La Mesa Municipal Code Ch. 10.25 Sale of Newspapers on Public Parkway or Sidewalk

The council of the city of La Mesa finds and declares that:

(a) The uncontrolled placement of newsracks in public rights-of-way presents an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services.

(b) Newsracks so located as to cause an inconvenience or danger to persons using public rights-of-way, and unsightly newsracks located therein, constitute public nuisances.

(c) The general welfare requires that the aesthetic appearance of public rights-of-way in the city of La Mesa, including the appearance of newsracks, be improved.

(d) The public display of pictorial material depicting nudity and sexual conduct in publications contained in newsracks located on public rights-of-way is patently offensive and harmful to passersby when readily visible to them, and is detrimental to the healthy moral environment to which persons of the city of La Mesa are entitled.

(1) Such public displays are thrust indiscriminately on children and unwilling adults and constitute assaults upon individual privacy.

(2) Every person is entitled to use the public rights-of-way in the city of La Mesa without being subjected to such public displays.

(3) Such public displays constitute a public nuisance.

(e) The provisions and prohibitions hereinafter contained and enacted are in pursuance of and for the purpose of securing and promoting the public health, morals and general welfare of persons in the city of La Mesa in their use of public rights-of-way.

(Ord. 2425; May 13, 1986)

Whenever the following words and phrases are used in this chapter, they shall have the meaning ascribed to them in this section:

(a) "Distributor" shall mean the person responsible for placing and maintaining a newsrack in a public right-of-way.

(b) "Newsrack" shall mean any self-service or coin-operated box, container, storage unit, or other dispenser installed, used or maintained for the display, sale or distribution of publications.

(c) "Nudity" shall mean the showing with less than a fully opaque covering of the genitals, pubic hair, buttocks, natal cleft, perineum, anus or anal region of any person, other than a child under the age of puberty, or any portion of the breast at or below the areola thereof of any female person, other than a child under the age of puberty.

(d) "Parkway" shall mean the area between the sidewalk and the curb of a roadway, and where there is no sidewalk, that area between the edge of the traveled roadway and the edge of a public right-of-way. "Parkway" also includes any area within a roadway that is not open to vehicular travel.

(e) "Pictorial material" shall mean any material suggesting or conveying a visual image, and includes, but is not limited to, a photograph, painting or drawing.

(f) "Public right-of-way" shall mean any place of any nature which is dedicated to use by the public for pedestrian and vehicular travel, and includes, but is not limited to, a street, sidewalk, curb, gutter, crossing intersection, parkway, highway, alley, lane, mall, court, way, avenue, boulevard, road, roadway, viaduct, subway, tunnel bridge, thoroughfare, park, square, and any other similar public way.

(g) "Roadway" shall mean that part of a public right-of-way that is designated and used primarily for vehicular travel.

(h) "Sexual conduct" shall mean an act of sexual intercourse, masturbation, homosexuality, sodomy, bestiality, anal intercourse, oral copulation, flagellation, or other act of sexual arousal involving any physical contact with a person's clothed or unclothed genitals, pubic region, pubic hair, buttocks, natal cleft, perineum, anus or anal region, or, if such person be a female, breast.

(i) "Sidewalk" shall mean that part of a public right-of-way that is designated and ordinarily used for pedestrian travel.

(Ord. 2425; May 13, 1986)

No person shall knowingly place, install, use or maintain any newsrack which rests in whole or in part upon, in, or on any portion of a public right-of-way or which projects onto, into, or over any part of a public right-of-way except in compliance with the provisions of this chapter.

No person shall knowingly place or maintain in any newsrack which rests in whole or in part, upon, in, or on any portion of a public right-of-way, or which projects onto, into or over any part of a public right-of-way, any publication or materials which while in said newsrack exposes to public view:

(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 genitals, pubic hair, perineums, anuses, or anal regions of any person which 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. 2425; May 13, 1986)

A display of material which is harmful to minors, as defined in Penal Code Section 313(a), in a public place, other than a public place from which minors are excluded, shall be placed in a device known as blinder rack in front of the material, so that the lower two-thirds of the material is not exposed to view.

(Ord. 2627 § 1; June 22, 1993)

Any newsrack which rests in whole or in part upon, in, or on any portion of a public right-of-way or which projects onto, into, or over any part of a public right-of-way shall comply with the standards set forth in this section:

(a) No newsrack shall exceed forty-eight inches in height, thirty inches in width, or twenty-four inches in thickness.

(b) No advertising signs or material, other than those dealing with the name of the publication contained within the newsrack, shall be displayed on the outside of any newsrack.

(c) Each newsrack shall have affixed to it in a readily visible place so as to be seen by anyone using the newsrack a notice setting forth the name and address of the distributor and the telephone number of a working telephone service to call to report a malfunction, or to secure a refund in the event of a malfunction of the coin-return mechanism, or to give the notices provided for in this division.

(d) Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that:

(1) It is reasonably free of dirt and grease;

(2) It is reasonably free of chipped, faded, peeling and cracked paint in the visible areas thereof;

(3) It is reasonably free of rust and corrosion in the visible unpainted metal areas thereof;

(4) The clear plastic or glass parts thereof, if any, through which the publications therein are viewed are unbroken and reasonably free of cracks, dents, blemishes and discoloration;

(5) The paper or cardboard parts or inserts thereof are reasonably free of tears, peeling or fading; and

(6) The structural parts thereof are not broken or unduly misshapen.

(e) If a newsrack is securely attached to the ground, upon removal of the newsrack, the pavement shall be repaired to meet city standards.

(Ord. 2425; May 13, 1986)

(a) By resolution, the council may from time to time establish uniform newsrack locations. The council shall first hold a public hearing, for which notice shall be sent at least thirty days in advance to all persons requesting notice, or whose name and address appears on an existing newsrack in the subject location, and after such hearing shall find that the location carries a substantial volume of pedestrian or vehicular traffic, that one or more of the harmful effects stated in Section 10.25.010 are presented by the existence of nonuniform newsracks at the location, and that uniform newsracks are feasible at the location.

(b) The resolution shall: describe the location; designate the particular point(s) at that location where uniform newsracks may be installed; specify the maximum number of uniform newsracks to be allowed at the location; and specify the style, size, color or other attributes required of uniform newsracks at the location. Such specification shall not require uniform newsracks made by any particular manufacturer. The resolution may direct the director of public works to install a kiosk(s), pedestal(s) or other support structure to accommodate a stated number of newsracks.

(c) No person shall install a uniform newsrack at a uniform newsrack location without first obtaining a uniform newsrack permit from the city manager or his designee.

(1) Upon the adoption of a resolution by council establishing a uniform newsrack location, interested persons may apply for such permit. The city manager shall hold all such applications until thirty days after the date the resolution was adopted and shall then issue all permits applied for up to the maximum number established, if any, in the resolution.

(2) No fee will be charged for the uniform newsrack permit.

(3) All permits shall expire on December 31st following their issuance. Issuance shall be determined by lot; the first application drawn by lot shall be issued for the most favorable, and so on until the maximum number, if any, is reached. Applicants seeking permits for more than one newsrack in a single location will be allotted adjacent spaces. The remaining applications shall be denied, and the applicants notified. Where fewer applications are received than the maximum number of positions allowed by the resolution, permits for the remaining positions may be allotted on a first-come, first-served basis.

(4) Each year, during the month of December, the city manager shall draw lots in the above manner for permits for the next calendar year from among those holding permits and any new applications received by December 1st.

(5) The council may at any time, on its own motion or upon request of any person, by resolution, increase the maximum number of available positions. In the event of such increase, or in the event a position becomes available by abandonment or otherwise, such position(s) shall be allotted by the above procedure.

(d) Upon being granted a permit, the applicant may permanently install a uniform newsrack as described in the resolution, either affixing it to the pavement or ground, or in the event the resolution directs the director of public works to install support structures, then to each support structure.

(Ord. 96-2665 § 1; December 12, 1995)

Any newsrack which rests in whole or in part upon, in, or on any portion of a public right-of-way or which projects onto, into, or over any part of a public right-of-way shall be located in accordance with the provisions of this section:

(a) No newsrack shall be located in whole or in part in any roadway.

(b) Newsracks shall be located at the back of the sidewalk, unless otherwise permitted by this section. Where no sidewalk exists, newsracks shall be located seventy-two inches back of the curb or end of pavement. Newsracks located adjacent to a building shall be located parallel to and not more than six inches from the wall thereof. Newsracks located near the curb shall be located no less than eighteen inches, nor more than twenty-four inches from the roadway edge of curb. No newsrack shall be located directly in front of any display window of any building abutting a sidewalk or parkway except near the curb. No newsrack shall be located on the sidewalk or parkway directly opposite a newsstand or another newsrack.

(c) No newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks.

(d) Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than ten feet along a curb, and a space of not less than five feet shall separate each group of newsracks if located next to the curb.

(e) No newsrack shall be placed, installed, used or maintained:

(1) Within three feet of any marked crosswalk.

(2) Within twelve 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.

(5) Within three feet ahead or fifteen feet to the rear of any sign marking a designated bus stop.

(6) Within three feet of the outer end 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 or on any public area improved with lawn, flowers, shrubs, trees or other landscaping.

(9) Within five feet of a curb painted blue, pursuant to the provisions of California Vehicle Code Section 21458.

The provisions contained in subsection (e) of this section shall not apply if compliance with the provisions would prohibit the placement of newsracks for a distance of one hundred fifty feet on the same side of the street in the same block.

(Ord. 2425; May 13, 1986)

Upon a determination by the city manager that a newsrack has been installed, used or maintained in violation of any of the provisions of this chapter, he shall cause an order to be issued to the distributor to correct the offending condition. The order shall be mailed to the distributor by certified mail, return receipt requested. The order shall specifically describe the offending condition and suggest actions necessary to correct it. If the distributor fails to correct properly, the offending condition within fifteen days after receipt of the order, the city manager shall cause the offending newsrack to be summarily removed and processed as unclaimed property under applicable provisions of law relating thereto. If the distributor of the offending newsrack cannot be identified, the newsrack shall be removed immediately and processed as unclaimed property under application provisions of law. The foregoing provisions are not exclusive, and are in addition to any other penalty or remedy provided by law.

(Ord. 2425; May 13, 1986)

Any newsrack, or any publication offered for sale or distribution, in violation of this chapter shall constitute a public nuisance, and may be abated in accordance with applicable provisions of law.

(Ord. 2425; May 13, 1986)

In the event a newsrack remains empty for a period of thirty continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided in Section 10.25.060 for newsracks in violation of the provisions of this chapter.

(Ord. 2425; May 13, 1986)

If any section, subsection, sentence, clause, phrase or part of this chapter is for any reason held to be invalid or unconstitutional by the final decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining parts of this chapter. The council hereby declares that it would have adopted this chapter and each section, subsection, sentence, clause, phrase, or part thereof irrespective of the fact that any one or more sections, subsections, clauses, phrases, or parts be declared invalid or unconstitutional.

(Ord. 2425; May 13, 1986)