ENCINITAS — Under threat of litigation, the City Council voted 4-1 to permit organizers of the Arts Alive program to submit a new application that would allow for the image of late Councilwoman Maggie Houlihan to be unmasked from the back of the 101 banners currently hanging from city light posts.Ian Thompson, Houlihan’s widower, told the council on March 28 they were in violation of the first amendment by masking the image of the late councilwoman.He reiterated his legal arguments in a special closed session of the council on April 11.
“You’ve used the legal premise that per the city code, images of politicians are prohibited from appearing on banners that hang on city property,” Thompson told the council.
Councilman Mark Muir motioned to allow the applicant to resubmit the application with Houlihan’s image included, and directed staff to clarify the language of the code in question. Meanwhile all new applications for signage would be on hold. Mayor Stocks seconded the motion.
“I see this as a delaying tactic,” Councilwoman Teresa Barth said. She offered a substitute motion to allow the City Manager to rescind his decision and the organization would then be allowed to remove the stickers. It was not seconded. “I’ve been around long enough to know a delaying move when I see it.”
Deputy Mayor Kristin Gaspar opposed Muir’s motion, saying it was not in line with the city’s established “process” and would be viewed as “pandering to the threat of litigation.” Gaspar agreed with many of the speakers who lamented that the council had not officially honored Houlihan after her death in September.
“I don’t have an issue with the content on the banners; that’s Maggie’s image,” she said. But she said that since the applicant, Arts Alive organizer Danny Salzhandler, chose not to submit the final application with Houlihan’s depiction on the back, and chose instead to cover it with adhesive, the process wasn’t followed.
Organizers of the decades-old banner project had sought to have the likeness of Houlihan appear on the backs of the banners in memoriam of the councilwoman. City Manager Gus Vina had denied the banners during the permitting process, referring to a city code and saying that the image of a political figure would not fit within that language. As a result, organizers decided to place a vinyl sticker over the likeness.
In letters to the council from the Coast Law Group and the ACLU, attorneys argued that the decision amounts to “viewpoint” decision-making and is a violation of the first amendment.
Thompson said after the meeting that he was disappointed that it took a private citizen to threaten litigation to bring the issue to light with the council. He had no doubt that the “culture at city hall” was one that required staff to “tow the line” of the council majority’s wishes. “I know because I’ve had an insider,” he said, referring to Houlihan.
Salzhandler raced to the meeting and obtained a new application and said he would submit it April 12. Vina said during the meeting that it should take no longer than a day to approve the new application.
The banners are set to be auctioned in May.