STAFF REPORT
Meeting Date: May 2, 2023
To: Honorable Mayor & City Council
From: Keith Sterling, Deputy City Manager
Laurence S. Wiener, City Attorney
Subject: Discussion of the City’s Process for Approval of Murals and a Request by the Rotary Club of Beverly Hills to
Create a Legacy Mural Honoring the Community
Attachments: None
INTRODUCTION
The City of Beverly Hills periodically receives requests from business owners and community members regarding the creation of murals to display painting or artwork on walls in the City. This staff report provides information about how mural requests are currently handled, as well as information about requests that the City has recently received. Staff is requesting City Council feedback regarding the appropriate actions to take in response to continued requests for murals in the City.
DISCUSSION
Typically, there are two paths for approval of a mural.
The first involves review and consideration by the Arts & Culture Commission to identify a potential location and the subject matter and artwork to be depicted. Once a recommendation is approved by the Commission, the final item is brought to the City Council for approval.
An example of a mural approved through this process (then the Fine Art Commission) is the 2019 installation of the Tomokazu Matsuyama designed mural on North Cañon Drive near the construction of the Metro Purple Line.
The second path is for murals on private property that are proposed by the owner or tenant of a building and are reviewed and approved by the Architectural Commission.
While there are no restrictions as to who the artist can be for this type of mural approval, the Beverly Hills Municipal Code (BHMC) states that this approval process can only be used for “mural or environmental graphic” that consists of “architectural and landscape features, such as trompe l’oeil.” BHMC 10-4-319 reads as follows:
“…the architectural commission may grant a sign accommodation to authorize the installation of a mural, or similar environmental graphics, if such mural or environmental Meeting Date: May 2, 2023
graphics consist of architectural and landscape features, such as trompe l'oeil. Any mural or environmental graphics which identify a business or building by logo, trademark or slogan, shall be included in the calculation of the business or building identification sign area.”
Recently, staff has been contacted by several groups and individuals, including the Rotary Club, that are interested in installing murals in the City that may not clearly fit within an existing approval process. For example, staff has been contacted by artists who are interested in creating murals with political messages, which would not be processed through the Arts & Culture or Architectural Commission Review process.
CONSIDERATIONS
Murals, as artwork and a form of expression, have long been held to be expression protected by the First Amendment. There are different standards for how local governments can regulate murals when those murals are located on public property or on private property.
Permissible Regulations on Murals on Public Property:
Governments have a great ability to control speech on government property that is not open to the public for expressive activity (“nonpublic forums”). These nonpublic forums include places like government office buildings or utility poles. For nonpublic forums, government agencies have the right to “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” For example, a Los Angeles Municipal Code prohibition that forbids posting signs on City-owned utility poles was constitutional because utility poles represented a nonpublic forum, and the intended purpose of the utility poles was not communicative in nature.
The United States Supreme Court has also consistently held that governments can control statements made on their behalf on their own property and can decline to express certain views. For example, the District of Columbia installed a “Black Lives Matter” mural on a street in the City facing the White House. A group then sued the City to paint “Trucker Lives Matter” on a street near the headquarters of the U.S. Department of Transportation and the City refused to allow it. A district court concluded that the “Black Lives Matter” mural was government speech, as the City endorsed, controlled, and maintained the mural. The court also recognized that the City has exclusive control of painting of City streets and the streets are not a public forum for murals. Therefore, the City could refuse to paint the “Trucker Lives Matter” mural on its streets.
Government Regulation of Speech on Private Property
Murals on private property are treated as private speech and subject to First Amendment speech protections. Restrictions on content of private speech are presumptively invalid.
Therefore, any attempt to control the message on a mural will likely be found to be unconstitutional. For example, a bait and tackle shop sued the City of Clearwater, Florida challenging the City’s municipal code that placed size restrictions on signs and murals in non-residential districts but did not have size restrictions for signs and murals that displayed holiday-related messages. The bait shop had commissioned a mural on the side of its building that depicted a scene of local game fish to educate the public.
There was no writing in the mural and the mural contained images of fish, specifically Meeting Date: May 2, 2023
local game fish. The City cited the bait shop in part for a violation of the size restrictions on signs and murals in non-residential districts. The court concluded that the distinction in the municipal code for regulating signs and murals with holiday-related messages and those without such messages was an unconstitutional content-based regulation.
Additional Due Process Requirements for Mural Regulations In addition, any regulations on murals must be clear so that a person of ordinary intelligence would understand the regulations. The Supreme Court has consistently held that “[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” For example, a New Orleans permit scheme for murals was unconstitutionally vague because the municipal code did not clearly define what a mural was nor did it clarify whether any paint on an exterior surface would qualify as a mural.
RECOMMENDATION
Due to the Rotary Club’s role as a civic organization with a mission of public service, staff recommends the City Council direct the Rotary Club of Beverly Hills to present their recommendations to the Arts and Culture Commission for consideration and also determine the level of enforcement desired regarding the unauthorized creation of murals throughout the City. Staff also recommends that the City Council provide direction regarding other murals that are proposed that do not clearly fall under the jurisdiction of the Arts and Culture Commission or the Architectural Commission.
FISCAL IMPACT
It is anticipated that, if approved, the Rotary Club of Beverly Hills will pay for the mural with no cost to the City.
Laurence S. Wiener,
City Attorney
Keith Sterling,
Deputy City Manager
Approved By Approved By