The Los Angeles city law regulating public expression activities on the west side of the Venice Boardwalk has been no stranger to legal challenges since a lottery system for spaces was implemented five years ago.
Various versions of Municipal Code Section 42.15 have been rewritten and enacted by the city as lawsuits were filed challenging provisions related to vending and other portions of the boardwalk ordinance.
The city was recently dealt its latest setback when a federal judge determined that sections of the 2008 version of the law related to the lottery system and amplified noise should be blocked. In issuing a preliminary injunction Oct. 21, U.S. District Court Judge Dean Pregerson effectively stated that the provision that issues permits through a lottery system likely violates the First Amendment, and he also struck down restrictions regarding amplified sound.
Pregerson wrote that the court understands that the city has made significant efforts to bring the ordinance into compliance with the First Amendment, but the “intervening authority makes it likely that the permitting system fails constitutional muster.”
“There is no explanation as to why this system manages conflicting claims to limited space any more effectively than a simple first-come, first-served rule,” the judge wrote.
The ruling pertained to the 2008 ordinance, which divided the available space on the boardwalk into “P-zones” and “I-zones.” The P-zone spaces cover areas for performance and the vending of items such as newspapers and books created by the vendor. The I-zones are areas for the vending of expressive items created by the vendor, such as compact discs, paintings and sculptures, or those that are “inextricably intertwined” with the vendor’s message.
Under the law, a permit issued by the city Department of Recreation and Parks through the lottery is required to use an I-zone space throughout the year and in the P-zone between Memorial Day and Nov. 1.
In his ruling, Pregerson noted that the Ninth Circuit Court of Appeals decided in Berger vs. city of Seattle that a similar permitting system established by Seattle was “facially unconstitutional” under the First Amendment. Shortly after the Berger case ruling, 13 plaintiffs, including performers and artists on the Venice Boardwalk, filed a lawsuit against the Los Angeles ordinance, alleging that it violates the First and 14th Amendments. The plaintiffs claimed that the lottery system is not a reasonable time, place and manner restriction.
They additionally made the same claim against the restrictions halting amplified sound after sunset until 9 a.m. Pregerson wrote that the plaintiffs were likely to succeed on the merits of their claim that the sound ban is overbroad.
“The court is not convinced that the government’s interest in regulating noise is a significant interest when it comes to a traditional public forum like the Venice Boardwalk,” the judge stated.
In response to Pregerson’s rejection of the permit system and noise restrictions, one of the plaintiffs, David “Zuma Dogg” Saltsburg, a former boardwalk performer who has actively criticized the law over the years, was happy to have the court on their side.
“I’m very, very pleased that the federal judge saw it the way we did,” Saltsburg said. “The federal judge has asked the city for years to put something reasonable together.
“I’m glad that free speech is once again free in Venice Beach.”
Saltsburg, who claimed he was forced off the beach due to the ordinance regulations, alleged that the “city was in clear, massive violation of the U.S. Constitution.” Though he was pleased with the judge’s decision, Saltsburg acknowledged he was sorry the case had to come down to that.
“(The judge) decided to side with us because he was merely applying clear U.S. law,” he claimed.
Asked for comment on the decision, city attorney spokesman Frank Mateljan said the office is “currently evaluating the ruling and will be working with the policymakers on the City Council to determine the next course of action.”
City Councilman Bill Rosendahl said city leaders plan to meet with the city attorney’s office to reflect on Pregerson’s ruling and discuss with the community how to proceed.
“The bottom line is that we have to deal with no lottery and we have to find a way to do it so there’s no tensions between the people who want spots,” Rosendahl said.
Rosendahl, who said he has personally not been a fan of the lottery system, noted that the boardwalk ordinance has been a “constant work in progress.” The issue that concerns the councilman the most is the judge’s blocking of amplified sound restrictions and how it could impact the neighboring residents, he said.
The city is planning to put together a task force to study the issues and determine how to move forward, which could take a few months, Rosendahl said.