Oakland Municipal Code Ch. 5.06 Advertising Matter

The following ordinance is an initiative measure adopted November 8, 1932:

AN ORDINANCE REGULATING THE DISTRIBUTION OF ADVERTISING MATTER UPON PRIVATE PROPERTY, PROVIDING A PENALTY FOR VIOLATION HEREOF, AND REPEALING ORDINANCE NO. 3144 AND ALL ORDINANCES IN CONFLICT HEREWITH.

BE IT ORDAINED by the qualified Electors of the City of Oakland as follows:

SECTION 1. DEFINITIONS. For the purpose of this Ordinance the following words and phrases are defined as follows:

(a) PERSON. A person is an individual, association, firm, copartnership or corporation.

(b) PRIVATE PROPERTY. Private property is any parcel of real property in the city of Oakland, or any dwelling, residence, or other building thereon.

(c) ADVERTISING MATTER. Advertising matter is any broadside, booklet, card, circular, dodger, handbill, poster, newspaper, or other advertising medium of similar nature, excluding, however, any newspaper eligible for entry as second-class matter under the provisions of the United States Post Office Regulations of March 3, 1879, and other regulations and statutes of the United States.

SECTION 2. UNLAWFUL TO DISTRIBUTE IN CERTAIN CASES. It shall be unlawful to distribute or cause to be distributed any advertising matter in or upon private property when,

(a) There is erected or painted in a conspicuous place upon such property a sign containing the words, "No advertising matter" or other words of similar import; or

(b) It is apparent that said property is vacant; or

(c) It is apparent that a previous day's distribution of advertising matter has not been removed.

SECTION 3. MANNER OF DISTRIBUTION. Subject to the provisions of the preceding Section of this Ordinance, it is hereby declared to be unlawful for any person to distribute or cause to be distributed in or upon any private property any advertising matter except in the following manner, and distribution in such manner is hereby declared to be lawful:

(a) By placing the same in a receptacle, clip, or other device designed or intended to receive advertising matter when such receptacle, clip, or other device shall have been erected in a conspicuous place near the front door or front entrance or near the mail box of any private property; or

(b) If no such receptacle, clip, or other device shall have been erected as hereinabove provided, then by handing said advertising matter to an occupant of said property, or placing the same upon the porch or vestibule of a house or building on said private property, provided that in the latter case, said advertising matter is wrapped, tied, folded, or otherwise so prepared or placed that it will not be blown therefrom by the winds.

SECTION 4. UNLAWFUL TO DISTRIBUTE WITHOUT PERMIT. It is unlawful for any person, except the holder of a distributor's permit granted pursuant to the terms of this Ordinance, to distribute or cause to be distributed by his or her employees or otherwise, any advertising matter.

SECTION 5. GRANTING OF PERMIT. Any person desiring a distributor's permit shall file an application therefor with the City Clerk upon forms to be furnished by said City Clerk, and containing such pertinent information as the City Clerk may require.

Forthwith upon filing such application, said City Clerk shall issue a distributor's permit to the applicant, together with a serial number thereon, without cost therefor and without any period of expiration thereof, provided, however, that, in the event that a distributor's permit previously issued to the applicant shall have been revoked, then such permit shall not be issued to the applicant without the consent of the Chief of Police. The Chief of Police shall consent to the issuance of such permit if the applicant, in the sound discretion of the Chief of Police, despite the previous revocation of his distributor's permit, is a fit and proper person to hold such permit.

SECTION 6. REVOCATION AND SUSPENSION OF PERMIT. Any distributor's permit issued under the provisions of this Ordinance may be revoked by the Chief of Police in the event that the holder of such permit or any of his or her employees is distributing advertising matter contrary to the provisions of this Ordinance, and to such an extent that, in the discretion of the Chief of Police, the holder of such permit is not a fit and proper person to hold the same. Such revocation shall be made only after a hearing granted to the holder of such permit before the Chief of Police upon five days' notice to such permit holder, setting forth the grounds of complaint against him and stating the time and place where such hearing will be held. Such hearing may be continued from time to time. Upon revocation of any distributor's permit the same shall be forthwith surrendered to the Chief of Police, providing, however, that, if an appeal is taken from the order revoking such permit as hereinafter provided for, said order of revocation shall be stayed until a final determination of such appeal by the City Council. A distributor's permit may be suspended by the Chief of Police for a definite period of time for the same reasons and subject to the same limitations and procedure as provided for the revocation of such permit.

SECTION 7. METHOD OF APPEAL. An appeal may be taken to the City Council from any order of the Chief of Police, denying, revoking, or suspending a distributor's permit by filing with the City Clerk, within fourteen days after notice of the action appealed from, a written notice of such appeal setting forth the grounds thereof. The City Clerk shall forthwith set said matter for hearing before the City Council and cause notice thereof to be given to the appellant not less than five days prior to such hearing. Such hearing may be continued from time to time by the City Council. The City Council, in the exercise of a sound and reasonable discretion shall, upon such appeal, have the power to reverse, modify or affirm the action appealed from.

SECTION 8. MANNER OF GIVING NOTICE. Any notice required by this Ordinance must be in writing and may be given by personal service or by mail. In case of service by mail, notice must be deposited in the United States Post Office, or in a United States post box, in a sealed envelope with postage thereon prepaid, addressed to the person on whom it is to be served at his or her last known address. Service shall be deemed completed at the time of the deposit of the same in such post office or post box.

SECTION 9. PERMIT NUMBER TO BE ON ADVERTISING MATTER. It is unlawful for any person to distribute or cause to be distributed any advertising matter to or upon any private property unless there shall be printed, stamped, or otherwise clearly designated in legible characters in a conspicuous place on the front page of each and every piece of advertising matter, the words "Distributor's Permit No._____," with the permit number designated by the City Clerk inserted thereon.

SECTION 10. CONSTITUTIONALITY.

If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance.

SECTION 11. PENALTY.

Any person violating any provision of this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not more than one hundred dollars, or by imprisonment in the city jail for a period of not more than twenty days, or by both such fine and imprisonment.

SECTION 12. REPEAL. Ordinance No. 3144 and all ordinances in conflict herewith are hereby repealed.

SECTION 13. TAKING EFFECT. This Ordinance shall take effect five days after the declaration of the official canvas.

(Prior code § 5-3.01)

A. Except as otherwise provided in this code, it is unlawful for any person, candidate or political committee, except a public officer or employee in the performance of his or her duty, to post, stick, stamp, paint, mark, staple, or otherwise affix any sign, banner, billboard, pennant, flyer, poster, notice, handbill, or advertisement of any kind:

1. Upon any private property, without permission in writing from the owner, agent, trustee or occupant of such premises; or

2. Upon any public property, which includes, but is not limited to:

a. Any sidewalk, crosswalk, curb, curbstone, street lamp post, hydrant, public tree, public shrub, public tree stake or guard, railroad trestle, electric light or power or telephone or telegraph or trolley wire pole, or wire appurtenance thereof or upon any fixture of the fire alarm or police telegraph system or upon any public lighting system, upon bridge, public drinking fountain, public ornamental fountain, public life buoy, public life preserver, public life boat or other life saving equipment, street sign, traffic sign, public building, improvement or facility, or

b. On any public trash or garbage receptacle, or parking meter; or

3. To suspend any banner, sign, or advertising notice from, or attach the same to, any wire or other device crossing or overhanging any public street, sidewalk, park, thoroughfare or right-of-way, without the written permission of the city.

B. Nothing contained in this section shall apply to the installation of terrazzo sidewalks or sidewalks of similar construction, sidewalks permanently colored by an admixture in the material of which the same are constructed, and for which the city has granted a written permit.

C. Nothing in this section shall apply to the painting of house numbers under curbs done under permits issued by the city.

D. Any sign, banner, billboard, pennant, flyer, poster or handbill found, placed, painted, marked, written upon, posted, stapled, taped, glued or otherwise affixed upon any public property contrary to the provisions of this section may be removed immediately by the city.

E. As defined in this section, "sign" shall include, but not be limited to, any sign designed to influence voters to support or oppose any candidate or ballot measure.

F. As defined in this section, "candidate" shall include any person who seeks nomination or election to an office at any election.

G. As defined in this section, "political committee" shall include any committee, organization, association, or corporation organized for the purpose of charged with the duty of conducting the election campaign in support of or in opposition to any candidate or ballot measure at any election.

H. As defined in this section, the term "public" shall include any facility, structure, building, property activity or object which is owned, leased, or otherwise operated, controlled or managed by the city of Oakland, Redevelopment Agency of the city, any department, office, agency or sub-agency of the city.

(Prior code § 5-3.02)

It is unlawful for any person upon any public sidewalk or in any street in the city, to carry, bear or support any banner, sign, transparency, framework, device or emblem used, or purported to be used, or intended, as an advertisement of any trade, profession or business, place of business, office, store or occupation, or to distribute, by hand or otherwise, upon any sidewalk, street, square or other public place, or to throw upon any sidewalk, street, square or other public place, any advertisement, bill, poster, flyer, notice or advertisement, device or emblem used, or purporting to be used, or intended as, an advertisement or notice of any article or merchandise, or of any trade, business, profession, office, store, or occupation of any person.

(Prior code § 5-3.03)

It is declared to be unlawful for any person to place, stick or affix, or cause or permit any other person in his or her behalf to place, stick or affix, any broadside, booklet, card, circular, dodger, handbill, poster, or any other advertising medium of a like or similar nature, in or upon any automobile or other motor vehicle not in such person's rightful possession, while said automobile or other vehicle is in or upon any public street, highway or other public place.

(Prior code § 5-3.04)

It is unlawful for any person in any newspaper, magazine, circular, form letter or any open publication published, distributed or circulated in the city, or on any billboard, card, label or other advertising medium, or by means of any other advertising medium or device, to advertise, call attention to, or give publicity to, the sale of any merchandise, which merchandise is secondhand or used merchandise, or which merchandise is defective in any manner, or which merchandise consists of articles or units or parts known as "seconds," or blemished merchandise, or which merchandise has been rejected by the manufacturer thereof as not first class, unless there are conspicuously displayed directly in connection with the name and description of such merchandise and each specified article, unit or part thereof, a direct and unequivocal statement, phrase or word which will clearly indicate that such merchandise, or each article, unit or part thereof, so advertised is secondhand, used, defective, or consists of "seconds" or is blemished merchandise, or has been rejected by the manufacturer thereof, as the fact shall be.

(Prior code § 5-3.05)

It is unlawful for any person to scatter, daub or leave any paint, paste, glue, or other substance used; or to be scattered or thrown any bills, waste matter, paper, cloth or material of whatsoever kind removed from a signboard or any other structure erected for advertising purposes, upon any private property, public streets or other public property.

(Prior code § 5-3.07)

It is unlawful for any person to display for advertising purposes upon any billboard or advertising signboard, or upon or in any window, or upon any building or fence in any public place, any activity or event prohibited by law, or any matter which, to the average person applying contemporary standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

(Ord. 11919, 1996: prior code § 5-3.08)

It is unlawful for any person owning, controlling or maintaining any billboard or other board, fence, sign or structure upon which advertising matter is exhibited, to refuse or neglect to cut all weeds and remove all rubbage from the base of same.

(Prior code § 5-3.09)

It is unlawful for any person to maliciously destroy, or in any way mutilate, any sign placed upon any real estate, advertising said real estate for sale or for rent, whenever such sign is placed thereon by the owner, or authorized agent of the owner, of said real estate.

(Prior code § 5-3.10)

It is unlawful for any person, with intent to sell, deliver, or solicit, or to induce the public in any manner to enter into any obligation relative to, any goods, wares, merchandise, matter, or service, to bring or place, or cause to be brought or placed, before the public in the city, through or by means of any advertising medium or device whatsoever, or by public outcry or proclamation, or by any means or in any manner whatsoever, any statement, representation, assertion, cognomen or designation concerning such goods, wares, merchandise, matter of service which is false or untrue or which is in any manner deceptive or misleading.

(Prior code § 5-3.11)

A. Findings. The City Council finds and determines the foregoing findings to be true and correct and hereby makes them a part of the ordinance from which this section derives.

1. A woman's right to choose whether to terminate a pregnancy is protected by both the federal and state Constitutions, and is protected from interference by third parties and the government.

2. When a woman considers termination of a pregnancy, time is a critical factor. Delays in deciding to terminate a pregnancy may mean that a less invasive option is no longer available or that the option to terminate a pregnancy is no longer available.

3. Many people have deeply held religious and moral beliefs both supporting and opposing abortion, and the City respects the right of individuals to express and promote such beliefs.

4. In recent years, clinics that seek to counsel clients against abortion have become common throughout California. These clinics are often referred to as crisis pregnancy centers or limited services pregnancy centers. Although some of these centers (referred to herein as "LSPCs") are licensed to provide various medical services to pregnant women, most LSPCs are not licensed medical clinics.

5. Some LSPCs openly acknowledge, in their advertising and their facilities, that they do not provide abortions or access to emergency contraception or refer clients to other providers of such services. Some of these same LSPCs also openly acknowledge that they believe abortion is morally wrong. Many LSPCs, however, seek to mislead women contemplating abortion into believing that their facilities offer abortion services and unbiased counseling. This misleading of women seeking medical advice and/or care has the potential to be extremely harmful to women.

6. The City respects the right of LSPCs to counsel against abortions, if the centers are otherwise operating in compliance with this section, and the City does not intend by this section to regulate, limit or curtail such advocacy.

7. The City has carefully balanced (1) the constitutionally protected right of a woman to choose to terminate her pregnancy, (2) the right of individuals to express their religious and ethical beliefs about abortion, (3) the serious harm to women that can result from even slight delays due to false advertising for pregnancy and/or abortion services, and (4) the cost to local taxpayers that can accrue from such delay, the City has determined that there exists a need to regulate false and misleading advertising by pregnancy clinics offering limited services.

8. There are several circumstances prompting the need for LSPC regulation that is more protective of potential consumers of pregnancy center services.

9. LSPCs often purchase "pay per click" ads on online search services such as Google for terms such as "abortion," so that persons searching for abortion services will see a link and advertisement for the LSPC at the top of the results page. In addition, many LSPCs advertise on billboards, mass-transit facilities, and through websites.

10. LSPCs often change their names, making it difficult for potential clients to do online research and find reviews of their services. Although the name of the LSPC organization may change, the entity does not, as evidenced by maintaining the same address and location, phone number, license number with the Department of Public Health and Federal Tax Identification number.

11. Most clients do not come to LSPCs as a result of a referral from a medical professional. Clients seeking information regarding options to terminate a pregnancy commonly experience emotional and physical stress and are therefore especially susceptible to false or misleading elements in advertising by LSPCs. These circumstances raise the need for regulation that is more protective of potential consumers of pregnancy center services.

12. Due to the time-sensitive and constitutionally protected nature of the decision to terminate a pregnancy, false and misleading advertising by clinics that do not offer or refer clients for abortion or access to emergency contraception is of special concern to the City. When a woman is misled into believing that a clinic offers services that it does not in fact offer, she loses time crucial to the decision whether to terminate a pregnancy. Under these same circumstances a client may also lose the option to choose a particular procedure, or to terminate the pregnancy at all.

13. The State of California recently recognized this problem and passed the Reproductive FACT Act, and in turn, LSPC proponents have filed suit for their right to withhold information from clients. In addition, there are several cities within California and many states across the Country seeking to address this issue.

14. Local tax dollars provide the financial support for local medical providers of last resort for indigent individuals who need medical care. These individuals include women facing unexpected pregnancies.

15. If women who have chosen to terminate a pregnancy are misled and delayed by the false advertising of LSPCs, the cost of providing more invasive and expensive options may fall upon health facilities funded by local taxpayers, which provide the medical services of last resort for the City's indigent population.

16. The City has determined that there exists a need to regulate false and misleading advertising by pregnancy clinics offering limited services.

B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

1. "Abortion" shall mean the termination of a pregnancy for purposes other than producing a live birth. "Abortion" includes, but is not limited to, a termination using pharmacological agents.

2. "Client" shall mean an individual who is inquiring about or seeking services at a pregnancy services center.

3. "Emergency contraception" shall mean one or more prescription drugs (1) used separately or in combination, to prevent pregnancy, when administered to or self-administered by a patient, within a medically-recommended amount of time after sexual intercourse, (2) dispensed for that purpose in accordance with professional standards of practice, and (3) determined by the United States Food and Drug Administration to be safe for that purpose.

4. "Health information" shall mean any oral or written information in any form or medium that relates to health insurance and/or the past, present or future physical or mental health or condition of a client.

5. "Licensed medical provider" shall mean a person licensed or otherwise authorized under the provisions of federal, state, or local law to provide medical services.

6. "Limited services pregnancy center" shall mean a pregnancy services center, as defined in subsection 7. below, that does not directly provide or provide referrals to clients for abortions and/or does not directly provide or provide referrals to clients for emergency contraception.

7. "Pregnancy services center" shall mean a facility, licensed or otherwise, and including mobile facilities, the primary purpose of which is to provide services to women who are or may be pregnant, that either (1) offers obstetric ultrasounds, obstetric sonograms or prenatal care to pregnant women, or (2) has the appearance of a medical facility. A pregnancy service center has the appearance of a medical facility if two (2) or more of the following factors are present:

a. The facility offers pregnancy testing and/or pregnancy diagnosis;

b. The facility has staff or volunteers who wear medical attire or uniforms;

c. The facility contains one or more examination tables;

d. The facility contains a private or semi-private room or area containing medical supplies and/or medical instruments;

e. The facility has staff or volunteers who collect health information from clients; or

f. The facility is located on the same premises as a State-licensed medical facility or provider or shares facility space with a State-licensed medical provider.

It shall be prima facie evidence that a facility has the appearance of a medical facility if it has two (2) or more of the characteristics listed above.

8. "Premises" shall mean land and improvements or appurtenances or any part thereof.

9. "Prenatal care" shall mean services consisting of physical examination, pelvic examination or clinical laboratory services provided to a woman during pregnancy. Clinical laboratory services refers to the microbiological, serological, chemical, hematological, biophysical, cytological or pathological examination of materials derived from the human body, for purposes of obtaining information, for the diagnosis,

C. Violation.

1. It is unlawful for any limited services pregnancy center, with intent directly or indirectly to perform pregnancy-related services (professional or otherwise), to make or disseminate or cause to be made or disseminated before the public in the City, or to make or disseminate or cause to be made or disseminated from the City before the public anywhere, in any newspaper or other publication, or any advertising device or in any other manner or means whatever, including over the Internet, any statement, concerning those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, whether by statement or omission, that the limited services pregnancy center knows or which by the exercise of reasonable care should know to be untrue or misleading.

2. It is unlawful for any limited services pregnancy center, with intent directly or indirectly to perform pregnancy-related services (professional or otherwise), to make or disseminate or cause to be so made or disseminated any such statement identified in Subsection C.1. as part of a plan or scheme with the intent not to perform the services expressly or impliedly offered, as advertised.

D. Enforcement.

1. The City Attorney may enforce the provisions of this section through a civil action in any court of competent jurisdiction. Before filing an action under this section, the City Attorney shall give written notice of the violation to the limited services pregnancy center. The written notice shall indicate that the limited services pregnancy center has ten (10) days in which to cure the false, misleading, or deceptive advertising. If the limited services pregnancy center has not responded to the written notice within ten (10) days, or refuses to cure the false, misleading, or deceptive advertising within that period, the City Attorney may file a civil action.

2. The City Attorney may apply to any court of competent jurisdiction for injunctive relief compelling compliance with any provision of this section and correcting the effects of the false, misleading, or deceptive advertising. Such an injunction may require a limited services pregnancy center to:

a. Pay for and disseminate appropriate corrective advertising in the same forum as the false, misleading, or deceptive advertising.

b. Post a notice on its premises, in a location clearly noticeable from the waiting area, examination area, or both, stating:

(1) Whether there is a licensed medical doctor, registered nurse, or other licensed medical practitioner on staff at the center; and

(2) Whether abortion, emergency contraception, or referrals for abortion or emergency contraception are available at the center.

c. Be placed on a violator's list with other limited services pregnancy centers in violation of this same Section.

d. Such other narrowly tailored relief as the court deems necessary to remedy the adverse effects of the false, misleading, or deceptive advertising on women seeking pregnancy-related services.

3. Upon a finding by a court of competent jurisdiction that a limited services pregnancy center has violated Subsection D. of this section, the City shall be entitled to recover civil penalties from each and every party responsible for the violation of not less than fifty dollars ($50.00) and not more than five hundred dollars ($500.00) per violation. In addition, if the City prevails it shall be entitled to reasonable attorney's fees and costs pursuant to order of the court.

4. Nothing in this section shall be interpreted as restricting or otherwise limiting the enforcement authority that State law or the Charter or Municipal Code vest in the City, its agencies, officers or employees or any State agency.

5. Nothing in this section shall be interpreted as creating a right of action for any party other than the City.

6. Nothing in this section shall be interpreted as restricting, precluding or otherwise limiting a separate or concurrent criminal prosecution under the Municipal Code or State law. Jeopardy shall not attach as a result of any court action to enforce the provisions of this section.

(Ord. No. 13378, §§ 1—4, 7-19-2016)