Thomas Sage has been making a living performing on Pacific Avenue for three years, but his didgeridoo doesn't fit into the space limitations of a new downtown ordinance.

Thomas Sage has made his living playing music on Pacific Avenue in Santa Cruz for the past three years, but beginning this week he doesn’t expect to be out there much, if at all, anymore. Sage plays the didgeridoo, an Indigenous Australian wind instrument that can measure as much as ten feet in length, emitting a deep bass sound, like an ethereal nighttime howl. When he plays, often on the sidewalk in front of the New Leaf grocery store downtown, large crowds gather and people can often be found dancing along to his up-tempo rhythms.

There are two reasons for Sage’s impending departure from downtown: For one, being a street performer in winter is really, really tough, he says. The other reason is Ordinance 2013-14, an amendment to section 5.43 of the city code that restricts the space allotted for “noncommercial use of city streets and sidewalks” (i.e. street performance) to 12 square feet per individual or group. Sage says the space it takes him to perform with his large instrument is outside the bounds of the new restrictions, which go into effect this week. In preparation, he picked up a new job as a baker. He has to wake up at three o’clock in the morning for his shift.

In addition to limiting a performer or artist’s space to 12 square feet, the ordinance requires that anyone with any sort of setup (called a “display device” in municipal code jargon) must be 12 feet from another display device and 14 feet from “protected features” downtown: any building, street corner, intersection, kiosk, drinking fountain, public telephone, bench, trash can, information or directory sign, ATM machine, vending cart, or public sculpture. Finally, the ordinance bans people from laying cloths on the sidewalk, a popular method for displaying jewelry and other artwork for sale—requiring instead a table or other freestanding structure.

The new ordinance is billed as a solution to the growing overcrowding of downtown streets, which has become more of an issue in the last two years, as the economy has begun to recover. And while street artists and business owners alike agree that Pacific Avenue sidewalks have become crowded—some have compared it to a flea market—the ordinance makes illegal some of Santa Cruz’s most popular street attractions, raising questions about the direction of downtown.


Street Justice

To understand the future implications of the ordinance, it is necessary to first look to the past. Talk of regulating downtown street artists began in 1980, when sidewalks were filled with acts like Artis the Spoonman, who went on to play with Frank Zappa and Soundgarden; the Flying Karamazov Brothers, whose juggling and comedy show started on Pacific Ave. and eventually made it to Broadway; and Tom Noddy, whose bubble blowing art performances also began on Pacific. Noddy has gone on to appear on the Late Show with David Letterman and continues to pack auditoriums around the globe with his show, “Bubble Magic.”

At that time, there was talk of outright banning street performance on city sidewalks because of conflicts between business owners and performers. But instead of passing legislation, the city council worked alongside the police force, the Downtown Neighbors’ Association, and a group of 35 street performers spearheaded by Noddy to create a document that was known as the Street Performing Voluntary Guidelines. The guidelines implored performers to do things like rotate locations each hour, refrain from blocking pedestrian traffic and setting up too close to other performers, and respect the city’s 10pm noise curfew. The guidelines were published and passed around to all performers, and Noddy now says the process “allowed us all to use common sense and try to keep petty disagreements from getting us all into court, or city council chambers.”

Politicians came and went, continuing to let the voluntary guidelines stand until 1994, when a new ordinance was passed that outlined restrictions on how far performers had to be from various features downtown such as curbs, drinking fountains, ATMs, etc. But the distance varied for each feature—10 feet from one, 12 feet from another—resulting in a confusing matrix that performers were simply unable to keep up with, making them reliant on police officers and downtown hosts to tell them where it was OK to set up.

Noddy says the 1994 ordinances went largely unenforced, with police and performers still using the voluntary guidelines. But in 2002, a petition circulated by downtown business owners led to a new round of downtown ordinances that further restricted street performers. Frustrated that they weren’t included in the decision-making process, Noddy and the performers withdrew the guidelines. Tension has existed, to varying degrees, ever since.

Steve Belcher, who was the police chief at the time, helped to create the guidelines, and now says he was satisfied with the rules they all agreed on. But when it came to implementing them, there were challenges.

“It puts a beat officer in a really tough position,” he says. “There was really no enforcement capability. You can imagine handing someone the list of rules and saying, ‘Will you please not do this?’ And they say, ‘I don’t care.’ What’s the poor copper gonna do? You really need something that’s codified and that’s easy to understand so everybody can be treated fairly.”

These days, even street performers themselves are not entirely opposed to some legislation. Nathaniel Wagner is a guitar player and singer who travels the country busking. On a Monday afternoon, he is arranging wildflowers on the sidewalk on Pacific Ave., in front of an overturned hat he has laid out out for donations. He has been in town for a week, and says he has been perpetually frustrated with “vagrant type people” who try to steal his money out of his hat. “It happened three times by three different people yesterday, and that was just an hour. But the hospitality [guides] were pretty good about it. They got them out of the way eventually,” he says. “I don’t have no problems really with the new ordinance, because of that kind of riff raff in general.”

The irony is the ordinance doesn’t really address “vagrant type people,” as Wagner calls them. There are problems downtown that most people—residents, visitors, business owners and street performers alike—can agree on, most having to do with panhandling, criminal behavior and methamphetamine addiction. But the new ordinance doesn’t tackle any of those issues. Instead, it focuses on limiting street performers, a longtime staple of downtown Santa Cruz.


Squaring Off

So how exactly did we end up with a law restricting street performers to a 12 square foot box? (For reference, that is about the space of a single card table.) Scott Collins, who is Assistant to the City Manager, created the proposal for the ordinance with Santa Cruz Redevelopment Manager Julie Hendee. Collins is adamant that the goal of the ordinance is not to drive away street performance, which he says is something that makes Santa Cruz special. He is quick to assert that ordinance does make allowance for larger acts at a couple locations downtown, but the performers would have to get a permit to take advantage.

“If you go to other downtowns, they don’t look anything like ours. Go to Los Gatos, go to Carmel, go to Monterey. We do a really good job of finding a good balance so people can demonstrate artistic skill and sell things that they’ve created themselves, and I do believe a lot of tourists enjoy that feature,” he says. “The balance just didn’t seem to be working…We were finding that [street artists and musicians] were laid out all next to each other so they’d take up almost a whole block.”

But is street performance still valued under the ordinance? Many performers are saying no, since the new rules make it impossible for bands with more than one member, or bands with a large instrument to play, meaning the end of such only-in-Santa-Cruz phenomena as piano sidewalk performances.

City Council insiders have suggested that the ordinance was originally intended to address only the blanket issue—street artists who display jewelry and other handmade goods for sale by laying a tapestry directly onto the sidewalk. There were complaints from business owners that it was those displays that took up too much space, and could potentially trip pedestrians.

Chip (who uses no last name), the Executive Director of the Downtown Association, says the Association did pass on concerns to city council about “the increase of stuff on the sidewalk,” and says the end goal his organization hoped for was a law requiring artists to display wares off of the ground, on tables or boxes.

“I have not been aware recently of the street musician culture being an issue for business downtown,” he adds. “Conversely, it is a benefit to downtown. I think it adds to the overall culture and environment that people like about downtown…People absolutely love the marimbas and bluegrass bands that are out there.”

Chip says he occasionally receives complaints about a group being too loud or needing to move, but that the issue is being managed well by simply talking to performers when a problem comes up.


Fast Tracked

The ordinance was passed hastily. The City Arts Commission was not even consulted before the ordinance came to council, and opposition from dozens of artists who came to city council meetings on Sept. 10 and Sept. 24 was unceremoniously ignored. Councilmember Cynthia Mathews publicly dismissed artists’ concerns that the ordinance limited their First Amendment rights to free speech as “disingenuous at best and, honestly, idiotic at worst.” (This, however, would appear to be contradicted by a 1979 US District Court ruling in Massachusetts which determined that street performance qualifies as free speech expression, and for business owners to regulate it is “unqualified censorship and just what the First Amendment forbids.”)

At the Sept. 24 city council meeting, councilmember Don Lane brought up the frequent sidewalk sales held by downtown merchants, in which racks of clothing and long cafeteria tables of goods literally do fill the sidewalks. “If we were really worried about the obstructions in the sidewalk, we wouldn’t allow this. But we do,” he told council. Vice Mayor Lynn Robinson was the only one who responded to his concerns, saying that sidewalk sales were different than street artists using the sidewalk because the sales are “not a willy-nilly everyday kind of experience.” In the end, Lane and councilmember Micah Posner voted against the ordinance and Robinson along with councilmembers David Terrazas, Pamela Comstock, Cynthia Mathews and Mayor Hilary Bryant voted for it.

“I understand for some people they feel like they might be getting squeezed out, and I guess we’ll have to discover if that’s truly the case,” Robinson added. But there is no trial period on this ordinance, and if and when people are indeed getting squeezed out, they have no recourse under the ordinance as written.

“I had hoped the council would slow down to just spend a little more time with some of the people in the community affected by the changes, and see if there’s a way to create some ordinances that wouldn’t ignore their concerns,” says Lane.

It’s hard to tell for certain why the ordinance was passed so quickly through council, without undergoing any revisions or input from public arts officials. Some suspect council members didn’t want to deal with another meeting filled with complaints from a hostile public, who frequently interrupted the September council meetings where the ordinance was discussed to boo or shout out of turn. Others suggest that the ordinance is too closely tied to the issue of public safety, which has become a sensitive subject in light of Santa Cruz’s crime wave last winter. With the growing influence of community groups like Take Back Santa Cruz on the electorate, some council members have expressed concern that hesitating to supporting any ordinance billed as a public safety measure would be a career-ending move.

Noddy says there is some historical context for this kind of law—one that more symbolically takes a stand against a gritty downtown without actually delving into the core of real issues. “The progressives in Santa Cruz have often looked for ways to draw a line in the sand and make it clear that they are not so liberal that they wouldn’t stand up to crime or criminals and sometimes that has led them to campaigns similar to the one that’s running through town right now,” he says.


Best Option?

In the tangle of confusion surrounding the ordinance, one thing is certain: If the community had been seriously consulted on the content of this ordinance, the vast majority of Santa Cruz would consider it far from perfect.

Dixie Mills is the founder of the Santa Cruz Fringe Festival, which brings theater, comedy, dance and circus acts to a variety of venues in Santa Cruz for several days each summer. As a person who straddles the worlds of traveling artists and established arts business (Mills is the resident choreographer at The 418 Project and also teaches Pilates in town), Mills opposes the ordinance.

“This new ordinance will silently kill the street performer/vendor scene that is so much a part of the flavor of downtown Santa Cruz. If the ordinance just banned this kind of activity all together, there would probably be a big uproar. This way these activities are still allowed, but they are so constrained with rules that slowly but surely we will have a quieter, and less interesting downtown,” she says.  “It seems to me the spirit of Santa Cruz would want to attract these artists instead of making it difficult or impossible for them to share their talents.”

Downtown Santa Cruz’s sidewalks don’t have the capacity to accommodate large groups of people surrounding a performer—the kind of audience the best street performers in places with car-free pedestrian malls like Boulder, Colorado and Covent Garden in London can expect. In Santa Cruz, performers have never come for that. They’ve come to experience the spirit of our town, or they are locals like Noddy who develop their acts here before hitting the big time.

But Noddy expects the effect of the new ordinances will be to deter the best performers from coming to Santa Cruz. “There just isn’t that much money to be made on that narrow sidewalk to make it worth competing with so many other performers, and asked to share the same restrictions with panhandlers, and develop relationships with police of various sorts. That’s not the fun part of the job,” he says.  “There is an effort to change the nature of downtown and those directing the change don’t see room for performers.”

Sage, the didgeridoo player, says the new ordinance reminds him of the drum circle that, until 2008, took place every Wednesday at the downtown farmers’ market. Not unlike downtown sidewalks, Sage says the drum circle was made up of about half serious musicians and half “druggie types, just kinda tweakin’ around, hangin’ around.” In ’08 the drum circle was banned from the farmers’ market, and police moved it to San Lorenzo Park. But the good musicians didn’t follow it there, says Sage. “Now it’s just druggie people. [The drum circle] got killed,” he says. “It’s dead.”

Packing up his instrument after an hour in front of the New Leaf Market downtown on a Sunday afternoon earlier this month, Sage shakes his head. He calls the new ordinance a “sad attempt” to make Santa Cruz more like Carmel—more posh and with no street performers. At the same time, he says he’s seen enough selective enforcement of the current laws to have hope that this one won’t really change anything.

“It’s not going to work, obviously,” he says.

Only time will tell if he’s right.