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HomeMy WebLinkAbout37-City Attorney 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 -j~-~~ 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 1 2 3 4 5 6 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. 24 25 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 28 DEB:ms September 19, 1988 1 . 1 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 17 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 22 23 24 25 26 27 28 Bernardino at a meeting thereof, held on the DEB:ms September 19, 1988 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 3 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._ \. ~. { 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 ~~ DATE: SUBJECT: proposed Newsrack Ordinance ----------------------------------------------------------------- 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. ~ I ~ J: ~ -. >- z:- 0 ~ 3: Z . Q c. .... ~ w. ATTACHMENT 2 -If3