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
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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.
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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
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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.
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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
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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
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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").
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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
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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
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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
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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
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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.