HomeMy WebLinkAbout75-22 Public Vending Machine Regulations1
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ORDINANCE NO. 75-.2Z
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
COSTA MESA AMENDING TITLL 11 OF THE COSTA MESA
MUNICIPAL CODE, PROVIDING FOR REGULATIO14 OF
VENDING MACHINES ON THE PUBLIC RIGHTS OF WAY.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY
IORDAIN AS FOLLOWS:
SECTION l: The City Council finds and declares that the
rights and guarantees afforded all our ciizens under the United
States and California Constitutions must be retained. The City
Council also finds and declares that these guarantees must be
11 weighed against the right of the City to protect the health,
12 safety and welfare of its citizens.
13 The City Council further finds and declares that the
14 marketing and distribution methods utilized by newspapers,
15 magazines and other goods today are no longer contained within a
16 small and insignificant physical space on our public streets,
17 highways, sidewalks and other areas used for the public's travel.
18 - The City Council further finds and declares that utiliza-
19 tion of individual vending machines for each such publication or
20 distribution of goods results in more and more physical space
21 being occupied on such public rights of way to the detriment of the
22 traveling public.
23 The City Council further finds and declares that when too
24 many such vending machines are concentrated in one area without any
25 control or regulation over their location as to each other and
26 their proximity to areas primarily designed for and dedicated to
27 the public's right to travel thereon that such condition constitute:
28 a public nuisance and must be abated.
29 The City Council further finds and declares that it is
30 necessary to regulate and control the harmful concentration'of sucl
31 machines on the basis of their physical location on all such public
32 areas primarily intended for public travel as a protection of the
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1 public's health, safety and welfare said regulation to be pursuant
2 to California Government Code §38775 and other applicable laws.
3 The City Council further finds and declares that there
4 exists growing public concern over the written and pictorial
5 content of some publications displayed within said vending
6 machines that are viewable by minors and adults alike, who travel
7 over said public rights of way.
8 The City Council further finds and declares that said
9 concern includes, on occasion, strong dissatisfaction with such
10 readily viewable material that often offends and disturbs our
11 community's citizens who believe their rights to travel upon such
12 public ways without being subjected to obscene or harmful matter
13 are affected adversely.
14 The City Council further finds and declares that separate
15 and distinct from the aforesaid physical obstructions involved,
16 regulation is necessary to protect the public's right to travel
17 over such public rights of way within our community without being
18 exposed to obscene or harmful material contained within said
19 vending machines readily viewable by users of said public rights of
20 way.
21 The City Council further finds and declares that said
22 regulation must be and will be accomplished by lawful -and
23 constitutional means that balance the great freedoms of speech
24 and press with the rights of the traveling public on our city's
25 public thoroughfares.
26 The City Council further finds and declares that the
27 most appropriate method of regulation provided for herein is to
28 utilize the State of California's laws and statutes, to the extent
29 applicable, to control and regulate the content of such machines
30 for the public's health, safety and general welfare.
31 Accordingly, the existing provisions of Title 11 of the
32 Costa Mesa Municipal Code, are hereby amended by inclusion of a
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I new Chapter VI to read as follows;
2 SECTION 2: "TITLE 11 OFFENSES - MISCELLA14EOUS
3 CHAPTER VI. REGULATION OF VENDING MACHINES
ON THE PUBLIC RIGHTS OF WAY
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5 ARTICLE 1 GENERAL
6 §11-100 to 11-104 Reserved.
7 §11-105 PURPOSE AND FINDINGS
8 The City Council finds that the modern marketing
9 methods of distributors of publications and other goods upon the
10 rights of way by means of vending machines poses a hazard to the
11 traveling public when such machines are heavily concentrated in
12 one location and thereby constitute a public nuisance.
13 Further, the City Council finds that when such
14 machines contain material, written, pictorial or otherwise, that
15 is readily viewable by minors or adults alike who use the public
16 rights of way for the primary purposes for which same were intended,
17 to wit, travel, and that said readily viewable material is obscene
18 or harmful as determined by applicable laws that such material
19 constitutes a public nuisance and must be abated accordingly.
20 The City Council hereby intends to regulate and control
21 the aforesaid conditions by declaring same to be public nuisances,
22 provide for notice and a hearing where applicable and abate same as
.23 a public nuisance as herein provided.
24 511-106 DEFINITIONS
25 The definitions herein shall be given the meaning set
26 forth, other laws and interpretations notwithstanding, for use in
27 interpretation the provisions of this chapter unless a contrary
28 intent is clearly indicated.
29 Right of way. The term "right of way" shall have
30 the all-inclusive meaning pertaining to highways., streets, side -
31 walks, alleys, walkways and other ways intended for public travel,
32 either due dedication or otherwise.
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1 Street. The term "Street" shall mean that portior
2 of the right of way generally used for public vehicular travel.
3 Sidewalk. The term "sidewalk" shall mean that
4 portion of the right of way generally used for pedestrian travel.
5 Parkway. The term "parkway" shall mean that area
6 between the sidewalk and the curb of any street, and where there is
7 no sidewalk, that area between the edge of the street and the pro-
8 perty line adjacent thereto. Parkways shall also include any area
9 within a street which is not open to vehicular traffic.
10 Vending Machine. The term "vending machine" shal_
11 mean any portable coin-operated fabricated or manufactured contri-
12 vance intended for, and used for, the display of publications or
13 goods in a stationary location which allows a person walking by it
14 to see all, or a portion thereof, of said publications or goods.
15 Publications. The term "publications" shall mean
16 all newspapers, magazines,or.other printed matter with words or
17 pictures, howsoever prepared or reproduced, that are intended for
18 sale or distribution to members of the general public.
19 Custodian. The term "custodian" shall mean the
20 owner of said vending machine or the person or persons who have the
21 responsibility of placing, servicing or maintaining a vending
22 machine by depositing or removing material therefrom or by collect-
23 ing monies therefrom.
24 Person. The term "person" refers to an indivi-
25 dual, firm, partnership, corporation or other legal entity.
26 Goods. The term "goods" shall mean all
27 goods; wares and merchandise, other than publications, intended
28 for sale or distribution to members of the general public.
29 Physical Location. The term "physical loca-
30 tion" means the spatial relationship of an object with other
31 objects.
32 Laterally. The term "laterally" shall refer to
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the mode of measuring distances herein that uses the curbline or
edge of street as the plane of reference and measuring horizontally
along that plane.
Content. The term "content" means the material
located inside a vending machine, whether a publication or goods,
for purposes of sale or distribution to members of the general
public.
ARTICLE 2 - REGULATION OF PHYSICAL
LOCATIONS
511-107 PHYSICAL LOCATION STANDARDS OF VENDING
MACHINES ON THE PUBLIC RIGHT OF 117AY
No vending machine shall be placed, installed)or
mantained in or upon the right of way in violation of the following
physical location standards:
(1) When such vending machine or any portion
thereof projects onto, into or over any
part of the roadway of any public street;
(2) Within five (5) feet laterally of any
marked crosswalk within a street;
(3) Within fifteen (15) feet laterally of the
curb return of any unmarked crosswalk;
(4) Within five (5) feet laterally of any fire
hydrant, fire call box.or police call box;
(5) Within five (5) feet laterally of any
driveway intersecting a sidewalk;
(6) Within five (5) feet laterally of light
standards, trash receptables, traffic
signal control boxes or mail boxes;
(7) Within five (5) feet laterally of any bus
bench or stop;
(8) In lateral groupings or combinations of more
than three (3) such vending machines,
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affixed fastened or placed.side-by-side,
with less than three (3) feet lateral dis-
tance between such groupings or combinations:
(9) Affixed or fastended to utility poles or
other private property lawfully located
within the public right of way without
owner's consent or permission.
(10) When such physical location is otherwise
found and determined to create a hazard and
danger to the public under the circumstances
existing thereat.
§11-10,8 INFORMATION REQUIRED
Every owner who places or maintains a vending machine
in or upon the public right of way shall comply fully with the
provisions of the California Business and Professions Code §17570
by affixing to each such vending machine their name and address
in a place where it may be seen by anyone using the machine.
§11-109 OTHER VIOLATIONS
(a) No such vending machine shall be used for
advertising signs or publicity purposes other than dealing with
the display, sale )or purchase of the publications or goods therein
contained.
(b) Each such vending machine shall be main-
tained in a clean, neat )and attractive condition and in good
repair at all times.
§11-110 DETERMINATION AND VIOLATION
Any vending machine placed, installed or maintained
in violation of the aforesaid physical location standards is
hereby found and determined to be a public nuisance and abated as
herein set forth.
§11-111 PROCEDURE FOR NOTICE
When it has been determined by the Director of Public
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Services or his designated agent that any vending machine is
placed, installed.or maintained in violation of this article then
notice of said violation shall'be given to the owner or custodian
of said vending machine, if known, and to the seller of the
publications or goods therein displayed requesting compliance
within five (5) days. Said notice shall advise that failure
to comply may result in said vending machine being removed, stored
and disposed of as herein provided and advising of the right -to
a hearing and procedure. Said notice shall be in writing served
in person or throughthe United States mail and shall also be
posted conspicuously upon said vending machine.
511-112 HEARING PROCEDURE
After notice having been given.the owner or custodian
of said vending machine )or the seller of the publications or
goods therein shall have the right to a hearing before the City
Council to contest the finding and determination of the Director
of Public Services or his designated agent; provided that request
for such is made in writing, prior to the expiration of the five
(5) day period set forth in the notice. At such hearing, if any,
the evidence, determination and decision shall be restricted to
factors set forth in this Article and none other. The decision
of the City Council shall be final.
X11-113 ABATEMENT PROCEDURE
. In the event no hearing is requested as in this
Article provided, after the expiration of the five (5) days set
X: in said notice, the Director of Public Services.or his
designated agents shall take and remove the offending vending
machine from the public right of way and store same in the City's
yard for no less than thirty (30) days and if not reclaimed by
its owner within that time to be disposed of according to law as
unclaimed property.
In the event a hearing is held and the City Council
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affirms the finding and determination of the Director of Public
Services, then the offending vending machine shall be taken and
removed forthwith to the City's corporation yard for storage for
thirty (30) days, and if not reclaimed by its owner within that
time, to be disposed of according to law as unclaimed property.
ARTICLE 3 - REGULATION OF CONTENT OF
VENDING MACHINES ON THE
PUBLIC RIGH^1 OF WAY
511-120
DEFINITIONS AND APPLICATION OF STATE LAW
For purposes of this article, the definitions and
provisions of California Penal Code, Part 1, Title 9, Chapters
7.5 (commencing with
§311) and 7.6 (commencing with §313) as
enacted or hereafter
amended or construed shall apply.
(a)
"'Obscene batter' means matter, taken as a
whole, the predominant appeal of which to
the average person, applying contemporary
standards, is to prurient interest, i.e. a
shameful or morbid interest in nudity, sex,
or excretion; and is matter which taken as
a whole goes substantially beyond customary
limits of candor in description or repre-
sentation of such matters and is matter
which taken as a whole is utterly without
redeeming social importance.
(1) The predominant appeal to prurient
interest of the matter is judged with
reference to average adults unless it
appears from the nature of the matter
or the circumstances of its dissemina-
tion, distribution, or exhibition, that
it is designed for clearly defined
deviant sexual groups, in which case
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the predominant appeal of the matter
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shall be judged with reference to its
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intended recipient group.
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(2) In prosecutions under this chapter,
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where circumstances of production, pre -
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sentation, sale, dissemination, dis-
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tribution or publicity indicate that
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matter is being commercially exploited
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by the defendant for the sake of its
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prurient appeal, such evidence is
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probative with respect to the nature
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of the matter and can justify the con -
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clusion that the matter is utterly
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without redeeming social importance."
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(b) "'Harmful Matter" means matter, taken as a
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whole, the.predominant appeal of which to the
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average person, applying contemporary stand -
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ards, is to prurient interest, i.e. a shame -
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ful or morbid interest in nudity, sex, or
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excretion; and is matter which taken as a
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whole goes substantially 'beyond customary
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limits of candor in description or repre-
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sentation of such matters; and is matter
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which taken as a whole is utterly without
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redeeming social importance for minors.
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(1) When it appears from the nature of the
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matter or the circumstances of its
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dissemination, distribution or exhibiti
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that it is designed for clearly defined
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deviant sexual groups, the predominant
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appeal of the matter shall be judged
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with reference to its intended re-
cipient group.
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1 (2) In prosecutions under this chapter,
2 circumstances of production, pre -
3 sentation, sale, dissemination, dis-
4 tribution or publicity indicate that
5 matter is being commercially exploited
6 by the defendant for the sake of its
7 prurient appeal, such evidence is
8 probative with respect to the nature
9 of the matter and can justify -the.
10 conclusion that the matter is utterly
11 without redeeming social importance
12 for minors."
13 §11-121
14 No person shall sell, distribute or exhibit by means
15 of a vending machine located on the public right of way any
16 publications, goods, or matter readily viewable by persons using
17 said right of way as follows:
18 (a) Any obscene or harmful matter as herein
19 defined unless the owner or custodian of
20 said vending machine shall keep an adult
21 attendant at said machine who shall exercise
22 that degree of care required by §313.1 of
23 the Penal Code to prevent the sale, dis-
24 tribution or exhibition of same to a minor.
25 §11-122 ENFORCEMENT PROCEDURE
26 Any person believing the contents of any such vending
27 machine located on the public right of way is in violation hereof
28 may sign a complaint and have a warrant of arrest issued against
29 the owner or custodian of said vending machine or the maker or
30 publisher of said publication, goods or matter.
31 §11-123 PROSECUTION
32 Every person violating the provisions herein shall be
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prosecuted under the applicable State laws and to the fullest exten
Ithereof.
ARTICLE 4 - SEVERABILITY AND PENALTY
511-124 SEVERABILITY
If any section, subsection, sentence, clause)or
phrase or portion of this ordinance is for any reason held to be
invalid or unconstitutional by the decision of any court of com-
petent jurisdiction, such decision shall not affect the validity
lof the remaining portions of this ordinance.
The City Council hereby declares that it would have
passed this chapter and each article, section, subsection, sentence
clause or phrase hereof irrespective of the fact that portions
hereof would be declared invalid or unconstitutional.
§11-125 PENALTY
As an alternative to the abatement procedures herein
contained, any person violating the provisions of this chapter
shall be guilty.of a misdemeanor as provided for in 51-33 of this
Code or as otherwise provided by law."
SECTION 3: This ordinance shall take effect and be in
full force and effect thirty (30) days from and after its passage,
and before the expiration of fifteen (15) days after its passage,
shall be published once in the Orange Coast Daily Pilot, a news-
paper of general circulation printed and published in the City of
Costa Mesa, together with the names of the members of the City
Council voting for and against the same.
PASSED AND ADOPTED this b� day of ,
1975.
ATTEST:
City Clerk of the City o
Costa Mesa
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j.
ayor of the City of Costa Mesa
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STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF COSTA MESA )
SS.
I, EILEEN P. PHINNEY, City Clerk and ex -officio Clerk of
the City Council of the City of Costa Mesa, hereby certify that
the above and foregoing Ordinance No. ?5;,z was introduced and
considered section by section at a regular meeting of said City
Council held on the 1,dt day of b r 1975 and thereafter
passed and adopted as a whole at a egular meeting of said City
Council held on the /6rZay of1975 by the
following roll call vote:
Y ,6
AYES: COUNCIL MEMBERS:f--Z-Ajt
�./
NOES. COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed
the Seal of�.the City of Costa Mesa this /(off day of
1975.
//
'APP OVED AS TO FORM.,
----------- At ...............
Nov
City Clerk and ex -officio Cle
of the City Council of the C y
of Costa Mesa
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