Temecula Municipal Code Ch. 10.40 Regulation of Newsracks in Public Rights-of-Way

The city council does find, determine and declare that:

A. It is the purpose and intent of this chapter to provide for a 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.

B. 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.

C. The Temecula general plan policies and programs emphasize the importance of maintaining the aesthetic quality of the city and preventing the uncontrolled proliferation of signs and structures throughout the city. The regulations set forth in this chapter are appropriate and reasonable regulations to protect the aesthetic values of the city and the health and safety of persons in the city. The placement of newsracks which do not comply with the regulations set forth in this chapter is detrimental to the aesthetic values of the city and the health and safety of the persons within the city.

D. It is recognized that the use of rights-of-way is historically associated with the sale and distribution of newspapers and publications and that access to these areas for such purposes should not be absolutely denied.

E. 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.

F. Government agencies and utilities receive numerous claims from persons alleging injury due to the improper placement and maintenance of objects in the public right-of-way, such as power poles, light standards, signals, signal control boxes, newsracks, trees and similar objects. It is therefore necessary for the city to obtain some protection for such claims from private parties who will place objects in the public right-of-way.

G. 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 newsracks is necessary. In adopting the regulations under this chapter, it is recognized that the display of harmful matter or sexually explicit materials in newsracks will cause the exposure of minors to adult material which, because of their immaturity, may adversely affect them. In addition, it is recognized that many persons are offended by the public display of certain sexual material. Special regulation of these uses is necessary to address these concerns.

H. It is not the intent of the city council under this chapter nor any provision thereof to condone nor legitimize the distribution of obscene, harmful to minors or sexually explicit materials, and the council recognizes that state law prohibits the distribution of obscene and harmful to minors materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in Temecula.

I. It is not the intent of this chapter to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance and to balance protected activities with the need to protect the substantial governmental interests described above.

(Ord. 94-28 § 1)

The following words, terms and phrases, when used in this chapter, shall have the meaning ascribed to them in this section, unless it is apparent from the context that a different meaning is intended.

"Blinder rack"

means any opaque material placed within the newsrack in front of the harmful matter which prevents exposure of the harmful matter to public view.

"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 newsrack.

"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 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, newsracks 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 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.

(Ord. 94-28 § 1)

The regulations, restrictions and procedures set forth in this chapter shall relate to the installation and maintenance of newsracks in the city.

(Ord. 94-28 § 1)

Applications for installing and maintaining newsracks shall be filed with the licensing officer 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:

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 and a certificate of insurance shall not be required unless and until such a resolution is in full force and effect. The policy of insurance so provided shall contain a contractual liability endorsement covering the liability assumed by the permittee by the terms of his permit and shall contain a provision that such policy may not be canceled except after thirty days' notice in writing given to the city.

(Ord. 94-28 § 1)

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.

(Ord. 94-28 § 1)

Subject to the specific provision of Section 10.40.070, 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 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.

(Ord. 94-28 § 1)

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.

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 twenty-four inches from the face of the 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 publication vending shall be chained, bolted or otherwise attached to property not owned by the owner of such newsrack 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. 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;

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 chief building official 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 chief building official may prohibit such location of the newsrack 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 chief building official may deem necessary to protect the public peace, health, safety and welfare and to carry out the purposes and intent of this chapter.

1. Such finding may be made by the chief building official at any time.

2. If such finding is made prior to the issuance of a permit, the finding shall be made by the director of public works shall be made 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 chief building official shall be given to the owner or custodian of such newsrack with the direction that there shall be compliance with the findings of the chief building official within ten business days after the date of mailing such notice.

(Ord. 94-28 § 1)

No publication offered for sale 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.

(Ord. 94-28 § 1)

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 Business and Professions Code of the state as it exists on the effective date of the ordinance adopting this chapter, or as it may be hereafter amended.

(Ord. 94-28 § 1)

Upon a determination by the chief building official 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 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 chief building official may move the newsrack or take such other action, including removal, so as to alleviate the dangerous condition. Unless the determination of the chief building official 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 chief building inspector 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.

(Ord. 94-28 § 1)

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. The city manager's decision on the appeal shall be final. An appeal shall be perfected within three business days after the receipt of the notice of any protested decision or action by filing with the office of the chief building inspector a letter of appeal briefly stating the basis for such appeal. The hearing shall be held on a date no more than ten 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 chief building official 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 chief building official. 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.

(Ord. 94-28 § 1)

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 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. 94-28 § 1)