HomeMy WebLinkAboutOrdinances_0000_CCv0001.pdf ORDINANCE NO.
AN ORDINANCE OF THE CITY OF REDLANDS
ADDING CHAPTER 78 REGARDING THE
REGULATION OF NEWS RACKS TO DIVISION
7 OF THE REDLANDS ORDINANCE CODE AND
AMENDING ARTICLE 541 OF CHAPTER 54
OF DIVISION 5 OF REDLANDS ORDINANCE
CODE REGARDING NUISANCES
THE CITY COUNCIL OF THE CITY OF REDLANDS DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1 . Chapter 78 is hereby added to Division 7 of
the Redlands Ordinance Code to read as follows :
CHAPTER 78
NEWS RACK REGULATION
ARTICLE 780
DEFINITIONS
Sec. 78000 . DEFINITIONS.
For the purpose of this ordinance , unless it is apparent from the
context that a different meaning is intended:
(a ) "News rack" means any self-service or coin-
operated box, container, storage unit or
other dispenser installed, used, or
maintained for the display and sale of
newspapers or news periodicals.
(b) "Street" means all that area dedicated to
public use for public street purposes and
shall include, but not be, limited to,
roadways , parkways , alleys and sidewalks.
(c ) "Roadway" means that portion of a street
improved, designed, or ordinarily used
for vehicular travel .
(d) "Parkway" means that area between the
sidewalks and the curb of any street , and
where there is no sidewalk, that area be-
tween the edge of the roadway and the
property line adjacent thereto . Parkway
shall also include any areawithin a
roadway which is not open to vehicular
travel.
(e ) "Sidewalk" means any surface provided
for the exclusive use of pedestrians .
( f) "Explicit sexual acts, " as used in this
chapter, means depictions of sexual inter-
course, oral copulation, anal intercourse,
oral-annual copulation, bestiality, sadism,
masochism, or excretory functions in con-
junction with sexual activity, masturbation,-
or
asturbation,or lewd exhibition of the genitals , whether
any of the above conduct is depicted or
described as being performed alone or
between members of the same or opposite
sex or between humans and animals ; or
other acts of sexual arousal involving any
physical contact with a person ' s genital ,
pubic region, pubic hair , perineum, anus
or anal region.
ARTICLE 781
DISPLAY RACK PLACEMENT
Sec. 78101 . PROJECTION INTO ROADWAY PROHIBITED.
It shall be unlawful for any person to install , use, or maintain
any news rack which projects onto, into , or over any part of the
roadway of any public street, or which rests , wholly or in part ,
upon. along, or over any portion of a roadway.
Sec. 78102 . OBSTRUCTION PROHIBITED.
It shall be unlawful for any person to install , use or maintain
any news rack which in, whole , or in part , rests upon, in, or over
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any sidewalk or parkway, when such installation, use or
maintenance endangers the safety of persons or property, or when
such site or location is used for public utility purposes,
public transportation purposes or other government use, or when
such news rack unreasonably interferes with or impedes the flow of
pedestrian or vehicular traffic, the ingress into or egress from
any residence, place of business, or any legally parked or stopped
vehicle, or the use of poles, posts , traffic signs or signals,
hydrants , mailboxes, or other objects permitted at or near
the location, or when such news rack interferes with the cleaning
of any sidewalk by the use of mechanical sidewalk cleaning
machinery.
Sec. 78103 . PLACEMENT STANDARDS.
Any news rack which in whole or in part rests upon, in, or over
any sidewalk or parkway, shall comply with the following
standards:
(a) No news rack shall exceed five ( 5 ) feet in
height , thirty ( 30 ) inches in width, or two ( 2 ) feet in depth .
(b) News racks shall only be placed near a curb or
adjacent to the wall of a building . News racks placed near
the curb shall be placed not less than eighteen ( 18 ) inches nor
more than twenty-four ( 2 4 ) inches from the edge of the curb.
News racks placed adjacent to the wall of a building shall be placed
parallel to such wall and not more than six ( 6 ) inches from the
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wall. No news rack shall be placed or maintained on a sidewalk
or parkway opposite a newsstand or another news rack.
(c) Without first obtaining the consent of the property
owner, no news rack shall be chained, bolted or otherwise attached
to <any property not owned by the owner of the news rack or to any
permanently fixed object .
(d) News racks may be chained or otherwise attached
to one another; however, no more than three ( 3 ) news racks may be
joined together in this matter , and a space of not less than
eighteen ( 18 ) inches shall separate each group of three ( 3 )
news racks so attached.
(e ) No news rack, or group of attached news racks allowed
under paragraph (d) hereof, shall weigh, in the aggregate, in
excess of one hundred twenty-five ( 125 ) pounds when empty.
(f ) No news rack shall be placed, installed, used or
maintained:
( 1 ) Within three ( 3 ) feet of any marked crosswalk.
(2 ) Within fifteen ( 15 ) feet of the curb return
of any unmarked crosswalk.
( 3 ) Within three ( 3 ) feet of any fire hydrant,
fire call box, police call box or other emergency facility.
( 4 ) Within three ( 3 ) feet of any driveway.
( 5 ) Within three ( 3 ) feet ahead of, and fifteen ( 15 )
feet to the rear of any sign marking a designated bus stop.
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( 6 ) Within three ( 3 ) feet of any bus bench.
( 7 ) At any location whereby the clear space
for the passageway of pedestrians is reduced to less than
six ( 6) feet.
( 8 ) Within three ( 3 ) feet of any area improved
with lawn, flowers , shrubs or trees or within three ( 3 ) feet
of any display window of any building abutting the sidewalk,
or parkway, or in such manner as to impede or interfere with
the reasonable use of such window for display purposes.
(a ) Within one hundred ( 100 ) feet of
any other news rack on the same side of the street containing
the same edition of the same publication.
(q) No news rack shall be used for advertising signs
or publicity purposes other than that dealing with the display,
sale, or purchase of the newspaper or news periodical sold therein.
(h) Each news rack shall be maintained in a clean
and neat condition and in good repair at all times.
ARTICLE 782
DISPLAY STANDARDS
Sec. 78201. DISPLAY OF CERTAIN MATTER PROHIBITED.
Publications offered for sale from news racks placed or maintained
on the highway shall not be displayed or exhibited in a manner
which exposes to public view from the highway any of the
following:
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(a) Any statements or words describing explicit sexual
acts , sexual organs , or excrement where such statements or words
have as their purpose or effect sexual arousal , gratification
or affront;
(b) Any picture or illustration of genitals , pubic
hair, perineum, anus , or anal region of any person where such
picture or illustration has as its purpose or effect sexual
arousal , gratification or affront;
(c) Any picture or illustration depicting explicit
sexual acts where such picture or illustration has as its purpose
or effect sexual arousal , gratification or affront.
ARTICLE 783
IDENTIFICATION
Sec. 78301 . IDENTIFICATION OF OWNER.
Every person who places or maintains a news rack on streets of the
City shall have his name , address , and telephone number affixed
thereto in a place where such information may be easily seen.
ARTICLE 784
VIOLATIONS AND PENALTIES
Sec. 78401 . PUBLIC NUISANCE ABATEMENT.
Any news rack installed, used, or maintained, in violation of any
of the provisions of Chapter 78 , Article 7/ 81 , shall be subject to
abatement as a public nuisance as provided in Article 541 .
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Sec, 78-412 . PENALTY MISDEMEANOR.
Notwithstanding any other provision of this Division 7 , any person
who violates any provision of this Chapter shall be guilty of
misdemeanor .
SECTION 2 . Section 541 11 (w) is hereby added to
Article 541 of Chapter 54 of Division 5 of the Redlands Ordinance
Code to read as follows :
(w) news racks owned or maintained in violation
of any of the provisions of Articles 781 of '783
of Chapter 78 Division 7 of this cede regarding
the regulation of news racks which shall
constitute "structures" or "premises" for purposes
of this Article 541.
SECTION 3 . SEVERABILITY.
If any Portion of this Ordinance is found to be
unconstitutional or invalid, the City Council hereby declares that
it would have enacted the remainder of this Ordinance regardless of
the absence of any such invalid part
SECTION 4-.
This ordinance shall be in force and.: take effect thirty
( 30 ) clays from and after the date of its final adoption.
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SECTION 5. CERTIFICATION.
The City Clerk shall certify to the adoption of this
Ordinance and cause it to be published once in the Redlands Daily
Facts, a newspaper of general circulation and published in this
City.
ADOPTED this day of 1987.
Mayor of the City of Redlands
ATTEST:
City Clerk of the
City of Redlands
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t
LAW OFFICES OF CONFIDENTIAL
BEST, 3 E S T & € R I GER ATTORNEY-CLIENT PRIVILEGE
March 5
MEMORANDUM
TO: MAYOR., CITY COUNCIL AND CITY MANAGER ��fA
W x t
FROM. CITY ATTORNEY
RE:, RESTRICTING THE SALE CE "ADULT" PUBLICATIONS FROM
NEWSS"T"ANDS ON CITY STREETS AND SIDEWALK
QUESTION PRESENTED
May the City regulate the display or sale of
"adult" publications from newsstands on City streets and
sidewalks?
SUMMARY ANSWER
The City inay regulate the time, place, and manner
ofthe display of nonob cease publications on public rights-
of-way. Such regulation must be narrowly drawn to afford
constitutional protections and to avoid regulating areas>
preempted by state law.
DISCUSSION
The City has the power to regulate directly the
sale of obscene materials if it can satisfy the difficult
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test of proving their obscenity. (Miller v. California
( 1973) 413 U.S. 15 . ) Also, the City has the option of
regulating nonobscene materials through the regulation of
adult businesses under properly enacted zoning ordinances.
See, Renton v. Playtime Theaters, Inc. ( 1986) 89 L.Ed. 2d
29. Renton zoning usually restricts adult businesses to
commercial or industrial zones and/or imposes minimum
distance requirements between adult businesses and
residential zones, schools, parks, churches and the like.
Renton zoning, however, can only be done if the City can
show that the City' s "predominant concerns" are with the
secondary effects of the sale of adult books and videos
(crime prevention, protection of retail trade, maintaining
property values) and not with the content of the adult
products themselves . In Redlands ' case, it may be difficult
to show that a newsstand or newspaper vending machine has
sufficient secondary effects to warrant a city-wide Renton
ordinance.
In addition to the City' s power to regulate obscene
materials (Miller) and to regulate the location of adult
businesses selling nonobscene materials with a Renton-type
zoning ordinance, if the City can show that regulating the
display of adult materials is aimed at protecting minors,
the "standard of obscenity applicable to minors . . . is
broader than that applicable to adults and ( the City may
deny) minors access to materials to which adults could not
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be denied access. " American Booksellers Assn, Inc. v.
,qaperior Court ( 1982 ) 129 Cal.App, 3d 197, 201 . However , the
existence of state law regulating the sale of adult
materials to minors presents difficult problems of
preemption for cities wishing to regulate the same areas.
Most local regulation of the sale of materials
obscene as to minors (and not necessarily obscene to adults)
is preempted by Penal Code Section 313. 1(a) if the local
regulation is based on the content ( i .e. , the cover) of the
materials. Section 313. 1(a) provides:
"Every person who, with knowledge
that a person is a minor, or who fails to
exercise reasonable care in ascertaining
the true age of a minor, knowingly
distributes, . . . exhibits, or offers to
distribute or exhibit any harmful matter
to the minor is guilty of a misdemeanor . "
Section 313 . ( c) prohibits selling or offering to sell in a
vending machine located within 500 feet of a public school
or playground "harmful matter" displaying to the public view
sexual conduct or the male genitals in a state of sexual
arousal.
Section 313 defines "harmful matter" as -
"Matter taken as a whole, the predominant
appeal of which to the average person,
applying contemporary statewide stan-
dards, is to prurient interest , meaning a
shameful or morbid interest in nudity,
sex, or excretion, and is patently
offensive to the prevailing standards in
the adult community as a whole with
respect to what is suitable material for
minors, and lacks significant literary,
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artistic, political, educational, or
scientific value for minors. "
In Carl v. Los Angeles ( 1976 ) 61 Cal.App. 3d 265, a
taxpayer challenged a Los Angeles ordinance that prohibited
selling, offering for sale, or keeping or maintaining for
sale any "harmful matter" (as defined in Penal Code Section
313) on any news rack on any public sidewalk. The ordinance
also prohibited displaying to public view naked bodies on
magazine covers. The court of appeal held generally that
Penal Code Section 313. 1 preempted the field of "offering
and selling harmful matter to minors . " 61 Cal.App.3d at
269. Specifically, the court found that the ordinance
regulated "keeping or maintaining" for sale "harmful matter"
while Section 313. 1 only regulated distribution and
exhibitions to minors . Furthermore, the local regulation
omitted the Section 313.1 requirement that the sale or offer
be made "with knowledge that a person is a minor" or without
exercise of "reasonable care in ascertaining the true age of
a minor . . . . " Since the ordinance criminalized conduct
not prohibited by Section 313.1, the court held that it
"attempt(ed] to impose additional requirements in a field
that is preempted by state law. " 61 Cal .App. 3d at 270. In
short, the local prohibition on sales of these materials was
invalid.
The court did not address the issue of whether
state law preempted Los Angeles ' regulation of the d
L-sT Ila
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LAW OFFICES OF
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(as opposed to the preempted rule on sale or offering for
sale) of magazines depicting nudity on their covers.
Rather , the court struck down the display prohibition on
First Amendment grounds. The court found that the ordinance
prohibited display of "nudity alone, " that "<(t )he depicted
nudity need not have sexual arousal, gratification or
affront as its purpose or effect [and that ] it need not be
depicted in a context which satisfies the constitutional
standards of ' harmful matter, ' let alone obscenity. . . .
Its, at 273 (citations omitted) . Therefore, because the
City' s display prohibition banned the display of "innocent"
or "educational" nudity, it was unconstitutional on grounds
of overbreadth.
In short, Carl means that a City ordinance
regulating sales or offers of sale of nonobscene materials
to minors is likely to be preempted by Section 313 . 1. The
Carl court left open the question of whether' a more narrowly
drawn display regulation might be valid. 61 Cal .App. 3d at
275-76 .
More recent California case law addresses that
small window left by Carl for local regulation of nonobscene
adult magazines in newsstands. The court in Gluck v. C2Rnty
of Los _8ngeles (1979) 93 Cal .App. 3d 121 upheld a local
ordinance based on the time, place and manner of magazine
displays rather than directly on the content of the
magazines. The Gluck court upheld as a constitutional time,
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LAW OFFICES OF
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place and manner law a Los Angeles County ordinance
regulating the display of sexually explicit, nonobscene
books and magazines on public streets and sidewalks.
The ordinance restricted news rack locations to
areas of roads and sidewalks where they would not obstruct
traffic. The ordinance prohibited the display or exhibition
of words or graphics depicting specific parts of the human
anatomy or explicit sexual conduct to the public view. The
depictions were proscribed only where they were designed to
"effect sexual arousal, gratification, or affront. "
Prohibited displays were narrowly defined.
The court of appeal upheld the ordinance, holding
that it constituted a proper regulation of the time, place
and manner of the display of nonobscene materials and that
it was necessary to further a significant governmental
interest. Id. at 127 (citing Young v. American Mini
Theaters ( 1976) 427 U.S. 50, 63, fn. 18) . The county
ordinance was constitutional because it was aimed at
protecting purchasers of magazines "not free to look
elsewhere. " The ordinance defined " 'sexually explicit
material' . . . in a form that prevent[ed ] application of
the restriction to educational or ' innocent ' matter. " id.
at 129. (This factor distinguished the ordinance from the
overbroad ordinance struck down in Carl. ) The ordinance
allowed display of the graphic magazines in places other
than on the streets or sidewalks and allowed the sale of
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such materials on streets and sidewalks as long as they were
not i
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in private businesses. Nevertheless, the City can regulate
within narrow bounds the time, place and manner of their
display on public streets.
SCOTT C. SMITH
SCS0137