Public banner ordinance language stalled

ENCINITAS — The city will continue to bar nonprofit groups from using the light poles along Coast Highway 101 for their advertising banners despite attempts to craft new language for the ordinance that governs the approval of such use. 

The City Council voted Aug. 22 to create a subcommittee to revise the rules regarding the use of the poles and appointed Councilman James Bond and Councilman Mark Muir to the panel. Bond and Muir were tasked to come up with revisions that would reduce the risk of the city getting sued.

The City Council was unable to reach a consensus on the language changes within the ordinance during its regular meeting Sept. 26.

City Attorney Glenn Sabine suggested that no motion should be made since so many recommendations for changes were made and a final draft would need to be cohesive. “It will come back in ordinance form for first reading at a later time,” Sabine said.

The council quibbled over language that would have banned the depiction of all political figures.

“Suitable for all ages, no politics and no religion,” said Mayor Jerome Stocks at one point in the meeting, referring to possible restrictions on banners.

In the end, the council agreed the banner ordinance would restrict depictions of living political figures within San Diego County. It also agreed to add “suitable for all ages.”

The timing couldn’t be worse for organizers of the annual Arts Alive banner program, as they are scheduled to apply for a city permit this month in order to comply with a timeline that would allow artists enough time to paint the banners for the unveiling ceremony the first weekend in February.

“This really put a hitch in our plans,” said Danny Salzhandler of the 101 Artists’ Colony. Salzhandler served on the banner sub committee and said whatever the council decides the group will comply with the new rules. “I just don’t want to squeeze the artists’ time that they have to finish the banners,” he said.

The city suspended its banner permit process for the light poles in mid-April after facing threats of legal action from several parties, including the American Civil Liberties Union.

Those threats came after the city blocked the display of banners depicting the image of former Councilwoman Maggie Houlihan. The councilwoman, who died in September after a five-year battle with cancer, was a strong supporter of the banner program.

“The problematic language in the original ordinance has been retained in the proposed new ordinance: ‘Banners over public rights-of-way shall be authorized by a City permit pursuant to this section and subject to the standards established by the City and approved by the City Manager or designee,’” Livia Borak, an attorney with the Coast Law Group and a local resident said in a statement after the meeting.

“This potentially gives the City Manager unfettered discretion to decide what is acceptable; possibly on the spot,” she said. “The new language regarding public officials is a product of this broad discretion being applied last year.”

Controversy over the banners arose from the image of Houlihan on the backs of the artworks.

In letters to the Council from the Coast Law Group and the ACLU, attorneys argued that the decision amounted to “viewpoint” decision-making and is a violation of the first amendment.

“If the City actually wants to fix the ordinance, the Council needs to deal with the aforementioned language,” Borak said. “The rest is just politics.”

 

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  1. Lynn Marr says:

    The banner discussion and the proposed revised ordinance is on the Agenda for the 10/10/12 Encinitas City Council Meeting.

    First, the ban on banners should have been lifted pending adoption of the new ordinance, as was proposed by Councilmember Teresa Barth, and supported by Councilmember Mark Muir at the 8/22/12 Council Meeting when current Mayor, Jerome Stocks, suddenly and unilaterally appointed a subcommittee of Muir and outgoing Councilmember Jim Bond, further delaying resolution of the legal issues.

    It already took “outside counsel,” Randal Morrison over four months (from April 11 to August 22) to come up with his report on sign law, as applicable to banners or signs in the public right of way. The previous law was to be revamped because Council determined, after receiving letters from the ACLU and Coast Law Group, that it should not have “unfettered discretion” to interpret the previous code, which never mentioned “political figures” to mean that an image on the back of the Arts Alive Banners, in tribute to then recently deceased Councilmember and former Mayor Maggie Houlihan, a beloved community member, must be covered in order for a permit to be issued through the City Manager’s office.

    What the Subcommitte has done under the legal “auspices” of City Attorney Glenn Sabine, and his lawfirm partner, Randal Morrison, is to attempt to codify the exact abuse of discretion to which lawyers and the general public had previously objected.

    Morrison has basically recommended that NO “third party,” or non-profit groups should be allowed to put banners on “city infrastructure” (the lightposts, etc, in the public right of way) as that would create a public forum, and regulating “viewpoint” would be “complicated.”

    It’s not only “complicated,” it’s UNCONSTITUTIONAL! The message on signage allowed by non-rofits (which SHOULD BE ALLOWED, as is traditional within our city) cannot be regulated to the point of disallowing past living “political figures” as defined by the proposed sign law ordinance, to be depicted. That is overstepping the Contsitution.

    According to Morrison, Council could legally disallow promoting or campaigning for religious or political events. That could be interpreted, reasonably, in my opinion (I’m not a lawyer, though) to mean that current candidates or current elected officials could not be depicted as that constitutes an implied endorsement, in election cycle years.

    Further, current code should not be suspended by Council “at any time.” Council did exactly that, already, by banning banners, upon Stocks improper conditioning of his second to Councilmember Mark Muir’s motion to allow Maggie Houlihan’s image to be uncovered, which he made on 4/11/12/ Stocks seconded, stating no new applications would be accepted for signs in the public right of way, pending adoption of new policy through revising Encinitas Municipal Code relative to sign law.

    As we know, Stocks has no problem putting up campaign signs early, himself not following current sign code NOT suspended. Any time any portion of current code is suspended, that should legally require two public hearings, just as two readings at two public hearings are required for creating a new ordinance or revising a current ordinance by amending it. Suspending code is a form of amending current code; that is only logical and fair!

    There should be no short cuts in public process required by administrators and politicians. City Attorney Glenn Sabine was present at the sign code subcommittee meeting, Morison was not. The ordinance presented on 9/26 was not in alignment with Morrison’s recommendations in his 8/22 “staff report.” It seems to me that the new proposed language is simply “damage control,” an improper attempt to justify a previous abuse of discretion by codifying the wrongful reasoning into City law!

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