HomeMy WebLinkAbout94-28 CC OrdinanceORDINANCE NO. 94-28
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TEMECULA ADDING CHAPTER 10.36 TO THE
TEMECULA MUNICIPAL CODE FOR THE REGULATION
OF NEWSRACKS IN PUBLIC RIGHTS OF WAY
THE CITY COUNCIL OF THE CITY OF TEMF. CULA DOES HEREBY ORDAIN AS
FOLLOWS:
Section 1.
follows:
Chapter 10.36 is hereby added to the Temecula Municipal Code to read as
CHAPTER 10.36
REGULATION OF NEWSRACKS IN PUBLIC RIGHTS OF WAY
10.36.010
10.36.020.
10.36.030.
10.36.040.
10.36.050.
10.36.060.
10.36.070.
10.36.080.
10.36.090.
10.36.100.
10.36.110.
10.36.120.
PURPOSES AND INTENT.
DEFINITIONS.
REGULATIONS, RESTRICTIONS, AND PROCEDURES RELATING
TO NEWSRACKS.
NEWSRACK PERMITS.
PROHIBITION OF NEWSRACKS ON ROADWAYS.
DANGEROUS CONDITIONS OR OBSTRUCTIONS.
STANDARDS FOR MAINTENANCE AND INSTALLATION.
STANDARDS OF MATERIALS SOLD.
INFORMATION REQUIRED.
NEWSRACKS IN VIOLATION OF THE REGULATIONS OF THIS
CHAPTER.
APPEALS.
RESTRICTION OF DISPLAYED HARMYUL MATTER TO
MINORS.
10.36.010 PURPOSES AND INTENT. The City Council of the City of Temecula does
hereby find, determine and declare that:
A. It is the purpose and intent of this Chapter to provide for a reasonable and
uniform regulation of newsracks in the City of Temecula. The uncontrolled placement and
maintenance of newsracks on the public right-of-way unreasonably interferes with and obstructs
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the public's use of such rights-of-way and such obstruction of the free use of property interferes
with the comfortable enjoyment of life and property by the entire community.
B. The proliferation of newsracks on public rights-of-way to display words and
pictorial material describing and depicting explicit sexual conduct and nudity, exposes children,
minors and unwilling adults to such material, unreasonably interferes with the public's use of such
right-of-ways, and constitutes unwarranted invasions of individual privacy.
C. The Temecula General Plan policies and programs emphasize the importance
of maintaining the aesthetic quality of the City and preventing the uncontrolled proliferation of
signs and structures throughout the City. The regulations set forth in this Chapter are appropriate
and reasonable regulations to protect the aesthetic values of the City and the health and safety of
persons in the City of Temecula. The placement of newsracks which do not comply with the
regulations set forth in this Chapter is detrimental to the aesthetic values of the City and the health
and safety of the persons within the City.
D. It is recognized that the use of rights-of-way is historically associated with
the sale and distribution of newspapers and publications and that access to these areas for such
purposes should not be absolutely denied.
E. The protection and preservation of public health, safety and welfare requires
that certain distance and height restrictions be placed on newsracks to insure the safety of
pedestrians using the sidewalks and the safe flow of traffic on streets.
F. Government agencies and utilities receive numerous claims from persons
alleging injury due to the improper placement and maintenance of objects in the public right of
way, such as power poles, light standards, signals, signal control boxes, newsracks, trees and
similar objects. It is therefore necessary for the City to obtain some protection for such claims
from private parties who will place objects in the public right of way.
G. It is the purpose and intent of the special regulations for materials harmful
to minors and sexual explicit material to protect and preserve the public health, safety and welfare
of citizenry, especially minors, and that special regulation of the time, place and manner of the
display of harmful matter and sexually explicit materials in newsracks is necessary. In adopting
the regulations under this chapter, it is recognized that the display of harmful matter or sexually
explicit materials in newsracks will cause the exposure of minors to adult material which, because
of their immaturity, may adversely affect them. In addition, it is recognized that many persons
are offended by the public display of certain sexual material. Special regulation of these uses is
necessary to address these concerns.
H. It is not the intent of the City Council of Temecula under this Ordinance nor
any provision thereof to condone nor legitimize the distribution of obscene, harmful to minors or
sexually explicit materials, and the Council recognizes that state law prohibits the distribution of
Orda 94-28 -2-
obscene and harmful to minors materials and expects and encourages law enforcement officials
to enforce State Obscenity Statutes against such illegal activities in Temecula.
I. It is not the intent of this Ordinance to suppress any spccch activities
protected by the First Amendment, but to enact a content neutral ordinance and to balance
protected activities with the need to protect the substantial governmental interests described above.
10.36.020. DEFINITIONS. The following words, terms and phrases, when used in this
division, shall have the meaning ascribed to them in this section, unless it is apparent from the
context that a different meaning is intended.
A. "Newsrack" shall mean any self-service or coin-operated box, container,
storage unit, or other dispenser installed, used, or maintained for the display or sale of any written
or printed material, including, but not limited to, newspapers, news periodicals, magazines,
books, pictures, photographs, and records.
B. "Street" shall mean 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. "Parkway" shall mean 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 shall include any area within a roadway which area is not
a sidewalk and is not open to vehicular traffic.
D. "Custodian" shall mean a person who has the responsibility of placing,
servicing, or maintaining a newsrack by depositing in and/or removing material from such
newsrack and/or by collecting money from such newsrack.
E. "Harmful Matter" shall mean matter taken as a whole, the predominant
appeal of which to the average person, applying contemporary statewide standards, is a 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, artistic, political, educational, or
scientific value for minors as described in California Penal Code Section 313, or its successor
sections.
(1) When it appears from the nature of the matter or the circumstances
of its dissemination, distribution or exhibition that it is designed for clearly defined deviant sexual
groups, the predominant appeal of the matter shall be judged with reference to its intended
recipient group.
(2) In prosecutions under this division, where circumstances of
production, presentation, sale, dissemination, distribution, or publicity indicate that matters being
Ords 94-28 -3-
commercially exploited by the defendant for the sake of its prurient appeal, that evidence is
probafive with respect to the nature of the matter and can justify the conclusion that the matter
lacks significant literary, artistic, political, educational, or scientific value for minors.
F. "Matter" shall mean any book, magazine, newspaper, or any other printed
or written material or any picture, drawing, photograph, motion picture, or any other pictorial
representation or any statue of other figure, or any recording, transcription, or mechanical,
chemical, or electrical reproduction of any other articles, equipment, newsracks, or materials.
G. "Person" shall mean any individual, parmership, firm, association,
corporation or other legal entity.
H. "Knowingly" shall mean being aware of the character of the matter.
I. "Display" shall mean to show.
J. "Minor" shall mean any natural person under 18 years of age.
K. "Blinder Rack" shall mean any opaque material placed within the newsrack
in front of the harmful matter which prevents exposure of the harmful matter to public view.
10.36.030. REGULATIONS, RESTRICTIONS, AND PROCEDURES RELATING
TO NEWSRACKS. The regulations, restrictions, and procedures set forth in this Chapter shall
relate to the installation and maintenance of newsracks in the City.
10.36.040. NEWSRACK PERMITS. Applications for installing and maintaining
newsracks shall be filed with the licensing officer of the City within one business day of placement
within the City. An application fee may be established by resolution of the City Council based
on the actual costs of processing the application. The Director of Public Works shall issue the
permit for the newsrack to the applicant therefor when the applicant has submitted the following
information to the City:
A. The name, address and telephone number of the person owning the
newsracks and the name, address, and telephone number of the custodian therefor.
B. The location of newsracks being placed within the City.
C. A written statement whereby the person who will place or maintain such
newsrack on a public street agrees to indemnify and hold harmless the City and its officers,
agents, or employees from any loss or liability or damages, including expenses and costs, for
bodily or personal injury and for property damage or other damages sustained by any person as
a result of the installation, use, or maintenance of such newsrack within the City.
O~ds 94-28 -4-
D. A certificate of insurance establishing that there is in force and effect an
insurance policy for the permittee which will remain in force during the time such newsrack is
allowed to remain on public property, which policy shall be of public liability insurance against
liability for the death of, or injuries to, persons or damages to property arising out of accidents
attributable to the newsracks on City property. The amount of the coverage required shall be
established by resolution of the City Council and a certificate of insurance shall not be required
unless and until such a resolution is in full force and effect. The policy of insurance so provided
shall contain a contractual liability endorsement covering the liability assumed by the permittee
by the terms of his permit and shall contain a provision that such policy may not be cancelled
except after thirty (30) days' notice in writing given to the City.
10.36.050. PROHIBmON OF NEWSRACKS ON ROADWAYS. 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 any portion of the roadway of any
public street.
10.36.060. DANGEROUS CONDITIONS OR OBSTRUCTIONS. Subject to the
specific provision of Section 10.36.070, no person shall install, use, or maintain any newsrack
which, in whole or in part, rests upon, in, or over any public sidewalk or parkway when such
installation, use, or maintenance endangers the safety of persons on property, or when such area
or location is used for public utility purposes, public transportation purpose, or governmental use,
or when such newsrack interferes with or impedes the flow of pedestrian or vehicular traffic,
including the ingress into or egress from any legally parked or stopped vehicle 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 such location.
10.36.070. STANDARDS FOR MAINTENANCE AND INSTALLATION. Any
newsrack which rests, in whole or in part, upon, in, or over any public sidewalk or parkway shall
comply with the following standards:
A. No newsrack shall exceed five (5') feet in height as measured from the
sidewalk to the highest point on the newsrack, thirty (30') inches in width, or two (2') feet in
depth.
B Newsracks shall only be placed near a curb or adjacent to a wall or building.
Such newsracks placed near the curb shall be parallel thereto and shall be no less than twenty-four
(24") inches from the face of the curb. Newsracks placed adjacent to the wall of a building shall
be placed parallel to such wall and shall be not more than six (6") inches from the wall. No such
newsrack shall be placed or maintained on the sidewalk or parkway opposite another newsrack or
group of newsracks nor in such a manner that prevents pedestrians from passing freely and without
obstruction along any sidewalk or through any marked or unmarked crosswalk.
Ords 94-28 -5-
C. No publication vending shall be chained, bolted, or otherwise attached to
property not owned by the owner of such newsrack or to any permanently fixed object unless the
custodi_a_n of such newsrack shall have obtained the written permission of the owner of the property
or object to which the newsrack is affixed.
D. Newsracks may be placed next to each other; provided, however, no group
of such newsracks shall extend more than eight (8) lineal feet along a curb or wall, and a space
of no less than three (3') feet shall separate each such group of newsracks, provided the newsracks
are otherwise in compliance with the provisions of this ordinance.
E. Such newsracks may be chained or otherwise attached to one another;
provided, however, no more than three (3) such newsracks may be joined together in this manner,
and a space of no less than three (3') feet of clear space shall separate each group of three (3) or
less such newsracks so attached, provided the newsracks are otherwise in compliance with the
provisions of this ordinance.
Fm
of Subsection E.
empty.
No such newsrack or group of such newsracks permitted by the provisions
of this section shah weigh, in the aggregate, in excess of 125 pounds when
G. Notwithstanding any other provision of this Chapter, no newsrock shah be
placed, installed, used, or maintained:
1. Within five (5') feet of any marked crosswalk;
crosswalk;
Within fifteen (15') feet of the curb return of any unmarked
3. Within five (5') feet of any fire hydrant, fire call box, police call
box, or any other emergency facility or structure;
4. Within five (5') feet of any driveway;
5. Within five (5') feet ahead of or twenty-five (25') feet to the rear
of any sign marking a designated bus stop;
6. Within six (6') feet of any bus bench;
7. In any location if the placement of the newsrack reduces the cross
space or the passageway of pedestrians to less than six (6') feet;
Ords 94-28 -6-
8. Within three (3') feet of any area improved with lawn, flowers,
shrubs, or trees, or within three (3') feet of any display window or any building abutting the
sidewalk or parkway, or in such a manner as to impede or interfere with the reasonable use of
such window for display purposes.
H. No such newsrack shall be used for advertising signs or publicity purposes
except relating to the display, sale, or purchase of the publications sold therein.
I. Each such newsrack shall be maintained in a clean and neat condition and
in good repair at all times.
J. Notwithstanding the provisions of this section, if the Chief Building Official
finds that the location of a newsrack, in accordance with the standards set forth in this Section,
will create or allow a condition prohibited by any other section of this Chapter or will otherwise
endanger the public health or safety, the Chief Building Official may prohibit such location of the
newsrack or may allow the location of the newsrack in a manner deviating from, or at variance
with, the standards provided in this Section, subject to such terms, conditions, and regulations as
the Chief Building Official may deem necessary to protect the public peace, health, safety, and
welfare and to carry out the purposes and intent of this Chapter.
Such finding may be made by the Chief Building Official at any
time.
2. If such finding is made prior to the issuance of a permit, the finding
shall be made by the Director of Public Works shall be made a part of the permit at the time of
its issuance.
3. If the finding is made subsequent to the issuance of a permit, a
written notice of the finding of the Chief Building Official shall be given to the owner or custodian
of such newsrack with the direction that there shall be compliance with the findings of the Chief
Building Official within ten (10) business days after the date of mailing such notice.
10.36.080. STANDARDS OF MATERIALS SOLD. No publication offered for sale
from any newsrack placed or installed in, maintained on, or relocated to any public sidewalk or
parkway, shall be displayed or exhibit in any manner which exposes to public view from the street
any of the following:
A. Any statements or words describing explicit sexual acts, sexual organs or
excrement, where such statement or words have as their purpose or effect, sexual arousal,
gratification or affront.
Ord~ 94-28 -7-
B. Any picture or illustration of genitals, pubic hair, perineums, anuses, or anal
regions of any person, or any picture or illustration which 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. Explicit sexual
acts means depictions of sexual intercourse, oral copulation, bestiality, sadism, masochism or
excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the
genitals, where 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.
D. For purposes of this section, no publication shall be considered displayed
or exhibited if the newsrack in which it is placed is covered on all fides, except for a one (1") inch
wide vertical opening for the purpose of indicating the number of remaining publications, by
opaque material preventing exposure to public view from the street.
10.36.090. INFORMATION REQUIRED. Every person or custodian who places or
maintains a newsrack on a public sidewalk or parkway within the City shall have his or her or its
name, address, and telephone number affixed thereto in a place where such information may be
easily seen and shall comply fully with the provisions of Section 17570 of the Business and
Professions Code of the State as it exists on the effective date of the ordinance adopting this
Chapter, or as it may be hereafter amended.
10.36.100. NEWSRACKS IN VIOLATION OF THE REGULATIONS OF THIS
CHAPTER. Upon a determination by the Chief Building Official that a newsrack has been
installed, used, or maintained in violation of the provisions of this Chapter, an order to correct
the condition will be issued to the owner and custodian of such newsrack. Such order shall be
attached to said newsrack and confirmed by mailing a copy of such order to the owner and
custodian by certified mail, return receipt requested to the address stated in the permit application.
The order shall be effective upon receipt of the order by the owner or custodian, or three (3)
business days following deposit of the order in the U.S. Mail, whichever occurs first. The order
shall specifically describe the offending condition and describe the actions necessary to correct it.
Both the owner and the custodian shall be responsible for compliance with the order. If the
newsrack is in such a condition or is placed so as to constitute an immediate danger to pedestrians,
motorists or other persons, the Chief Building Official may move the newsrack or take such other
action, including removal, so as to alleviate the dangerous condition. Unless the determination
of the Chief Building Official is appealed, failure to properly correct the offending condition
within ten (10) business days after the date of mailing of the order shall result in the offending
Ords 94-28 -8-
newsrack being removed and processed as unclaimed property under the applicable provisions of
law relating thereto. If the offending newsrack is not properly identified as to the owner pursuant
to the provisions of this Chapter, such newsrack may be removed immediately and processed as
unclaimed property under the applicable provisions of law. The Chief Building Inspector shall
cause an inspection to be made of the corrected condition or of the newsrack reinstailed after
removal pursuant to the provisions of this section. The owner or custodian of such newsrack shall
be charged an inspection fee for each such newsrack so inspected, which charge shall be in
addition to all the other fees and charges required by law. The amount of the inspection fee shall
be set by resolution of the City Council.
10.36.110. APPEALS. Any person or entity aggrieved by any finding, notice, or action
taken pursuant to the provisions of this Chapter may appeal, and shall be apprised of his right to
appeal, to the City Manager. The City Manager's decision on the appeal shall be final. An
appeal shall be perfected within three (3) business days after the receipt of the notice of any
protested decision or action by filing with the office of the Chief Building Inspector a letter of
appeal briefly stating the basis for such appeal. The hearing shall be held on a date no more than
ten (10) days after the receipt of the letter of appeal. The appellant shall be given at least five (5)
days' notice of the time and place of the hearing. The City Manager shall give the appellant, and
any other interested party, a reasonable opportunity to be heard in order to show cause why the
determination of the Chief Building Official should not be upheld. In all such cases, the burden
of proof shall be upon the appellant to show that there was no substantial evidence to support the
action proposed to be taken by the Chief Building Official. At the conclusion of the hearing, the
City Manager shall make a final and conclusive determination in writing and the owner or
custodian shall have ten (10) business days after the date of the determination of the appeal to
comply with the order of the City Manager.
10.36.120. RESTRICTION OF DISPLAYED HARMFUL MATTER TO MINORS.
Any person who knowingly displays, or causes to be displayed, harmful matter as defined in this
Chapter in any newsrack which is located on a public sidewalk, or any other public place from
which minors are not excluded, is guilty of a misdemeanor, unless such person places what is
commonly known as blinder racks in front of the material, so that the lower two-thirds of the
material is not exposed to view and so that no harmful matter is exposed to public view.
Section 2. The City Council hereby declares that the provisions of this Ordinance are
severable and if for any reason a court of competent jurisdiction shall hold any sentence,
paragraph, or section of this Ordinance to be invalid, such decision shall not affect the validity
of the remaining parts of this Ordinance.
Section 3. The City Clerk shall certify to the passage of this ordinance and shall cause the
same to be published in the manner required by law.
Ord~ 94-28 -9-
PASSED AND APPROVED this 1 lth day of October, 1994.
Ron Roberts, Mayor
ATrF_.ST:
'~. Greek, City Cl~~~"~
[SEAL
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE) SS
CITY OF TEMECULA )
I, JUNE S. GREEK, City Clerk of the City of Temecula, do hereby certify that the
foregoing Ordinance No. 94-28 was regularly introduced and placed upon its first reading at a
regular meeting of the City Council on the 27th day of September, 1994. That thereafter, said
Ordinance was duly adopted and passed at a regular meeting of the City Council on the 1 lth day
of October, 1994, by the following vote, to wit:
AYES: 5
COUNCILMEMBERS:
Birdsall, Mufioz, Parks, Stone
Roberts
NOES:
0 COUNCILMEMBERS: None
ABSENT: 0 COUNCILMEMBERS: None
Ords 94-28 -10-