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Banner Policy after Reed vs. Town of Gilbert Copyrighted June 4, 2018 City of Dubuque Action Items # 5. ITEM TITLE: Banner Policy after Reed vs. Town of Gilbert SUMMARY: City Manager recommending that the City Council revoke or dissolve the City's Banner Policy. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Council ATTACHMENTS: Description Type Banner Policy-NNM Memo City Manager Memo Staff Memo Staff Memo Supporting Documentation Supporting Documentation THE CTTY OF Dubuque �" ui���eNe�ary DUB E 'il��i;' Masterpiece on the Mississippi Z°°' Z°'Z 2013 2017 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Banner Policy after Reed vs. Town of Gilbert DATE: May 21 , 2018 In April 2012, then Assistant City Manager Cindy Steinhauser worked with several City departments to produce the Banner Policy outlining rules, guidelines, and the approval process for people and organizations that want to display temporary banners from light fixtures in the downtown and Bee Branch areas in the City. City Council approved this Banner Policy in May 2012. On June 18, 2015, the United States Supreme Court issued a decision in Reed v. Town of Gilbert, Arizona. The Supreme Court found that Gilbert's sign code, which subjected ideological signs to one set of restrictions, political signs to greater restrictions, and directional signs to even greater restrictions, contained content-based restrictions that violated the First Amendment. Municipalities still grapple with Reed v. Town of Gilbert's impact on a municipality's ability to regulate signs. Some key points that affect the Banner Policy: • The First Amendment prevents a municipal government from restricting a sign because of its message, its ideas, its subject matter, or its content. • A municipal governmenYs regulation of speech is "content-based" and presumptively unconstitutional if it addresses speech because of the topic, idea, or message expressed. • Speech regulation targeted at specific subject matter is content-based even if it does not discriminate among viewpoints within that subject matter. • Municipal governments may enact content-neutral sign laws that regulate characteristics like size, building materials, lighting, moving parts, and portability. The existing Banner Policy contains a content-based restriction in the underlined portion below: 7. Eligibility: Banners mav displav businesses' names to commemorate a special occasion, but mav not advertise or promote specific products, services, political candidates, parties, issues or messaqes. For purposes of this policv, a special occasion is a siqnificant anniversarv, of ten (10) vears or qreater, of a business' existence. A business may apply for a banner no more than once every five years (5). In the aftermath of Reed v. Town of Gilbert, the underlined portion of the Eligibility criteria violates the First Amendment. The Banner Policy permits banners to remain in place on City-owned utility poles for as long as 180 days. Without the ability to regulate or restrict content, objectionable banners could remain in place throughout the downtown or Bee Branch areas on City- owned utility poles for as long as six months under the protection of the First Amendment after Reed v. Town of Gilbert. Assistant City Attorney Maureen Quann recommends the City Council revoke or dissolve the City's Banner Policy. Revocation eliminates all prohibited content-based regulation of banners because the City would no longer allow banners, as defined in the Banner Policy, regardless of content. Signage on private property or signage related to special events (i.e. the City's promotional materials over the Street Right-of-Way adopted by City Council in February 2018) will be unaffected by this proposed change. Additionally, signage in institutional districts like Mercy Hospital, Finley Hospital, Clarke University, and the University of Dubuque will not be affected by revocation of the Banner Policy. I concur with the recommendation and respectfully request Mayor and City Council approval. 1�.1�t��'�+�1 �Gv►, /����t�ts�. Mic ael C. Van Milligen '� � MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Maureen A. Quann, Assistant City Attorney 2 THE CTTY OF Dubuque �" ui���eNe�ary DUB E '�I}Ijl� Masterpiece on the Mississippi �°' Z°'Z 2013 2017 MAUREEN A. QUANN, ESQ. ASSISTANT CITY ATTORNEY To: Mike Van Milligen, City Manager Cori Burbach, Assistant City Manager Dare: May 30, 2018 Re: Banner Policy after Reed vs. Town of Gilbert Introduction This memorandum proposes revocation of the City of Dubuque's (City) Downtown and Bee Branch Banner Review and Approval Policy (Banner Policy) for your review and City Council consideration. The Banner Policy defines banners as: "...those signs located on City-owned utility poles within the public right-of-way that are not associated with a special event permit issued by the City of Dubuque." Background In April 2012, then Assistant City Manager Cindy Steinhauser worked with several City departments including Planning Services, the Public Information Office, Engineering, Leisure Services, and the City Attorney's Office to produce the Banner Policy outlining rules, guidelines, and the approval process for people and organizations that want to display temporary banners from light fixtures in the downtown and Bee Branch areas in the City. City Council approved this Banner Policy in May 2012. The Banner Policy contains the following provision: 7. Eligibility: Banners may display businesses' names to commemorate a special occasion, but may not advertise or promote specific products, services, political candidates, parties, issues or messages. For purposes of this policy, a special occasion is a significant anniversary, of ten (10) years or greater, of a business' existence. A business may apply for a banner no more than once every five years (5). On June 18, 2015, the United States Supreme Court issued a decision in Reed v. Town of Gilbert, Arizona 135 S.Ct. 2218 (2015). In a nutshell, a church and pastor attempting OFFICE OF THE CITYATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563)589-4381 /Fnx (563)583-1040/Ennni� mquann@cityofdubuque.org to place temporary signs around Gilbert, AZ challenged Gilbert's sign ordinance that restricted size, duration, and location of temporary directional signs. The Supreme Court found that Gilbert's sign code, which subjected ideological signs to one set of restrictions, political signs to greater restrictions, and directional signs to even greater restrictions, contained content-based restrictions that violated the First Amendment. Discussion Municipalities still grapple with Reed v. Town of GilberYs impact on a municipality's ability to regulate signs. Although I could spend pages trying to understand and relay the full impact of Reed, I will simply provide some key points that affect the Banner Policy: • The First Amendment prevents a municipal government from restricting a sign because of its message, its ideas, its subject matter, or its content. • A municipal governmenYs regulation of speech is "content-based" and presumptively unconstitutional if it addresses speech because of the topic, idea, or message expressed. • Speech regulation targeted at specific subject matter is content-based even if it does not discriminate among viewpoints within that subject matter. • Municipal governments may enact content-neutral sign laws that regulate characteristics like size, building materials, lighting, moving parts, and portability. The existing Banner Policy contains a content-based restriction in the underlined portion below: 7. Eligibility: Banners mav displav businesses' names to commemorate a special occasion, but mav not advertise or promote specific products, services, political candidates, parties, issues or messaqes. For purposes of this policy, a special occasion is a siqnificant anniversary, of ten (10) vears or qreater, of a business' existence. A business may apply for a banner no more than once every five years (5). In the aftermath of Reed v. Town of Gilbert, the underlined portion of the Eligibility criteria violates the First Amendment. The Banner Policy permits banners to remain in place on City-owned utility poles for as long as one hundred eighty (180) days. While we do not have an exact number of requests, the banner policy has been utilized by very few private businesses since its creation. Without the ability to regulate or restrict content, objectionable banners could remain in place throughout the downtown or Bee Branch areas on City-owned utility poles for as long as six (6) months under the protection of the First Amendment after Reed v. Town of Gilbert. 2 Consequently, I propose revoking or dissolving the City's Banner Policy. Revocation eliminates all prohibited content-based regulation of banners because the City would no longer allow banners, as defined in the Banner Policy, regardless of content. Signage on private property or signage related to special events will be unaffected by this proposed change. Additionally, signage in institutional districts like Mercy Hospital, Finley Hospital, Clarke University, and the University of Dubuque will not be affected by revocation of the Banner Policy. Recommendation I recommend that the proposed dissolution of the City's existing Banner Policy is forwarded to the City Council for review, consideration, and approval. MAQ:jmm Attachment cc: Laura Carstens, Planning Services Manager Randy Gehl, Public Information Officer Marie Ware, Leisure Services Manager Jeff Zasada, Building Inspector II Jane Smith, Engineering Assistant II 3 THE CITY�F Dubuque �� � All-America City r �Vlc�ster��iec�v3�� fl�e Mi�sis�ip�i � � � 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Banner Recommendations DATE: May 2, 2012 Assistant City Manager Cindy Steinhauser is requesting City Council approval on revisions to the City of Dubuque banner policy and process. I concur with the recommendation and respectfully request Mayor and City Council approval. v � �t Michael C. Van Milligen MCVM:sv Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager THE CITY�F Dubuque �� � All-America City r �Vlc�ster��iec�v3�� fl�e Mi�sis�ip�i � � � 2007 TO: Michael Van Milligen, City Manager FROM: Cindy Steinhauser, Assistant City Manager SUBJECT: Banner recommendations DATE: April 30, 2012 Introduction The purpose of this memorandum is to provide a recommendation on revisions to the city of Dubuque banner policy. Backqround The city of Dubuque has had a banner policy in place for approximately 12 years. The policy has allowed not-for profit organizations or institutions to install banners in the public right of way (public ROW) on city owned light or utility poles. These banners may only be located on light fixtures adjacent to the organization's property. For example, a request by Hospital or University to hang banners is allowed as long as the above conditions are met and the location of the banners may only be around the Hospital or University. The only exception to this has been previous community banner programs initiated by Dubuque Main Street and Chamber of Commerce, which allowed for banners to promote the downtown district. This current banner review process is as follows: • Banner request is referred to Engineering department. Applicant fills out a Banner revocable license application. • Engineering Department reviews revocable license application with city departments including planning, building, engineering and City Manager's office, verifies banner location and utility pole ownership (public or private). If private, Engineering alerts applicant that written permission is needed for poles that are privately owned. • Engineering field inspects banner installation for size, height, design (slitted), traffic safety, visibility and appropriate installation (approved brackets). Recommendation and revocable license submitted to City Manager. • City Council reviews and gives final approval on banner design. • City Manager issue final approve for the issuance of a revocable license. • Engineering monitors banners for duration of revocable license for condition (torn banners, broken brackets etc.) and compliance. Discussion During the FY 13 budget process city staff was asked to research and make recommendations for the installation of banners in the Downtown and Bee Branch Corridor. A committee consisting of Planning Services Manager Laura Carstens, Public Information Officer Randy Gehl, Assistant Planner Guy Hemenway, Traffic Engineer Bill Schlickman, Engineering Assistant II Jane Smith, Leisure Services Manager Marie Ware and myself along with Dan LoBianco, Executive Director of Dubuque Main Street and Keith Rahe, Director Dubuque Area Convention Visitors Bureau met to discuss the current banner policies and restrictions. As part of this process the committee discussed revisions to the existing banner review process for requests to install banners on public right of way. This is based upon the occasional requests that the city receives to hang banners on city light poles. Attached is a draft revised policy that was developed by the committee after researching policies from the following cities: Madison, Wisconsin; Minneapolis & St. Paul, Minnesota; Coralville, lowa; and Kansas City, Missouri. The draft policy, which was also reviewed by Assistant City Attorney Maureen Quann, would cover such items as installation, size and height of banner, location, design, eligibility, duration and traffic safety. Included in the draft policy is a recommendation to change the design review process from the City Council to the City Manager's office. This policy is also recommending that the eligibility be expanded to allow private businesses to commemorate a business anniversary beginning in year 10 or any year thereafter with a limitation of once every five years. This includes the restriction that the banner may only display the businesses' name but may not advertise or promote specific products, services, political candidates or messages. The rational is that this could be interpreted as signage, which is regulated under the Zoning Ordinance. In addition, the location of the banners would be restricted to public light poles immediately adjacent to the place of business or in front of adjoining property owners if the applicant has obtained permission from adjoining property owners. Businesses who are not the property owner would be required to get the consent of the adjoining property owner as well as the adjoining commercial business owner. Applicants would still be required to apply for a revocable license through the city's Engineering department and all standard permitting fees would apply. This policy would not apply to banners for special events as those are currently regulated under the city of Dubuque's Special Event Permit process. Lastly, the ordinance includes a preemption for banners located in institutional districts for educational and medical campuses, seasonal decorations in the Downtown area and Farmers' Market banners in the central market district. Request The requested action is for City Council to adopt the proposed changes to the Banner review process and banner ordinance. CC: Keith Rahe, Dubuque Area Convention and Visitors Bureau Dan LoBianco, Dubuque Main Street Laura Carstens, Planning Services Manager Randy Gehl, Public Information Officer Guy Hemenway, Assistant Planner Maureen Quann, Assistant City Attorney Bill Schlickman, Traffic Engineer Jane Smith, Engineering Assistant II Marie Ware, Leisure Services Manager CITY OF DUBUQUE, IOWA DOWNTOWN & BEE BRANCH BANNER REVIEW AND APPROVAL POLICY Banners: Banners are those signs located on City-owned utility poles within the public right-of-way that are not associated with a special event permit issued by the City of Dubuque. 1 . Permitting: All banners require a revocable license issued by the Engineering Department and compliance with the terms set forth below prior to installation. 2. Installation. All banners must be installed by a sign or electrical contractor licensed by the Building Services Department, unless the applicant is the City of Dubuque. 3. Size and Height: Banners must not exceed two feet (2') wide by three feet (3') high, and must be located a sufficient height from from the base of the utility pole to meet Engineering standards for clearance. Banners must be sized to fit actual brackets on utility poles. 4. Location: Banners regulated by this policy are restricted to City-owned utility poles in the public right-of-way in the Downtown Area, including but not limited to the Port of Dubuque, the Historic Millwork District, and the Bee Branch Creek Restoration Area. Within the Downtown Area, banners may be located on City- owned utility poles that are adjacent to the commercial business property and City-owned utility poles that are adjacent to adjoining commercial business properties, with the consent of such adjoining commercial business owners. In such cases where the business owner applying for the revocable banner license is a tenant and not the property owner, consent must be obtained from the property owner. In such cases where the adjoining commercial business owner is a tenant and not the adjoining property owner, consent must be obtained from the adjoining property owner as well as the adjoining commercial business owner. 5. Preemption: Banners in institutional districts for educational and medical campuses are regulated by a separate policy through the City Manager's Office and will preempt banner placement under this policy. Seasonal decorations in the Downtown Area are handled by a separate policy through the City Manager's Office, and will preempt banner placement under this policy. Farmers' Market banners on the utility poles located in the central market district will preempt banner placement under this policy during the months of May through November. All America City and other City banners will preempt banner placement under this policy as well. 6. Design: Design of proposed banner(s) must be reviewed and approved by the City Manager's Office prior to issuance of the revocable license. 7. Eligibility: Banners may display businesses' names to commemorate a special occasion, but may not advertise or promote specific products, services, political candidates, parties, issues or messages. For purposes of this policy, a special CITY OF DUBUQUE, IOWA DOWNTOWN & BEE BRANCH BANNER REVIEW AND APPROVAL POLICY occasion is a significant anniversary, of ten (10) years or greater, of a business' existence. A business may apply for a banner no more than once every five (5) years. 8. Duration: Banners promoting events may be installed up to 30 days prior to the event, and must be removed within one (1) week after the event. Banners may be installed for as long as 180 days. At the conclusion of such period, one (1) revocable license renewal of no more than 180 days may be obtained through the Engineering Department. No more than one (1) revocable license renewal will be granted. At the end of the licensing period, banners must be removed by a sign or electrical contractor licensed by the Building Services Department, unless the applicant is the City of Dubuque. 9. Traffic Safety: Banner locations must be reviewed for traffic safety by the Engineering Department prior to installation. 10.Indemnity Agreement: The applicant, when other than the City of Dubuque, must complete and submit an indemnity agreement and insurance certificate for approval by the Engineering Department in conjunction with the application for the revocable license. 11 .Fee: An applicant will pay to the Engineering Department a license fee of $250.00 and the applicable recording fee per page charged by the Dubuque County Recorder's Office, prior to issuance of a revocable license. 12. Waiver, Modification and Revocation: The City Manager's Office may, in its sole discretion, waive the requirements of this policy and/or modify the banner application. Upon ten (10) days written notice to the holder of the revocable banner license, the City Manager's Office may, in its sole discretion, revoke such license for any reason, including but not limited to failure to comply with this banner policy. 4-30-2012