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HomeMy WebLinkAboutOrdinance 321 CERTIFICATION I, Marcia M. Torgerson, City Clerk of the City of Atascadero, hereby certify that the foregoing is the true and correct original of Ordinance No. 321 adopted by the Atascadero City Council at a regular meeting thereof held on February 11, 1997 and that it has been duly published pursuant to State Law. DATED: - _Gj �C�. . Marcia M. Torgerson, City Clerk City of Atascadero, California ORDINANCE NO. 321 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO PROVIDING FOR THE REGULATION OF NEWSRACKS AND REPEALING SECTIONS INCONSISTENT THEREWITH WHEREAS, the City recognizes the possible harmful effects on children and minors exposed to the materials that are harmful as defined in Section 313 of the Penal Code of the State if such materials are displayed in a public place, other than a public place from which minors are excluded, unless blinder racks are placed in front of the materials that the lower two-thirds of the material is not exposed to view; and WHEREAS, the City Council has considered the decisions of the United States Supreme Court, decisions of various federal courts of appeal, as well as decisions of the Supreme Court of the State of California and the Courts of Appeal of California, regarding local regulation of newsracks, including but not limited to: Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal 3d. 294; Smith v. California (1959) 361 U.S. 147; Ginsberg v. New York (1968) 390 U.S. 629; American Booksellers v. Webb (11th Cir. 1990) 919 F. 2d 1493; and Berry v. City of Santa Barbara (1995) 40 C.A. 4th 1075; and WHEREAS, the City Council has determined that the California Penal Code alone does not adequately protect minors from harmful material; and WHEREAS, it is not the intent of this ordinance to deny adults access to materials protected by the First Amendment, but to eliminate only the display of harmful matter to children and minors. NOW THEREFORE, The City Council of the City of Atascadero does ordain as follows: SECTION 1. PURPOSE. The intent and purpose of this section is to promote the public peace, morals, health, safety and general welfare by regulating the placement and appearance of newsracks so as to protect against the dangers of the public dissemination and/or display of harmful or offensive matters to minors. 1 Ordinance No. 321 (cont'd) The City Council finds and determines that the strong and competing interests of the public and of newspapers require a reasonable accommodation which can only satisfactorily be achieved through the means of this section which is designed to accommodate such interest by regulating the time, place and manner of using newsracks. It is not the intent of this section to in any way discriminate against, regulate or interfere with the publication, circulation, distribution or dissemination of any newspapers. SECTION 2. DEFINITIONS. For the purposes of this section, the words set out in this section shall have the following meanings: 1. "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 new periodicals. 2. "Person" means any individual, company, corporation, association, business or other legal entity. SECTION 3. STANDARDS AND SPECIFICATIONS. 1. No person shall knowingly display to public view in any newsrack or other display device, any material which is defined by Penal Code Section 313 et seq. as harmful to minors, photographs or pictorial representations of the commission of any of the following acts: sodomy, oral copulation, sexual intercourse, masturbation, bestiality or an exposed penis in an erect and turgid state, unless such material is: (a) Displayed in an area from which minors are excluded, or (b) Is covered by a device, commonly known as a "blinder rack," such that the lower two-thirds (2/3) of the material is not exposed to view. 2. A person commits the offense of disseminating harmful materials to minors, as defined under § 313 et seq. of the Penal Code, if, with or without consideration and knowing the character or content of the material, he knowingly: 2 Ordinance No. 321 (cont'd) (a) Sells, furnishes, presents, or distributes, to a minor material that is harmful to minors, without consent of a parent or guardian; or (b) Allows a minor to review or peruse material that is harmful to minors without consent of parent or guardian. SECTION 4. NON-CONFORMING NEWSRACKS. 1. The provisions of Section 1 shall apply to all newsracks whether installed and maintained prior to or after the effective date of any of the provisions herein. Those newsracks installed prior to the effective date of any provision enacted herein shall be brought into compliance with said provisions within thirty (30) days of the effective date thereof. 2. Any newsrack not brought into compliance within the aforementioned time period shall be deemed to be in violation of this section. 3. Penalty. Any person violating any of the provisions of this section shall be guilty of an infraction, and upon conviction thereof, shall be subject to a fine not to exceed fifty dollars ($50.00) for first violation; a fine not exceeding one hundred dollars ($100.00) for a second violation of the same section within one (1) year; a fine not exceeding two hundred dollars ($500.00) for each additional violation of the same section within one year. Each day that such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder. SECTION S. SEVERABILITY. If any section, subsection or clause of this ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity with the remaining section, subsection and clauses shall not be effected thereby. SECTION 6. CONFLICTING ORDINANCE REPEALED All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. 3 Ordinance No. 321 (cont'd) SECTION 7. EFFECTIVE DATE This ordinance takes effect at 12:01 a.m. on the 31st day after it is adopted. Within fifteen (15) days after this ordinance is adopted, the City Clerk shall cause it to be published once in a newspaper of general circulation published and circulated in the City of Atascadero. SECTION 8. HISTORY This ordinance was introduced at a regular meeting of the City Council of the City of Atascadero on January 28, 1997, and adopted by the following vote as an ordinance of the City of Atascadero at a regular meeting of the City Council on February 11, 1997. AYES: Councilmembers Carden, Clay, Lerno, Luna and Mayor Johnson NOES: None ABSTAIN: None ABSENT: None ATTEST: Cl OF TAS ERO RAY JOVNS94, M Y or MARCIA M. TORGERSON, City Clerk APPROVED AS T9 FORM: RO A ANLEY, Interim City Attorney newsZord 4