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HomeMy WebLinkAboutAmending Chapter 4 Entitled Buskers and Sidewalk PerformersORDINANCE No. 10274 -13 Passed by the Common Council of the City of South Bend, Indiana Attest: December 9, 2013 JOHN VOORDE Presented by me to the Mayor of the City of South Bend, Indiana December 10, 20 13 City Clerk President of Common Council JOHN VOORDE Approved and signed by me P v&-4e t0 20 13 City Clerk =1 SUBSTITUTE BILL NO. 65-13 ORDINANCE NO. 101-74—b AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 4, ARTICLE 4 OF THE SOUTH BEND MUNICIPAL CODE BY THE INCLUSION OF NEW SECTION 4 -21 ENTITLED BUSKERS AND SIDEWALK PERFORMERS STATEMENT OF PURPOSE AND INTENT "Busking" is a form of performing in public places which has its origin in Great Britain during the 1800s. "Buskers" were people who would seek their fortunes by entertaining along public ways. With the passage of time, street performing became more "vibrant and diverse" with perhaps one of the most popular busking locations today being Covent Garden in London. Busking is considered today to be "artistic free speech" and has been distinguished from panhandling and begging. Busking in public places may be constitutionally regulated by reasonably addressing "time, place and manner" in the government's interest to maintain public safety, order, welfare and convenience. Such restrictions must be narrowly tailored and "...must not be based on the content of the message" but rather must "serve a significant governmental interest, [and] must leave open ample alternatives for communication ", United States v. Grace, 461 U.S. 171, 177 (1983). Furthermore, governments "...may not delegate overly broad licensing discretion to a government official ", Freedman v. Maryland, 380 U.S. 56 (1965). "Governmental regulations that allow arbitrary application are 'inherently inconsistent' with valid time, place and manner regulations, because such discretion has the potential to suppress particular viewpoints", Heffron v. Int'1 Soceity for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). The U.S. Supreme Court has also addressed "artistic expression" noting that this status does not change if the speech is "sold rather than given away ", City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 (1988). Many cities throughout the United States have passed busking ordinances, including but not limited to Baltimore, Boston, Cambridge, Chicago, East Lansing, Hartford, Kansas City, New Orleans, New York, Santa Monica, Seattle, Spokane, St. Louis, Toledo, and Wilmington, N.C., and Worcester. Several of these ordinances have been reviewed to determine the "best practices" in this area. The following regulations are aimed to further promote the vibrancy of the City of South Bend's downtown. They are also proposed to further the governmental interest in preserving public safety, order, welfare and convenience while balancing those interests with protecting the rights of individuals under the First Amendment. First Amendment rights are applicable to the states through the Fourteenth Amendment and provide in part that "Congress shall make no law... abridging the freedom of speech ". Music has been addressed by the U.S. Supreme Court and found to be "...a form of expression and communication" which is protected under the First Amendment, Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Therefore any permit and fee requirements may not constitute prior restraint on speech, Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123, 130 (1992). The following regulations are designed to be a pilot program in South Bend's Downtown Central Business and Entertainment Area, which if successfully implemented, may be expanded to other parts of the City of South Bend, Indiana. These regulations shall be formally reviewed by the South Bend Common Council and the City Administration no later than August 1, 2014, to determine whether the pilot program Busker and Sidewalk Performer Ordinance Page 2 should be enlarged so that other areas of the city may be incorporated. The regulations are believed to be consistent with the "Memorandum and Order" issued by the U.S. District Court, Easter District of Missouri, Eastern Division on July 30, 2013 in Nick Pence, et al v. City of St. Louis, Missouri, Case No. 4:13CV871 CDP, which is the most recent decision issued on similar legislation. A—m0 o, &&@rda&wd by the Common Council of the City of South Bend, Indiana, as follows: Section I. Chapter 4, Article 4 of the South Bend Municipal Code is amended by the inclusion of new Section 4 -21 which shall read in its entirety as follows: Sec. 4 -21 Buskers and Sidewalk Performers. (a) Definitions: For purposes of this Section, the following definitions shall apply: (1) Busker(s) means and includes person(s) who wish to perform on public sidewalks as entertainer(s). (2) Central Business and Entertainment Area means the area depicted in the attached Exhibit A -1.' (3) City shall mean City of South Bend through its Office of the City Controller in the Department of Administration and Finance. (4) Designated locations shall mean areas on public sidewalks located within the Central Business and Entertainment Area, except those areas which have been excluded by the Board of Public Works for events approved for locations within this area; and any other public sidewalk locations excluded by the Director of the Department of Public Works or his/her designee due to public safety concerns (5) Perform shall mean forms of entertainment which do not violate the noise regulations set forth in Sections 3 -9, and 13 -57 of the South Bend Municipal Code". (6) Sidewalk Performer(s) shall have the same meaning as busker(s). (b) Permit Required: No person who wishes to perform as a busker or sidewalk performer in the Central Business and Entertainment Area shall do so without a permit required by this Section from the Office of the City Controller. (c) Application: Any person wishing to perform as a busker or sidewalk performer must file a completed application through the Office of the City Controller. Said application shall require: (1) Name, address, cell telephone number and email of person(s) wishing to perform, (2) Provide proof of identity by a government or school issued identification card or license, (3) If a minor (under the age of 18 years of age) consent of parent or legal guardian, (4) Description of form of entertainment the applicant wishes to perform, and (5) Signature of the applicant that he /she acknowledges receiving a copy of the governing regulations and agrees to abide by such regulations if his/her application is approved. Busker and Sidewalk Performer Ordinance Page 3 (d) Permit Conditions: All persons who are to be issued a permit under this section shall: (1) Be authorized to perform for the calendar year for which the permit is issued, except on dates which are excluded. (2) Be authorized to perform at a designated location on a first come first serve basis. (3) Be authorized to perform on Mondays through Thursdays from 8:00 a.m. to 9:00 p.m. and from 8:00 am to 11:00 p.m. on Friday through Sundays. (4) Be required to pay the permit fee of twenty dollars ($20.00) for said calendar year. (5) Be required to prominently display the permit issued while performing. (6) Not be required to get a permit under South Bend Municipal Code § 13 -57 (d) "Permit for playing noncommercial music in public places ". (7) Not block the passage of the public through a public area on the sidewalk in order to maintain public order and convenience, with blockage or obstruction to such public way being dispersed by police upon complaint to allow passage of the public. (8) Not offer for sale any merchandise at any designated location. (9) Not use electrical and extension cords of any kind in light of public safety concerns; but may use battery - powered microphones and /or amplified speaker(s) so long as such equipment is used in compliance with South Bend Municipal Code § 3 -8 addressing "Advertising with music for commercial purposes prohibited" and South Bend Municipal Code § 3 -57 addressing "Unreasonable noise ". (10) May accept monetary donations while performing with such donations not being considered as a prohibited act under South Bend Municipal Code § 13 -26 so long as the solicitation is not done in an aggressive manner which recklessly interferes with pedestrian safety and /or vehicular traffic. "' (11) Not be performing within twenty feet (20') of any street corner, marked pedestrian crosswalk, entrance to any building, driveway, curb cut, outdoor eating area, emergency exit in order to not obstruct or block the free and safe movement of pedestrians or blocks the site vision needed for the safety of motor vehicle drivers.'" (12) Not perform less than fifty feet (50') from another busker or sidewalk performer. (13) Not have any equipment or items used for performing which obstructs or blocks the free and safe movement of pedestrians or blocks the site vision needed for the safety of motor vehicle drivers; with all stages and platforms being prohibited. No equipment or items used for performing shall be left unattended by the busker or sidewalk performer. (e) Permit Non - Transferable: All permits issued under this section are non - transferable. Busker and Sidewalk Performer Ordinance Page 4 (f) Days Excluded from Performing: Annual special events taking place in the Central Business and Entertainment Area and other events requiring the use of sidewalks in this Area take precedence over buskers and sidewalk performers. The Clerk to the Board of Public Works shall be responsible for notifying all persons seeking a permit under this section of such annual special event dates, and at least seventy -two (72) hour notice of new events which are approved requiring the use of such designated areas. W Refusal to Issue Permit; Suspension or Revocation of Permit: The City may refuse to issue a permit, and any permit issued under this Section may be suspended or revoked. Such actions shall be governed by Section 4 -16 of the South Bend Municipal Code. Penalties: Any person violating any provisions of this Section shall be issued an ordinance violation citation. Penalties shall be one hundred dollars ($100.00) for the first violation; two hundred fifty dollars ($250.00) for the second violation and five hundred dollars ($500.00) for all violations thereafter. Payment of penalties up to two hundred fifty ($250.00) shall be made through the Ordinance Violations Bureau. Failure to make payment within thirty (30) days of the issuance of the citation shall result in a late fee of an additional fifty dollars ($50.00) for every thirty (30) days it remains unpaid. Any person who is issued a permit under this Section in 2013, said permit shall also be valid throughout the 2014 calendar year. Section II. Severability Clause: If any subsection, sentence, clause, phrase or word of this ordinance is declared to be unconstitutional or otherwise invalid by a Court of proper jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. Section III. This ordinance shall be in full forc c e 7��m and after its passage by the Common Council, approval by the Mayor and legal publication. Tim Scott, I" District Council Member The South Bend Common Council J.RIeGt• Office of the City Clerk r" �retenfa�i ffm� �sAmaj on the 1 day of Q0- �YNh64 2013 at LD 33 o'clock Ci . m. Office f the City Clerk Busker and Sidewalk Performer Ordinance Page 5 mftdafed by me on the to day of Of! f M g fjC , 2013 at S o'clock P.m. Pete Buttigie Mayor of the City o South Bend, Indiana 'Ordinance No. 9289 -01 passed by the South Bend Common Council on November 26, 2001, approved the Central Business and Entertainment Area depicted on Exhibit A -I attached hereto and included herein by reference. " South Bend Municipal Code § 3 -8 addresses "Advertising with music for commercial purposes prohibited" and South Bend Municipal Code § 3 -57 addresses "Unreasonable noise'. It is the intent of the South Bend Common Council that only buskers or sidewalk performers who solicit in an aggressive manner constitutes a reckless interference with pedestrian and vehicular traffic and is therefore prohibited; which is consistent with Greater Cincinnati Coalition for the Homeless and Charles Gooden v. City of Cincinnati, 56 F. 3d 710 (G'" Cit. 1995) 1° By analogy, Indiana Code § 9- 21 -16 -5 establishes a twenty foot (20') restriction from crosswalks at intersections and driveway entrances to fire stations based on avoiding conflict. i st READING [ � 1l l l 0 f a' PUBLIC HEARING 3 �-r fV -6J�� ,,d 3 rd READING NOT APPROVED REFERRED PASSED t L-CL„ 3 f- 5u jJ k r1Eed in l 'i - MICE JOHM VOOFIDE CITY CLERK, SOUTH SEND, IN TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 65 -13 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 4, ARTICLE 4 OF THE SOUTH BEND MUNICIPAL CODE BY THE INCLUSION OF NEW SECTION 4 -21 ENTITLED BUSKERS AND SIDEWALK PERFORMERS Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation as substituted. (See cover letter) This bill was heard by the Personnel & Finance and Health & Public Safety Committee Karen L. White Chairperson, Committee of the Whole Exhibit A-1 Central Business and Entertainment X" r: e'a'" Central Business and Entertainment Area Bound; South Bend Central Development Area Boundary = Panhandling and Solicitation Regulation Area rAUVkVM- IMMI 11 1111 all c .P§ z 2, N2 F fi! City of South Bend � PHACE -aa Common Council 1865 ecember 4 2013 41 County -City Building • 227W. Jefferson Blvd South Bend, Indiana 46601 -1830 Derek D. Dieter The South Bend Common Council President 4th Floor County -City Building Oliver J. Davis South Bend, Indiana 46601 Vice - President Re: Substitute Bill No. 65 -13 Buskers and Sidewalk Performers Karen L. White Chairperson, Commit9par Council Members: of the Whole (574) 235 -9321 Fax (574) 235 -9173 http;//www.southbendin.gov Tim Scott Since Bill No. 65 -13 was filed with the Office of the City Clerk on November 5th, I have received many comments and avorable input First District from members of the public, downtown merchants and the City Administration. In the interest of improving the Henry Davis, Jr. proposed regulations governing persons who desire to be a busker or sidewalk performer as part of the in Second District pilot program the Central Business and Entertainment Area of downtown South Bend, I have filed the attached Substitute Bill No. 65 -13. The changes incorporated are as follows: Valerie Schey Third District Page 2 g Sec. 4 -21 (a)(4) clarifies definition of "designated locations" Fred Ferlic Fourth District Page 3 Sec. 4 -21 (d)(8) deleted "merchandize" inserted "merchandise" David Varner Sec. 4 -21 (d)(9) clarifies that no electrical and extension cords of any kind Fifth District P may be used in light of public safety g y concerns Oliver J. Davis Sec. 4 -21 (e) (11) changes the distance requirement from ten feet (10') to Sixth District twenty feet (20') that a busker or sidewalk performer may perform from any street corner, crosswalk, entrance to building, Derek D. Dieter driveway, etc. and provides an end note reference to the Indiana At Large Code where other 20' restrictions are in existence on page 5 of the substitute bill Gavin Ferlic At Large Page 4 See. 4 -21 (i) deleted "any one" inserted "any person" Karen L. White I look forward to discussing t_is with At Large you at next Monday's joint meeting of the Health and public Safety Committee and the Personnel and Finance Committee meeting; and seek your favorable support. Sind Tim Scott 1st District Council Member Attachment