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HomeMy WebLinkAbout08/17/2004, CLR1 - SLO COUNTY MAYORS' MEETING RED FILE d�llllllllll������llllllllllllll MEETING AGENDA �,m� • liaison Repont city of sari tuts oaispo --DATE, 1 ITEM_# July 14, 2003 To: Council Colleagues From: Dave Romero, Mayor Subject: SLO County Mayors' Meeting At the Mayors' Meeting of August 13`I', there were two primary items of discussion which I believe are important for Council member information. Proposition 68, the Gaming Revenue Act of 2004, relates to card clubs, horse racing tracks, Las Vegas style casinos, and slot machines. It proposes to generate new revenue for cities, particularly for Police and Fire Departments. According to the League, however, it is deceptively worded and will probably produce minimal benefits for municipalities but substantial benefits for the gaming facilities. The League has taken a stand in opposition to Proposition 68. Rick TerBorch, who is the Immediate Past President of the California Police Chiefs Association,'is strongly opposed to this measure and made the primary presentation in opposition at the Mayors' Meeting. The City of Arroyo Grande recently adopted a resolution in opposition. It is my suggestion that the City of San Luis Obispo City Council agendize this item at a meeting in the near future to discuss whether we also wish to adopt a similar resolution. The second major item of discussion related to the now competing propositions regarding restricting the State's authority to conduct raids on city revenues. Our very successful referendum drives resulted in Proposition 65 being placed on the ballot, and this also brought us to the table with the Governor who, with the League's help, was able to hammer out Proposition IA, which will have the Governor's support and has a much greater likelihood of passing. The League's approach at this time is to place all its support and fundraising efforts behind Proposition 1A, which will then have a much better chance of being approved. It is my hope to have Dave Mullinax, League representative,make a. presentation at a Council meeting in the near future to outline how we, as individuals; and as a governing body can assist in this proposition being passed. 10 CCUD:CIL CDD DIR Li CAO =IN DIR ACAO =IRE CHIEF ATTORNEY ?I^I DIR CLERKiORiG POLICE CHF D HEADS ! R_C DIR ❑ UTIL DIR -/ tie_ -- ❑ HR DIR ' fiosion Report Moyers Meering I RED FILE Honorable Mayor and City Council members MEETING AGENDA DATE #-6—&ITEM # Regarding the no adhesives rule- Firstly,I apologize for the length of this as I realize you have LOTS of reading to do in preparation of each council meeting. I have read the staff report,been to TW and DA meetings,and listened to statements by those of us who volunteer at political or non-profit farmer's market booths. It is clear the sticker graffiti does not originate from the non-profit/Wlitical booths. Since our booths are not distribu ting.stickers that add to tin'sticker graffiti'problem,it is irresponsible to include our groups in this rule. There hasn't been much of a sticker graffiti problem for several years aceordrhg to officials.however we groups have been distributing stickers Rtllr_ The staff report states(paragraph two)that the city council'approved rules in 1998 prohibiting the distribution of adhesive materials during FarmWs Market_and since that time there have been fever instances of sticker vandalism.' The City Attorney states in a July 21 memorandum,'there have been few instances of sticker Vandalism or complaints about the rule since its inception in 1998'. Concurring,Tunny Ortali of Mcaritock's stated at the July 21 TNP meeting that for the past five years there hasn't been a sticker probkan(and his was one of the businesses that helped clean up stickers 5 yrs ago that had acanmulatedl In addition,John from public works stated at the August 10 DA meeting that he cleats up stickers and that they do not increase during far rmWs market activities During this sane timeframe(except for the past couple of months of enforcement of this 'no sticker'rule)we non-profFt and political booths Faye had stickers prominerth► disokuyed/distributed each week to the puretic Therefore,if stickers haven't been much of an issue over the past few years and stic� have been aburdaht at our booths,logic would deem that stickers are not aFACAO q'rom ' CDD DIR the political and non-profit booths. It is ilkgieal to uphold this rule. FIN DIR FIRE CHIEF RNEY PW DIR K,ORIG POLICE CHF EADS REC DIR Addressing a couple of points that the DA and the staff report bring up: UTIL DiR SCI-�I.13_ HR DIR L Ms.Cash claims that the rule is not a harviship on groups beaouse the booths Fmvae downtown offices where they can distribute their stickers so. This is not truce:there are only two groups,the Democrats and Republicans,who have offices downtown There am a dozen more groups who usually have stickers at their booths but do not have offices. 2. Sticker graffiti likely originates from stores or booths handing out stickers indiscriminately and often to youth The power point presentation at the DA meeting showed sticker graffiti that likely originated from downtown businesses,such as surf shops or sports stores,and from radio stations. This problem as started by the DA at the August 10 meeting is not something they wish to address,as'the-y must take care of their own'_ RECEIVED C L104 ci 0 CITY CLERK There is no doubt that sticker graffiti occurs at some lerel,and that removing it is more difficult than picking up Styrofoam containers,ribs,fruit pits,spilled veggies,and cigarette butts from the street. Howevrer,I doubt the DA would suggest forbidding all the food booths that add to the garbage problem, FYI: Our booth fees are now$16/nightly,adding up to$800 for those groups who cause out regularly. I think there are more alternatives than staff suggested: 1.There could be SUIDELINES,not rules, tina�the political and noon-profit groups ask for a donation when distributing stickers. 2. A rule not allowing stickers at the radio station booths. In the year 2000 TNA Rulebook,the media(radio,TV,newspapers)booths are singled out with a rule not allowing adhesives. (Since this is in email farm.I will submit copes of those TNA rulebook partes on Monday,August 16.) The DA rejects regulating stickers at downtaamm stares although sticker graffiti likely originates from those stares. Thus,there am two situations in which the DA has already differentiated between different groups to hmae different rulm With Regards, Peggy Kotem pkoteenC aoLcom.5441580 or 441-5897(cell) C 0 Y Off' coo ?� ° c A CD CD n m 3 IZ. c is �. C1 G o c �. ,: _� n. cCD o O a O �. � Ce Co •-o' g' ea° 3 o CD co o f. co, m 3 oCin S c ? � � . y � Q �. arn. - eD CD x'3 CD da O. S eD ^ G •p' S "� A .+ d .. N " CD eD Cr ZA CD 0 0 CL 00 '."3 CD m O 3 0 Q+ m •`J1° •.� o CD �. o y m .� 3 Z G E v) OQ cCDc A c CD C G CD n 3 CD n o Co Co .. 5 ^o w �• D. CD 0. .. w .. � ,O+ �O. cr O ^. ria y' fb a' c ym < m "' co .. a CD �< ee 0. v Z c p a ° c c ' < A _G. 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Dk � y K z cmCD 3 D.C 'C O - Q 7' = O d .. n C t3. co O r.n C C^D •m - O -n O a ' my y a � r � gco ac = s w tz.00 a 7 co a0 y rA = a `Q C^p £ C o CD ° IN 0 WR ELm � C a o' 0 3 =+ CD o °° m .o C a c rA m o-ftho A �° �w CD •° � � . +mom p c CL y° 0 CA 0 CD ca n 00 CD CD zr m 0 JS to W CD CD m O a C 300 17�e G•'C C 00 00 00 `00 VCi CSD N N a pro SAN WsOiBmm CouNW*=9� a-It - EYNIOCRATIC CENTRAL E P.O. Box 15155, San Luis Obispo, CA 93406 (805)546.8499 Far546-0449 FryrailslodccOafmnut MEMORANDUM on Agenda Item 6, Tuesday, August 17, 2004: Review of Rule Prohibiting the Distribution of Adhesive Materials at the Downtown Association's (DA) Thursday Night Promotions Farmer's Market. Mr. Mayor, Members of the City Council: My name is Sanford Cook, a resident of San Luis Obispo, and I am here tonight representing the Democratic Central Committee of San Luis Obispo County and the 33rd Assembly District Committee. I will not rehash the appeals that we have made to the Thursday Night Promotion Committee or to the Downtown Association. They have heard, and they have acted. I likewise will not comment to their various minutes and reports, since we have found them to be inadequate and often inaccurate renderings of the events which transpired at the various meeting on this subject. 1411, however, comment on the advice that you have received from your City Attorney, who has delivered a memo on the rules in question to the Mayor and the Council in which he said,quote: "A good argument can be made that: it is a reasonable time, place,and manner restriction on speech, it is content neutral, it serves significant government interest of keeping the city clean, it allows for ample alternative channels of communications,and,consequently, it does not violate the constitutional right of free speech.". My questions to you and the City Attorney are three, two of which deal with your rule 6 E, and the third of which deals with your rule 17 U: First: where in constitutional law or precedent are"reasonable restriction", "neutral content", "significant interest in cleanliness", and"ample alternative channels" presented as tests of the constitutionality of restrictions to our First Amendment right to freedom of expression?Can the City Attorney cite for us any jurisprudential decision that counters Mr. Justice Roberts opinion for the majority in Schneider vs. New Jersey(Town of Irvington), which states: "Although a municipality may enact regulations in the interest of public safety,health, welfare or convenience,these may not abridge the individual liberties secured by the Constitution to those who wish to speak,write, print, or circulate information or opinion." Justice Roberts goes on to say: "So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature,it may lawfully regulate the conduct of those using the streets." He then says: "Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions." And: "We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handling literature to one willing to receive it.Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results form the constitutional protection of the freedom-of speech and press. And ultimately: "...the public convenience in respect of cleanliness of the streets does not justify an exertion of the police power which invades the free communication of information and opinion secured by the constitution." Second: Can the City Attorney's support his contention that.you may control manner, and may restrict the manner of distribution where alternative means of communication are permitted, other than citing his own "good argument?Justice Roberts states in regard to Lovell vs. City of Griflrn,where local regulation had banned the distribution of pamphlets, a common method of presenting political argument: in 1939, and for that matter in 1776: "...the ordinance was bad because it imposed penalties for the distribution of pamphlets,which had become historical weapons in the defense of liberty, by subjecting such distribution to license and censorship; and that the ordinance was void on its face,because it abridged the freedom of the press." In the intervening 65 years since this decision, bumper stickers and TV spots have assumed a comparable status as"historical weapons", at least certainly since the Eisenhower/Stevenson campaigns of 1952 and 1956. Finally, as to rule 17 U, which directs that"AII giveaways must be pre-approved by the Committee". Can the City Attorney cite any provision in law that permits this prior restraint of expression? Justice Roberts cites Hague v. C.1.0.[1939], where this prior restraint of content was set down, or as he says: "... an ordinance was held void on its face because it provided for previous Administrative censorship or the exercise of the right of free speech and assembly in appropriate public places." Thus, my request to you on behalf of the Democratic Central Committee of San Luis Obispo County, is that you strike the final sentence of rule 6E; and that you strike rule 17 U in its entirety. My final request to you is that you undo the injustice done to the Republican Central Committee and reinstate its permit immediately and without restriction. f Thank you. Schneider v.New Jersey(Town of Irvington) 308 U.S. 147 (1939) http://laws:findlaw.com/US/308/147.html Vote: 7(Black, Butler, Douglas, Frankfurter, Reed, Roberts, Stone) I (McReynolds) Opinion of the Court Roberts In this decision the Supreme Court consolidated four appeals that involved similar issues. In Schneider v. New Jersey(case 11), a Jehovah's Witness was convicted of violating an Irvington ordinance that prohibited persons from door-to-door solicitation or literature distribution without first receiving a permit from the city. Young v. Califomia(case 13) involved a man who had handed out circulars advertising a meeting on the Spanish Civil War sponsored by the"Friends of the Lincoln Brigade" in violation of a Los Angeles ordinance that outlawed the distribution of handbills on the public streets. In case 18, Snyder v. City of Milwaukee, union picketers had dispensed circulars concerning a labor dispute with a meat market, violating a city ordinance against distributing printed matter on public streets. Nichols v. Commonwealth of Massachusetts(case 29) dealt with individuals convicted of handing out circulars protesting the administration of the Massachusetts unemployment compensation program in violation of a city of Worcester ban on the distribution of handbills on public streets. In case 11 the state justified its ordinance as a way of protecting residents from intrusion and annoyance by strange individuals. In cases 13, 18, and 29, the community governments claimed that the laws were designed to stop the streets from being Tittered by discarded handbills. Each of the defendants claimed the laws violated their First Amendment freedom of expression rights. MR. JUSTICE ROBERTS delivered the opinion of the Court. Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience,these may not abridge the individual liberties.secured by the Constitution to those who wish to speak,write, pant or circulate information or opinion. Municipal authorities,,as trustees for the public, have the duty to keep their communities'streets open and available.for movement of people and property, the primary purpose to which thestreets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no-pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak,write, print or distribute information or opinion. This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties. In every case,therefore, where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.And so, as cases arise,the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights. In Lovell v. City of Griffin[1938], this court held void an ordinance which forbade the distribution by hand or otherwise of literature of any kind without written permission from the city manager. The opinion pointed out that the ordinance was not limited to obscene and immoral literature or that which advocated unlawful conduct, placed no limit on the privilege of distribution in the interest of public order, was not aimed to prevent molestation of inhabitants or misuse or Tittering of streets, and was without limitation as to time or place of distribution. The court said that, whatever the motive,the ordinance was bad because it imposed penalties for the distribution of pamphlets,which had become historical weapons in the defense of liberty, by subjecting such distribution to license and censorship; and that the ordinance was void on its face, because it abridged the freedom of the press.Similarly in Hague v. C.1.0. [1939], an ordinance was held void'on its face because it provided for previous administrative censorship of the exercise of the right of speech and assembly in appropriate public places. The Los Angeles, the Milwaukee, and the Worcester ordinances under review do not purport to license distribution but all of them absolutely prohibit it in the streets and,one of them, in other public places as well. The motive of the legislation under attack in Numbers 13, 18 and 29 is held by the courts below to be the prevention of littering of the streets and, although the alleged offenders were not charged with themselves scattering paper in the streets, their convictions were sustained upon the theory that distribution by them encouraged or resulted in such littering. We are of opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it.Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press.This constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing Tittering. Amongst these is'the punishment of those who actually throw papers on the streets. It is argued that the circumstance that in the actual enforcement of the Milwaukee ordinance the distributor is arrested only if those who receive the literature throw it in the streets, renders it valid. But, even as thus construed, the ordinance cannot be enforced without unconstitutionally abridging the liberty of free speech. As we have pointed out,the public convenience in respect of cleanliness of the streets does not justify an exertion of the police power which invades the free communication of information and opinion secured by the Constitution...: While it affects others,the Irvington ordinance drawn in question in No. 11, as construed below, affects all those, who, like the petitioner, desire to impart information and opinion to citizens at their homes. If it covers the petitioner's activities it equally applies to one who wishes to present his views on political, social or economic questions. The ordinance is not limited to those who canvass for private profit; nor is it merely the common type of ordinance requiring some form of registration or license of hawkers, or peddlers. It is not a general ordinance to prohibit trespassing. It bans unlicensed communication of any views or the advocacy of any cause from door to door; and permits canvassing only subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and who may distribute it. The applicant must submit to that officer's judgment evidence as to his good character and as to the absence of fraud in the'project he proposes to promote or the literature he intends to distribute, and must undergoa burdensome and inquisitorial examination, including photographing and fingerprinting. In the end, his liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer's discretion. As said in Lovell v. City of Griffin, pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at very heart of the constitutional guarantees. Conceding that fraudulent appeals may be made in the name of charity and religion, we hold,a municipality cannot, for this reason, require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be carried to the homes of citizens; some persons may, while others may not, disseminate information from house to house. Frauds may be denounced as offenses and punished by law. Trespasses may similarly be forbidden. If it is said that these means are less efficient and convenient than bestowal of power on police authorities to decide what information may be disseminated from house to house, and who may impart the information,the answer is that considerations of this sort do not empower a municipality"to abridge freedom of speech and press. We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires. Nor do we hold that the town may not fix reasonable hours when canvassing may be done by persons having such objects.as the petitioner. Doubtless there are other features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty. We do hold, however,that the ordinance in question, as applied to the petitioner's conduct, is void, and she cannot be punished for acting without a permit. The judgment in each case is reversed and the causes are remanded for further proceedings not inconsistent with this opinion. So ordered. Reversed and remanded. MR. JUSTICE MCREYNOLDS is of opinion that the judgment in each case should be affirmed. f REPUBLICAN PARTY Republican Central Committee of San Luis Obispo County -. Post Office Box 1075 w San Luis Obispo, California 93406 (805) 541-4010 • Fax (805) 783-0905 August 17, 2004 Mayor David Romero City Council Members City of San Luis Obispo Dear Mr. Mayor and Council Members: On behalf of the Republican Party of San Luis Obispo (RPSLO), I wish to thank you for this opportunity to present to you our position in reference to the revocation of our permit at Farmer's Market. I have attached a copy of my letter to you dated August 3, 2004 in reference to this subject. I will not rehash that letter here, as I know you have all already read it and considered its content. I would, however, like to emphasize a few points. The staff report is riddled with misinformation and "spin". On page 6-1, under Background of Rules Development, the report claims stickers are a "significant problem for Public Works" and "particularly on Friday mornings." Since the political and nonprofit groups are being unconstitutionally singled out for enforcement, one would infer that the stickers come from political and nonprofit groups on Thursday nights. What does "significant" mean? Ten stickers? Two hundred? Are we privy to any Public Works clean-up time studies? According to a Public Works employee who spoke at the August 10 DA meeting, there was not an increase in stickers on Friday mornings. Are the stickers coming from political and nonprofit groups? A former TPA employee expressed to me that there was never a complaint concerning political stickers. Also, if one views the examples of stickers as presented, one would see NO political or nonprofit group stickers. The report then claims victory over the "sticker graffiti" issue with the rule change of 1998. This is quite an interesting claim given the fact that the rule has NEVER been enforced until 2004 and most of the political and nonprofit vendors knew nothing of the rule change, including vendors such as the SLO Police Department who hands out stickers to children at Farmer's Market. Z None of the political groups are guilty or responsible for any "graffiti" as inferred by the report. If there were a political sticker found downtown, it would be the perpetrator who is the guilty party. As stated in the attached letter, in Schneider v. State. 308 U.S. 147 (1939). The Supreme Court stated that, "the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing out literature to one willing to receive it." The court recognized that cities have the authority to prevent Tittering, but that it is the people who, "actually throw papers on the street7 who should be prevented and not the distributors. The DA is hanging its' hat on Wand v. Rock Against Racism, 491 US 781, 791 (1989) which states that reasonable restrictions can be placed on time, place or manner of protected speech. But for Ward to apply, the restriction must be without reference to content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and it must leave open ample alternative channels for communication of the information. We believe the rule meets none of the three criteria. The rule is unreasonable in that it completely forecloses an entire, important, and distinct form of medium of expression to political, religious, or personal messages. We believe it suppresses too much speech by prohibiting a commonly used method of expression. It is also too broad and not narrowly tailored as aftematives to stickers are inadequate substitutes for this important medium. The rule does not address a 'significant government interest as the Schnieder case does not allow us to be held responsible for the inappropriate behavior of others. On page 6-2 of the report it states that DA staff and I came to a "compromise" in February 2004 over the sticker issue. Compromise is when both sides of a disagreement give a little to reach a solution. There was no "compromise" in the traditional meaning of the word. My request to consider eliminating the rule was summarily turned down. Discussion ensued on how we could still get stickers to people that desired them, without using adhesive. The DA's solution was within the rules as written and I was given no choice. A few weeks later the dust settled and all groups began again giving out stickers and no one complained. Page 6-3 contains the rationale for the rule to continue. The arguments are based on false assumptions. 1. The amount of sticker graffiti has diminished. I say prove it! It has never been enforced until now and not too many groups knew about it, so how has ft had any effect? 2. City Public Works and DA staff claim reversing the rule will cause a return to vandalism and that there is insufficient staff to patrol the streets. Same argument as#1 above. 3. To equate political and nonprofit bumper stickers with spray paint used by street gangs for tagging is a stretch and an insulting one at that. Political stickers are not graffiti. Though the political parties spar here 1 and there, the displaying of"Bush" or" Kerry" stickers does not mark our turf and lead to gang violence. We are not criminals. We are not gangs wandering the street looking to damage property and people, but citizens voicing our First Amendment rights. Page 6-20 of the report explains the response from Public Works. They also claim "that there is not a 'sticker problem' in the downtown today ... because of the current rule and the strict enforcement by TNP staff." Clearly a false statement as the TNP has never enforced the rule until recently. I believe TNP is singling out political and nonprofit groups, clearly a violation of the Constitution. I have yet to hear from a single merchant vendor who has been harassed or threatened by the TNP. Yet, the stickers you see as evidence are from the merchants. Given the fact that this is where the problem lies, why are we being singled out? The rule is also unenforceable. Since our permit has been revoked, individual members of the Republican Party have been attending Farmer's Market registering voters and handing out bumper stickers, as is clearly their constitutional right in any public place. Collectively individuals have given out more Republican bumper stickers since we our permit has been revoked than in the in the last four years. Kind of silly, isn't it? We are asking that the rule banning stickers be revoked, our permit immediately reinstated, and our previous space assigned back to us for the August 19, 2004 Farmer's Market. To deny us our First Amendment right to free speech is unnecessary, unethical and unconstitutional. Thank you for your time and consideration. Sincerely, om ordonaro, Jr. Chair, RPSLO Cc: Bell, McAndrews and Hilltack ' REPUBLICAN PARTY Republican Central Committee of San Luis Obispo County Post Office Box 1075 San Luis Obispo, California 93406 (805) 541-4010 • Fax (805) 783-0905 August 3, 20004 Mayor David Romero City of San Luis Obispo Dear Mr. Mayor and Council Members: On behalf of the Republican Party of San Luis Obispo (RPSLO), 1 wish to thank you for this opportunity to present to you our position in reference to Thursday Night Promotions (Farmer's Market) and the revocation of our permit. I would like to be before you in person, but my work schedule has me in Northern California this week. We are asking that you eliminate the rule that bans stickers and adhesive materials from the Farmer's Market and immediately reinstate our permit. Our job at Farmer's Market is to register voters, engage questions, and handout candidate and party literature — in short, to exercise our right to free speech. The stickers in question, both bumper stickers and °I registered to vote" lapel stickers are essential to our business needs at the market. They provide an important mechanism to engage passers-by, draw them into our booth area and into conversation. It also becomes a mechanism for them to exercise their freedom of speech. Without both kinds of stickers, our ability to do our job is severely impacted. We believe that the rule is a solution in search of a problem. In the past it has never been enforced. Many groups hand out stickers including candidates, political organizations, merchants, SLO Police Department, and Cal-Trans. More recently in 2004, it has been inconsistently enforced, and in fact, it has only been enforced upon the Republican Party and the SLO Republican Women's Federated. During every Farmer's Market since the revocation of our permit other groups have handed out stickers, and their permits have NOT been revoked. This singling out of the Republican Party is clearly illegal. The RPSLO has had a booth and been a participant in the Farmer's Market for over 11 years, not sporadically, but consistently week after week. In that time, we have always offered stickers to the public and there has never been a complaint relative to vandalism where our stickers, or any other political groups stickers, ended up "stuck"to any object downtown. This information was giving to me by Mary Ann Stansfield, the previous Thursday Night Promotions employee who ran the Farmer's Market. Simply put—there is no problem. Besides, I thought the weekly fee charged for our booth was to cover any necessary cleanup of Higuera Street. The rule is also unenforceable. Since our permit has been revoked, individual members of the Republican Party have been attending Farmer's Market registering voters and handing out bumper stickers, as is clearly their constitutional right in any public place. Collectively individuals have given out more Republican bumper stickers in the last three Thursday nights at Farmer's Market than in the last sic months from the booth. While at the same time, the RPSLO has not had to spend the $16 per week to sit in one spot with their booth. The rule is clearly unconstitutional. In Schneider v. State, 308 U.S. 147 (1939), leaflets had been distributed to announce a protest meeting. Some people threw the leaflets on the sidewalks and the street. The City then drafted an ordinance to prohibit the distribution of leaflets, on the grounds that it was a reasonable way to prevent littering. The Supreme Court stated that, "the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing out literature to one willing to receive it." The court recognized that cities have the authority to prevent littering, but that it is the people who, "actually throw papers on the street"which should be prevented and not the distributors. This opinion has been upheld again and again since 1939. Most recently, in 1994, our own California Supreme Court upheld this ruling in City of Fresno v.Press Communications, Inc., 31 Cal. App. 4"' 32 (1994). The California Supreme Court not only upheld this ruling, but it also added that if a City is going to regulate the distribution of certain kinds of publications, it must be prepared to regulate the distribution of all publications. If Thursday Night Promotions is going to prohibit the distribution of stickers, it must also be prepared to prohibit the distribution of any publication, including those distributed by non-profit organizations, PTA's, religious groups, law enforcement, everything. We are asking that the rule banning stickers be revoked and our permit immediately reinstated. To deny us our first amendment right to free speech is unnecessary, unethical and unconstitutional. Thank you for your time and consideration. Sincerely, �9 om J. naro, Jr. Chair, RPSLO Cc: Bell, McAndrews and Hilltack I SII!IIIIIIiI���������IIIIillll� •. council liaison nEpoit c of san suis omspo. o�fce_of the crrtyic_ouncil RED FILE DATE: August 16, 2004 MEETING AGENDA DAATE 8'n& 4 ITEM # Z TO: Council FROM: David F. Romero, Mayor--- SUBJECT: Whale Rock Commission Meeting August 12, 2004 The Whale Rock Commission met on August 12, 2004 to discuss a response to National Marine Fisheries Service (now referred to as NOAA Fisheries) relative to the Habitat Conservation Plan (HCP) for steelhead in Old Creek. Staff have been working for several years with NOAA Fisheries staff and consultants to develop a HCP in the event of future steelhead spawning in Old Creek below Whale Rock Dam. Recently, NOAA Fisheries staff requested additional analysis and studies which were not deemed necessary by Commission staff and the Whale Rock Commission. The attached correspondence was approved by the Whale Rock Commission and provides additional background and discussion of the issues raised by NOAA Fisheries. If you have any questions or would like additional background information, please contact Gary Henderson (Whale Rock Commission staff) at extension 237. COUNCIL cDD DIR CAO IN DIR - ACAO IFIRE CHIEF ATTORNEY PW DIR CLERK/ORIG POLICE CHF ❑ DEPT HF,.ADS REC DIF HV UTIL DIR I-!Fl, DIP, - _! COUNCh! I C I WHALE ROCK COMMISSION August 12, 2004 Mr. Rodney R. McInnis Acting Regional Administrator NOAA Fisheries Southwest Region 501 W. Ocean Blvd., Suite 4200 Long Beach, CA 90802-4213 Subject: Old Creek Steelhead Dear Mr. McInnis: This letter is in response to your correspondence dated June 10, 2004 relative to steelhead in Old Creek downstream of the Whale Rock Reservoir. As you are probably aware, the Whale Rock Commission has been working with several consultants for many years in an effort to prepare a Habitat Conservation Plan and obtain a Section 10(a)(1)(B) permit in the event of future steelhead spawning or migration in Old Creek below Whale Rock Dam. To date, the Commission has expended in excess of$100,000 in studies and research, while involving your agency's staff from the inception of the work. The studies and project direction have always focused solely upon evaluation of the suitability of habitat downstream of the dam to determine appropriate measures in the event of future steelhead occurrences in Old Creek. Background Regarding Proposed Habitat Conservation Plan Our staff requested comments on the Phase I report prepared by URS Corporation to ensure that your agency concurs with the direction being proposed for the next phases for the preparation of a Habitat Conservation Plan (HCP). Commission staff were surprised that your staff did not provide any comments on the actual Phase I report but instead requested an analysis of the feasibility of providing access to the historical spawning and rearing habitat upstream of the reservoir. This request comes years after your staff requested that the Commission prepare a HCP for Old Creek. At one time, the issue of steelhead access to the areas upstream of the reservoir was a valid question. We believe that this issue has been analyzed several times in the past by the Department of Fish and Game (one of the responsible resource agencies) as discussed below. The enclosed correspondence documents previous review of the feasibility of providing passage around the dam and/or removal of the dam. I � Old Creek Steelhead Page 2 Removal of Dam Perhaps some background on the Whale Rock Reservoir and the critical need for the water supplied from this facility will be helpful in your review of this letter and of the entire Old Creek issue. Construction of Whale Rock Reservoir commenced in October 1958 and terminated in April 1961. The dam has a maximum storage capacity of 40;660 acre feet with a drainage area above the lake of 20.3 square miles. This watershed area above the lake is very small for a reservoir of this size. Because of the small drainage area and run-off characteristics of the watershed, the safe annual yield from the reservoir is approximately 4,000 acre feet. The reservoir has spilled on only eight occasions (1973, 74, 75, 80, 82, 83, 96, 97) since the dam was completed. The spills typically occur in multiple years with long periods of no spills. The Whale Rock Commission member agencies have water storage capacities proportionate to their ownership ratios in the dam and facilities. The City of San Luis Obispo (City) has 55%, California State Polytechnic College (Cal Poly) has34%, and the California.Men's Colony (CMC) has 11%. Based on the ownership percentages and the safe annual yield of 4,000 acre feet, the City has approximately 2,200 acre feet of safe annual yield, Cal Poly has 1,360 acre feet and CMC has about 440 acre feet. In addition to these water supplies, the Cayucos Area Water Organization (the three water companies that serve the town of Cayucos) have an entitlement of 600 acre feet per year from the reservoir. The reservoir is a critical water supply for all of these agencies and will be relied upon into the foreseeable future to meet the water needs for these areas. No alternative water supply is available should the reservoir cease to operate. Because the facility provides the only source of water supply for Cal Poly and the town of Cayucos, and is a key supply component for CMC and the City of San Luis Obispo, removal of the dam is not feasible. Steelhead Passage Over the Dam The dam is located very close to the Pacific Ocean (approximately 1/2 to 3/a miles). The dam crest is approximately 190 feet above the creek water level below the dam. The close proximity to the ocean and significant height would make construction of a fish ladder infeasible. The Department of Fish and Game agrees, as documented below. Successful reestablishment of steelhead spawning and rearing in the area above the dam requires two elements missing from the environment: (1) a means of passage back to the creek below the dam; and (2) adequate viable habitat to allow for the smolting process. The lack of these two vital elements represent the primary impediment to steelhead recovery efforts on Old Creek. The following prior evaluations for providing fish passage over the dam have concluded that these efforts are not warranted and would likely be unsuccessful. Fish and Game Commission Following construction of the dam, the Fish and Game Commission conducted a hearing (October 2, 1964) to consider conditions relative to the loss of steelhead access due to Old Creek Steelhead Page 3 construction of the dam. The Department of Fish and Game provided testimony at the hearing. Finding#6 (from the ruling) below directly relates to the issue of fish passage over the dam: 6. "The construction, operation and maintenance of a fishway to permit the free passage of fish over and around said dam is impractical and unnecessary because of the height of the dam and other conditions." Based on this and other findings, the Fish and Game Commission required that the Whale Rock Commission plant 17,500 rainbow trout annually in the reservoir. It should be noted that Whale Rock Commission staff are not aware of any plantings of non-native trout in the reservoir. Commission staff have worked for many years, in conjunction with the Department of Fish and Game, in a trapping, spawning, rearing and release program of the native trout in the reservoir in an effort to maintain the genetic stock at Whale Rock. The native trout within the reservoir may be of considerable value if efforts to restore the steelhead within the South-Central California Evolutionary Significant Unit are unsuccessful. Department of Fish and Game In the early 1990's, the City of San Luis Obispo requested a time extension for the water rights permit for Whale Rock Reservoir. During the review period, California Sportfishing Protection Alliance (CSPA) filed a protest with the State Water Resources Control Board relative to the impacts on the steelhead population in Old Creek as a result of the construction of the dam. City staff met with CSPA and Department of Fish and Game (F&G) staff to discuss options available to mitigate the loss of steelhead habitat attributable to the dam. F&G in the attached letter dated February 21, 1992 stated: "...there isnot sufficient habitat to support a steelhead resource of any consequence. The only use of this area by steelhead occurs on the rare years that the reservoir spills. During this time, straying steelhead trout may enter the creek mouth and migrate upstream to the base of the dam. Lack of spawning gravels prevent any successful reproduction during these events. Trout in the reservoir may spill downstream and enter the ocean, but essentially are lost from the Old Creek spawning population. Though "trap-and- truck" operations may be technically feasible, the complete lack of suitable downstream habitat and the inundation of significant upstream habitat by the reservoir makes this less desirable. There is very little opportunity for onstream restoration of the steelhead fishery." Pennington Creek Improvements Based on the review of this information, the City worked with F&G staff and CSPA to identify offsite mitigation measures to resolve the protest. Pennington Creek was identified as the best candidate location for mitigation for the loss of habitat on Old Creek. Pennington Creek is located between Morro Bay and the City of San Luis Obispo and is tributary to Chorro Creek which flows into Morro Bay estuary. There were four existing obstructions on Pennington Creek which precluded steelhead fish migration. F&G staff determined that removal of these obstructions would provide quality steelhead habitat to replace the miles of habitat lost on Old Creek as a.result of the dam construction. The City of San Luis Obispo agreed to develop a plan for the removal of these migration barriers and to provide the necessary funds if the water rights Old Creek Steelhead Page 4 permit protest was withdrawn. CSPA and F&G agreed to this plan and the protest was withdrawn. A condition was added to the City's water rights permit acknowledging this agreement and requiring the removal of the barriers. The City worked for several years on the design and permitting of the facilities necessary to provide fish passage around these barriers. This work required significant staff time and complicated negotiations with the property owners of the lands that the obstructions were on. The City completed the project in 1999 with final construction costs in excess of$250,000. Summary Based on the discussion above and the attached letter, the Commission is in agreement with F&G that passage around the dam is infeasible and has also determined that removal of the dam is not feasible. The Commission would therefore request your agency's review and comment on the Phase I Study of Old Creek. The Commission would appreciate your agency's comments relative to the direction for proceeding with the development of a Habitat Conservation Plan to obtain a Section 10 permit. If you have any questions or need additional information., please contact Gary W. Henderson at 805-781-7237. Sincerely, David F. Romero Whale Rock Commission Chair Attachment: Department of Fish and.Game correspondence dated February 21, 1992 c: Susan Petrovich, Hatch &Parent Cayucos Area Water Organization Noel King, Public Works Director, County of SLO Robert Ray, URS Corporation I I Charter COMMUNICATIONS' A WIRED WORLD COMPANY,,, VIA CERTIFIED MAIL Betsy Kiser—Principal Administrative Analyst August 9, 2004 City of San Luis Obispo 990 Palm St. San Luis Obispo, Ca. 93401 Dear Betsy: Charter Communications takes great pride in providing our customers with the most advanced products and services available on our broadband network. Charter continues to be at the forefront of new technology through its offering of high definition television service, digital video recording services, and video-on-demand programming. To meet our customers' requests for more programming choices, Charter will be increasing the programming in our Digital Sports Tier. As of September 1, ESPN News, the NFL Network and the Outdoor Channel will be added to this digital sports lineup. Charter is also excited to announce that we are adding HBO East and Cinemax East to the HBO and Cinemax packages. Our customers will now be able to watch their favorite shows and movies 3 hours earlier! No need to stay up late to watch great shows like Six Feet Under and Curb Your Enthusiasm, since they will be on during prime viewing hours Our corporate goal is to focus on the customer, exceeding expectations for our entertainment products, customer service standards, and pricing. However, in order to continue investing in our network and satisfy our customers with new products and services, and as a result of increased programming and business costs, we find it necessary to adjust our pricing. Customers will see a monthly increase of$2.09 on the Expanded Lineup. I am happy to say that our Broadcast Basic service will remain at the same price of$20.20. Our Digital Value packages will be adjusted with an increase of $3.00 per month; however, customers in the Digital Packages will not see the expanded basic rate increase of$2.09. As always, keeping you and our customers informed about any changes in our services is an important part of our relationship. Customers were mailed a brochure at the end of July, which outlines our new programming and service changes complete with a new channel card for our customers' use. I have enclosed a copy of this brochure. In addition, I have also included a copy of the bill message utilized to communicate these changes to our customers. 270 Bridge Street• San Luis Obispo, California • 93401 wvmc6artercamxem• tel:805.544.1962 • fax:805.S41.6042 Charter is confident that these additions to our programming will provide our customers with more programming selections, more service alternatives and ultimately more choice! Should you have any questions at all regarding this matter, please feel free to contact me directly at (805) 783-4948. Sincerely, Sylvia Biddle Government Relations Manager Central California Enclosures . _- �•W��y, , ' / J/// �'-r M� X39955 6350-0020 a t r 9 ne oo1re IMPORTANT INFORMATION Dear Valued Customer, At Charter Communications,keeping you informed is an important part of our relationship.During the past year,we continued to make improvements to our network,increasing reliability.We created new programming options,giving our digital customers more choice.We continue to keep you informed about your community on our government,educational,public and local access channels. Our high-speed Internet service was voted best in SLO County for the third year in a row by New Times and Tribune readers. We also strive to keep rates fair and,competitive. Like all businesses,we have seen increased costs in our daily operations,for everything from utilities to programming costs. Like all cable and direct broadcast companies, Charter must pay programmers a monthly license fee for channels we deliver to you. Programming costs have increased as much as 20%or more this year.As a result,effective with your September statement, Charter will adjust the price of our combined expanded and broadcast basic service from$39.95"to$42.04`. If you are a subscriber to our broadcast basic level of service only(Channels 2-25 plus 95,96 and 98)your rate will remain the-same at$20.20'. The rates and charges for Charter services are based on formulas supplied by the Federal Communications Commission(FCC). Customers who are currently being billed$49.99.for the Big Value Package;$62.99 for Bigger Value Package;$65.99 for the Biggest Value Package;or$45.95 for the Digital Starter Package will be adjusted with an increase of$3.00 per month,effective with your September billing.Customers in these or any other digital package will not get the expanded basic rate adiustment as noted above.These digital packages remain a great value, as they are still priced lower than similar products offered by our competitors. Plus,our value packages include your choice of any one of our special-interest digital tiers: -Family&Information !The Movie Tier -The Sports Tier -The Latino Tier -{- New Channel Additions on September 1: -HBO/Cinemax Premium Package.We are pleased to announce the addition of HBO East and Cinemax East to the HBO and Cinemax channel lineups.You will now be able to watch your favorite shows and movies 3 hours earlier. No need to stay up late to watch great shows like Six Feet Under and movies like Sea Biscuit The 'll n during earlier viewing hours. -The Sports Tier.We are adding 3 channels to the digital Sports Tier. o ESPNews. Live news conferences. Recaps of the day in sports. On-location analysis immediately after the game. ALL the news from the sporting world. o The Outdoor Channel.This channel was founded by outdoorsmen for outdoorsmen and features fishing, hunting and shooting sports. Programs focus on activities that the entire family can enjoy in the great outdoors. o Tie NFL Channel.A 24-hour,7-day a week network dedicated solely to the NFL. Its the destination for all that happens throughout the league,on and off the field,during the season and through the off-season.The network will rebroadcast condensed versions of memorable regular season games,as well as interviews with the league's most successful coaches and players. If you already subscribe to HBO/Cinemax or the Sports Tier,these channels will be added at no additional cost. Lastly,on September 1, QVC will move to Channel 13. We appreciate your business and will continue to strive to provide you with the best value and choice in local programming, digital television and Internet access service.Thank you for being a Charter customer. Sincerely, Edward L. Merrill Vice President and General Manager Prices do not include FCC fees,franchise fees,sales taxes and other local fees and taxes. If you have any questions regarding these changes, please call us at 1-866-499-8080, or visit any of our local offices.