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SR-102307-7D~~ ;,Y of City Council Report Santa Monica City Council Meeting: October 23, 2007 Agenda Item: ~'"~~ To: Mayor and City Council From: Andy Agle, Director of Housing and Economic Development Subject: Introduction for First Reading 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 1 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. 2 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 3 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. 4 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 (9`h 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 Countv, Inc. v. Citv of Port Clinton, 207 F. Supp. 2d 699 (N.D. OH 2002), the court held 6 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 7 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"). 8 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 A~fe, Director ~ " Housing and Economic Development Attachment A: Proposed Ordinance Attachment B: Letters of Support P~C~fn~'nt Ewell City anager 9 f:\atty\mun i\law\barry\streetbanners City Council Meeting 10-23-07 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTION 4.08.500 AND DELETING SANTA MONICA MUNICIPAL CODE SECTION 4.08.510 TO CLARIFY THE CITY'S AUTHORITY TO HANG NON-COMMERCIAL BANNERS FROM STREET-LIGHT POLES, IN ADDITION TO OVER-THE-STREET BANNERS, FOR THE PURPOSE OF PROMOTING CITY-PRODUCED OR CO-PRODUCED EVENTS OR MORE GENERALLY FOR PROMOTING OR CALLING ATTENTION TO THE CITY, ITS RESOURCES, BUSINESSES DISTRICTS, ATTRACTIONS, AND TO CELEBRATE HOLIDAYS AND TO AUTHORIZE THE CITY MANAGER TO APPROVE ADMINISTRATIVE GUIDELINES WHEREAS, Santa Monica Municipal Code Section 4.08.500 authorizes over-the- street banners to promote City-produced or City co-produced events; and WHEREAS, this Municipal Code provision does not expressly extend the same authority to hang banners from street-light poles; and WHEREAS, both over-the-street banners and vertical street light pole banners can be valuable tools to promote or call attention to the City, its resources, business districts, attractions, facilities, and to celebrate holidays; and WHEREAS, this ordinance would clarify the authority of the City to hang City banners on street-light poles in addition to over-the-street banners, would expand the purposes for which these banners can be hung and would authorize the City Manager 1 to approve administrative guidelines to implement this ordinance in lieu of the outmoded provisions established in Santa Monica Municipal Code Section 4.08.510, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Santa Monica Municipal Code Section 4.08.500 is hereby amended to read as follows: Notwithstanding anything contained in Section 4.08.490 hereof, temporary City banners over on, or in any +,-~~~,~public right of way may be hung by the City or its agents for the purpose of promoting City-produced or City co-produced events and activities or for the purpose of promoting or calling attention to the City its resources business districts attractions or facilities and to celebrate holidays. All other temporary banners are prohibited. {( ~~,~ ~~~t:c. A City-produced event is developed and implemented in its entirety solely by a City department or departments. A City co-produced event is one that has significant City staff involvement in both the planning and the implementation of the event together with anon-City entity. To be considered an event co-produced by the City, City staff must be involved in all aspects of the event including 2 creative direction, funding and fund development, marketing and media relations, and staffing and support services. For purposes of this Section, events and activities produced by the Bayside District Corporation and the Pier Restoration Corporation are classified as City-produced and may be promoted by banners hung over the Third Street Promenade and Pier, respectively. The City Manager is authorized to adopt administrative guidelines that are consistent with and that further the terms and requirements set forth irrthis Section. SECTION 2. Santa Monica Municipal Code Section 4.08.500 is hereby deleted is its entirety. 3 h 4' 1 \ f th'n Can+'n n,i+hin f'..n h n c Aovc of Tro~___. _.. ~_~ _- __' - .___ ....~......_._... _ r _. (9 \ Th 1' .+n+ h.,o Lnn.ni nnh, m~rla o folca fi I' ~.+' 'll n a.J +n ha filcrl SECTION 3. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a 4 decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: n J, ~ ~ ~~ MA HA JON S MOUT IE City ttorne 5 Attachment B March 2Q, 2007 Banners on city light pales not only can communicate about important conununity events, they also eau add a festive touch of color to our otherwise drab boulevards. The Pico Improvement Organization, the business improvement district for Santa Nlonica's 34-block stretch of Pico Boulevard, feels this need acutely. Pica is a main east- west artery, and drab looking describes it well. Our "Shop Pico" banners during the Thanksgiving thra.rgh Clu•istmas season for a limited time gave a sense of commtmity to boulevard business operators and a morale boast. When I drive along Pico Boulevard in Los Angeles I am always taken by the aalorful banners there. LACMA, the Hollyevoad BoGVl, and L.A. Opera brighten oty drive with their banners, although much of my drive is past junky little storefionts. Pica Boulevard could use such batuters promoting comrntutity events at ` t the college, at the high school, at the Civic Auditorium, at the Margan- ~ ~; ~~ Wixson Theater operated by the nonprofit Santa Monica Community °~°"'f'°°"°"l ~, Theater, and at Virginia Avenue Park.. ~i i; „~, , ,~ ,-.,, ; r., Ii should be possible to draft an ordinance that would allow city and civic ."~'-~• events to be colorfully advertised and celebrated along our boulevard. ~~d-y And there should be an opportunity for our business group to hang banners ~./ as v,rell to celebrate the Holidays and call attention to our sponsored community r,rrwcn~t~;:~rrs~•r events, such as Pico Artists at Work, the one-da ~ art walls that focused on utur•»v;~~rrrz~ } boulevard galleri:s as well as Santa Monica College, the High scltonl, and Virginia Avenue Parlc. fiver changing, colorhrl harmers spotted here and there with city approval along the boulevard would add a charm that the Santa Monica su•etclt of that street needs. It wotild cost the taxpayers nothing. (It cost about $4,500 a year for us to have 97 banners placed along Pico Boulevard by a commercial company.dtn•ing the winter holiday season.) A way should he created so that the community along Pico Boulevard in Santa Monica- lilce the conmtuuity on L.A.'s Pico-can celebrate and publicize its events with street bvmers. Sincere ~, ~~=_%\ Charles Donaldson, Pico ltnprovement Organization chair and homeowner at 2308 30th Street, just south of Pico T3aulevvd, .~. "_. _~-,.z.,--•.v-i:,~;,.n-n-„-cter~-,--nt.,.e __.~.~ ~'~-a.;Y.,g•;_t..--tn-,3:=--^-e;~a•~+n-~a-e^II3 I~I~~ITl~I~C~ ~~~IUUE ~~IE~HAI~T~ ,~~5®~I~TIRI ~~ I",1~[i 'f~'' teC 310.394,0044 ~ ` fax: 310.394.0164 909 Montana Avenue email montanaavenuemerchantsQematl.com Santa Monica website: www.monianaave.com California 90403 March 20, 2007 City ofi Santa Monica ' Resource Management Department Economic Deveioprnent Division 3223 Donald Douglas Loop South, Suite 2 Santa Monica, CA 90405-3279 Attn: Erika Cavicante Re: Light Pole Banners for Montana Avenue BID Dear Eril<a: The newly-elected Board of the Montana Avenue Merchants Association has recently hired a PR consultant specializing in events and a Brand Identity Marketing Consultant to write a marketing plan to make Montana Avenue into a destination for tourists, visitors, and residents of Los Angeles. Currently we only have two annual events, the Summer Sidewalk Sale and the Holiday Walk, and are planning with the help of these consultants fo step up to three more events this year and hopefully additional monthly events next year. Consequently, we have only been using 2ftx5ft fight pole banners twice a year in the past, but are planning to use #hem up to five times a year if not monthly. The light pole banners are very effective vehicles for branding, advertising, and promoting these events thereby driving more Traffic to Montana Avenue and potentially increasing sales which is crucial to the health of our businesses. We hope to continue fo use this tool in the future as we roll out our new plans. Sincerely, ~/~ Sabine Lehmann Chair of the Board MAi2-20-2007 01:12P FROM: MAIN ST BUS IMP A 3108995699 r 6 s ~ ~snmu mnn~w Erika, T0: 13103914446 P.1 ~~2 ~ ~~'7 The Main Street Business Improvement Association supports the proposal that B1Ds be allowed to hang banners in the City's public righhof--way. The MSBIA won't be banging aay banners in the foreseeable future because oar decorvive lights proh'sbit hanging banners. The MSBIA would Bite aretum to the policy that allowed over-trte-steeeC banners and allow for the creation of an over-the-street banner location on Main Street. We used these kinds of banners every year to promote the holiday and summer community events we produce, Gary Gordon Executive Director MSBIA (please note; our letterhead stationary has our old address and old fax number. The new address is: 154911'" St., tI202, SM, CA 90401, and the new fart number is 31.0!899-5694.) ~ ~`~ ~V '~~ ~ ~ Main Street Business Improvement Assocfoiion 1234 6th Street, Suite 700 Sani^ Monied, CA 90401 p: 310.$99.9555 f: 310.394.F86$ e•mail:msmasta f fflnetvip, com Website: moinstreetsm.com Additional attachments available at City Clerk's Office.