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HomeMy WebLinkAboutL- 2 Proposed Newsrack Ordinance and Regulation of Display of Adult Materials Therein OP Air April 7, 1997 MEMORANDUM TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: CITY ATTORNEY VIA: HENRY GARCIA, CITY ADMINISTRATOR:'' RE: PROPOSED NEWSRACK ORDINANCE AND REGULATION OF DISPLAY OF ADULT MATERIALS THEREIN We have prepared the attached newsrack ordinance for your review and consideration. The ordinance updates the City's existing regulations and adds a new provision which is consistent with the Crawford v. Lungren (9th Cir. 1996) 96 F.3d 380 decision. As you may recall, the Crawford case is the one that upheld California legislation making it a crime to sell "harmful materials" in unsupervised vending machines. The proposed ordinance provides that newsracks that contain adult materials which are proven to be harmful to minors shall are prohibited in the City, unless those newsracks are supervised. Under the new law, a newsrack is deemed to be supervised if the materials in the machine are only accessible by special cards or tokens which are not made available to minors. Staff recommends that the Council review the proposed ordinance and conduct the first reading of the ordinance or direct staff to make further revisions to reflect recommendations and suggestions. SONIA RUBIO CARVALHO STEPHEN P. DEITSCH g/7(di„ � 0/i • //4--t ONT\CEB\62309 ORDINANCE NO. AN ORDINANCE OF THE CITY OF AZUSA, CALIFORNIA, AMENDING AND RESTATING ARTICLE IV OF CHAPTER 62 OF THE AZUSA MUNICIPAL CODE PERTAINING TO THE REGULATION OF NEWSRACKS THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Article IV of Chapter 62 of the Azusa Municipal Code is hereby deleted in its entirety and replaced with the following: ARTICLE IV. NEWSRACKS Sec. 62-121. Definitions. The following words,terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning. Harmful Matter means matter,taken as a whole, which to the average person, applying contemporary statewide 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. Community development director means that person who serves as the City's community development director or his or her designee. Newsrack means any self-service or self-operated box, container, storage unit, or other dispenser placed, installed, used or maintained for the display and sale of newspapers news periodicals, magazines, other publications or any other written or pictorial matter or materials, whether commercial,political, recreational or otherwise in nature. Parkway means that area between the sidewalk and the curb of any street and, where there is no sidewalk,that area between the edge of the roadway and the property line adjacent thereto. The term also includes any area within a roadway which is not open to vehicular traffic. Roadway means that portion of a street improved, designed or ordinarily used for vehicular travel. Sidewalk means any surface provided for the exclusive use of pedestrians. ONT\SRC\63484 • Street means all that area dedicated to public use for public street purposes and includes, but is not limited to, roadways,parkways, alleys and sidewalks. Sec. 62-122. Applicability. This article shall apply to all newsracks. Sec. 62-123. Violation of article. (a) Whenever the director of community development is advised that a newsrack has been placed or installed or is being maintained in violation of this article, he shall so notify the person in whose name the newsrack is registered pursuant to section 62-124. Such notice shall state the nature of the violation,the intention to impound the newsrack if the violation is not corrected or a hearing is not requested in writing before the city administrator within ten(10) days after the giving of such notice and the procedure for requesting such a hearing. A timely request for a hearing shall stay any impounding-, provided, however, if the violation is not corrected within five ( 5) calendar days after the decision made at the conclusion of such hearing becomes final,the director of community development may impound the newsrack in accordance with subsection© of this section. (b) Notwithstanding subsection(a) of this section, for violations of this article relative to restrictions upon the attachment of newsracks to property other than that owned by the owner of the newsrack, to fixed objects or to each other and upon location of newsracks,the director of community development may without first giving the registrant of the newsrack written or oral notice, move, align, remove such attachment or otherwise move such racks in order to restore them to a safe and legal condition, as an alternative to the procedure specified in subsection(a) of this section. (c) Whenever a newsrack is impounded pursuant to subsection(a) of this section,the newsrack shall be removed by the director of community development and stored in any convenient place where other items of personal property confiscated in connection with a City investigation or enforcement of this Code are stored.. The director of community development shall notify the person who according to the City's most recent records is the owner of the newsrack as by mailing a notice of newsrack removal to the last known address of the owner. Such notice shall state the date the newsrack was removed, the reasons therefor, the location and procedure for claiming the newsrack and the procedure for obtaining a post-removal hearing before the city administrator, if desired. Any such newsrack removed and stored pursuant to this section shall be released to the owner thereof if claimed within forty-five (45) days after the mailing of written notice of removal and upon the payment of reasonable charges of removal and storage therefor. Upon failure of the owner to claim such newsrack and pay the reasonable charges within the forty-five (45) day period, such newsrack shall be deemed to be unclaimed property in possession of the City's police department and may be disposed of in accordance with the City's policy of disposing of unclaimed property. ONT\SRC\63484 (d) Notwithstanding anything herein to the contrary, any newsrack maintained within the City in violation of this article, which violation creates an immediate danger to the health or safety of the public, as determined by the community development director, and which violation cannot be corrected by moving or otherwise repositioning the newsrack, may be summarily removed and stored in a convenient location so as to eliminate the danger to the health or safety of the public. The director of community development shall notify the owner thereof by mailing a notice of removal to the last known address of the owner. Such notice shall state the date the newsrack was removed, the reasons therefor, the location and procedure for claiming the newsrack and the procedure for obtaining a post-removal hearing before the city administrator, if desired. Any such newsrack removed and stored pursuant to this subsection shall be released to the owner thereof if claimed within forty-five (45) days after the mailing of written notice of removal and upon the payment of reasonable charges of removal and storage therefor. Upon failure of the owner to claim such newsrack and pay the reasonable charges within the forty-five (45) day period, such newsrack shall be deemed to be unclaimed property in possession of the City's police department and may be disposed of and may be disposed of in accordance with the City's policy of disposing of unclaimed property.. (e) Within ten(10) days of the date on which the notice of violation or notice of removal of a newsrack summarily impounded is sent by the City, the person in whose name the newsrack is registered pursuant to section 62-124 or other person who provides satisfactory proof of ownership may request a hearing before the city administrator. The request shall be in writing, shall state the basis thereof and shall be filed with the director of community development. The hearing shall be held within five (5) City working days of the filing of the request, unless continued for good cause as determined in the city administrator's reasonable discretion. At the hearing any person may present evidence or argument as to whether the newsrack has violated this article. Within two (2)working days after the close of the hearing, the city administrator shall render a decision in writing. Notice of the decision shall forthwith be given to the person who requested the hearing. (1) All notices shall be sent by registered mail to the registrant and the owner at the address shown on the registration and at their last known address. Sec. 62-124. Registration required. No person shall place, install or maintain any newsrack which in whole or in part rests upon, in or over any street without first registering the newsrack with the city and without otherwise complying with this article. Such registration shall be in writing by the owner of the newsrack or his authorized agent, shall be filed with the director of community development, and shall contain the following: ONT\SRC\63484 (1) The name, address and telephone number of the owner of the newsrack and the name and address of the person to whom any notice pursuant to this article should be given. (2) The location at which the newsrack is to be installed and maintained. (3) An executed document, approved as to form by the city attorney,by which the owner of the newsrack agrees to indemnify and hold harmless the city, its officers, employees and agents from any claim, demand or judgment in favor of any person, arising out of activities or inactivities of the owner of the newsrack, his officers, employees and agents with respect to damages to persons or property arising from the location, installation, maintenance or removal of the owner's newsracks. (4) A certificate of insurance and endorsement form(s) evidencing that both a liability insurance policy and a property damage insurance policy have been obtained by the owner, naming the city and its officers, employees and agents as additional insureds, in an amount not less than$150,000 minimum liability per occurrence on account of personal injury, including bodily injury, per person and $450,000 limit per occurrence. The minimum for property damage shall be in the amount of $1,000,000 The policies shall also be endorsed to provide that the insurance carrier will give the City thirty (30) days' written notice by certified mail before any cancellation of coverage. Sec. 62-125. Registration index file. The director of community development shall keep and maintain an index file of all registrations affected under this article. Sec. 62-126. Remedies. The provisions of this article providing for administrative remedies is hereby declared to be an alternative procedure to any other remedy provided by law. Sec. 62-127. Restricted on roadways. No person shall place, install, use or maintain any newsrack in a location where it projects into, onto or over any part of any roadway of any public street or which rests wholly or in part upon, along or over any portion of the roadway of any public street. Sec. 62-128. Dangerous condition or obstruction. No person shall install, use or maintain any newsrack which in whole or in part rests upon, in or over any public sidewalk or pathway when such installation, use or maintenance ONT\SRC\63484 endangers the safety of persons or property or which site or location is used for public utility purposes,public transportation purposes or other governmental use or when such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including any legally marked or stopped vehicle,the ingress into or egress from any residence or place of business or the use of poles, posts, traffic signs or signals, hydrants, mailboxes or other objects permitted at or near the location. Sec. 62-129. Prohibited areas. No newsrack shall be placed, installed, used or maintained in a parkway or sidewalk adjacent to property zoned residential, as such zone is defined in this Code. This section shall not prohibit the placement of newsrack in a parkway or sidewalk in such zones adjacent to public buildings which are open to and used regularly by the public, but not including elementary,junior high or high schools. Sec. 62-130. Specifications. Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway shall comply with the following specifications: (1) The newsrack shall not exceed 60 inches in height, 30 inches in width or 24 inches in thickness. (2) The newsrack shall not be chained, bolted or otherwise attached to any property not owned by the owner of the newsrack or to any object permanently affixed; provided, however,that the newsrack may be securely anchored to the ground or sidewalk in a manner and with those certain materials approved by the community development director. (3) The newsrack shall be installed on a single or multiple pedestal-type or modular- type base; provided, however, that not more than four newsracks shall be installed on any one base. Sec. 62-131. Standards for maintenance and installation. Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway shall comply with the following standards: (1) Newsracks shall only be placed near a curb or adjacent to the wall of a building. Newsracks placed near the curb shall be placed no less than 18 inches nor more than 24 inches from the edge of the curb. Newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. Newsracks shall not be placed or maintained on the sidewalk or ONT\SRC\63484 parkway opposite a newsstand or another newsrack. All newsracks must be level. (2) Notwithstanding section 62-128, no newsrack shall be placed, installed, used or maintained within the following distances: a. Five (5) feet of any marked crosswalk. b. Five (5) feet of any curb return. c. Five (5) feet of any fire hydrant, fire callbox, police callbox or other emergency facility. d. Five (5) feet of any driveway. e. Five (5) feet ahead of and twenty five (25) feet to the rear of any sign marking a designated bus stop. f. Six(6) feet of any bus bench or transit advertising shelter. g. Three (3) feet of any area improved with lawn, flowers, shrubs or trees or three 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. (3) Newsracks shall be maintained in a clean, neat and safe condition and in good repair at all times. (4) Newsracks may be placed next to each other; provided, however, no group of newsracks shall extend more than fifteen(15) feet along a curb or wall, and no such group of newsracks shall be located within five ( 5) feet of any group of newsracks. Sec. 62-132. Display of harmful matter prohibited in unsupervised newsracks. Harmful matter shall not be exhibited, displayed, sold or offered for sale in any newsrack located in a public place without adult supervision, other than a public place from which minors are excluded. A newsrack shall be considered to be"supervised by an adult"when either of the following measures are taken to restrict access to harmful matter by persons under eighteen(18)years of age: (1)the person receiving the harmful matter is required to use an authorized access or identification card to the newsrack and the owner of the newsrack has taken reasonable measures to assure that the card is issued only to persons 18 years-old or older and has established a procedure to immediately cancel the card of any person after receiving notice that the card has been lost, stolen or used by persons under eighteen(18)years of age, or that the card is no longer desired; or(2)the owner of the newsrack requires the person using the newsrack to retrieve the harmful matter to use a token and takes reasonable measures to ascertain that only those people who are eighteen(18)years of age or older obtain tokens for the newsrack. ON\SRC\63484 Sec. 62-133. Identification required. Every person who places, installs or maintains a newsrack in any public location in the City, including, but not limited to, streets, sidewalks and parkways, shall have his name, address and telephone number affixed thereto in a place where such information may be easily seen. Sec. 62-133. Severability. If any section, subsection, clause or phrase of this Ordinance or any part thereof is for any reason held to be unconstitutional or enforceable, such decision shall not affect the validity of the remaining portion of the Ordinance. The city council hereby declares that it would have passed each section, subsection, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase would be declared unconstitutional or unenforceable. SECTION 2. This Ordinance shall be in full force and effect thirty days after its passage. SECTION 3. A summary of this Ordinance shall be published in the manner required by law. PASSED, APPROVED AND ADOPTED this day of , 1997. CRISTINA CRUZ-MADRID MAYOR ATTEST: ADOLPH SOLIS, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. ONT SRC\63484 CITY OF AZUSA ) I, Adolph Solis, City Clerk of the City of Azusa, do hereby certify that the foregoing Ordinance No. was duly introduced and placed upon its first reading at a regular meeting of the City Council of the day of , 1997, and that thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City Council on the day of , 1997, by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ADOLPH SOLIS, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY ONT\SRC\63484