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Home My WebLink About1990-01-09; City Council; 10450; AMENDING TITLE 11, CHAPTER 11.36 PERTAINING TO NEWSRACKSI d- 0 Cn I z a 0 N a a) c) 3 $4 w u 58 CE: r!h .% 0 3 u 0 cn .. 2 \ 0 F: 2 =i 0 z 3 0 0 ri a on V \ cn 4 CITWF CARLSBAD - AGEN-ILL bj' AB# ic; 'l 5 [A TITLE: DEP CITY MTG. 1/9/90 AMENDING TITLE 11, CHAPTER 11.36 ClTl DEPT. CA PERTAINING TO NEWSRACKS RECOMMENDED ACTION: If the Council wishes to prohibit the display of obscene p: material, introduce the attached ordinance amending Chaptt specifying locations and establishing standards for news] public rights-of-way. ITEM EXPLANATION The City Council introduced Ordinance No. NS-99 spc locations and establishing standards for newsracks on rights-of-way at its regular meeting of Tuesday, December 1 Section 11.36.070 regarding display of obscene material was from that ordinance pending a review and report by this The United States Supreme Court established the standa obscene materials and held that they are not entitled t amendment protections. In Miller v. California (1972) 413 37 L.Ed.2d 419, 93 Sup.Ct.2607 the Supreme Court stated: ~120 iq s - ic L/ - "Under the holdings announced today, no one will subject to prosecution for the sale or exposure obscene materials unless these materials depict describe patently offensive "hard core1! sexual cond specifically defined by the regulating state law, written or construed. We are satisfied that th written prerequisites will provide fair notice tc dealer in such materials that his public and commerc activities may bring prosecution. (Citations omitte If the inability to define regulated materials w ultimate, God-like precision altogether removes the pa of the states or Congress to regulate, then "hard co pornography may be exposed without limit to the juveni the passerby, and the consenting adult alike ... pages 432 and 433)." The court went on to establish clear standards prohibiting of obscene materials which are incorporated into the amendment to the existing ordinance, which is attached. The test laid down by the United States Supreme C incorporated into the proposed amendment is also consist( state penal statutes. Penal Code Section 313 defines materials (ftharmful matter") and subjects the person who k distributes it to misdemeanor prosecution punishable by a not more than $2,000 or imprisonment in the county jail more than one year. (Penal Code Section 313.4). The ordinance would allow the City to obtain civil injunctiv to prevent the display of obscene materials pending prosecution. It is a defense to a criminal violation 1 distributor has placed Ilblinder racks" in front of the mat 0 0 .. Agenda Bill No. /L! ':5 L Page 2 a newsstand so that the lower two-thirds of the material exposed to public view. FISCAL IMPACT There will be an increased expenditure of staff time of an amount for the enforcement of this ordinance which will dc the number of future violations. EXHIBIT Ordinance No. Ns e !i L[ 1 1 .. .. i 1 2 3 4 5 6 7 8 9 lo 11 12 om SWm cn'Z' &Z& l3 %aog -ow oUum 14 aoaa Z>iZ QcgE mgmu u &<i 15 2UUlV Ygg6 16 zoss >2$ EV >rn< >5~9 17 18 19 2o 21 22 23 24 25 26 27 28 a 0 - ORDINANCE NO. NS 104 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AMENDING TITLE 11, CHAPTER 11.36 OF THE CARLSBAD MUNICIPAL CODE ADDING DEFINITIONS OF OBSCENE MATERIALS. The City Council of the City of Carlsbad does 01 follows: SECTION I: That Title 11, Chapter 11.36 of the Carlsbad Municipal Code is amended by the amendment of Section 11.36.020 to read as follows: 11.3 6.02 0 Definitions. Whenever the following words and phrases are us1 this division, they shall have the meaning ascribed to thc this section: (a) t1Distributer8t shall mean the person responr for placing and maintaining a newsrack in a public right I (b) l1Newsrack1! shall mean any self-service or ( operated box, container, storage unit, or other dispenser installed, used or maintained for the display, sale or distribution of publications. (c) Any pictorial material is vlobscene*l if all following apply: (1) The average person, applying contempo community standards, would find that it appeals to the pr interest when the publication or material is considered a whole: and (2) It depicts, describes or represents i patently offensive manner, sexual behavior as defined bel (3) It lacks serious literary, artistic, political or scientific value when the publication or mat considered as a whole. (d) lgParkwaylf shall mean the area between the and curb of a roadway, and where there is no sidewalk, th between the edge of the traveled roadway and the edge of right of way. llParkwaylf also includes any area within a that is not open to vehicular travel. (e) glPictorial material" means any material su or conveying a visual image, and includes but is not limi a photograph, painting or drawing. (f) llFublic Right of Way1# shall mean any place nature which is dedicated to use by the public for pedest vehicular travel, and includes, but is not limited to, a sidewalk, curb, gutter, crossing, intersection, parkway, alley, lane, mall, court, way, avenue, boulevard, road, r viaduct, subway, tunnel, bridge, thoroughfare, park, squa any other similar public way. of way that is designated and used primarily for vehicula travel. (9) llRoadwayll shall mean that part of a public I .* - l / ' 2 3 4 5 6 7 8 9 lo 11 0 l2 &E& SW% w>z 13 of%% 0044 l4 C>?F 15 w-sg mgo& ~wwo ;$$a 16 sang u bad >ma goom >5gy 17 to >"% 0 18 19 20 21 22 23 24 25 26 27 28 e a (h) '*Sexual behavior" means the patently off ens representation, depiction or description of any of the fol (1) Ultimate sexual acts, normal or pewer actual or simulated, including without limitation, vaginal intercourse between a male and a female,and anal intercour fellatio and cunnilingus between persons regardless of ger (2) Masturbation, excretory functions and exhibition of genitals. (3) The actual or simulated infliction of one individual upon another, or by an individual upon him5 for the purpose of the sexual gratification or release of individual, as a result of flagellation, beating, strikinc touching of an erogenous zone, including without limitatic thigh, genitals, buttock, pubic region or, if such person female, a breast. (4) Ultimate sexual acts, actual or simuli between a human being and an animal. (i) t*Sidewalk*l shall mean that part of a public of way that is designated and ordinarily used for pedestr travel. SECTION 11: That Title 11, Chapter 11.36 is amc the addition of Section 11.36.070 to read as follows: 1111.36.070 DisPlav of obscene material. It shall be unlawful for any person to knowingl? or maintain any publication or material in newsracks whic' exposes to public view any pictorial matter that is obsce SECTION 111: That all sections following Secti 11.36.070 be renumbered consecutively. EFFECTIVE DATE: This ordinance shall be effect thirty days after its adoption, and the City Clerk shall to the adoption of this ordinance and cause it to be pub1 least once in the Carlsbad Journal within fifteen days af adoption. INTRODUCED AND FIRST READ at a regular meeting Carlsbad City Council on the 9th day of January 19 90, and thereafter 2 A . '7 i PASSED AND ADOPTED at a regular meeting of the ( Council of the City of Carlsbad on the 16th day of Januai 1990, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux NOES: None ABSENT: None APPROVED AS TO FORM AND LEGALITY 3