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HomeMy WebLinkAboutOrd. No. 2008-1243 ORDINANCE NO. 1243 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE. ELSINORE, CALIFORNIA, ADDING CHAPTER 10.40 TO THE LAKE ELSINORE MUNICIPAL CODE REGARDING THE REGULATION OF NEWSRACKS IN PUBLIC RIGHTS-OF-WAY WHEREAS, it is the purpose and intent of this chapter to provide for reasonable and uniform regulation of newsracks in the city; and WHEREAS, the uncontrolled placement and maintenance of newsracks on the public right-of-way unreasonably interferes with and obstructs 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; and WHEREAS, 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; and WHEREAS, 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; and WHEREAS, it is the purpose and intent of the special regulations for materials harmful to minors and sexually 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 news racks is necessary; and WHEREAS, it is not the intent of this chapter to suppress any speech activities protected by the First Arnendment, but to enact a content neutral ordinance and to balance protected activities with the need to protect the substantial govemmental interests described above; and WHEREAS, the City Council wishes to add Chapter 1 DAD to the Lake Elsinore Municipal Code. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. That Chapter 10.40 of the Lake Elsinore Municipal Code is added as follows: 1 CHAPTER 10.40 REGULATION OF NEWSRACKS IN PUBLIC RIGHTS OF WAY 10.40.010 Intent. It is the intent of this chapter to provide for reasonable and uniform regulation of newsracks in the city. The uncontrolled placement and maintenance of newsracks on the public right-of-way unreasonably interferes with and obstructs 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. Additionally, special regulation of the time, place and manner of the display of materials harmful to minors and sexually explicit material are necessary to protect and preserve the public health, safety and welfare of the citizenry. 10.40.020 Definitions. forth herein: As used in this Chapter, the following terms shall have the meanings set "Blinder rack" means any opaque material placed within the newsrack in front of the harmful matter that prevents exposure of the harmful matter to public view. "City manager" means the City Manager of the city or his or her designee. "Custodian" means 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 news rack. "Director of public works" means the Director of Public Works of the city or his or her designee. "Display" means to show. "Harmful matter" means 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. 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. In prosecutions under this chapter, where circumstances of production, presentation, sale, dissemination, distribution or publicity indicate that matters being commercially exploited by the 2 defendant for the sake of its prurient appeal, that evidence is probative 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. "Knowingly" means being aware of the character of the matter. "Matter" means 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, news racks or materials. "Minor" means any natural person under eighteen years of age. "Newsrack" means any self-service or coin-operated box, container, storage unit, or other dispenser installed, used or maintained for the display, distribution or sale of any written or printed material, including, but not limited to, newspapers, news periodicals, magazines, books, pictures, photographs and records. "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 area is not a sidewalk and is not open to vehicular traffic. "Person" means any individual, partnership, firm, association, corporation or other legal entity. "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. newsracks. 10.40.030 Regulations, restrictions and procedures relating to The regulations, restrictions and procedures set forth in this chapter shall relate to the installation and maintenance of newsracks in the city. 10.40.040 Newsrack permits. Applications for installing and maintaining newsracks shall be filed with the Department of Public Works 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: 3 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; 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. 10.40.050 Prohibition of news racks 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. 10.40.060 Dangerous conditions or obstructions. Subject to the specific provision of Section 10040.070, no person shall install, use or maintain any newsrack which, in whole orin 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. 10.40.070 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 feet in height as measured from the sidewalk to the highest point on the newsrack, thirty inches in width, or two feet in depth. 4 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 (i) twenty-four (24) inches from the face of the curb in a designated "no parking" zone, or (ii) forty-eight (48) inches from the face of the curb if vehicle parking is allowed adjacent to such curb. Newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and shall be not more than six 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. C. No newsrack shall be chained, bolted or otherwise attached to property not owned by the owner of such news rack or to any permanently fixed object unless the custodian 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 lineal feet along a curb or wall, and a space of no less than three feet shall separate each such group of newsracks, provided the newsracks are otherwise in compliance with the provisions of this chapter. E. Such newsracks may be chained or otherwise attached to one another; provided, however, no more than three such newsracks may be joined together in this manner, and a space of no less than three feet of clear space shall separate each group of three or less such newsracks so attached, provided the newsracks are otherwise in compliance with the provisions of this chapter. F. No such newsrack or group of such newsracks permitted by the provisions of subsection E of this section shall weigh, in the aggregate, in excess of one hundred twenty-five pounds when empty. G. Notwithstanding any other provision of this chapter, no newsrack shall be placed, installed, used or maintained: 1. Within five feet of any marked crosswalk; 2. Within fifteen feet of the curb return of any unmarked crosswalk; 3. Within five feet of any fire hydrant, fire call box, police call box, or any other emergency facility or structure; 4. Within five feet of any driveway; 5 5. Within five feet ahead of or twenty-five feet to the rear of any sign marking a designated bus stop; 6. Within six 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 feet, unless a reduced width of not less than four feet is approved by the city manager, provided however, such approved width shall comply with all applicable federal and State laws, including without limitation, the Americans with Disabilities Act; 8. Within three feet of any area improved with lawn, flowers, shrubs or trees, or within three 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 director of public works 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 director of public works may prohibit such location of the news rack 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 director of public works may deem necessary to protect the public peace, health, safety and welfare and to carry out the purposes and intent of this chapter. any time. 1. Such finding may be made by the director of public works at 2. If such finding is made prior to the issuance of a permit, the finding shall be set forth as 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 director of public works shall be given to the owner or custodian of such newsrack with the direction that there shall be compliance with the findings of the director of public works within ten business days after the date of mailing such notice. 6 10.40.080 Standards of materials distributed. No publication offered for distribution 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. 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 sides, except for a one 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. 10.40.090 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 California Business and Professions Code as it exists on the effective date of the ordinance adopting this chapter, or as it may be hereafter amended. 10.40.100 Newsracks in violation of the regulations of this chapter. Upon a determination by the director of public works 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 7 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 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 director of public works may move the newsrack or take such other action, including removal, so as to alleviate the dangerous condition. Unless the determination of the director of public works is appealed, failure to properly correct the offending condition within ten business days after the date of mailing of the order shall result in the offending 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 director of public works shall cause an inspection to be made of the corrected condition or of the newsrack reinstalled 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. 10.40.110 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 (or the city manager's designee). The city manager's decision on the appeal shall be final. An appeal shall be perfected within ten business days after the receipt of the notice of any protested decision or action by filing with the office of the city manager a letter of appeal briefly stating the basis for such appeal. The hearing shall be held on a date no more than twenty days after the receipt of the letter of appeal. The appellant shall be given at least five 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 director of public works 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 director of public works. 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 business days after the date of the determination of the appeal to comply with the order of the city manager. 10.40.120 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 8 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. If any provision, clause, sentence or paragraph of this Ordinance or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions of this Ordinance and are hereby declared to be severable. SECTION 3. This Ordinance shall take effect thirty (30) days after the date of its final passage. The City Clerk shall certify as to adoption of this Ordinance and cause this Ordinance to be published and posted in the manner required by law. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Lake Elsinore, California, on this _ day of January, 2008. ~ HICKMAN MAYOR V VIAN M. MUNSON CITY CLERK 9 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE )ss. CITY OF LAKE ELSINORE ) I, VIVIAN M. MUNSON, City Clerk of the City of Lake Elsinore, California, hereby certify that the foregoing Ordinance No. 1243 was introduced at a regular meeting of the City Council of the City of Lake Elsinore on the 8th day of January 2008, and was finally passed at a regular meeting of the City Council of the City of Lake Elsinore held on the 22nd day of January 2008, by the following roll call vote: AYES: MAYOR HICKMAN, MAYOR PRO TEM KELLEY, COUNCILMEMBER BUCKLEY, COUNCILMEMBER MAGEE, COUNCILMEMBER SCHIFFNER NOES: NONE ABSENT: NONE ABSTAIN: NONE [_Ll__ VIVIAN M. MUNSON CITY CLERK 10