Public Comment

An Open Letter to the Berkeley City Council and City Manager

Carol Denney
Friday September 07, 2018 - 01:22:00 PM

The Downtown Berkeley Association has declared its intention to continue ripping down community fliers on September 1, 2018, citing a memo (see below) which concludes, "removing signage posted on public infrastructure is outside the scope of the City's contract with the DBA." They have included no new information. There does not appear to have been any effort to involve commission input, etc.

Director Caner also plainly states in the letter below that he and his cleaning crew intend to make content-based distinctions between fliers, choosing which can and can't remain in places where it is legal to post according to their content. This violates the First Amendment.

Could the City Council please put a moratorium on the DBA's destruction of community fliers? It is election season and a back-to-school time of year when promotions and events need all methods of outreach. My own perhaps imperfect understanding is that the city may have the right to outlaw all fliers, but cannot make distinctions based on content without violating the Constitution. 

Thank you,

Carol Denney
1970 San Pablo Avenue #4
Berkeley, CA 94702

-------- Forwarded Message -------- 




Re: Removal of Flyers in the Downtown  




Thu, 30 Aug 2018 10:19:38 -0700  




John Caner  




Carol Denney  





We were told by the City Manager’s office a couple weeks ago that the prior City Attorney’s OFF-AGENDA MEMORANDUM Re: Removal of Fliers still stands and we can reinstate removal of flyers. Therefore we plan to start removing flyers again starting September 1, except for “temporary signs concerning noncommercial events in the form of posters, placards, cards, stickers, or fliers…that are affixed to City-owned utility poles and lampposts in a manner consistent with standards promulgated by the Department of Public Works” as allowed by city ordinance. In addition, I have also told our Ambassador staff to be particularly mindful about NOT removing ANY election related material through election day. 


Best, John 


John Caner, CEO
Downtown Berkeley Association
2230 Shattuck Ave., Suite C
Berkeley CA 94704
510.549.2230 x12 



From: Carol Denney
Date: Wednesday, August 29, 2018 at 10:31 AM
To: John Caner
Subject: Re: FW: Removal of Flyers in the Downtown 


Dear Mr. Caner,

I haven't heard back from you or the City Manager about the flier issue, and want to make sure we're all up to date - is there
any progress? Thanks,

Carol Denney

On 5/24/2018 12:26 PM, John Caner wrote: 

Here is my email of May 10 


From: John Caner
Date: Thursday, May 10, 2018 at 12:44 PM
To: City Council
Cc: Brea Slimick , "Klein, Jordan" , Dee Williams-Ridley , Carol Denny
Subject: Removal of Flyers in the Downtown 


Dear Mayor and City Council, 


We are in receipt of Ms. Denny’s letter to Council yesterday, date May 9, 2018 


On Tuesday this week (May 8) I received a call from Breanne Slimick regarding a complaint regarding DBA Ambassadors, and later that day received a unscheduled visit from Ms. Denny. I told them both that we would immediately suspend taking down flyers until we can get clarification from City. I also told them that we had a policy of not taking down nonprofit and political flyers (i.e., noncommercial) as per city regulations, but will be review the policy with City before taking down any more flyers. Moreover, Ms. Denny requested an written confirmation of this suspension. I wrote her the attached email and gave her a hard copy before she left our office. 


In response to this issue regarding removal of flyers in the Downtown: 


1) I would like to draw your attention to City Attorney Zach Cowan’s Off-Agenda Memorandum re Removal of Fliers.  

In his memo he states, “…BMC section 20.16.010.A generally prohibits signs on public right of way, including utility poles and light poles, subject to some limited exceptions. The relevant exception here is temporary signs concerning noncommercial events...” He also writes in a footnote that “The exceptions are not required by the First Amendment – a city may completely ban all signs on the public right of way…” 


2) The Scope of Services from our contract with the City does not provide specific permission to remove flyers, but states that our environmental enhancements will include “:Maintenance teams that sweep, scrub and pressure wash sidewalks, remove litter and graffiti, increase the frequency of trash removal and maintain landscaping throughout the District.” Neither does it give us permission for animal and human waste removal, and other cleaning and maintenance functions, but we do it within the general scope to maintain a clean and welcoming Downtown. 


Similarly the DBA contract with the City does not give us specific permission to weed planters or tree wells, but states we will provide "Beautification and placemaking improvements that make Downtown Berkeley more visually attractive, which might include enhanced, landscaping, holiday décor, way-finding signage, trash receptacles, streetscape, planters, urban design plans, bike racks, programming of BART Plaza and other public spaces, etc.” Hence we weed planters and tree wells to maintain the overall the overall visually attractive appearance of the District. 


We will work with City staff to get further clarification on this issue, so we abide by the City regulations to protect temporary signs concerning noncommercial events, but also meet the goals of a clean, vibrant and welcoming Downtown. 


I think most of us would agree that having the our street poles and other fixtures in Downtown and other commercial districts covered with commercial flyers is not in the general interest of the Berkeley community. 




John Caner, CEO
Downtown Berkeley Association
2230 Shattuck Ave., Suite C
Berkeley CA 94704
510.549.2230 x12