Chapter 9.25
NEWS RACKS
Sections:
9.25.020 News rack identification.
9.25.030 Prohibition of news racks where vehicles permitted.
9.25.040 Unlawful obstructions.
9.25.050 Display of certain matter prohibited.
9.25.060 Definition of explicit sexual acts.
9.25.080 Return of impounded news racks.
9.25.120 News rack owner to hold City harmless.
9.25.010 Purpose and intent.
The City Council finds and declares that the uncontrolled placement and maintenance of news racks on the public rights-of-way (the paved roadway, curb, gutter, park strip, sidewalk, and other portion of the publicly owned real property up to the private property line) and the proliferation of such devices which display words and pictorial material describing and depicting explicit sexual conduct and nudity, which is thrust indiscriminately on children and unwilling adults, unreasonably interferes with and obstructs the public's use of the public rights-of-way, constitutes unwarranted invasions of individual privacy, is injurious to health, is indecent and offensive to the senses, and is such an obstruction of the free use of property so as to interfere with the comfortable enjoyment of life and property by the entire community. The City Council also finds, however, that the use of such rights-of-way is so historically associated with the sale and distribution of newspapers and publications that access to these areas for such purposes should not be absolutely denied. The City Council further finds that these strong and competing interests require a reasonable accommodation which can only be satisfactorily achieved through the means of this chapter designed to accommodate such interests by regulating the time, place and manner of using such news racks. (Ord. 1451 § 1, 5-18-82. Formerly § 18-80).
9.25.020 News rack identification.
Every person, principal or agent, clerk or employee, either for himself/herself, for any other person, or as an officer of any corporation who places or maintains, or causes to be placed or maintained, a news rack on or projecting onto any portion of a public right-of-way in the jurisdictional boundaries of the City shall permanently and clearly affix to each news rack identification which includes the news rack owner's name, address and telephone number as required by Business and Professions Code Section 17570 for the purposes of all notification pursuant to this chapter. (Ord. 1451 § 1, 5-18-82. Formerly § 18-81).
9.25.030 Prohibition of news racks where vehicles permitted.
No person shall place or maintain any news racks on any portion of, or projecting onto, into or over any portion of the roadway on which vehicles are lawfully permitted. (Ord. 1451 § 1, 5-18-82. Formerly § 18-82).
9.25.040 Unlawful obstructions.
No news rack shall be placed, installed, used, or maintained in the public right-of-way in the following locations and manner:
(a) Within three feet of any marked crosswalk.
(b) Within fifteen (15) feet of the curb return of any unmarked crosswalk.
(c) Within five feet of any fire hydrant, fire call box, police call box or other emergency facility.
(d) Within three feet of any driveway.
(e) Within three feet ahead of, and fifteen (15) feet to the rear of any sign or pavement markings marking a designated bus stop measured parallel to the flow of traffic.
(f) Within three feet of any bus bench.
(g) At any location where the news rack causes, creates, or constitutes a traffic hazard.
(h) At any location where the news rack unreasonably obstructs or interferes with access to, or the use and enjoyment of abutting property.
(i) Where the news rack will physically endanger persons or property.
(j) Where the news rack will unreasonably interfere with or obstruct the flow of pedestrian or vehicular traffic on the paved roadway.
(k) At any location whereby the clear space for the passage of pedestrians is reduced to less than five feet.
(l) On a sidewalk with a width of less than eight feet. (Ord. 1451 § 1, 5-18-82. Formerly § 18-83).
9.25.050 Display of certain matter prohibited.
Publications which are offered for sale from news racks placed, maintained on, or projecting over or onto the public right-of-way shall not be displayed or exhibited in a manner which exposes to public view any of the following:
(a) Any statements or words describing explicit sexual acts, sexual organs, or excrement, where such statements or words have as their purpose or effect sexual arousal, gratification or affront.
(b) Any picture or illustration of the genitals, pubic hair, perineum, anus or anal region of any person or persons where such picture or illustration 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. (Ord. 1451 § 1, 5-18-82. Formerly § 18-84).
9.25.060 Definition of explicit sexual acts.
"Explicit sexual acts," as used in this chapter, means depictions of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism or excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the genitals, whether 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 act of sexual arousal involving any physical contact with a person's genitals, pubic region, pubic hair, perineum, anus or anal region. (Ord. 1451 § 1, 5-18-82. Formerly § 18-85).
9.25.070 Impounding.
The Chief of Police or his/her designee:
(a) May immediately correct any violation of SCCC 9.25.040 and shall do so without impounding if such correction can be accomplished simply, easily, quickly, and without expense.
(b) May, notwithstanding any other provisions of this chapter, immediately remove and impound any news rack in violation of this chapter if the violation is creating a physically dangerous or hazardous condition which cannot be corrected simply, easily, quickly, and without expense. Notice of such action and the right to request a hearing in accordance with this chapter shall be mailed to the name and address appearing on the news rack identification within five working days after such action.
(c) May, when a news rack is in violation of this chapter, notify the person whose name appears on the news rack identification that the news rack will be impounded unless the violation is corrected or a hearing requested. The method of giving notice, which shall be in the discretion of the Chief of Police, and the time limit within which the violation is to be corrected or a hearing requested, are as follows:
(1) Notice in person or by telephone – within two working days of the date of such notice.
(2) By mail – within five working days of the date of the notice.
(3) Affixing a notice to the news rack – within seven working days of the date of the notice.
(d) May impound any news rack in accordance with the decision following any hearing requested pursuant to this chapter upon a finding of facts sufficient to constitute a violation of any section of this chapter.
(e) If a hearing on the impounding of the news rack is not timely requested or if the news rack is not returned in accordance with the provisions of this chapter, the Chief of Police may sell or otherwise dispose of the news rack, and its contents, and deposit the proceeds, if any, from any such sale or other disposition, and any moneys contained in said news rack, in the City treasury. (Ord. 1451 § 1, 5-18-82. Formerly § 18-86).
9.25.080 Return of impounded news racks.
(a) Unless the news rack and its contents are being held as evidence in a criminal prosecution, the person whose name appears on the news rack identification or, if such person is unknown, a claimant who provides sufficient proof of ownership of an impounded news rack may obtain the return of an impounded news rack and its contents upon paying an impound fee of twenty-five dollars ($25.00) plus the reasonable additional costs, if any, of impounding the news rack in excess of said twenty-five dollars ($25.00). The period in which to obtain the return of an impounded news rack shall be as follows:
(1) No hearing – at any time up to and including the thirtieth day after the impounding.
(2) A hearing held – at any time up to and including the thirtieth day after the decision from such hearing becomes final.
(b) The Chief of Police or his/her designee shall, after a hearing in accordance with this chapter, order the news rack returned without payment of any impound fee, or, if an impound fee has previously been paid, return such impound fee whenever it is determined that this chapter has not been violated.
(c) A court before which criminal charges concerning an impounded news rack are pending, shall, upon dismissal of the charges or a finding of acquittal, and upon a finding of good cause, order an impounded news rack returned with or without payment of an impound fee or order the return of the impound fee paid. (Ord. 1451 § 1, 5-18-82. Formerly § 18-87).
9.25.090 Hearings.
(a) Request for Hearing. Any person maintaining a news rack charged with being in violation of this chapter may, at any time within ten days of a notice (as provided in SCCC 9.25.070(c)) of the alleged violation, request in writing a hearing before the Chief of Police or his/her designee.
(b) Stay on Impounding Pending Decision. A timely request for a hearing, made prior to any impounding, shall operate to stay any impounding until five working days after the decision is rendered, unless further stayed pending any appeal therefrom.
(c) Conduct of Hearing. A hearing shall be held, unless continued by agreement, within five working days of the request for a hearing. At the hearing any person may present evidence or argument as to whether the news rack was in violation of this chapter or whether the news rack should be returned without payment of an impound fee.
(d) Decision. A decision shall be rendered within five working days after the close of the hearing.
(e) Notice of Decision. The Chief of Police or his/her designee may give oral notice of the decision at the close of the hearing or may send notice of the decision by mail. (Ord. 1451 § 1, 5-18-82. Formerly § 18-88).
9.25.100 Appeal procedure.
(a) Appeal from Hearing Decision. Any person who has requested a hearing may, within five working days of the date appearing on the said notice of decision, appeal such decision to the City Manager or his/her designee.
(b) Contents of Appeal. The appeal shall be in writing, shall state the legal and factual basis upon which the appeal is to be based and shall be filed with the Chief of Police and City Manager or their respective designees. The Chief of Police shall forward the notice of appeal, together with a copy of his/her decision, to the City Manager or his/her designee.
(c) Stay Pending Appeal. A timely appeal from the Chief of Police's decision shall operate to stay any impounding pending a decision on appeal by the City Manager or his/her designee pursuant to this section.
(d) Action by the City Manager. Within ten working days of receipt of both the notice of appeal and the Chief of Police's decision, the City Manager or his/her designee may take any of the following actions:
(1) Grant a stay of the decision or any impounding pending further consideration by the City Manager or his/her designee.
(2) Approve the Chief of Police's decision and order.
(3) Disapprove the Chief of Police's decision and order.
(4) Modify the Chief of Police's decision and order.
(5) Set aside the Chief of Police's decision and order and hold a hearing de novo as if no hearing previously had been held. Said hearing de novo will be held within five working days of said decision to set aside, or as soon thereafter as the hearing may be conducted. A decision by the City Manager, or his/her designee, which shall be final, shall be made within five working days after the hearing de novo. (Ord. 1451 § 1, 5-18-82. Formerly § 18-89).
9.25.110 Other remedies.
The provisions of this chapter shall not limit the City utilizing other remedies authorized by law. (Ord. 1451 § 1, 5-18-82. Formerly § 18-91).
9.25.120 News rack owner to hold City harmless.
As a condition precedent to having its news rack situated on the public right-of-way, the news rack owner shall protect, defend, indemnify, and hold harmless the City, its officers and employees from all claims, injuries, liabilities, damages, cost and expense arising from the placement of a news rack on the public right-of-way. (Ord. 1451 § 1, 5-18-82. Formerly § 18-92).