HomeMy WebLinkAboutORD FOR INTRODUCTION 10-... (2) NO. 2
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TO:
FROM:
SUBJECT:
HONORABLE MAYOR AND CITY COUNCIL
CITY ATTORNEY
REGULATION OF NEWSRACKS ON SIDEWALKS
The Register, the Los Angeles Times and the Herald Examiner
have each through its General Counsel advised that they intend to
file a lawsuit against the City of Tustin unless the City amends
the newsrack regulation provisions of the Tustin City Code to
permit newsracks on public sidewalks, subject to reasonable,
constitutionally-allowed restrictions. Attached for- the
Council's consideration is an ordinance which we believe is as
restrictive as possible and still be within the limits allowed by
current court decisions interpreting the First Amendment rights
of newspapers to maintain newsracks on public sidewalks.
It is our opinion that under,, the currently permissible
restrictions as pronounced in the court decisions applying the
First Amendment, the present provisions of the Tustin City Code
are not likely to withstand an attack.
The options open to the Council at this point in time appear
to be:
1. Not amend the code, expect that a lawsuit will be filed
by the various newspapers, that the trial court decision will be
adverse to the City and if any appeals are taken, the same result
will follow, unless some type of extremely strenuous and
expensive effort is mounted to obtain new and different decisions
in the courts of appeal and/or supreme court(s). We think it is
unlikely, that such an effort will be successful.
2. The other alternative is for the City Council to adopt
the attached ordinance which would amend the Tustin City Code to
regulate and restrict newracks as fully and completely as
ate
possible under the current st o~e~lat~court decisions on
.newsracks. ~"
City Attorney
JGR:cas:R:A10/9/89(10)
Attachment
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ORDINANCE NO. 1033
AN ORDINANCE OF THE CITY OF TUSTIN,
CALIFORNIA AMENDING THE TUSTIN CITY CODE
REGARDING THE REGULATION OF NEWSRACKS
The City Council of the City of Tustin does hereby
ordain as follows:
Section 7212 of Chapter 2, Part 1 of the Tustin City
Code is hereby amended to read as follows:
7212 Regulation Of Newsracks
A. Purpose. The purpose of this chapter is to
establish a comprehensive set of regulations applicable to
newsracks on the public streets, sidewalks and other public
property. The purpose of this chapter is to advance and
improve safety and aesthetics by controlling the number,
size, construction, placement and appearance of newsracks
without restricting the free dispersal of information
guaranteed by the Constitutions of the United States and the
State of California.
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More specifically, the purpose of this chapter is to
promote the public peace, ~orals, health, safe~y and general
welfare by regulating the placement, appearance, servicing
and insuring of newsracks so as to protect against the
dangers of impairing or distracting the vision of motorists
and pedestrians; the hazards of unreasonably interfering
with 'or impeding the flow of pedestrian or vehicular
traffic, including ingress into or egress from any
residence or place of business, or from the street to the
sidewalk by persons exiting or entering parked or standing
vehicles; unreasonably interfering with the use of public
property for its intended purpose; unduly restricting access
to the use of poles, posts, traffic signs or signals,
hydrants, mailboxes or locations used for transportation
purposes; unsightly structures inconsistent with the intent
and purpOse of the city's design regulations; neglectful
servicing of newsracks resulting in visual blight on public
rights-of-way and other public property and detracting'from'
the aesthetics of store window displays, adjacent
landscaping and other improvements; reduction in value of
surrounding property; unnecessary exposure of the city to
personal injury and property damage claims and lawsuits; and
public displays of harmful or offensive matters.
The City Council finds and determines that the strong
and competing interests of the public and of newspapers
require a reasonable accommodation which can only be
satisfactorily achieved through the means of this section
which is designed to accommodate such interests by
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regulating' ~ time, place and mann :of usin9 newsracks.
It is not .xe intent of this cha~er to in any way
discriminate against, regulate or interfere with the
publication, circulation, distribution or dissemination of
any newspapers.
B. Definitions. For the purpose of this part, the
words set out in this section shall have the following
meanings:
(1) "Newsrack" 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.
(2) "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. Parkway also includes any area
within a roadway which is not open to vehicular travel.
( 3 ) "Person" means any individual, company,
corporation, association, business or other legal entity.
(4) "Public property" means parks, square, plazas and
any and all other real property owned by the city.
( 5 ) "Right-of-way" means land which by deed,
conveyance, agreement, easemgnt' dedication, usage or
process of law is reserved for and dedicated to the general
public for street, highway, alley, pedestrian walkway, storm
drainage, bicycle path or other purposes.
(6) "Roadway" means that portion of a street improved,
designed or ordinarily used for vehicular travel.
(7) "Sidewalk" means any surface provided for the
exclusive use of pedestrians.
(8) "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.
C. Permits.
(1) No person shall install or maintain any newsrack
which in whole or in part rests upon, in or over any public
right-of-way or other public property without first
obtaining a permit therefor from the License and Permit
Board. An amended application for said permit shall first
be filed with the License and Permit Board in the event that
additional newsracks are installed in the city or removed
from the city by the applicant subsequent to the issuin9 of
the original permit by the city.
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(2) f' !ications for permits r [red by this chapter
shall be ~ ed with the License an~ Permit Board upon
printed forms to be prescribed and supplied by it. The
application shall be signed by the applicant and shall state
the following:
(a) The name and address of the applicant;
(b) The location(s) of the proposed installation
or maintenance of the newsrack(s);
(c) The time that said newsrack(s) is (are)
proposed to be installed or maintained;
(d) The nature, type and model of the news
rack(s) proposed to be installed or
maintained;
(e) That the applicant agrees, upon expiration or
revocation of the permit, to immediately
restore the public right-of-way or other
public property to its condition prior to the
installation or maintenance of the
newsrack ( s );
(f) Any addit£onal information which the License
and Permit Board may deem necessary for the
proper disposition of the appli~cation.
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(3) Not more than one permit shall be required for
each applicant regardless of the number of newsracks
proposed to be installed or.maintained.
(4) Prior to the issuance of a permit, the applicant
shall pay all fees provided by resolution of the City
Council.
(5) In addition to the permit application, each
applicant shall also execute a document, approved as to form
by the city attorney, agreeing to hold the city, its
officers, employees and agents free and harmless from any
claim, demand or 3udgment in favor of any person, arisin9
out of the location of any newsrack located upon, in or over
a public right-of-way or other public property and deposit
with the city clerk a certificate of insurance evidencing
that a liability insurance policy in minimum amounts set' by
the City Council has been issued, naming the city as an
additional named insured, and containing a provision that
the policy cannot be cancelled, coverage materially
modified, or limits of liability reduced or changed at any
time during the time the newsrack is installed or maintained
on public property. If such insurance is cancelled or
modified in anyway inconsistent with the foregoing
requirements, the said news rack shall be removed in
accordance with the provisions of this Section.
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(6) r th permit shall be vali Dr a period of five
years, and y be renewed in the sam~ manner set forth in
this section for original applications'
(7) Each permit shall be issued Only to the person
making the application and may not be assigned to'another
person by the permittee. If any permittee assigns his
permit to another, the permit will be deemed revoked as of
the time of the attempted assignment.
(8) Upon a finding'the applicant is in compliance with
the provisions of this Section, the License and Permit Board
shall issue a newsrack permit at locations approved by the
Director of Public Works. If a permit is denied, the
applicant shall be notified in writing of the specific cause
of such denial by the License and Permit Board and' the right
to appeal in accordance with-subsection F of this Section.
D. Regulations.
(1) No person shall install, use or maintain any
newsrack 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.
(2') No person sh~ll install, use or maintain any
newsrack which in whole or in part rests upon, in or over
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 newsrack 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- said
location, or when such newsrack interferes with the cleaning
of any sidewalk.
(3) Any newsrack which in whole or in part rests Upon,
in or over any sidewalk or parkway shall comply with the
following standards:
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(a) Newsracks shall not exceed five feet in
height, thirty inches in width, or two feet in depth.
(b) Newsracks shall only be placed near a curb or
ad3acent to the wall of a building. Newsracks placed
near the curb shall be placed no less than eighteen
inches nor more than twenty-four inches from the edge
of the curb. Newsracks placed ad3acent to the wall of
a building shall be placed parallel to such wall and
not more than six inches from the wall. No newsrack
shall be placed or maintained on a sidewalk or parkway
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oppos~ a news stand or anothez wsrack.
(c) No newsracks shall be chained, bolted or
otherwise attached to any property not owned by the
owner of the newsrack or to any permanently fixed
ob3ect.
(d) Newsracks may be chained or otherwise
attached to one another; however, no more than three
newsracks may be 3oined together in this manner, and a
space of no less than eighteen inches shall separate
each group of three newsracks allowed under this
paragraph (d).
(e) No newsrack, or group of attached newsracks
allowed under paragraph (d) hereof, shall weigh, in the
aggregate, in excess of 125 pounds when empty.
(f) No newsrack shall be placed, installed, used
or maintained:
(1) Within three feet of any marked crosswalk.
(2) Within fifteen feet of the curb return
of any unmarked crosswalk.
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(3) Within three feet of any fire hydrant,
fire call box, police call box or other
emergency facility.
(4) Within three feet of any driveway.
(5) Within three feet ahead of or fifteen
feet to the rear of any sign marking a
designated bus stop.
(6) Within three feet of any bus bench.
(7) At any location whereby the clear space
for the passageway of pedestrians is
reduced to less than six feet.
(8) Within three feet of any area improved
with lawn, flowers, shrubs or trees or
within 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.
(g) No newsrack 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.
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(" Each newsrack shall be intained in a clean
and nea condition and in good repair at all times.
(4) Every person who places or maintains a newsrack on
the streets of the City of Tustin shall have his, her or its-
name, address, telephone number affixed thereto in a place
where such information may be easily seen.
(i) No person shall knowingly exhibit, display, or
cause to be exhibited or displayed, Harmful Matter as such
term is defined in Section 313, Chapter 7.6, Title 9, Part
1, of the Penal Code of California, in any newsrack located
on a public sidewalk or public place from which minors are
not excluded, unless blinder racks have been installed so
that the lower two-thirds of the matter is not exposed to
public view. For the purposes of this section, the term
"blinder rack" shall mean opaque material placed in front
of, or inside, the newsrack and which prevents exposure to
public view.
(j) Any publication offered for sale in a newsrack
placed or maintained on a public sidewalk or public right-
of-way shall not be displayed or exhibited in a manner which
expOses to public view, from any public place, any of the
following:
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(1) Any statement or word describing explicit
sexual acts, sexual organs or excrement where such
statements or words have ,oas their purpose or effect,
sexual arousal, gratification or affront; or
(2) Any picture or illustration of genitals,
pubic hair, perineums, anuses or anal regions of any
person where such picture or illustration has as its
purpose of effect sexual arousal, gratification or
affront; or
( 3 ) Any picture or illustration depicting
explicit sexual acts where such picture or illustration
has as its purpose or effect, sexual arousal,
gratification or affront.
For the purpose of this sub-section (j) the term
"explicit sexual acts" means the depiction of sexual
intercourse, oral copulation, anal intercourse, oral-anal
copulations, bestiality, sadism, masochism, or excretory
functions in conjunction with sexual activity, masturbation
or lewd exhibition of the genitals, whether any of the above
is depicted or described as being performed alone or between
members of the same or opposite sex, or between humans and
animals, or other act of sexual arousal involving any
physical contact with a person's genitals, pubic region,
pubic hair, perineum, anus or anal region.
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E. Rem ~1.
(1) Commencin9 ninety (90) days after the
adoption date of the ordinance codified in this
Section, any newsrack in violation of any provision of
the ordinance codified in this Section will be deemed
nonconforming.
(2) In the event that the Director of Public
Works determines that a newsrack does not comply with
the provisions of this Section, he or she shall provide
written notice of such determination to the permittee
or owner. The notice shall specify the nature of the
violation, the location of the newsrack which is in
violation, the intent of the Director of Public Works
to remove the nonconforming newsrack in the event a
hearing is not requested, and the right of the
permittee to request a hearing before the License and
Permit Board within fifteen (15) days from the date of
the notice. If the newsrack is one which has not been
authorized by the License and Permit Board and
ownership is not known, nor apparent after inspection,
a notice complying with this section shall be affixed
to the newsrack.
(3) In the event that a hearin9 is held pursuant
to this section, the License and Permit Board shall
render a decision, in writing, within ten (10) days
from the date of the hea~ing, and the decision shall
advise the permittee or owner of ~his or her right to
appeal to the City Council, pursuant to the provisions
of sub-section F. Notice of the decision shall be
mailed to the permittee or owner and shall be
considered' effective on the date mailed provided that
the notice is properly addressed and placed in the U.S.
Mail with first class postage prepaid.
(4) The Director of Public Works may take
possession of a newsrack and, upon the expiration of
thirty (30) days, dispose of the newsrack as required
by law, if:
(a) No hearin9 is requested by the permittee
or owner within.fifteen (15) days as provided in
Section E(2); or
(b) The appeal period specified in Section F
has expired; or
(c) In the event that an owner or permittee
fails to remove the rack within ten (10) days from
the date of the decision of the City Council, that
the newsrack is not in compliance with the rules,
regulations and standards established by this
Section.
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(~ The Director of Public Works shall inspect
any newsrack reinstalled after removal pursuant to this
Section. The permittee of the newsrack shall be
charged a fee for this reinspection as established by
resolution of the City Council.
(6) In the event that any newsrack is abandoned,
the Director of Public Works may remove it pursuant to
the procedures set out in this section. For the
purposes of this section, the term "abandonment" shall
mean no publication .has been displayed in the newsrack
for a period of fifteen (15) consecutive days, no prior
written notice has been given by the permittee to the
Director of Public Works specifying the reason(s) for
non-use, and the condition of the rack and related
circumstances indicate it will not be actively used
within a reasonable period of time.
F. Appeals
The City Council shall have the power to hear and
decide appeals based upon the enforcement or interpretation
of the provisions of this Section. Any permittee or owner
who is aggrieved by any decision of the License and Permit
Board may appeal that decision by submitting a written
notice of appeal to the City Clerk within twenty-one (21)
days of the date on which notice of the decision was mailed.
The City Council may preside over the hearing on appeal or
may designate a hearing officer to take evidence and submit
a proposed decision together With findings, within fifteen
(15) days from the date of the hearing. The City Council
shall, within thirty (30) days from the date of the hearing,
render its decision on the appeal, together with findings.
The decision of the City Council shall be final.
Go
Severability
If any provision of this Section as herein enacted or
hereafter amended, or the application thereof to any person
or circumstances, is held invalid, such invalidity shall not
affect the other provisions or applications of this Section
(or any sub-section or portion of sub-section hereof) which
can be given effect without the invalid prov-iSion or'
application, and to this end the provisions of this section
are, and are intended to be, severable.
The provisions of this Section are intended to augment
and be in addition to other provisions of the Tustin City
Code. Whenever the.provisions of this Section impose a
greater restriction upon persons, premises, or practices
than is imposed by other provisions of the Tustin City Code,
the provisions of this Section shall control.
If any sentence, clause or phrase of .this Section is,
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for any res ~, held to be unconsti-~ ional or otherwise
invalid· su~ decision shall not effec~ the validity of the
remaining provisions of this Section. The City Council
hereby declares that it would have passed the ordinance
codified in this Section· and each sentence, clause, and
phrase thereof irrespective of the fact that any one or more
sentences, clauses or phrases be declared unconstitutional
or otherwise invalid.
PASSED AND ADOPTED by the City Council of the City of
Tustin, at a regular meeting on the day of
· 1989.
Ursula E. Kennedy,
Mayor
ATTEST:
Mary Wynn,
City Clerk
JGR:tw:R:10/9/89:428f.tw