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CIT' OF SAN BERNARDlr-~ - REQUEr,. FOR COUNCIL ACT-4)N
From:
JAMES F. PENMAN
Subject:
ORDINANCE TO PREVENT THE SALE
OF HARMFUL MATTER TO MINORS
Dept: City Attorney
Date: September 22, 1988
Synopsis of Previous Council action:
September 19, 1988: Further reading waived, laid over to
October 3, 1988 for final passage.
Recommended motion:
That the ordinance to Prevent the Sale of Harmful Matter to Minorf
be taken off the agenda and the issue of further action on
harmful matter in newsracks be referred to the Legislative
Review Committee for further study.
JAMES F. PENMAN
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Signature
Contact person:
Phone:
5355
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
-0-
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
Finance:
Council Notls:
n.0262
Agenda I tern No. _:=3 7
Cll .: OF SAN BERNARDI...D - REQUE,- r FOR COUNCIL AC. _~N
STAFF REPORT
Subsequent to the September 19, 1988 City Council
meeting, it was ascertained that California Penal Code Section
313.1 pre-empts the field of newsrack regulation except for
express authority to cities to enact ordinances requiring
"blinders" on newsracks displaying harmful matter:
Penal Code Section 313.1 "(d) nothing in this
section invalidates or prohibits the adoption of an
ordinance by a city, county, or city and county
which restricts the display of material which 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."
On September 16, 1988, Governor Deukmejian signed into
law AB2093 prohibiting cover photographs or pictorial
representations of "the commission of certain sexual acts or
sexual organs" from publications sold in vending machines. This
law will go into effect January 1, 1989.
This office has been requested to prepare an ordinance
requ1r1ng blinder racks and we are prepared to do so. However,
it is recommended that the matter be referred to the Legislative
Review Committee for discussion. The enactment of AB2093 may
make a blinder rack ordinance unnecessary.
Assemblyman Jerry Eaves advised the undersigned on
September 21 that he will introduce a bill permitting cities to
require attendants at newsracks containing harmful matter in the
next session of the Legislature.
I recommend that the ordinance to Prevent the Sale of
Harmful Matter to Minors be taken off the agenda. Should
Assemblyman Eaves' intended bill become law, the issue may be
r considered.
I :J
!"t:'~7 )./~
AMES F. PENMAN
City Attorney
75-0264
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ORDINANCE NO.
ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.70
TO THE SAN BERNARDINO MUNICIPAL CODE TO PREVENT THE SALE TO
MINORS OF HARMFUL MATERIAL IN PUBLIC PLACES.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION 1.
Chapter 9.70 is hereby added to the San
7 Bernardino Municipal Code to read as follows:
8 "Chapter 9.70
9 Newsrack Display of Harmful Matter to Minors
10
9.70.010 Prohibition.
11 Any person who knowingly displays, sells or offers to sell,
12 any harmful matter, as defined in Section 313 of the Penal Code
13 of the State of California, in any coin- or Slug-operated vending
14 machine or mechanically or electrically-controlled vending
15 machine which is located in a public place, other than a public
16 place from which minors are excluded, is guilty of a misdemeanor
17 unless such machines are attended at all times by an adult, who
18 must be within 50 feet of such vending machine to prevent the
19 sale of said harmful matter to any minor.
20 9.70.020 Seizure.
21 Any pOlice officer may seize such vending machine and
22 material contained therein which, based on plain sight
23 inspection, is in violation of this Chapter.
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9.70.030 Seizure hearing.
In addition to the criminal penalty provided in Section
26 9.70.010 for a violation of this chapter, any such vending
27 machine found and material contained therein, to be in violation
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DEB:ms
September 19, 1988
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2 of this chapter may be seized by the Police Department. Pursuant
3 to this chapter, a post seizure hearing may be held upon request
4 of the owner of such seized vending machine.
If an identifying
5 address is found on the vending machine or can be seen on the
6 material offered for sale without opening the vending machine,
7 written notice of such seizure shall be provided by certified
8 mail and an opportunity for a hearing provided.
This hearing
9 shall be before the Police Commission. If a hearing is not
10 requested within thirty days of notice, if such notice can be
11 provided, or of seizure if no notice can be provided, or the
12 vending machine is not claimed within thirty days of seizure if
13 no notice can be provided, the vending machine and the materials
14 offered for sale shall be deemed abandoned and disposed of as
15 abandoned property.
The purpose of the hearing shall be to
16 determine if the purposes of this chapter have or have not been
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met.
Any adverse determination from the decision of the
18 administrative hearing may be appealed to the Mayor and Common
19 Council, the decision of which shall be final."
20 I HEREBY CERTIFY that the foregoing ordinance was duly
21 adopted by the Mayor and Common Council of the City of San
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Bernardino at a
meeting thereof, held on the
DEB:ms
September 19, 1988
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ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.70 TO
THE SAN BERNARDINO MUNICIPAL CODE TO PREVENT THE SALE TO MINORS
OF HARMFUL MATERIAL IN PUBLIC PLACES.
day of
, 1988, be the following vote, to wit:
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foregoing ordinance is hereby approved this
day
of
, 1988.
Evlyn Wilcox, Mayor
City of San Bernardino
Approved as to form
and legal content:
2.
'~~
Attorney
DEB:ms
September 19, 1988
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Cll '. OF SAN BERNARD" 0 - REQUr-T FOR COUNCIL AC.......ON
From:
James E. Robbins
Acting City Administrator
Administration
Subject:
Set Public Hearing
1988 at 10 a.m. --
proposed ordinance
display of harmful
public places.
-- September 19,
Discussion of
to restrict the
material~
Dept:
Date:
August 18, 1988
Synopsis of Previous Council action:
At the meeting of the Legislative Review Committee held August 18, 1988,
the Committee recommended that the proposed ordinance adding Chapter 9.70
to the San Bernardino Municipal Code to restrict the display of harmful
material in public places be considered at a Public Hearing on
September 19, 1988 at 10 a.m.
Recommended motion:
That a public hearing be set for September 19, 1988 at 10 a.m.
for the purpose of discussing the proposed ordinance adding
Chapter 9.70 to the San Bernardino Municipal Code to restrict
the display of harmful material in public places.
Contact person:
James E. Robbins
Phone:
5122
Supporting data attached:
Yes
Ward:
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
Finance:
Council Notes:
75.0262
Agenda Item No._
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CITY OF SAN BERNARDINO
Interoffice Memorandum
TO:
Legislative Review Committee
FROM:
Denice E. Brue
Assistant City Attorney
SUBJECT:
Proposed Newsrack Ordinance
DATE:
August 18, 1988
At the August 4, 1988 Legislative Review Committee Meeting
several concerns were expressed regarding the proposed Newsrack
Ordinance.
The attached proposed ordinance attempts to deal with the
concerns expressed in the following ways:
1. Includes plain sight observation requirements for
seizure. (Section 9.70.020).
2. Adds requirement of placing an adult within 50 feet of
the vending machine to alleviate any ambiguity regarding an
attendant requirement. (Section 9.70.010).
3. Continues the two remedial measures for violation, i.e.
misdemeanor prosecution and/or administrative hearing.
4. Specifically sets forth that property not claimed within
30 days can be disposed of as abandoned property. (Section
9. 70.030) . .
Adds the Police Commission as the entity to hearing the
hearings. (Section 9.70.030).
Attorney
DEB:ms
C I T Y 0 F SAN B ERN A R 0 I N 0
INTEROFFICE MEMORANDUM
TO:
LEGISLATIVE REVIEW COMMITTEE
FROM:
DENNIS A. BARLOW
Sr. Asst. City Attorney
July 12, 1988
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DATE:
SUBJECT: proposed Newsrack Ordinance
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Some time ago, members of the public approached the City with a
concern about newsracks in the community displaying "obscene"
material to both adults, who do not wish to view such displays,
and minors of all ages. Their concern as parents was whether
something could be done to protect minors from this material.
Certainly, in such situations careful consideration must be made
due to the constitutional rights of freedom of speech and of the
press. However, State statutes outline and define "harmful
matter" which, although not to the legal standard of obscenity,
still may not be displayed to minors.
After several meetings including the Mayor, the Chief of police,
City Clerk, Planning, Public Services, City Administrator, our
office, and members of the public, it was decided to recommend to
the Mayor and Council that an ordinance be adopted which would
protect minors from not only viewing such harmful matter, but
through youthful curiosity, from purchasing such material, and
would also protect the right of adults to purchase and read what
they desired. The best solution to this problem seemed to be to
require that each of such newsracks be attended by an adult.
Such an adult could monitor the activities of minors and still
allow purchases by adults, an ability not held by the inanimate'
machines themselves. Failure to have an adult attendant would be
a violation of the ordinance and could also result in seizure of
the newsracks.
In these situations, seizure prior to a due process hearing is
supported by the need to protect children from the adverse
effects of the material. However, a hearing is made available to
the operators at their request. ~
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ATTACHMENT 2
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