HomeMy WebLinkAboutBill 19-16 Addressing Buskers and SideWalk Performers by repealing ch 4 article 4 section 4-21 of the SBMC and amending1200 COUNTY -CITY BUILDING
227 W. JEFFERSON BOULEVARD
SOUTH BEND, INDIANA 46601 -1830
CRISTAL C. BRISCO
CORPORATION COUNSEL
CI'T'Y OF SOUTH BEND PETE BU'ITIGIEG, MAYOR
DEPARTMENT OF LAW
March 23, 2016
Mr. Tim Scott
President, South Bend Common Council
4th Floor, County -City Building
South Bend, IN 46601
Re: Ordinance to Further Amend Municipal Code Regarding Buskers
Dear Council President Scott:
PHONE 574/235 -9241
FAX 574/235 -7670
TTY 574/235 -5567
ALADEAN M. DERosE
CITY ATTORNEY
On December 9, 2013 the South Bend Common Council passed Ordinance No. 10274 -13
which amended Chapter 4, Article 4, of the South Bend Municipal Code by adding a new
Section 4 -21. This new Section licensed and regulated "busking" which is the performance of
entertainment by individuals on public sidewalks. That regulatory scheme was designated as a
"pilot program" for which review by the Common Council and City Administration was to be
done by December 31, 2014. I made a report to the Common Council about busking on
December 8, 2014. In that report, I concluded that the presence of buskers or street performers in
the downtown area of South Bend had a positive effect on the area and continued to be favored
by businesses and the public. One comment summarized the overall attitude of those
interviewed by DTSB: "Busking is awesome; people really seem to appreciate it and enjoy
it...."
The other uniform comment from interviewees was that some regulation is desirable
because rules not only ensure public safety resulting from potential crowding in critical areas like
business entrances and sidewalks adjacent to busy streets, but rules also assist buskers resolve
conflicts that may arise with competition for busking placement, and it helps buskers be aware of
public safety concerns.
Since July 29, 2014 (under Ord. No. 10318 -14), the City has not enforced the busker
ordinance (No. 10274 -13) due to pending federal litigation. In order to retain the important
ELLIOT A. ANDERSON BENJAMIN J. DOUGHERTY ANDREA HUNTINGTON
TASHA REED OUTLAW MICHAEL J. SCHMIDT STEPHANIE STEELE
Tim Scott
March 23, 2016
Page 2
objective of public safety, yet make the busking process minimally onerous for performers, the
attached ordinance is being submitted to the Council. It varies from the original in the following
significant ways:
(1) The registration and permit process has been eliminated.
(2) The distance requirements for proximity between other buskers, and between buskers
and buildings, driveways, curb cuts, outdoor eating areas and similar places or structures, has
been clarified, and the linear distances are recommendations, not mandates.
(3) Clarification has been made to permit busking on days that special events occur in the
Central Business and Entertainment Area (CBEA) during hours and places within the CBEA
outside the time and location of the event, and to permit performances during special events by
certain buskers if approved by the event organizer.
(4) The fine for a second offense has been reduced from $250.00 to $200.00.
(5) A busker has a duty to provide true and accurate self - identification information to a
person authorized to enforce the ordinance when that authorized person has probable
cause to believe a violation of the ordinance has occurred.
(6) An exemption in the regulation of solicitation under Chapter 13, Article 2, Section
13 -26 of the Municipal Code has been inserted to exclude from regulation those
buskers who solicit money for their performances.
Please note, too, that because this regulatory scheme remains subject to federal judicial
review, the City Administration has agreed that it will not enforce the proposed, attached
ordinance until that litigation is concluded either by court order or agreement between the
parties. Notwithstanding this limitation, passage of this ordinance is necessary to conclude the
federal litigation process. Because this is no longer a licensing ordinance, it has been re- codified
under Chapter 14 of the Municipal Code, which comprises Specific Public Safety Regulations.
A new Article 13 of this Chapter has been added entitled: "Busker and Street Performer
Regulations."
Tim Scott
March 23, 2016
Page 3
I will present this Ordinance to the South Bend Common Council both at its formal
meeting and at its appropriate Committee meeting which are expected to take place April 11,
2016. However, if the Council schedule for April 11 is expected to be unusually time consuming,
I would not object to postponing public hearing on this Bill for the meeting of April 25, 2016.
The City Administration would appreciate your favorable consideration of this ordinance.
Thank you.
1 st READING
PUBLIC HEARING
3 rd READING
NOT APPROVED
REFERRED
PASSED
Sincerely,
6_�4��a
Aladean M. DeRose
City Attorney
Filed in Clerk's Office
MAR 2 3 2016
KAREEMAH FOWLER
0111( CLERK, SOUTH BEND, IN,
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
INDIANA, TO ADDRESS BUSKERS AND SIDEWALK PERFORMERS BY
REPEALING CHAPTER 4, ARTICLE 4, SECTION 4 -21 OF THE SOUTH BEND
MUNICIPAL CODE, RE- CODIFYING AND AMENDING IT WITHIN A NEW
ARTICLE 13 OF CHAPTER 14, NEW SECTIONS 14 -123 THROUGH 14 -126 OF THE
MUNICIPAL CODE, AND FURTHER AMENDING CHAPTER 13, ARTICLE 12,
SECTION 13 -26 CONCERNING SOLICITATIONS
STATEMENT OF PURPOSE AND INTENT
On July 28, 2014 the South Bend Common Council passed Ordinance No. 10318 -14 which
directed that a full and complete review be undertaken of the City of South Bend's pilot program
busker ordinance, Chapter 4, Article 4, Section 4 -21 of the Municipal Code of the City of South
Bend, Indiana (Municipal Code) which was originally enacted December 9, 2013 Ordinance No.
(10274 -13).
The South Bend Common Council and the City Administration have completed their
review of the busker ordinance and the busking activity which has occurred in South Bend pursuant
to that ordinance since its effective date. They have determined that street entertainers should be
encouraged and promoted in the Central Business and Entertainment Area of South Bend; that the
City continues to have a substantial interest in the safety of the public and of street performers in
the public right of way, and also in protecting the public from aggressive, harassing activity.
However, in achieving these goals of maintaining a safe environment to maximize social,
business, cultural and recreational activities, while eliminating nuisance activity which could harm
the social environment, it is desirable to modify the existing legislation affecting buskers and
solicitation in the South Bend Municipal Code.
As a pilot program, the original ordinance was limited to the Central Business and
Entertainment area identified as Exhibit A -1 in the original ordinance (10274 -13). At this time
that area remains the most heavily travelled pedestrian portion of the City, and the pilot program
review did not suggest a present need to expand busking activity into other areas, although this
may be desirable in the future.
The most significant changes in the prior busker program under this ordinance include the
elimination of the licensing process, and an exemption in the regulation of solicitation under
Chapter 13, Article 2, Section 13 -26 of the Municipal Code for those buskers who solicit money
for their performances.
1
Because buskers and sidewalk performers were previously required to obtain permits,
which process is governed generally under Chapter 4 of the Municipal Code, elimination of the
permit requirement means that regulation of buskers and street performers must be located in
another Chapter of the Municipal Code. Chapter 14 of the Municipal Code governs "Specific
Public Safety Regulations," and, accordingly, a new Article and Section of that Chapter have been
added to address regulations for buskers and street performers, specifically, Chapter 14, Article 13
(new), Sections 14 -123 through 126. The regulations under this new Article 13, Sections 123 -126
of Chapter 14 are similar to prior Chapter 4, Article 4, Section 4 -21 with the following changes:
(1) Clarification has been made to permit busking on days that special events occur in the
Central Business and Entertainment Area (CBEA) during hours and places within the CBEA
outside the time and location of the event.
(2) The fine for a second offense has been reduced from $250.00 to $200.00.
(3) A busker has a duty to provide true and accurate self - identification information to a
person authorized to enforce the ordinance when that person has probable cause to believe that a
violation of the ordinance has occurred.
(4) The distance requirements for proximity between other buskers and between buskers
and buildings, driveways, curb cuts, outdoor eating areas and similar places or structures has been
clarified and the linear distances are recommendations, not mandates.
NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE
CITY OF SOUTH BEND, INDIANA as follows:
Section I. Chapter 4, Article 4, Section 4 -21 of the South Bend Municipal Code addressing
Buskers and Sidewalk Performers is hereby repealed.
Section II. Former Chapter 4, Article 4, Section 4 -21 is re- codified and amended at
Chapter 14, by adding a new Article 13, comprised of Sections 14 -123 through 126, to read in its
entirety as follows:
ARTICLE 13. Buskers and Sidewalk Performers Regulations.
Sec. 14 -123. Definitions
For purposes of this Section, the following definitions shall apply:
(a) Busker(s) means and includes person(s) who wish to perform on public sidewalks
as entertainer(s), including but not limited to performing or entertaining through
music dance mime, pantomime, theater, acting, puppetry, and similar artistic
expression.
(b) Central Business and Entertainment Area means the area depicted in the attached
Exhibit A -1.
(c) City shall mean City of South Bend. dffeugh its O ffiee oft the City GopA olle +h.
Department l 1 T ~• 111 L11V
of A /Ymini tr-at a an H1N /]N ISO
(d) 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 during the scheduled hours for such events, 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.
(e) 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.
(f) Sidewalk Performer(s) shall have the same meaning as buskers(s).
L
. ..
-
Sec. 14 -124. General Rules and Conditions for Buskers.
(b) Permit r dit . r i Rules a Conditions f .. Busker-s! All persons who are to
be issued a fmit • ndor this seefiefl. perform as buskers shall:
(a)43hBe authorized to perform in the Central Business and Entertainment Area on a
first come first serve basis Mondays through Thursdays from 8:00 a.m. to 9:00
p.m. and from 8:00 a.m. to 11:00 p.m. on Fridays through Sundays, except on
those dates and at those times and places which are specifically excluded under
subpart (c) of this Section.
( ) Not be required to get a permit under South Bend Municipal Code § 13 -57 (d)
"Permit for playing noncommercial music in public places ".
Ccj (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.
Oe M 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 ".
ff — 0) 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 busker- has registered under 4,..,,4 (d) of this Seeti ,n and i
solicitation is not done in an aggressive manner which recklessly interferes with
pedestrian safety and /or vehicular traffic.
(g) (� f) Not be performing within such distance of any street corner, marked
pedestrian crosswalk, entrance to any building, driveway, curb cut, outdoor eating
area, emergency exit, kiosk, or ATM machine, which is reasonably ley to cause
obstruction or blockage of the free and safe movement of pedestrians or which
would reasonably. ley cause the site vision needed for the safety of motor vehicle
drivers to be blocked. A distance of twenty feet is recommended between a
busker /street performer and the foregoing specified locations.
11
(1-2) Not perform within such a distance from another busker or sidewalk
performer so as to reasonably ey cause congestion of spectators which would
impede emergency medical law enforcement or safety officers from access to the
area or which would make it unreasonably difficult for pedestrians to freely
safely pass through the area. A distance of forty feet between each busker /street
performer is recommended.
(4-3) 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 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.
(i) Provide information necessary to truly and correctly identify the busker or street
performer to any and all persons authorized to enforce this Section when the
authorized person has probable cause to believe that a violation of the ordinance
has occurred.
(7) Not b.loek the passage of the p b.lie tb,.-..,,.Th a r,b,lie area ,-, the sidewalk in e
to maintain public order- and eoir`renienc iN4th b,leeka or obstfuetio to e
„b.l; way being dispersed by ..1; pl., r,t to allow passage o f the
° ti -cv allow t./UJJU�V vl l.uv
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MMP
MIN PMU -ff. -.11MMIMM
Sec. 14 -125. Days Excluded from Performing.
(avf) Days Exeladed from p°rf ,.,,- in Annual special events taking place in the Central
Business and Entertainment Area and other events requiring the use of sidewalks in this
Area to shall take precedence over buskers and sidewalk performers. The Clerk to the
Board of Public Works shall be responsible for notifying all „° eek4ag ° it unde
this seetio maintaining a list of such annual and other special event dates, which shall also
be posted on the City's website within mat least seventy -two (72) hours' notice
evei#s which approved the use of sueh sue designated ° prior to any such
event. Buskers and sidewalk performers shall not perform on those days during the hours
when and at the locations where the designated special event(s) takes place unless they
have been authorized to perform by the event organizer. Buskers and sidewalk performers
may _perform at regular hours during the he special event day in those portions of the Central
Business and Entertainment area which are not part of the designated area of the special
event.
•.
MMP
MIN PMU -ff. -.11MMIMM
Sec. 14 -125. Days Excluded from Performing.
(avf) Days Exeladed from p°rf ,.,,- in Annual special events taking place in the Central
Business and Entertainment Area and other events requiring the use of sidewalks in this
Area to shall take precedence over buskers and sidewalk performers. The Clerk to the
Board of Public Works shall be responsible for notifying all „° eek4ag ° it unde
this seetio maintaining a list of such annual and other special event dates, which shall also
be posted on the City's website within mat least seventy -two (72) hours' notice
evei#s which approved the use of sueh sue designated ° prior to any such
event. Buskers and sidewalk performers shall not perform on those days during the hours
when and at the locations where the designated special event(s) takes place unless they
have been authorized to perform by the event organizer. Buskers and sidewalk performers
may _perform at regular hours during the he special event day in those portions of the Central
Business and Entertainment area which are not part of the designated area of the special
event.
ty�iw i. l a WI�nni.��wii:��.�u.n�:
Sec. 14.126. Penalties.
)�Deaalties 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 ($23200.00) for the second violation and five hundred dollars
($500.00) for all violations thereafter. Payment of penalties up to two hundred €may ($23200.00)
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.
W
Section III. Chapter 13, Article 12, Section 13 -26 of the South Bend Municipal Code be
and hereby is amended to read as follows:
Sec. 13 -26. Prohibited acts.
(a) In light of the City's duty to provide residents and visitors to the downtown of the city
with a safe environment where social, business, cultural, and recreational opportunities
can be maximized while eliminating nuisance activities which negatively affect such
interactions, the following regulation shall be in full force and effect:
(1) Except as otherwise provided in section 13 -26(a) (2) and section 13 -26(a) (3)
below, Solicitation is prohibited in the Central Business and Entertainment Area
(CBEA).
(2) Solicitation of immediate donation of money or other thing of value or the sale of
goods or services that (i) is performed by a person who is a "licensee" (as defined
in section 4 -2(c) of this Code) under section 4 -55, Charitable solicitations, busker
or street entertainment under Chester 14, Article 13 of this Code and (ii) consists
of actions permissible under the regulations set forth in section 4 -55, Charitable
solicitations, and (iii) is fully compliant with the provisions of section 13- 26(b),
shall be excluded from the prohibition set forth in section 13- 26(a)(1) above.
(3) Solicitation of the sale of goods or services that (i) is performed by a person who is
a "licensee" (as defined in section 4 -2(c) of this Code) under one or more of the
sections of this Code listed below, and (ii) consists of actions permissible under the
regulations set forth therein, and (iii) is fully compliant with the provisions of
section 13- 26(b), shall be excluded from the prohibition set forth in section 13-
26(a)(1) above:
a. Section 4 -25: Food vending vehicles,
b. Section 4 -43: Peddlers and canvassers,
c. Section 4 -60: Transient merchants.
(b) Because solicitation in an aggressive manner creates a reckless interference with
pedestrians and vehicular traffic in public places, the following regulations shall be in
full force and effect:
(1) Solicitation in an aggressive manner is prohibited in any public place.
(2) Solicitation in an aggressive manner is prohibited within twenty (20) feet of any
Automated teller machine (ATM).
(3) Solicitation in an aggressive manner is prohibited within twenty (20) feet of any
pay telephone.
(4) Solicitation in an aggressive manner from an operator or occupant of a motor
vehicle located in any public place is prohibited.
Section IV. 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 V. This ordinance shall be in full force and effect from and after its passage by
the Common Council, approval by the Mayor, and legal publication.
Member, South Bend Common Council
Attest:
City Clerk
Presented by me to the Mayor of the City of South Bend, Indiana on the day
of , 2 , at o'clock . m.
Approved and signed by me on the
. m.
. READING
PUBLIC HEARING
3 rd READING
NOT APPROVED
REFERRED
PASSED
Deputy City Clerk
day of
Mayor, City of
2 , at o'clock
Filed in Clerk's Office
MAR 2 2016
KAREEMAH FOWLER
CITY CLERK, SOUTH BEND, IN