Newark Municipal Code Ch. 12.32 Blinder Racks

A. The city council finds that the public health, safety, welfare, and convenience require that:

1. The good appearance of public streets and grounds be maintained;

2. Visual blight on the public rights-of-way or which may unreasonably detract from the aesthetics of adjacent store window displays, landscaping, and other improvements be reduced; and

3. Minors be shielded from materials which may be harmful to their psychological or physical well-being.

B. The city council also finds, however, that the reasonable use of such rights-of-way is historically associated with the sale and distribution of newspapers and publications, and such use is a constitutionally protected right.

C. Although state law makes the knowing distribution, sale, or exhibition of harmful matter to minors a criminal offence, as specifically set forth in Penal Code Section 313.1, Section 313.1(d) clearly provides that:

Nothing in this section invalidates or prohibits the adoption of an ordinance by a city, county, or city and county that restricts the display of material that is harmful to minors, as defined in this chapter, in a public place, other than a public place from which minors are excluded, by requiring the placement of devices commonly known as blinder racks in front of the material, so that the lower two-thirds of the material is not exposed to view.

It is the intent of the city council to require the placement of blinder racks as permitted by Penal Code Section 313.1(d). It is also the intent of the city council to use the provisions of Penal Code Section 311 through Section 313.4 as a guide to the interpretation of and the definition of words and phrases contained in this chapter.

(Ord. 335 § 1 (part), 1997)

For the purpose of this chapter, the following definitions shall apply:

"Blinder rack" means any device placed in front of any material or matter so that the lower two-thirds of the material or matter is not exposed to public view.

"Director" means the director of the public works department of the city of Newark, and his or her designated representative.

"News rack" means any self-service or coin-operated box, container, storage unit, or other dispenser, installed, used, or maintained for the display and distribution of a newspaper, periodical, or other printed matter.

"Public right-of-way" means any land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the general public for street, highway, alley, sidewalk, walkway, storm drainage, or bicycle path purposes.

(Ord. 335 § 1 (part), 1997)

Every news rack owner shall permanently affix to each news rack the owner's name, address, and telephone number above the level of the newspapers or periodicals being displayed for distribution in a place where it may be seen by anyone using the news rack.

(Ord. 335 § 1 (part), 1997)

No person shall knowingly display or cause to be displayed in any public place, other than a public place from which minors are excluded, any harmful matter as defined in Section 313 of the Penal Code, unless such matter is displayed in or upon shelves, news racks, newsstands, containers, storage units, or any other dispensers equipped with devices commonly known as blinder racks affixed in such a manner that the lower two-thirds of the matter is not exposed to public view.

(Ord. 335 § 1 (part), 1997)

A. The director may immediately correct any violation of this chapter, and shall do so without impounding, if such correction can be accomplished simply, easily, quickly, and without substantial public expense.

B. Any news rack installed, used, or maintained in violation of the provisions of this chapter, or of state law, may be subject to removal, storage, and disposal by the director. In such cases, the director shall notify the owner, by mail that, unless the violation is corrected or a hearing requested within fifteen calendar days of the date of the notice, the news rack will be impounded.

(Ord. 335 § 1 (part), 1997)

A. Any owner of a news rack aggrieved by a decision under Section 12.32.050 may request a hearing before the city manager or his or her designee (other than the director), provided that a written request for such hearing is received by the city clerk no later than fifteen days from the date of the notice issued under Section 12.32.050.

B. A hearing shall be held within seven working days of the date of receipt of a timely request for a hearing. At the hearing, owner may present evidence or argument as to whether the news rack should not be impounded or should be returned without payment of an impound fee.

C. The city manager, or his or her designee, shall render a written decision within five working days after the close of the hearing. The decision of the city manager or his or her designee shall be final. Failure to so render a decision within five working days shall not affect the validity of such decision.

(Ord. 335 § 1 (part), 1997)

A. The owner may, at any time up to and including the thirtieth day after the impounding, and if a hearing is held concerning the news rack at any time up to and including the thirtieth day after the written decision, obtain a return of the news rack and its contents, upon paying an impound fee established by resolution of the city council.

B. 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 director 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 the news rack, in the city's general fund.

(Ord. 335 § 1 (part), 1997)

In addition to any and all remedies set forth in this chapter in connection with violations of this chapter, displays of harmful matter to minors in violation of Section 12.32.040 of this chapter shall be punished as a misdemeanor pursuant to Chapter 1.16 by a fine not exceeding one thousand dollars or by imprisonment for a term not exceeding six months, or by both fine and imprisonment.

(Ord. 335 § 1 (part), 1997)

Should any part, term, or provision of this chapter be decided by any court of competent jurisdiction to be illegal, unconstitutional, or in conflict with any law of the constitution of the United States or of the state of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining portions or provisions shall not be affected thereby.

(Ord. 335 § 1 (part), 1997)