the history of restaurant/beverage establishments at 1519 Wilshire Boulevard since the early 1980s; recent complaints of patrons’ behavior “including excessive late night noise, profanities, drunkenness, urination, trash, and vandalism”; and the Planning Commission’s September 16 hearing which resulted in approval of a conditional use permit that limits the number of seats, hours of operation, and number of video games, and requires a minimum of six security personnel during specified hours, among other things.

The property owner appealed those restrictions to the City Council. The Council continued its consideration of the appeal to its next available date (early February) when appellant’s newly retained legal counsel said that he had new evidence that the business activity may not require a conditional use permit for its operations after all, but that additional time was required to make a proper presentation.

A dozen citizens who might have difficulty returning on the continued date – both patrons and neighbors of The Parlor on opposite sides of the dispute – nevertheless addressed the Council, and Deputy Police Chief Sanchez was called upon by the Council as well. But nothing was decided, and new evidence may be before the Council in February.

The City Council will next meet after the holidays on January 12, 2010.

Contact Terence Lyons

310.577.6507x.107

terence­­@smmirror.com

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