Mission Viejo Municipal Code Div. 5 Newsracks

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

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.

Display shall mean to show.

Harmful matter shall mean matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way, sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, educational, or scientific value for minors.

(a) 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 appeal of the matter shall be judged with reference to its intended recipient group.

(b) In prosecutions under this division, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that the matter is being commercially exploited by the 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 serious literary, artistic, political, educational, or scientific value for minors.

Knowingly shall mean being aware of the nature or character of the matter.

Matter shall mean any book, magazine, newspaper, video recording or any other printed or written material or any picture, drawing, photograph, motion picture, or any other pictorial representation, or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction, or any other articles, equipment, machines, or materials.

Minor shall mean any natural person under 18 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 and sale of newspapers or news periodicals.

Parkway means that area between the sidewalks 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.

Person shall mean any individual, partnership, firm, association, corporation or other legal entity.

Roadway means that portion of a street improved, designed or ordinarily used for vehicular travel.

Sidewalk means any surface provided for the exclusive use of pedestrians.

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.

(Ord. No. 88-12, § 5(6-1-90), 6-27-88; Ord. No. 95-139, § 2, 2-13-95)

Cross reference— Definitions generally, § 1.01.170.

No person shall place, maintain or relocate a newsrack on any public sidewalk or parkway unless the person first obtains a permit as described in this section. Applications for newsrack permits shall be filed with the licensing officer of the city. The licensing officer shall issue a newsrack permit to an applicant upon the applicant submitting all of the following information to the licensing officer or city:

(a) The name, street address and telephone number of the person owning the newsrack and the name, street address and telephone number of any person who has the responsibility of servicing or maintaining the newsrack, if different from the owner;

(b) The size dimensions of the newsrack(s); and

(c) The precise location(s) of the newsrack(s).

A single permit may be issued to cover all newsracks in the city owned by the same person if the location of each newsrack is specified in the application. A newsrack permit shall be renewable annually and is subject to a fee, if any, as set by resolution of the City Council. An existing, valid permit may be amended by adding new locations without the payment of a fee. Such new locations shall be specified in a letter to the licensing officer with a copy of the permit attached.

(Ord. No. 95-139, § 3, 2-13-95)

(a) No person shall install, use or maintain any newsrack or other structure 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 the roadway of any public street.

(b) 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 or property; or when such site or location is used for public use; or when such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including any legally parked or stopped vehicle, the ingress into or egress from 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 the location; or when such newsrack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.

(Ord. No. 88-12, § 5(6-1-91), 6-27-88)

Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway shall comply with the following standards:

(1) No newsrack shall exceed five feet in height, 30 inches in width or two feet in thickness.

(2) 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 18 inches nor more than 24 inches from the edge of the curb. Newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. No newsrack shall be placed or maintained on the sidewalk or parkway opposite a newsstand or another newsrack.

(3) No newsrack shall be chained, bolted or otherwise attached to any property not owned by the owner of the newsrack, or to any permanently fixed object.

(4) Newsracks may be chained or otherwise attached to one another; however, no more than three newsracks may be jointed together in this manner, and a space of no less than 18 inches shall separate each group of three newsracks so attached.

(5) No newsrack or group of attached newsracks allowed under subsection (4) of this section shall weigh, in aggregate, in excess of 125 pounds when empty.

(6) Notwithstanding the provisions of subsection (b) of section 14.01.520, no newsrack shall be placed, installed, used or maintained:

a. Within three feet of any marked crosswalk.

b. Within 15 feet of the curb return of any unmarked crosswalk.

c. Within three 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 15 feet to the rear of, any sign marking a designated bus stop.

f. Within three feet of any bus bench.

g. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet.

h. 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.

(7) No newsrack shall be used for advertising signs or publicity purposes other than that dealing with the display, sale or purchase of the newspaper or news periodical sold therein.

(8) Each newsrack shall be maintained in a clean, neat and attractive condition and in good repair at all times.

(Ord. No. 88-12, § 5(6-1-92), 6-27-88)

Every person or other entity which places or maintains a newsrack on the streets of the city shall have its name, street address and telephone number affixed thereto in a place where such information may be easily seen.

(Ord. No. 88-12, § 5(6-1-93), 6-27-88; Ord. No. 95-139, § 4, 2-13-95)

(a) Any newsrack installed, used or maintained in a manner that creates a hazard for pedestrians or motor vehicles or which otherwise interferes with the safe use of public streets or sidewalks may be summarily removed and stored in any convenient place by the licensing officer. Notice of the removal shall be given to the owner of the newsrack. Upon failure of the owner, following notice, to claim such newsrack and pay the expenses of removal and storage within 30 days after such removal, such newsrack shall be processed as unclaimed property under the applicable provisions of law relating thereto.

Upon a determination by the licensing officer that a newsrack has been installed, used or maintained in violation of any provision of this Division, an order to correct the condition shall be issued to the owner of said newsrack. Such order shall be attached to said newsrack and a copy of the order shall be mailed to the owner of the newsrack by certified mail, return receipt requested at the address indicated on the newsrack or application. The order shall specifically describe the offending condition and describe the actions necessary to correct it. Failure to properly correct the offending condition within five (5) days after the mailing of the order shall result in the offending newsrack being summarily 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 Division, the newsrack shall be removed immediately and processed as unclaimed property under the applicable provisions of law.

(b) In the case of violations of this division relative to restrictions upon attachments of newsracks to property other than that owned by the owner of the newsrack, to fixed objects or each other, and upon location of newsracks, the chief of police may, as an alternative to removal under subsection (a) of this section, remove such attachment and/or move such rack or racks in order to restore them to a legal condition.

(Ord. No. 88-12, § 5(6-1-94), 6-27-88; Ord. No. 95-139, § 7, 2-13-95)

If any newsrack installed pursuant to this division is not serviced with the publication it is designed to disseminate for a period of over seven days, the city reserves the right to remove same pursuant to the procedure set out in section 14.01.550. For purposes of this section, abandonment shall include, but is not limited to, circumstances where no publication is in the rack for a period of over seven days.

(Ord. No. 88-12, § 5(6-1-95), 6-27-88)

No matter offered for sale from any newsrack placed or installed in, maintained on, or relocated to any public sidewalk or parkway or any other public place for which minors are not excluded, shall be displayed or exhibited in any 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 statement or words have as their purpose or effect, sexual arousal, gratification or affront; or

(b) Any picture or illustration of genitals, pubic hair, buttocks, perineums, anuses, or anal regions of any person or female breasts below a point immediately above the top of the areola; or

(c) Any picture or illustration depicting explicit sexual acts. 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, buttocks, perineum, anus or anal region or female breast.

(d) For purposes of this section, no matter shall be considered displayed or exhibited if the newsrack in which it is placed is covered on all sides, except for a one (1) inch wide vertical opening for the purpose of indicating the number of remaining publications, by opaque material preventing exposure of the matter to public view.

(Ord. No. 88-12, § 5(6-1-93), 6-27-88; Ord. No. 95-139, § 5, 2-13-95)

Any person who knowingly displays, or causes to be displayed, harmful matter as defined in this division in any newsrack which is located on a public sidewalk or parkway, 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.

(Ord. No. 95-139, § 6, 2-13-95)