ENCINITAS — Several groups were relieved when the City Council unanimously approved new language for the city’s banner ordinance on Oct. 10.
Further, the council directed staff to immediately lift the ban on nonprofit groups from using the light poles along Coast Highway 101 for their advertising banners and expedite a forthcoming permit request by the 101 Artists’ Colony for the Arts Alive banner program.
“We’re going to get right on it so we can order the banners and give the artists enough time to do their thing,” Danny Salzhandler of the 101 Artists’ Colony, said.
The City Council voted on 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.
Councilwoman Teresa Barth suggested the council further tweak the ordinance by removing a sentence that stated, “The purpose of this section is to avoid public controversy regarding the perception of any such (political) figures, either positive or negative.”
Deputy Mayor Kristin Gaspar agreed that the language was unnecessary.
The timing couldn’t be better for the Arts Alive banner program, as it is scheduled to apply for a city permit in early October in order to comply with a timeline that allows artists enough time to paint the banners for the unveiling ceremony the first weekend in February.
The most obvious change in the ordinance is that banners can’t “promote nor depict the likeness of any political figure presently alive.”
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 containing a memorial image depicting former Councilwoman Maggie Houlihan. The councilwoman, who died in September after a five-year battle with cancer, was a strong supporter of the annual Arts Alive banner program.
However, at least one resident didn’t think the new ordinance passed constitutional muster. “As Coast Law Group pointed out in its original correspondence in March of this year (to the City Council), unfettered discretion to adopt rules and regulations regarding the banners presents a Constitutional problem,” Livia Borak, an attorney with the Coast Law Group and a local resident wrote in an email to the council prior to the meeting.
“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,’” she stated.
“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.”
The problematic language stems from the portion that reads in part, “Banners in the public rights‐of‐way shall be authorized by a City permit issued pursuant to this chapter and subject to the standards established by the City and approved by the City Manager or designee which are on file with the City Clerk and available for public inspection,” according to Borak.
“The new language proposed is a step in the right direction as it requires the standards be ‘on file with the City Clerk,’ which presumably requires they be written down,” she stated. “However, the concern remains that these standards (which have not been provided with the agenda materials) may be subjective or amorphous, or may change in response to a specific application. I urge you to require the standards be posted on the City’s website, and reviewed prior to adoption of the ordinance,” she added.