HomeMy WebLinkAboutORD FOR INTRODUCTION 11-... (2)ORDINANCE FOR INTRODUCTION
TO:
FROM:
SUBJECT:
HONORABLE MAYOR AND CITY COUNCIL
CITY ATTORNEY
NEWSRACKS REGULATION
Enclosed is an ordinance submitted for Council consideration
in line with my understanding of the intent of the Council
expressed at its meeting of October 16, 1989.
This ordinance would prohibit the offering for sale in a
newsrack in the public right-of-way material of the types which
are commonly referred to as pornographic.
,J
JAMES G. ROURKE
City .Attorney
JGR:cas:D:A10/18/89(3)
Enclosure
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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
5 ordain as follows:
6 Section 7212 of Chapter 2, Part 1 of the Tustin City
Code is hereby amended to read as follows:
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7212 Regulation Of Newsracks
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A. Purpose. The purpose of this chapter is to
9 establish a comprehensive set of regulations applicable to
newsracks 6n the public streets, sidewalks and other public
10 property. The purpose of this chapter is to advance and
improve safety and aesthetics by controlling the number,
11 size, construction, placement and appearance of newsracks
without restricting the free dispersal of information
12 guaranteed by the Constitutions of the United States and the
State of California.
13
More specifically, the purpose of this chapter is to
14 promote the public peace, morals, health, safety and general
welfare by regulating the placement, appearance, servicing
15 and insuring of newsracks so as to protect against the
dangers of impairing or distracting the vision of motorists
16 and pedestrians; the hazards of unreasonably interfering
with or impeding the flow of pedestrian or vehicular
17 traffic, inbluding ingress into or egress from any
residence or place of business, or from the street to the
18 sidewalk by persons exiting or entering parked or standing
vehicles; unreasonably interfering with the use of public
19 property for its intended purpose; unduly restricting access
to the use of poles, posts, traffic signs or signals;
20 hydrants, mailboxes or locations used for transportation
ipurposes; unsightly structures inconsistent with the intent
21 and purpose of the city's design regulations; neglectful
servicing of newsracks resulting in visual blight on public
22 rights-of-way and other public property and detrgcting from
the aesthetics of store window displays, adjacent
23 landscaping and other improvements; reduction in value of
surrounding property; unnecessary exposure of the city to
24 personal injury and property damage claims and lawsuits; and
public displays of harmful or offensive matters.
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The City Council finds and determines that the strong
26 and competing interests of the public and of newspapers
require a reasonable accommodation which can only be
27 satisfactorily achieved through the means of this section
ch is designed to accommodate such interests by
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regulating the time, place and manner of using newsracks.
It is not the intent of this chapter 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" m~ans parks, square, plazas and
any and all other real property owned by the city.
(5) "Righ~-of-way" means land which by deed,
conveyance, agreement, easement, 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 amendment to 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
issuance of the original permit by the city.
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(2) Applications for permits required by this chapter
shall be filed with the License and 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 additional information which .the License
and Permit Board may deem necessary for the
proper disposition of the application.
(3) Not more than one permit shall be required for
each applicant regardless of the number of newsracks
proposed to be installed or maintained.
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(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 judgment in favor of any person, arising
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) Each permit shall be valid for a period Of five
years, and may be renewed in the same manner set forth in
this section for original applications, provided however,
that the License and Permit Board may prescribe a simplified
application form and procedure for renewals.
(7) Each permit shall be issued only to the person
making the application and may not be assigned to another
person by the permittee without first providing written
notice to City of the proposed assignment on forms
prescribed by the License and Permit Board. If any
permittee assigns his permit to another, without compliance
with the aforesaid notice requirement, 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
License and Permit Board. 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 shall 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 ~ndangers 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 ob3ects 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 pa~t rests upon,
in or over any sidewalk or parkway shall comply with the
following standards-:
(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
adjacent to the wall of a building. Newsracks placed
near the curb shall be placed no less than eighteen
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inches nor more than twenty-four inches from the edge
of the curb. Newsracks placed adjacent to the wall of
a bu±lding 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
opposite a news stand or another newsrack.
(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
object.
(d) Newsracks may be chained or otherwise
attached to one another; however, no more than six
newsracks may be joined together in this manner, and a
space of no less than eighteen inches shall separate
each group 6f two to six 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.
(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.
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(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.
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(g) No newsrack shall be useu 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 newsrack shall be maintained in a clean
and neat 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.
(j) No person shall cause any publication to be
offered for sale in a newsrack placed or maintai~ed on a
public sidewalk or public right-of-way which contains any of
the following:
(1) Any statement or word describing explicit
sexual acts, sexual organs or excrement where such
statements or words have as 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 or effect sexual arousal, gratification or
affront; or
(3) Any picture os 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. Removal.
(1) Commencing 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 hearing 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 hearing, 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 hearing 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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(5) 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
sha. ll, within thirty (30) days from the date of ~he hearing,
render its decision on the appeal, together with findings.
The decision of the City Council shall be final.
G. 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 provision 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 ocher 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 reason, held to be unconstitutional or otherwise
invalid, such decision shall not effect 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
cas:R:10/18/89