New Ordinance: No More Swap Meet on Boardwalk

By Greta Cobar

A revised ordinance has been drafted by downtown city attorneys to stop the selling of merchandise from China that now dominates the Ocean Front Walk and replace it with First Amendment supported activity.

It was drafted to “prohibit vending and excessive noise on public beaches” by amending Section 42.15 of the Los Angeles Municipal Code. It is the fourth revised ordinance within the last six years.

The vast majority of Venetians agree with the goal of the proposed legislation. However, the fact that Venetians were not involved by the city attorneys who drafted the document was evident by the comments made at the three meetings concerning the ordinance that took place during the week of July 25, organized by: the Ocean Front Walk Committee, Friends of the Boardwalk / Peacekeeper Project, and Venice Neighborhood Council (VNC). If Venice had cityhood we wouldn’t even have to deal with something coming from distant (in more ways than one) downtown.

The Ocean Front Walk Committee met for six hours on July 25. City Attorneys Mike Nagle and Arletta Maria Brimsey were present to respond to the many concerns, but the most pressing questions, such as why is there no mention of the First Amendment in the ordinance, were just jotted down and were subsequently never answered by the higher-ups.

The good thing about the new ordinance is that it frees the spaces from the stranglehold of the previous lottery system, which made freedom of speech on the boardwalk reliant upon a lottery prize. However, as Ibrahim Butler pointed out at the July 25 meeting, constricting freedom of speech within the space borders currently marked does not make a whole lot of sense either.

Although the draft states that all items sold on the west side of the boardwalk have to have a First Amendment purpose of self-expression by being “inherently communicative,” that same document calls the persons engaging in the stated activity “vendors.” Furthermore, although the lottery system of designating spaces is annihilated, the ordinance still refers to all spaces provided for self-expression as “designated.”

A major omission in the amendment is enforcement, as there is no mention of who, when or how it will be enforced. Performer Stephen Fiske created the Friends of the Boardwalk / Peacekeeper Project to address this issue. According to him the city of Los Angeles and private donors have provided enough money to create a peacekeeping non-profit organization that would employ two supervisors, one bookkeeper and eight part-time peacekeepers who would patrol the boardwalk, four at a time, each in his or her own designated section. The main purpose of the peacekeepers would be to stop people from trying to re-sell merchandise that is not “inherently expressive,” in other words handmade.

Taking enforcement out of the hands of the police sounds great. However, the city would probably continue to put its endorsement and funding behind its police force.  Enforcement of the ordinance may bring additional police presence in Venice, just as it did in 2008, when the last ordinance was enforced.

Another major problem with the draft is that it allows the Board of Recreation and Parks to come up with any and all rules it pleases independent of any other entity. This was brought up by several concerned citizens at the July 28 VNC meeting. Jim Smith asked Nagel and Brimsey, who were present at this meeting as well, why the rules are not defined in the ordinance. He speculated that Recreation and Parks would take advantage of this loophole to sell the ocean front walk space to advertisers.

Yet another provision that most Venetians disagreed with concerns punishment for noncompliance. According to the current draft, a first offense is considered an infraction and carries a $100 fine. However, all subsequent infringements can be considered misdemeanors and can result in $1000 tickets and six months in jail. Handmade jewelry is not considered “inherently expressive” enough to be protected by the First Amendment, said Nagle, and therefore a person could go to jail for six months for selling it. Venetians seemed confused by the difference between body and wall decoration. Why is something protected by the First Amendment if it hangs on a wall, but not on someone’s body? Nagle responded that it is the way it is because the Ninth Circuit Court decided so.

Allocation of spaces is to take place on a first-come, first-served basis, which has a long history of problems on the boardwalk. As Smith pointed out, nothing can stop people from camping out to secure a spot, just like they always have. Although a whole lot better than the lottery, this system promotes hostility and it fosters a sense of ownership of space on the part of the artists.

The sound limit provided in the ordinance prohibits excessive noise, but does not prohibit amplified sound. The document states the allowed decibels as 75 and 96 when measured from 25 feet and one foot respectively. Residents attempted to lower those levels, but they were told that it would be unconstitutional to do so. The fact is that even the established limits are difficult to enforce.

A vague area of the document concerns free speech activity taking place outside designated space. It states that “the activities described in Subsection D (Vending and Performing), but not including Vending, may occur on the Westside of the Boardwalk outside the Designated Spaces, Pagodas, Recreation Area and other areas designed as access points for or constitute routes for emergency ingress and egress.” That leaves a whole lot of space open for Performing, but also for interpretation of what constitutes an emergency route.

And a Performer is a Person, but a Person is legally defined as a company, corporation, business, business trust, joint stock company, or association.  WOW! In no time the whole place will be full of all of the above advertising their multimillion-dollar-making products. As long as no products are actually sold, space can be occupied, signs can be displayed and pamphlets can be passed out under the disguise of some environmental or humanitarian umbrella.

Towards the end of the VNC meeting Amanda Seward asked the downtown reps: “did you try to come up with an ordinance that passes the legal test or with one that has a vision of Venice and considers and promotes what Venice is all about?” The audience’s response suggested the first alternative as true. Nagle responded that all they’re doing is following precedent.

Ira Koslow introduced a motion before the VNC to approve the ordinance with a few changes, such as eliminating the word “designated” when referring to spaces, changing the term “vendor” to “artist,” providing a definition for the term “nominal utility” and mandating that rules created by Recreation and Parks agree in every sense with the ordinance. The Ocean Front Walk Committee agreed that artists should be allowed to sell their handmade jewelry and added “handmade jewelry has to be dealt with separately” to the draft, but the city attorneys stated that it cannot be permitted regardless of the committee’s decision.  Furthermore, some committee members opposed the high fines and jail time enforced for a second violation of the ordinance, but the committee could not agree on a change to the proposed punishments.

The motion passed with no board member voting against it and two out of the 12 present board members abstaining. Ivonne Guzman, one of the board members who abstained, stated that she does not feel comfortable approving an ordinance that we really did not have enough time to consider, that we do not fully agree with, and do not fully understand. She questioned why there was no independent council involved in the negotiations.

The VNC meeting ended with the revised draft being sent back to city council and Venetians hoping that they will take our recommendations seriously. However, those recommendations are nominal in the scheme of things, as we were not allowed to make the changes that we wanted and truly were not given enough time to digest the document and all of its loopholes. The three meetings that took place during the week of June 25 were a nice practice of a democratic process, but in the end did not have a whole lot of fruition.