City Council Meeting: October 23, 2007

Agenda Item: 7-D 

To:                   Mayor and City Council 

From:              Andy Agle, Director of Housing and Economic Development

Subject:          Introduction for First Reading of an Ordinance Regarding Vertical Noncommercial Banners on Streetlight Poles

 

Recommended Action

Staff recommends that the City Council introduce for first reading an ordinance amending Santa Municipal Code Section 4.08.500 and deleting 4.08.510 to allow the City to hang vertical non-commercial City banners on streetlight poles in accordance with administrative guidelines established by the City Manager.

 

Executive Summary

The Municipal Code allows temporary over-the-street banners to promote City–produced or City co-produced events, and allows the Bayside District Corporation and the Pier Restoration Corporation to hang banners traversing the Third Street Promenade and Pier, respectively.  The proposed ordinance would modify existing law to clarify the City’s additional authority to hang non-commercial City banners from streetlight poles.  As with over-the-street banners, such banners would be used for the purpose of promoting City-produced or City co-produced events, or more generally for promoting or calling attention to the City, its resources, business districts, attractions or facilities and to celebrate holidays.  The City Manager would also be authorized to adopt administrative guidelines consistent with this ordinance.

 

For the past several years, the City and various business improvement districts have hung banners on streetlight poles during the holiday season and for special events.  However, this activity is not expressly authorized.  The proposed ordinance would specifically authorize the City to hang City pole-banners pursuant to administrative guidelines.  To partially offset the costs of banners on streetlight poles, staff proposes the creation of a Marketing and Promotions Fund to help cover the costs of print, radio, television, internet and special event advertising, as well as the design, fabrication and installation of banners, with contributions from business improvement districts and similar associations.   

 

Discussion

Background

Santa Monica Municipal Code Section 4.08.490 (see Attachment “A”) prohibits any kind of banners over, in or on any public property. This Section allows temporary banners traversing the public right-of-way hung for the purpose of promoting City-produced or City co-produced events.  An event that is produced or co-produced is an event that is developed and implemented in its entirety solely by a City department or departments, while a City co-produced event is one that has significant City staff involvement in both the planning and the implementation. 

 

Events and activities produced by the Bayside District Corporation and the Pier Restoration Corporation are classified as City-produced.  Consequently, Section 4.08.500 also allows the Bayside District Corporation and Pier Restoration Corporation to hang banners that traverse the public right-of-way, although vertical banners have been hung as well. These banners have included the public art over-the-street banners on the Third Street Promenade and the annual holiday Winter Lit program on 4th Street and Broadway.  The Winter Lit program also hung vertical banners in the Bayside District and throughout downtown.    

 

With the approval of the City Manager’s Office, over the last several years the Pico Improvement Organization (PIO) and the Montana Avenue Merchants Association (MAMA) have hung non-commercial, decorative banners on streetlight poles on Montana Avenue and Pico Boulevard during the holiday season. The Convention and Visitors Bureau (CVB) has also, with permission from the City, hung over-the-street banners for the American Film Market (AFM) on Ocean Avenue, the Pier and the Bayside District.  The AFM has held its market in Santa Monica the last eighteen years and is scheduled to hold it in the City until 2008, with negotiations underway for the period through 2012.

 

In response to a request from the PIO to hang pole-banners announcing an upcoming event, the City Manager informed Council that staff would review the code, consider legal issues and litigation history, and if warranted, recommend code amendments which would authorize pole-banners

Survey

Vertical streetlight pole-banners have been used in many communities as a promotional tool to preserve and promote economic vitality as well as to notify residents, visitors and tourists of special events and activities.  Banners on streetlight poles not only communicate information about important community events, they also can add a festive element that enhances the ambience of the community.

 

Staff researched and surveyed streetlight pole-banner policies from nine cities and found that seven of the cities (San Francisco, Los Angeles, Long Beach, West Hollywood, Glendale, Burbank and Ventura) permit placement of banners in the public right-of-way, including banners attached to streetlight poles.  The cities surveyed typically allow banners announcing city-sponsored events and activities as well as events sponsored by nonprofit organizations.  These ordinances also permit the placement of a sponsor logo as long as the logo is no more than ten to twenty-five percent of the banner space, as sponsorship helps defray the cost of designing, fabricating and hanging of the banners and raise revenue to further the mission of the organizations.  The other two cities surveyed (Beverly Hills, and Culver City) restrict public right-of-way usage to the City or Redevelopment Agency; exceptions to the restrictions can be made only by City Council.

 

The following table illustrates the type of organizations and events that apply for and receive permits to hang banners from their respective cities.

 

REPRESENTATIVE BANNER REQUESTS FROM SEVEN NEIGHBORING CITIES

Cities

Types of Organizations

Types of Events

Sponsorship Allowable

as a % of Banner Area

 

 

 of ban of banner

San Francisco

1. Southwest Association

2. Redevelopment

Agency

3. San Francisco State University

1. Chinese New year Parade

2. Sixth Street Beautification

3. University Educational Awareness

25% maximum

Los Angeles

1. Los Angeles Museum Association

2. Los Angeles Marathon Association

 

1. Promotes special events held at the museums

2. Annual Marathon

 

20% maximum

West Hollywood

1. Academy of Motion Pictures Arts and Sciences

2. Recording Academy

3.City

1. Academy Awards

2. Grammy Awards

3. Book Fair

25% maximum

Long Beach

1. Grand Prix Association of Long Beach

2. Belmont Shores Business Association

1. Grand Prix 

2. Holiday banners and annual special events

10% maximum

Glendale

1.Glendale Water and Power

2. Armenian Association

 

1. Water and Power Expo

2.Annual Armenian Cultural Festival

Municipal Code is silent on sponsorship

Burbank

Kiwanis

Car Show

Municipal Code is silent on sponsorship

Ventura

Ventura Auto Dealers Association

Advertises auto center offerings

Municipal Code is silent on sponsorship

 

The ordinances for the majority of these cities also describe the review and approval process.  In most cases, the cities require an application for a banner permit, a processing fee, a detailed plan indicating streets and street names, location of poles on a street, detail and design/logo of banner, method of attachment to the pole(s) and certificate of insurance.

Legal Considerations

Allowing entities other than the City to hang banners either over City streets or on City streetlight poles creates legal risks.  Santa Monica’s street banner ordinance was challenged in a lengthy federal lawsuit filed in 2002.  That suit claimed, among many other things, that the City’s former policy of allowing some entities, other than the City, to hang street banners was unconstitutional.  The City Council opted to voluntarily amend the law to only allow City banners and thus moot out the street banner claim.  The Ninth Circuit upheld this approach.  The legal risks demonstrated by that suit arise partly because allowing entities other than the City to hang street banners creates a forum for speech which must meet specific legal standards.  Streetlight poles would likely be considered a nonpublic forum-public property which is neither a traditional nor a limited public forum.  While regulation of expressive activity in a traditional or limited public forum is subject to the greatest judicial scrutiny, even in a nonpublic forum, the government can only control access based on subject matter and speaker identity so long as the distinctions are reasonable in light of the purpose served by the forum and are viewpoint neutral.  Thus, even in a nonpublic forum, government regulations are carefully assessed.  For instance, in Brown v. California Department of Transportation, 321 F.3d 1217 (9th Cir. 2003), the Court invalidated a policy and practice of CalTrans to prohibit all expressive banners except directional signs and American flags on overpass fences because CalTrans’ safety justification for prohibiting expressive banners applied equally to flags, since flags are no less distracting, and simply allowing the display of the American flag constituted viewpoint discrimination.  Similarly, in Heartbeat of Ottawa County, Inc. v. City of Port Clinton, 207 F. Supp. 2d 699 (N.D. OH 2002), the court held that although light poles constituted nonpublic forum, the city could not deny permission for a nonprofit organization to place a banner advertising “Annual Walk for Life” since there was no evidence that the banner would actually interfere with the light poles purpose and the city’s decision was based on the organization’s viewpoint.  Additionally, the Ninth Circuit in Perry v. Los Angeles Police Department, 121 F.3d 1365 (9th Cir 1997) invalidated a restriction on access to a traditional public forum based upon nonprofit status.  Thus, both the case law and City experience indicate that authorizing entities other than the City to hang banners on City poles creates legal risks if the City attempts to control the viewpoint expressed by the banners or to select those entities which may hang banners and the banners’ content without a reasonable basis for doing so in light of the forum’s purpose. 

 

Proposed Ordinance

In order to minimize the legal risks, the proposed ordinance would authorize only the City to produce and hang banners.  The City would control the selection of banners and the operation of the program.  Banners would be used for the purpose of promoting City-produced or City co-produced events or more generally for the purpose of promoting or calling attention to the City, its resources, business districts, attractions or facilities and to celebrate holidays.  Banners would be used to benefit the community, rather than any individual interest.

 

In order to ensure that the display of banners meets community expectations for order and aesthetics within the public rights-of-way, staff proposes that administrative guidelines approved by the City Manager govern the hanging of banners, including the following provisions:

·        Banners may only be displayed along commercial streets.

 

·        Banners shall not be displayed for longer than twenty-five calendar days prior to an event, nor remain posted longer than five business days following the event, except during the winter holiday season.

 

·        During the winter holiday season, banners may be displayed for up to sixty days.

 

·        Banners may not be displayed in any single location more than twice in any calendar year.

 

·        Banners may not advertise any business or product.

 

To help ensure that the City’s costs for designing, fabricating and installing banners can be partially offset, staff proposes the creation of a Marketing and Promotions Fund for newspaper, television, radio advertisements, special mailing and web-based announcements, as well as display of banners.  Groups who want to participate in the marketing of programs that promote the City, its resources, business districts, attractions, or facilities and to celebrate holidays would be able to contribute to the fund. If the ordinance is adopted, staff will return to Council with any necessary adjustments to create the fund.

 

Public Outreach

The Business Improvement Districts have discussed this issue and submitted requests to allow the hanging of banners (Attachment “B”).

 

Alternative 

The City Council could take no action and maintain the street banner ordinance in its present form.  Both City and non-City agencies that currently hang streetlight banners would need to cease these activities.

 

Environmental Analysis

The proposed action to direct staff to amend the Municipal Code is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State Implementation Guidelines in that CEQA only applies to projects having the potential to cause a significant effect on the environment. 

 

Budget/Financial Impact

No budget impacts are anticipated, except as to the extent the City chooses to contribute to a specific program.

 

Prepared by:

 

Andy Agle, Director

Housing and Economic Development

 

Approved:

 

Forwarded to Council:

 

 

 

 

 

 

Andy Agle, Director

Housing and Economic Development

 

P. Lamont Ewell

City Manager

 

 

Attachment A:  Proposed Ordinance

Attachment B:  Letters of Support