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)
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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
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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
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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
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270 Bridge Street• San Luis Obispo, California • 93401
wvmc6artercamxem• tel:805.544.1962 • fax:805.S41.6042
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Sylvia Biddle
Government Relations Manager
Central California
Enclosures
. _- �•W��y, , ' / J/// �'-r M� X39955 6350-0020
a t r
9
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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
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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
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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
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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
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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
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