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
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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.
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Mic ael C. Van Milligen '� �
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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
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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
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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.
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Michael C. Van Milligen
MCVM:sv
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
THE CITY�F Dubuque
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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