PURPOSE:

The purpose of this report is to request City Council adopt an ordinance adding Section 5-801.1 to the Burbank Municipal Code (�BMC�) banning private commercial or revenue producing activities on city owned public property without express authorization through the issuance of proper permits.

BACKGROUND:

The City owns various public parks, playgrounds and recreation areas and currently regulates the use of these facilities through the Park, Recreation and Community Services Department�s permit procedure as outlined in Chapter 5, Article 8 of the BMC. 

The purpose of the permit procedure is to establish criteria to best serve the recreation needs of every person who desires to lawfully utilize public parks, playgrounds and recreation areas.

Such criteria include but are not limited to the type of activity proposed, its compatibility with other authorized uses and compatibility with the surrounding neighborhood, the proposed hours of conducting the requested activity, insurance considerations and potential liability to the city, proper use of facilities, potential damage to city property or unusual wear and tear on city property as a result of the proposed activity, the necessity for police presence or other authorized personnel to ensure the health, safety and welfare of participants and the community at large based on the proposed activity.

Currently, permits are necessary in the following situations as outlined in Chapter 5, Article 8, Section 5-801 of the BMC:

(a) USE OF PARK FACILITIES.

No group or person as described in this section shall hold or conduct any picnic, celebration, parade, service, exercise, or event in any park without a park permit issued pursuant to this article. The provisions of this article shall apply to the following:

(1) Any group of twenty-five (25) or more persons.

(2) Any picnic, celebration, parade, service, exercise, or event conducted on behalf of, or sponsored by, any business or organization which does not have its principal place of business in the City of Burbank.

(3) Any group or person that will install and/or use equipment or facilities which is not owned or operated by the City of Burbank. For the purposes of this article, the term "equipment or facilities" shall not include normal sports or playground equipment including, but not limited to, balls, gloves, bats, volleyball or badminton nets, or tennis rackets.

(4) Any group, of forty (40) or more persons, including the City of Burbank or any of its departments, who have applied for exemption from the provisions of Section 5-622 of the Burbank Municipal Code.

(5) Any group which applies for exemptions from the provisions of Section 5-703 of the Burbank Municipal Code relating to the sale and consumption of alcoholic beverages.

Staff is proposing to add Section 5-801.1 which would provide the following:

Sec. 5-801.1.  Commercial Use of Park Facilities Without Permit Unlawful.

(a)   PERMIT REQUIRED.

It shall be unlawful for any person, firm, corporation or charitable organization to engage in or to attempt to engage in any business, activity or act for financial compensation in or on any recreational facility or property owned, operated, or maintained by the City, including but not limited to any park, playground, recreational area or parking lot, without a permit issued by the City.

(b)   Subsection (a) is applicable regardless of whether financial compensation is received directly or indirectly for that portion of a business, activity or act being performed in or on any recreational facility or property owned, operated, or maintained by the City. 

(c)   PERMIT FEES

The permit fee to be paid for the use of any recreational facility or property owned, operated, or maintained by the City, including but not limited to any park, playground, recreational area or parking lot for the purpose of any business, activity or act for financial compensation shall be prescribed by resolution of the Council.

(d)   PENALTIES

Any person, firm, corporation or charitable organization that intentionally violates any of the provisions of this section shall be guilty of a misdemeanor.

DISCUSSION

Currently, the BMC does not have a provision banning commercial activities on City owned public parks, playgrounds and recreation areas or their adjacent parking lots.  Thus, unless the proposed activity falls under one of the categories outlined above in Chapter 5, Article 8, Section 5-801, a permit is not required before a person can engage in commercial or revenue producing activities on city owned public property. 

In past years, staff has received complaints regarding unauthorized private commercial use of tennis courts, ball fields, picnic facilities and parking lots.  The unregulated commercial use of City owned public parks, playgrounds, recreation areas and adjacent parking lots creates several areas of concern for the City.

Civil Liability

Unregulated commercial activity on city property opens the City to potential civil liability because the City can not require participants to obtain proper insurance and endorsements to indemnify the City from potential claims resulting from accidents on city property.  In addition, the City has no ability to limit its potential liability by regulating and restricting activities to their proper forums.  For example, the City would not want a rollerblading school to operate on a parking lot not designed for that purpose.

Fair & Equitable Use

Allowing unregulated commercial activity on City property takes away the ability of the City to ensure the fair and equitable allocation of public resources.  Currently, the city has no ability to determine if the proposed commercial use is compatible with other authorized uses.  If the proposed commercial use prevents access and quiet enjoyment of public lands by other users, either through the sheer volume of participants or the noise associated with the commercial use, the City is unable to prohibit or regulate such activity.   In addition, there are no provisions to prevent competing commercial uses from usurping the use of public lands from individuals altogether.

Fair & Equitable Treatment

Under the current code a person who wants to host a family birthday party for twenty-five people at a public park is required to obtain a permit.  Yet a private business that utilizes public lands every day for commercial purposes is not required to do so.  This unfair and inequitable treatment does not further the City�s goal of best serving the recreational needs of its constituents.

Creating a new provision to the BMC banning commercial activities without a permit on City owned park facilities including, but not limited to, any park, playground, recreation area, or adjacent parking lot will enable City staff to take corrective action when commercial activities that are disruptive or not compatible with authorized uses and neighborhoods threaten to negatively impact public enjoyment of public lands.

Such an ordinance will allow the operation of activities desired by the public while governing the time, place and manner in which such activities are carried out.  City staff will have the ability to evaluate impacts on surrounding areas and neighborhoods, mitigate concerns regarding potential civil liability, determine potential interference with the use and enjoyment of public property by other persons and possible unusual wear and damage to public property before a permit allowing commercial activity is issued

ADEQUACY OF PERMIT SYSTEM

The current permit system appears to adequately address the City�s concerns related to the regulation of commercial activity on public property.

Under BMC Section 5-802, any person or group desiring to use an area or conduct an activity described in Section 5-801 or proposed Section 5-801.1 must first submit a written application thirty days prior to the commencement of the use or activity.  The Park, Recreation and Community Services Director (�Director�), however, has discretion to waive the prescribed time limit.

Under BMC Section 5-803(a)(1), the Director, in consultation with the Police Chief and Fire Chief, shall assess and evaluate the police and health safety problems arising from the occurrence of the proposed activity or use of the requested park area.  The Director shall designate the minimum number and type of persons who shall be required to be present to enforce laws and regulations and maintain decorum and pedestrian and vehicular traffic control at or about the premises of the activity.  The Director may require the permit applicant to pay the costs to the City incurred as a result of furnishing the services which the Director may require as a condition of approving any permit.

Under BMC Section 5-803(a)(2), the Director shall assess and evaluate the activity or the use and considering the nature of the activity or use, may determine whether or not it will create unusual wear and tear on park property or the accumulation of trash.  The Director may impose conditions on activity or use reasonably calculated to decrease or eliminate the problem.

Under BMC Section 5-803(a)(3), the Director may limit the hours of use of any facility or area.

Under BMC Section 5-803(b), the Director may require an insurance policy as a condition of the issuance of any permit.

Under BMC Section 5-803(c), a mandatory condition of issuing any permit is that the permittee agrees to defend and hold the City, its officers and employees harmless from any and all claims and liability of any kind whatsoever resulting from or arising out of the issuance of such permit.

Under BMC Section 5-803(d), the Director shall approve a permit if, from a consideration of the application and such other information as may otherwise be obtained, including the imposition of required or desired conditions, the Director find:

(1)     The conduct of the activity or the use of the area will comply with all the provisions of the BMC and will not substantially interrupt the safe and orderly use of the park by other persons.

(2)     The conduct of the activity or the use of the area will not require the diversion of so great a number of police and fire protection personnel as to prevent normal service to the City.

(3)     The concentrations of persons and equipment will not create a threat to the health and safety of any person using the park.

(4)     The conduct of the activity or the use of the area is not reasonably likely to cause injury to persons or property.

(5)     The conduct of the activity or the use of the area will not have an adverse impact on the surrounding neighborhood due to parking, noise, or crowds.

Under BMC Section 5-803(e), the Director�s decision shall be based upon the exercise of discretion and in light of the factors and considerations previously described. 

Under BMC Section 5-804, the Director shall act upon a permit application within eight (8) days after the filing of the application.  If the Director disapproves the application, he shall mail to the applicant within ten (10) days after the filing of the application, a notice of his action, stating in general, the reasons for his denial of the permit.

Under BMC Section 5-805, any interested person may appeal any decision of the Director made under Article 8 and relating to an application of a Park Facilities Permit to the Permit Appeals Board pursuant to the provisions of Chapter 2, Article 15 of the BMC.

FISCAL IMPACT:

It is anticipated a permit procedure will generate additional revenue from the collection of permit fees pursuant to the fee resolution.  Factors in determining the fee may include but is not limited to the costs to the City to administer the permit system, any opportunity costs for the use of City-owned property, number of hours of use, any out-of-pocket costs to the City and unusual wear and tear on the facility as a result of the proposed activity.  A fee schedule will be implemented prior to the effective date of the proposed ordinance.

RECOMMENDATION:

It is staff�s recommendation City Council adopt Ordinance Section 5-801.1 making the Commercial Use of Park Facilities Without a Permit Unlawful.

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