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Home My WebLink AboutAGENDA REPORT 1990 0725 CC REG ITEM 09ABERNARDO M. PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tern ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk MOORPARK "OORPARK, CALIFORNIA City Coun I Me ting of 199, ACTION: /S e ? BY J, M E M O R A N D U M STEM • A& STEVEN KUENY City Manager CHERYL J.KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer TO: The Honorable City Council FROM: Patrick J. Richards, Director of Community Development DATE: July 19, 1990 (cc meeting of 7/25/90) SUBJECT: Appeal Regarding the Location of Newsracks in Residential Zones Background On April 21, 1990, the Code Enforcement Officer conducted inspections of newsracks throughout the City. There were five newspaper companies that were found to be in violation of Section 5.60.040 (10) of the Municipal Code. Item 10 of this section states that newsracks shall not be installed or maintained on a sidewalk that abuts property zoned Rural Agricultural, (R -A), Rural Exclusive (R -E), Single Family Estate (R -O), One Family Residential (R -1), Two Family Residential (R -2), Multiple Family Residential (R -3), Mobile Home Subdivision (MHS), Trailer Park Development (T -P -D) or Residential Planned Development (RPD), as such zones are defined in the City Zoning Ordinance. The newsracks are located at the intersection of Campus Park Drive and Marquette Street on Moorpark Avenue, Majestic Court and within the Woodcreek Apartments. See attached photos (Attachment No. 7) regarding the area in which the newsracks are located. Of note, is the fact that even if they were permitted in these zones, they would still be in violation of setback requirements. On May 4, 1990, letters were sent to the five newspaper companies that were in violation of Section 5.60.040. The News Chronicle complied, the Enterprise and Star Free Press have not complied. The impounding of these newsracks has been put on hold pending the decision of the appeal to the City Council by the Daily News and Los Angeles Times. The Daily News and Los Angeles Times were the only two companies to request an Office Hearing regarding the issue. The Office Hearings were held at Moorpark City Hall on June 8, 1990 for the Daily News and on June 18, 1990 for the Los Angeles Times. Both newspaper companies stated that Section 5.60.040 of the Moorpark Municipal Code was in violation of their First Amendment rights; not allowing them to install the newsracks 799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864 The Honorable City Council July 19, 1990 (cc meeting 7/25/90) Page 2 abutting residential zoning. A letter was sent out to both newspaper companies stating that the finding of the Director of Community Development at the Office Hearing was that the location of the newsracks on a sidewalk within or abutting a residential zone was in violation of the Municipal Code. Representatives from both the Daily News and Los Angeles Times stated that they would appeal the City's decision to the City Council. Discussion The newsracks are a commercial use in a residential zone. By allowing them to remain in these locations gives them the opportunity to install them on any residential corner or on any street throughout the City. The commercial use of the newsracks may also open the door for other types of commercial vending machines. The newsracks located on Campus Park Drive are currently creating a site obstruction. A letter was sent out on July 9, 1990 from the Director of Public Works identifying newsracks which were resulting in safety problems due to a vehicular traffic sight obstruction. Recommendation It is Staff's recommendation that the appeal of the Daily News and the Los Angeles Times be denied. In addition, that the City Council direct Staff notify all newspaper companies in violation of Section 5.60.040(10) that they have ten (10) days to remove identified newsracks, after which time they will be impounded in accordance with Section 5.60.070 of the Moorpark Municipal Code. Attachments: 1 Copy of Chapter 5.60, "News racks" 2 Letter from Los Angeles Time dated May 23, 1990 request for hearing 3 Letters dated July 9, 1990 to The Daily News, Los Angeles Times, The Enterprise and Star Free Press 4 Letter from Los Angeles Times and Daily News, request for continuance 5 Letter from Los Angeles Times dated June 25, 1990 and from Daily News dated June 22, 1990 requesting an appeal 6 Correspondence May 4, 1990 through June 20, 1990 7 Location Photographs FM3JUL9.2 5.56.040 -- 5.60.010 3 G. Whether the applicant has, in effect, a policy of indemnity insurance, issued by a reliable insurance company licensed to carry on an insurance business in the state, sufficient to compensate spectators present at any such race held by the applicant for any injury sustained by any spec- tator as a result of any accident or as a result of any neg- ligent or careless operation to any motor vehicle placed in competition at any such race or competition. Proof of the insurance policy shall be presented with the application. (Ord. 6 51(part), 1983) 5.56.040 License - -Fee. The fee for the license required by Section 5.56.020 of this chapter shall be the sum of ten dollars ($10.00) per day or one hundred dollars ($100.00) per year, whichever is lower. (Ord. 6 S1(part), 1983) 5.56.050 License--Approval. The sheriff shall approve the application unless it shall appear that the health and safety of the community would be endangered by the proposed motor vehicle race or races. (Ord. 6 51(part), 1983) Chapter 5.60 NEWSRACKS Sections: 5.60.010 Definitions. 5.60.020 Compliance required generally. 5.60.030 Registration required. 5.60.040 Standards for installation, maintenance and removal. 5.60.050 Display of certain matter prohibited. 5.60.060 Violation -- Notice. 5.60.070 Violation -- Impoundment of newsracks. 5.60.080 Hearing procedures. 5.60.090 Notices generally. 5.60.100 Nonconforming newsracks. 5.60.110 Abandoned newsracks. 5.60.120 Unmarked newsracks. 5.60.010 Definitions. For the purpose of this chap- ter, certain words and phrases are defined as set forth in this section, unless it is apparent from the context that a different meaning is intended: "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 printed material. 13 s ATTACHMENT 1 5.60.020 -- 5.60.030 "Parkway" means that portion of a street other than the portions included within the roadway and sidewalk. "Permit authority" means the city manager or his or her designee. "Printed material" means any newspaper, periodical, magazine, book, picture, photograph or other similar matter. "Roadway" means that portion of a street improved, de- signed or ordinarily used for vehicular travel. "Sidewalk" means any surface within a street provided for the exclusive use of pedestrians. "Street' means all the public right -of -way dedica:.ed to public use for public street purposes and shall include parkways, roadways and sidewalks. (Ord. 78 52(part), 1986) 5.60.020 Compliance required generally. No person shall install or maintain any newsrack which in whole or in part rests upon, in or over any parkway, street or any prop- erty owned or controlled by the city, except as expressly permitted pursuant to this chapter. (Ord. 78 52(part), 1986) 5.60.030 Registration required. A. Newsracks which rest wholly upon, in and over any sidewalk or the patio of the Community Center are permitted pursuant to this chapter; provided, that no person shall install or maintain any such newsrack without -first registering the newsrack with the city and without otherwise complying with the provisions of this chapter. Such registration shall be in writing by the owner of the newsrack or his authorized agent, shall be filed with the permit authority and shall contain the fol- lowing: 1. The name, address and telephone number of the owner of the newsrack and the name and address of the person to whom any notice pursuant to this chapter should be given; 2. The location at which the newsrack is to be in- stalled and maintained; 3. An executed document, approved as to form by the city attorney, by which the registrant agrees to indemnify and hold harmless the city, its officers, employees, ser- vants and agents from any claim, demand or judgment in favor of any person, arising out of the location, installation, maintenance or removal of the newsrack; and 4. A certificate of .insurance evidencing that a liability insurance policy in minimum amounts set by the city council has been issued, naming the city as a coin - sured, and containing a provision that the policy cannot be cancelled or modified except upon thirty (30) days' written notice to the city clerk of the fact of such cancellation or modification.- If at any time during the time the newsrack is installed or maintained on public property, such insur- ance is cancelled or is modified without the prior written 136 �.1 5.60.040 approval of the permit authority, said newsrack shall be removed forthwith by the registrant. B. No encroachment permit shall be required pursuant to any ordinance of the city, if the newsrack is registered in accordance with this section. (Ord. 78 52(part), 1986) 5.60.040 Standards for installation, maintenance and removal. A. Any newsrack which is installed or maintained pursuant to this chapter shall comply with the following standards: 1. The newsrack shall rest entirely outside the roadway or parkway and shall in whole rest upon, in and over the sidewalk or the patio of the Community Center; 2. The newsrack shall not exceed forty -six (46) inches in height, thirty (30) inches in width, or twen- ty -four (24) inches in thickness and shall have panels on all four (4) sides which shall be woodgrain or painted brown; 3. The newsrack shall be install.ed on a single or multiple pedestal -type base, which base shall be painted black and shall be securely anchored into the sidewalk; provided, however, not more than four (4) newsracks shall be installed on any one (1) base; 4. The newsrack shall be placed parallel to a curb or the wall of a building. Newsracks placed parallel to the curb shall be placed with the back to the roadway and not less than eighteen (18) inches nor more than twenty -four (24) inches from the edge of the curb or if there is no curb from the edge of the pavement. Newsracks placed parallel to the wall of a building shall be placed with the back not more than six (6) inches from the wall. No newsrack shall be placed or maintained opposite a newsstand or another newsrack; 5. Newsracks may be placed next to each other; provided, however, no group of newsracks shall extend more than fifteen (15) feet along the sidewalk, and no such group of newsracks shall be located within five (5) feet of any other group of newsracks; 6. The newsrack shall not be used for advertising or publicity purposes, except: a. The name of printed material dispensed there- from may be displayed on the bottom one -third (1/3) of the hood, and b. Advertising rack cards contained in card pans may be attached to, and located on, the front of the news- rack. The rack cards shall not exceed fifteen (15) inches in height and twenty -two (22) inches in length and shall be limited to the display, sale or purchase of the printed ma- terial dispensed from the newsrack; 7. The newsrack shall be maintained in 'a clean, neat, safe and secure condit.ior and in good repair at all times; 13-7 5.60.040 8. The newsrack shall not be installed or main- tained within: a. Five (5) feet of any marked crosswalk, b. Fifteen (15) feet: of any curb return, C. Five (5) feet of Tiny utility meter or service box, d. Five (5) feet of any driveway, e. Six (6) feet of any bus bench, f. Five (5) feet ahead of, and twenty -five (25) feet to the rear of, any sign marking a designated bus stop, g. Fifteen (15) feet of any fire hydrant, fire call box, police call box or other emergency facility, h. Three (3) feet of any improved area with lawn, flowers, shrubs or trees; provided, however, that if the planting area and the adjacent sidewalk are separated by a wall or fence in excess of three (3) feet in height and the planting area and the sidewalk are on substantially the same grade, the restriction shall not apply, or i. Three (3) feet of any display window of any building abutting the sidewalk or in such manner as to im- pede or interfere with the reasonable use of such window for display purposes, and j. One hundred fifty (150) feet of any other newsrack.on the same side of the street within the same block which contains the same issue or edition of the same printed material, except where there is insufficient room in one newsrack for the printed material which may be sold in one day. In such event the number of newsracks shall not exceed the number necessary to accommodate the printed mate- rial which may be sold in one day, the newsracks shall be placed and grouped next to each other and shall otherwise be located in compliance with this section; 9. The newsrack shall n(-,,t be installed or main- tained so as to: a. Reduce the clear space for the passageway of pedestrians to less than four (4) feet, b. Cause, create or constitute a hazard to, or unreasonably interfere with, or obstruct the flow of, vehic- ular traffic or pedestrians, c. Endanger persons or property, or d. Unreasonably obstruct or interfere with ac- cess to, or the use and enjoyment. of, abutting the property; 10. The newsrack shall not be installed or main- tained on a sidewalk that abuts property that is zoned ru- ral- agricultural (R -A), rural exclusive (R -E), single- family estate (R -O), one- family residential (R -1), two - family res- idential (R -2), multiple - family residential (R -3), mobile - home subdivision (M -H -S), trailer park development (T -P -D) or residential planned development (R -P -D) , as such zones are defined in Title 17 of this -ode; and 138 l 5.60.050 -- 5.60.060 11. No issue or edition of any printed matter shall remain in the newsrack after the publication date of the next issue or edition. B. Whenever a newsrack location is voluntarily aban- doned, the registrant shall so notify the permit authority prior to removing the newsrack. The registrant shall com- pletely remove the newsrack and its mount and shall restore the sidewalk to a good and safe condition, leaving no hole or projection in the sidewalk and using the same type and quality of construction material as that which exists at the surface of the abutting sidewalk. (Ord. 78 §2(part), 1986) 5.60.050 Display of certain matter prohibited. A. No printed matter dispensed from any newsrack installed or main- tained pursuant to this chapter shall be displayed or exhi- bited in a manner which exposes to public view from the --street any of the following: 1. Any statements or words describing explicit sex- ual acts, sexual organs or excrement where such statement or words have as their purpose or effect sexual arousal, grati- fication or affront; 2. Any photograph, picture or illustration of genitals, pubic hair, perineums, anuses, or anal regions of any person where such photograph, picture or illustration has as its purpose of effect sexual arousal, gratification or affront; 3. Any photograph, picture or illustration depict - ing explicit sexual acts where such photograph, picture or illustration has as its purpose or effect sexual arousal, gratification or affront. B. Explicit sexual acts, as used in this section, means depictions of sexual intercourse, oral copulation, anal intercourse, oral -anal copulation, bestiality, sadism, masochism, or excretory functions in conjunction with sexual activity, masturbation, or lewd exhibition of genitals, whether any of the above conduct is depicted or described as being performed among or between members of the same or op- posite sex or between humans and animals, or other acts of sexual arousal involving any physical contact with a per- son's genital, pubic region, pubic hair, perineum, anus or anal region. (Ord. 78 §2(pELrt), 1986) 5.60.060 Violation -- Notice. A. Whenever the permit authority is advised that a newsrack has been installed or is being maintained in violation of this chapter, he or she shall so notify the person in whose name the newsrack is registered pursuant to Section 5.60.030 of this chapter. Such notice shall state the nature of the violation, the intention to impound the newsrack if the violation is not corrected or a hearing is not required before the permit authority within fifteen (15) days after the giving of such notice, and the procedure fcr requesting such a hearing. 139 5.60.070 -- 5.60.080 • B. A timely request for a hearing shall stay any im- pounding, provided that if the violation is not corrected within five (5) days after the decision at such hearing be- comes final, the permit authority may impound the newsrack in accordance with Section 5.60.070 of this chapter. C. Notwithstanding subsection A of this section, in the case of any violation of this chapter which creates an immediate danger to the public health, safety or welfare, which violation cannot be corrected by moving or otherwise rt-�positioninq an unanchored newsrack, said newsrack may be summarily i.ml- ounded by the permit authority. (Ord. 78 52(part), 1986) 5.60.070 Violation -- Impoundment of newsracks. A. Whenever a newsrack is impounded pursuant to Section 5.60- .060 of this chapter, the permit authority shall immediately notify the person in whose name the newsrack is registered pursuant to Section 5.60.030 of this chapter. Such notice shall state the date the newsrack was impounded, the reasons thereof, and the procedure for claiming the newsrack. If the newsrack was summarily impounded, such notice shall also state the procedure for requesting a hearing before the per- mit authority. B. The registrant or other person who provides satis- factory proof of ownership of the impounded newsrack may, at any time within thirty (30) days of the notice of impound, obtain the return of the newsrack and its contents upon payment of an impound fee in an amount equal to the reason- able cost to the city of removing and storing the newsrack. C. If, after a hearing pursuant to Section 5.60.080 of this chapter, the impounded newsrack is found not to have been in violation of this chapter, the newsrack shall be returned to the registrant or other claimant without payment of any impound fee or, if. an impound fee has previously been paid, the impound fee shall be refunded. D. Upon failure of the registrant or other claimant to claim an impounded newsrack -and pay the impound fees within the thirty :(30) day-period, the newsrack shall be deemed to be unclaimed property in possession of the city. The permit authority shall sell or otherwise dispose of such newsrack and its contents in accordance with law, (Ord. 78 52(part), 1986) 5.60.080 Hearinq procedures. A. Within fifteen (15) days of the notice of violation or notice of impound of a newsrack summarily impounded, the person in whose name the newsrack is-registered pursuant to Section 5.60.030 of this chapter, or other person who provides satisfactory proof of ownership may request a hearing before the permit authority. The request shall be in writing, shall state the basis thereof, and shall be filed with the permit authority. ill 0 5.60.090 -- 5.60.100 (? T B. The hearing shall be held within five (5) working days of the filing of the request. At the hearing any per- son may present evidence or argument as to whether the newsrack has been installed or maintained in violation of this chapter. Within two (2) working days after the close of the hearing, the permit authority shall render a decision in writing and shall give such written decision to the per- son who requested the hearing. C. Any person who requested a hearing before the per- mit authority may, within ten (10) days after the decision was given, appeal such decision to the city council. The appeal shall be in writing, shall state the basis upon which the appeal is made, and shall be filed with the city clerk. D. The city council shall hear the appeal within thir- ty (30) days of the filing of the request. At the hearing, any person may present evidence or argument as to whether -the newsrack has been installed or maintained in violation of this chapter. At the next regular meeting of the city council after the close of the hearing, the council shall render a decision in writing. Within one (1) day after the decision is rendered, the city clerk shall give notice thereof to the person who made the appeal. The decision of the city council shall be final. (Ord. 78 52(part), 1986) 5._60.090 Notices generally. Notices required pursuant to the provisions of-this chapter shall be given in writing by personal service or United States postal service, cer- tified mail, return receipt requested, addressed to the person to be notified at his or her last known address. The giving of notice under this chapter shall be deemed to have occurred as of the date of personal service or as of the date of deposit in the course of transmission of the United States postal service. (Ord. 78 52(part), 1986) 5.60.100 Nonconforminq newsracks. This chapter shall apply to all newsracks, whether installed or maintained pri- or to, or after, the effective date of the ordinance cod- ified in this chapter. Those newsracks installed prior to the effective date of this chapter shall be brought into compliance with the provisions of this chapter shall be brought into compliance with the provisions of this chapter within thirty (30) days of the effective date thereof. In the event the number of such newsracks at any location ex- ceed the number of newsracks that are permitted by this chap- ter at that location, priority shall be determined solely on a first -come, first - registration basis and in the event of a registration tie, by random lot performed by the permit au- thority. Any newsrack not brought into compliance with said thirty (30) day time period shall oe deemed to be in viola- tion of this chapter. (Ord., 78 52(part), 1986) 14 1 5.60.110 -- 5.60.120 /O 5.60.110 Abandoned newsracks. A newsrack shall be deemed abandoned when no printed material is contained \ therein for a period of more than fifteen (15) consecutive days. If the permit authority determines that a newsrack has been abandoned he or she shall summarily impound such newsrack and, notwithstanding Section 5.60.070 of this chap- ter, the newsrack shall immediately be deemed to be un- claimed property in the possession of the city. The permit authority shall sell or otherwise dispose of the newsrack in accordance with law. (Ord. 78 52(part), 186) 5.60.120 Unmarked newsracks. Whenever the permit au- thority finds that a newsrack does not have the name, ad- dress and telephone number of the owner thereof placed upon such newsrack, in compliance with Section 17470 et seq. of the Business and Professions Code of the state, he or she shall make every reasonable effort to ascertain the owner thereof. If the permit authority is unable to determine ownership, he or she shall summarily impound such newsrack and, notwithstanding Section 5.60.070 of this chapter, the newsrack shall immediately be deemed to be unclaimed proper- ty in possession of the city. The permit authority shall sell or otherwise dispose of such newsrack and its contents in accordance with law. (Ord. 78 52(part), 1986) Chapter 5.64 PEDDLERS, ITINERANT MERCHANTS AND SOLICITORS Sections: 5.64.010 Definitions. 5.64.020 License -- Required. 5.64.030 License -- Exceptions. 5.64.040 License -- Application. 5.64.050 License - -Fee. 5.64.060 License -- Photographing and fingerprinting. 5.64.070 License -- Approval authority. 5.64.080 License -- Content. 5.64.090 License -- Exhibiting. 5.64.100 License -- Subsequent. 5.64.110 License - -Void on discovery of false information. 5.64.120 Hours of operation. 5.64.130 Location restrictions. 5.64.140 Vehicle tags. 5.64.150 Parking restrictions.. 5.64.160 Temporary permits 142 s C05 An -q CIC11�i uimC,5 RHONDA HETH SENIOR STAFF COUNSEL (213) 2373741 Frank Mancino Code Enforcement Officer City of Moorpark 799 Moorpark Avenue Moo,Lpark, California 93021 May 23, 1990 Re: Notice of Violation Newsrack Ordinance Dear Mr. Mancino: The Los Angeles Times hereby request a hearing pursuant to §14.16.080 of Moorpark's Newsrack Ordinance #122. On May 9, 1990, The Times received a notice from you indicating that three of The Times newsracks located within the City of Moorpark are in violation of §14.16.040(10) of the Newsrack Ordinance, which basically prohibits newsracks in specified residential areas. As I indicated in our telephone conversation, The Times believes that the section of the ordinance in question is unconstitutional, and therefore cannot be enforced by the City. The dissemination of newspapers through newsracks is an activity protected by the Constitutions of the United States and the State of California. Regulation of this protected activity by means of newsrack ordinances has been restricted by court decisions. Only narrowly drawn and limited time, place, and manner restrictions have been upheld. For your convenience, I have attached copies of two cases covering this issue. In the case of California_ Newspaper Publishers Association v City of Burbank, the court held that the city's ordinance banning placement of newsracks except in a specified shopping mall violated the newspapers First Amendment rights. In the case of Chicago's Newspapers. Publishers Association v City of Wheaton, the city's ordinance specifically banned newsracks in residential zones and this restriction was found invalid by the court:. 1��CEIVED ATTACHMENT UAFL _OS ^JGcLLS, O:.' IF-R ^JIA X0053 Since any attempt by the City of Moorpark to enforce an unconstitutional ordinance would violate The Times' First Amendment rights, The Times respectfully request that provision §14.16.040(10) not be enforced so that The Times' newsracks will not be in violation of the ordinance. As we also discussed, The Times hereby waives the requirement that the City of Moorpark schedule a hearing in connection with.this request within five working days of the filing of the request. Please feel free to call me if you have any questions. Sincerely, �a --n J�- a"-f Rhonda Heth RH:es cc: Al Brewer Bill Niese r� Shelley u. Newsday Chicago Newspaper Publishers .Associaaion r. lVheaton 15 Med. L. Rptr. 2297 0 - -e attesting to the factual article. gument that even if the they did not support the sions does not make the ;xed opinions ". Plaintiff's to recognize that the ex- opinion insulates its au- ity no matter how unrea- tified or derogatory the . (See, Parks v. Steinbrenner, :r respect to defendant .3ublisher of the article, it relied upon the integrity of editors and had no reason i judgment. (Chapadeou v. Dispatch, Inc., 38 NY2d Amordian Press, Inc., 128 v. Valdescasidla, 102 AD2d r, the article was arguably here of legitimate public— v. New York News Inc., 62 obart v. Post - Standard, 52 aduman v. Newsday, Inc.., 51 mining defendants' motion judgment, plaintiff's cross Liss was not considered on , the motion for summary anted. The cross motion to ied as moot. CHICAGO NEWSPAPER PUBLISHERS ASSOCIATION v W HEATON U.S. District Court Northern District of Illinois CHICAGO NEWSPAPER PUB- LISHERS ASSOCIATION, CHICA- GO TRIBUNE CO., an Illinois corpora- tion, CHICAGO SUN -TIMES INC., a Delaware corporation, and DOW JONES & COMPANY INC. v. CITY OF WHEATON, an Illinois municipal- ity, No. 87 C 0765, October 12, 1988 REGULATION OF MEDIA CONTENT 1. Prior restraints —State action to re- strain ( §5.03) REGULATION OF MEDIA DISTRIBUTION Print media distribution—"News- rack" ordinances (§25.13) City newsrack ordinance which vests city manager with discretion to deny per- mit upon finding of health or safety haz- ard, and to revoke permit upon finding that city ordinance has been violated, and which does not provide adequate proce- dural safeguards, including judicial re- view, is unconstitutional prior restraint. 2. Print media distribution—"News- rack" ordinances (§25.13) City ordinance which bans all news- racks from city's residential zones, while permitting them in other areas, violates First Amendment, since ban is not nar- rowly tailored to achieve governmental interests of promoting motor vehicle and pedestrian safety and maintaining resi- dential character of area, and since alter- native channels for distribution of news- papers within city are not sufficient to support total ban. 3. Print media distribution—"News- rack" ordinances ( §25.13) Newspaper is not entitled to summary judgment on its claim that city's confisca- tion of its newsracks violated its First Amendment rights, in view of newspa- per's failure to overcome city's claim that newsracks created immediate safety risk. Newspaper challenges constitutionality of city's newsrack ordinance. On parties' cross - motions for summary judgment. Plaintiff's motion for summary judg- ment granted in part and denied in part; defendant's motion for summary judg- ment denied. James A. Klenk and Alan J. Mandel, of Sonnenschein, Carlin, Nath & Ro- senthal, Chicago, Ill., and Joseph P. Thornton, of The Chicago Tribune Co., Chicago, Ill., for plaintiffs. Edward J. Walsh Jr. and James H. Knippen II, Wheaton, Ill., for defendant. Full Text of Opinion Hart, J.: In our participatory democracy news- papers are not just an amenity. They are a vital means of providing information to citizens called upon to exercise an enlight- ened use of the ballot. Without the infor- mation provided by newspapers many citizens would be without the knowledge required for an intelligent electoral pro- cess. Accordingly, the distribution of newspapers has always had First Amend- meat protection. The methods of newspaper distribution are changing.-For some, home delivery is either unavailable or too expensive. Street vendors are disappearing in all but central business areas, and newsracks are ap- pearing as a substitute means of distribu- tion. This case concerns issues arising out of the regulation or prohibition of news- racks on public streets in a suburban area. This is a challenge to an ordinance which regulates the placement of news- racks in Wheaton, Illinois. Plaintiffs at- tack the ordinance on its face as an abridgement of their rights under the First and Fourteenth Amendments, and under the Illinois Constitution. Defend- ant City of Wheaton responds that the ordinance impoies valid time, place, and manner restrictions permitted under the First Amendment. Plaintiffs also claim that Wheaton officials confiscated news- racks without due process, in violation of the Fifth and Fourteenth Amendments. To this, Wheaton counters that the news- racks were confiscated because they posed a threat to driver and pedestrian safety. The parties have filed cross motions for summary judgment. For the reasons outlined below, the licensing scheme is an invalid prior re- straint. In addition, the complete ban on r � 15 Med. L. Rptr. 2298 Chicago Newspaper Publishers Association o. 117uaton residential newsracks is an invalid place and manner restriction. FACTS On April 7, 1986, defendant City of Wheaton, Illinois ( "Wheaton ") passed an ordinance regulating the placement of newspaper dispensing devices ( "news- racks") on Wheaton city streets. This ordinance was similar to an ordinance passed in Lakewood, Ohio. Three months later, in July 1986, the Sixth Circuit ruled that several provisions of the Lake- wood ordinance were unconstitutional. Plain Dealer Publishing Co. u. City of Lake - uxxsd, 794 F.2d 1139 [13 Med.L.Rptr. 10651 (6th Cir. 1986), aff d in part & re- manded, 108 S. Ct. 2138 [ 15 Med.L.Rptr. 1481 ] (1988). Six weeks after the Sixth Circuit decision, Wheaton amended its ordinance, deleting some of the language which proved fatal to the Lakewood ordi- nance.' In January 1987, plaintiff news- papers brought this §1983 action in Illi- nois state court, alleging a violation of their rights under the First, Fifth, and Fourteenth Amendments to the U.S. Con- stitution, and under the Illinois Constitu- tion. Wheaton removed to this court. At the close of discovery, both sides moved for summary judgment. Because of the similarity between the Wheaton and Lakewood ordinances, this court deferred ruling on the motions until the Supreme Court decided Lakewood's appeal from the Sixth Circuit. In June of this year, the Supreme Court affirmed the Sixth Cir- cuit. City of Lakewood u. Plain Dealer Pub- lishing Co., 108 S. Ct. 2138 (1988). Both Wheaton and the newspapers then re- newed their summary judgment motions. LEGAL PRINCIPLES It is beyond dispute that the First Amendment protects the right to distrib- ute newspapers in newsracks. City of Lake - umd v. Plain Dealer Publishing. Co., 108 S. Ct. 2138 (1988); Gannett Satellite Info. Net - wark, Inc. u. Metropolitan Transportation Au- thority, 745 F.2d 767, 777 [ 10 Med.L.Rptr. 2424] (2d Cir. 1984); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 673 [ 10 Mcd.L.Rptr. 20491 (1 1 th Cir. 1984). The degree of protection provided by the constitution depends "on ' The relevant portions of the Wheaton ordinance arc reproduced in the Appendix fomiucdj. the character of the property at issue." Perry Education Ass'n u. Perry Local Ednc, tors'Ass'n, 460 U.S. 37, 44 (1983). In this case, the "property at issue" is city streets in Wheaton, Illinois. The Supreme Court has repeatedly recognized public streets "as the archetype of a traditional public forum." Frisby u. Schultz, 108 S. Ct, 2495, 2499 (1988). In these traditional public fora, govern- ment's authority to restrict speech is at its minimum. Time, place, and manner re- strictions are valid only if they are con- tent- neutral, narrowly tailored to serve a significant government interest, and re- tain ample alternative channels of com- munication. Perry, 460 U.S. at 45. As an application of the requirement that re- strictions be narrowly tailored, a law can- not condition the free exercise of First Amendment rights on the unguided dis- cretion of government officials. Lakewood, 108 S. CL at 2143; Shuttlesworth u. Bir- mingham, 394 U.S. 147, 150 -51 (1969) ( "a law subjecting the exercise of First Amendment freedoms to the prior re- straint of a license, without narrow, objec- tive and definite standards to guide the licens- ing authority, is unconstitutional" (emphasis added)); Staub u. City of Baxley, 355 U.S. 313, 321 -22 (1958). And final- ly, any licensing system which operates as a prior restraint "avoids constitutional infirmity only if it takes place under pro- cedural safeguards designed to obviate the dangers of a censorship system." Freedman V. Maryland, 380 U.S. 51, 58 (1965); Mi- ami Herald Pub. Co. u. C:ty of Hallandale, 734 F.2d 666, 675 (11th Cir. 1984). Against the backdrop of these legal principles, the court turns to a consider- ation of the Wheaton ordinance. DISCUSSION L Due Process -- Prior Restraint Plaintiffs attack the licensing scheme as an unlawful prior restraint. The Supreme Court has often articulated the elements of a prior restraint. First, the right to engage in the protected speech must re- quire the prior approval of a government agent. Approval of the application must depend on the agent's affirmative action. In addition, approval is not routinely granted but rather must require the cxcr- cise of the agent's judgment. Finally, the licensing scheme must empower the agent to approve, deny or revoke a license based Y i y i • i s i i fi t a j. i Y -1r Chicago Newspaper Publishers Assoctaho' o to he content of the proposed comm' cation. Southeastern Promotions, rad, 420 U.S. 546, 554 [ l Med.L.R 11401 (1976). The first two elements are plainly here: the ordinance requires an app tion to the Wheaton city manager must act on the application within days. Sec. 20- 147(1); (3). Wheaton tends, however, that the remaining meets are ds thcity not di tionary, and e anage ha express authority to deny an applic based paper- Wheaton content mi f the aken app ii( n counts. First, the decision to issue a lice! indeed discretionary. The ordinance a number of conditions which the cant must meet before a license can Prominent among them are the folio Newspaper dispensing devices be placed adjacent and paral building walls not more than six (6 ") distant therefrom or near an a11e1 to the curb not less than eit inches (18 ") and not more than tL four inches (24 ") distant from th at such locations applied for and dete by the city manager not to cause a h, safety hazard or interfere with the the public to use of the streets, thmu and sidewalks. Sec. 20- 148(2) (emphasis added). No newspaper dispensing devil be placed, installed, located, L maintained: s r • (e) Within five hundred feet C another newspaper dispensi vice..., except that the city r may permit three (3) such dies devices at an intersection urn placement would not impair traffic wise create a hazardous condition. Sec. 20- 148(3)(c) (emphasis add The significance of the first p that, even if all other conditions Pied, the city manager may still w permit if it is determined that t rack creates a "health or safety i interferes with the right of the r use the streets and sidewalks. In sition, the current city manager that this was at Icast in part a determination, Rose dcp. at Wheaton has pointed to no which guide his judgment. T hers Association u. Wheaton f the property at issue." .4ss'n u. Perry Local Educa- I.S. 37, 44 (1983). In this rty at issue" is city streets nois. The Supreme Court recognized public streets x of a traditional public Schultz, 108 S. Co. 2495, ional public fora, govern- to restrict speech is at its c, place, and manner re- ,lid only if they are con - rrowly tailored to serve a rnment interest, and re- - native channels of com- y, 460 U.S. at 45. As an he requirement that re- -owly tailored, a law can - te free exercise of First— -its on the unguided dis- iment officials. Lakewood, 143; Shuttlesworth v. Bir- J.S. 147, 150 -51 (1969) ng the exercise of First cdoms to the prior re- se, without narrow, objec- andards to guide the licens- is unconstitutional" )); Staub u. City of Baxley, .1 -22 (1958). And final - system which operates as t "avoids constitutional it takes place under pro- fs designed to obviate the irship system." Freedman U.S. 51, 58 (1965); Mi- Co. u. City of Hallandale, 5 (11th Cir. 1984). ackdrop of these legal -urt turns to a consider - aton ordinance. .CUSSION u — Prior Restraint c the licensing scheme as . restraint. The Supreme articulated the elements .int. First, the right to 3tected speech must r•e- iproval of a government of the application must ent's affirmative action. ,roval is not routinely r must require the excr- judgment. Finally, the nust empower the agent it revoke a license based �s Chicago Newspaper Publishers .4ssociallon U. Wheaton ro 15 Med. L. Rptr. 2299 on the content of the Proposed co canon. Southeastern Promotions, Ltd. rMunf Passage requires essentially the same sub - rad, 420 U-S. 546 )ective determination and is 554 (1 h1cd.L 11401 (1976). -Rptr flawed. equally The first two elements arc plainly met here: the ordinance the city manager hoorrevoke requires an applica- Lion to the Wheaton city manager a Permit for "(v]iolation of any city ordinance," or for "(f)raud, who must act on the application within ten days. Sec. 20- 147(1); (3). Wheaton misrepresentation, or any false statement" in the application itself. Re- Gently con- tends, however, that the remaining cle- menis the Eleventh Circuit considered the constitutionality of an ordinance are absent: approval is not discre- tionary, and the city manager regulat- ing ne`'"sracks which contained similar Provisions. Miami has no express authority to deny an a li based on the content of the Herald, 734 F.2d at 673 -74. As in this case, the city code fore the court of applicantos paper. Wheaton is mistaken on both appeals gave the mu- nicipality the authority to revoke counts. news - rack permits for the violation of First, the decision to issue a license is indeed discretionary. The ordinance any city Th cc. authorized l�o adju ityate the ssion was a lists a number of conditions which the appli- cant license a lido ... of applicant has must meet before a license can issue. Prominent among them violated a Provision" of the city code. This, the court concluded, "nec- are the following: Newspaper dispensing devices shall essarily involves the exercise of consider - able discretion" be placed adjacent and parallel to building walls not more than six inches ") and was therefore im- Proper under the First Amendment. Id. The same reasonin (6 distant therefrom or near and par- allel to the curb leads to the same gonl applies here, the city manager not less than eighteen inches (18 ") and not more than twenty_ determines whether a violation occurred. And, since four inches (24 ") distant from the cub revocation, is not automatic, the city manager at such locations applied for and determined by the city manager must next determine which violations warrant revo- cation. This is indeed "considerable not to cause a health or safely hazard or interfere with the right dis- �Amend cannot be squared of the public to use of the streets, thrnughfares, Firs with the In and sidewalks. Sec. 20-148(2) (emphasis added). response, Wheaton contends that these provisions authorize only "limited discretion" "revi No newspaper dispensing device shall be placed, installed, located, ewable by Sense and a reasonable man standard." But the used, or maintained- d• „ cases do not support a "lim• d • ! • (e) Within five hundred feet (500') of another newspaper dispensing de- vice..., except that the city manager may Permit three (3) such dispensing devices at an intersection where such Placement would not impair traffic or other- wise create a hazardous condition.... Sec. 20- 148(3)(e) (emphasis added). The significance of the first passage is that, even if all other conditions are satis- fied, the city manager may still withhold a Permit if it is determined that the news - rack creates a "health or safety hazard or interferes with the right of the public" to use the streets and sidewalks. In his depo- sition, the current city manager conceded that this was at least in part a subjective determination, Rose dep. at 36, and Wheaton has pointed to no standards which guide his judgment. 'The second iscretion standard. Shutilesuvrth ite U.S. at 150 -51 law 394 sow, objective and definite standards doe guide the licensing authorit guide added)); Swearson V. authority.. - (emphasis 88, 91 Meyers, 455 F. Supp. must "leave hnon factors ) t(permit assessed, Judgments to be made, or discretion to be exercised.... (T]he decision to grant or deny the license application must be virtu- ally a ministerial one. ") Iuoted in Miami Herald, 734 F.2d at 675. Furthermore, 'The opinion of the California Supreme Court in Kash Enterprises v. City of Los Angeles is not to the contrary. 19 Cal. 3d 294, 562 P.2d 1302 12 Med.L.Rptr. 1716J (1977). co- One p vision of the ordinance challenged in Kash stated that newsracks may not "unreasonably interfere with or impede the flow of pedestrian traffic." 562 P.2d at 1308. The court upheld this provision. The challenge, however, was that the language was vague and overbroad, and not that it vested discretion in government officials. The holding today is the opposite. "rho 4�.rs Our. t'.M� ``�^'x•t `�"�r" '. `ri:.`I,.....«,..�'; '•1'i 1 t..'.""!' �� ya' -: `=a L �(' ` .�- - _ r .: �t�`- at:,�` ,�,�p:.. �; �. �fa.Ir.F.,a T - _ '�•�AN•uY ,,. .wt Z. J w, � � _.J ��rr4Y,,��a.� ..3 .+- ..-- q.�.a.'y F'L 1 '9 r�.a, ,v Nar•r � - y. � .: r i ,i,.,- %r'{.1kN.�la� � •: ��w,s,�T,� i � ..w>. � L Y '�,F +'t �t� ��rr F 7t' � :- L - > .; _ ..Ll.Y`T'Ti:.. -.. 7...+r �. _- %�x.'N '� 1rTJ4.w~.� `-,•S I - a. -Cr r)ys Y r "�'�r <'z y:. �! _ �►. ' r.4til�.t�'I.i.�f'��Ja Kai' ` ..s s. ` fn!`1F+�y+'t+i '•'el4q tit J.al \ -t�.r� •.n �,I; • :.`5"."`r' _ �.rr. ."-)., Iiitt'a .r 1��h{�,t�` ?• - l• � � xK � r . �' � r. .� a,.� j' ..�.`� � S .,l t tt�'t•h.i . _, . - j. "'i'1Na"'C'7� { aKppZ!,".t �aY � L -'ltiw �f •.rw �t �r�. w.•„+.: �.';+a< <. +. L :� � i •'y ..ir. }.: Y �T.y M. 15 Med. L. Rpm 2300 Chicago Newspaper Publishers Association i. Wheaton even if "health or safety hazard" were narrowed to mean a violation of the objec- tive measurements in Sec. 20- 148(3), e.g. no newsracks less than fifteen feet from a fire hydrant, etc., the ordinance still vests the city manager with discretionary au- thority to revoke permits, as noted above. Finally, discussed infra, the ordinance does not provide for judicial review. The licensing decisions are discretion- ary. The next question in determining if the ordinance is a prior restraint is wheth- er decisions are based on the content of the applicant's paper. Wheaton contends that decisions are content- neutral because the ordinance applies to all newsracks. But that misstates the inquiry. The Supreme Court has uniformly recognized that an act can be a prior restraint even though, by its terms, it does not favor one speaker over another. See, e.g., Southeastern Promo- tions, 420 U.S. at 558; Shuttlesworth, 394 U.S. at 150 -51; Staub, 355 U.S. at 321 -22. The question is not whether the ordi- nance expressly favors certain speakers (although that would also be improper), but - whether the discretion built into the ordinance raises the specter of content - based censorship. Freedman v.. Maryland,, 380 U.S. at 58; Miami Herald, 734 F.2d at 675; Fernandes u. Limmer, 663 F.2d 619, 627 -28 (5th Cir. 1981), cert. denied, 458 U.S. 1124 (1982); Rubin w. City of Berwyn, 553 F. Supp. 476, 480 (N.D. Ill. 1982), afd, 698 F.2d 1227 (7th Cir. 1982). The ordinance does precisely that. In this re- spect, the Wheaton ordinance "is indistin- guishable in its censoring effect from the official actions consistently identified as prior restraints in a long line of this court's decisions." Southeastern Promotions, 420 U.S. at 552 (collecting cases). "Only if we were to conclude that [distribution of newspapers] is unprotected by the First Amendment ... could we possibly find no prior restraint here." Id, at 557; see also Miami Herald, 734 F.2d at 675. The fact that the ordinance is a prior restraint does not end the inquiry. A prior restraint is not per se unconstitutional. There is no inconsistency in the two holdings. Language may be precise and clear, but still vest discretion in municipal authorities. See ACORN r,. City of Tulsa, Okla., 835 F.2d 735, 741 (10th Cir. 1987) (ordinance which per- mits municipality to decide which structures violate the law vests unguided discretion in government and is unconstitutional, even though language is not vague). Bantam Books, Inc. V. Sullivan, 372 U.S. 58, 70 n.10 [1 Med.L.Rptr. 11161 (1963). The next question is the adequacy of procedural safeguards. The ordinance must require that the licensor grant or deny the permit within a specified, brief period, it must provide for prompt judicial review, and, if a license is denied or re- voked, the burden must be on the licensor to institute judicial proceedings to prove that the material is unprotected. Southeast- ern Promotions, 420 U.S. at 560; Freedman, 380 U.S. at 58. [1] The necessary safeguards do not appear in this ordinance. Initially, though the law allows an applicant to appeal an adverse decision by the city manager to the Wheaton City Council, there is no time limit by which the city council must hear an appeal. Thus the "right" to ap- peal is in fact discretionary, and a permit application can "languish indefinitely be- fore the Council" — a feature recently criticized by the Supreme Court when it struck down the Lakewood ordinance. Lakewood, 108 S. Ct. at 2151. More importantly, the ordinance does not provide for judicial review of the ad- ministrative decision to grant, deny, or revoke a permit. In Illinois, the Adminis- trative Review Act is not applicable unless clearly adopted by the legislature which provided for the administrative decision. Ill. Rev. Stat. ch. 110, 3 -102 (1988). Wilkins V. State Dept. of Public Aid, 51 111. 2d 88, 280 N.E.2d 706, 708 (1972); Sullivan u. Board of .Fire and Police Commissioners, 103 Ill. App. 3d 167; 430 N.E.2d 636,639 (1981). Nowhere does this ordinance adopt that Act. In addition, there is no provision requiring Wheaton to institute judicial proceedings to prove the conduct is unprotected. These omissions are fatal to the licensing scheme.' See Ball, Extra! Extra! Read All About It: First Amendment Problems in the Regulation of Coin Operated Newspaper Vending Machines. 19 Colum. J.L. & Soc. Probs. 183, 202 -204 (1985). 11. Ban On Residential Newsracks Because the licensing scheme vests Wheaton officials with the unguided dis- cretion to control the placement of news- ' It may also be that the ten day waiting period before which the city manager must act is not sufficiently brief. The court does not reach the issue. It is not clear, however, why inspecting the site for compliance with objec- tive measurements would require ten days. Chicago Newspaper P% racks, and because the procedural safeguarc abuse of that discrett: tional. However, anot ordinance bans all nc tial zoning districts o: 148(1). This, obviousi prior application no: tion. In other words, dential ban is unaffec of this opinion. Plai: provision as well. Residential streets lic fora and their cha: does not change the: First Amendment. i=- S.Ct. 2495, 2499 the ban on residential examined under the the restriction must must be narrowly cat. nificant government : leave open ample altc communication. Perr A. Conteni The ban on reside: plies equally to all ne fore content- neutral nett, 754 F.2d at 77= F.2d at 673 -74; Prot, City of Newport, 665 F. Med.L.Rptr. 15451 (I tiffs suggest other`*" Wheaton has not enfc the GVhealon Daily four tion challenges the or and in their motion ment, plaintiffs adegt cial challenges. B. Narrowtt [21 Wheaton mus: there is a significant r the regulation and tl: terest, and that the rr the least restrictive a-� seka v. Illinois Public F.2d 1547, 1554 (7th S. Ct. 919 (1987). In on residential newer not demonstrated tha the least restrictive m; sequently, the unconstitutional. The object of the c the preamble. The or to promote "motor ve safety" and to mains character of the Rest cation u. Wheaton un, 372 U.S. 58, . 11161 (1963). he adequacy of The ordinance censor grant or specified, brief prompt judicial is denied or re- , on the licensor edings to prove ected. Southeast - t 560; Freedman, eguards do not Initially, though nt to appeal an :ity manager to cil, there is no ty council must "right" to ap- y, and a permit indefinitely be- eature recently Court when it and ordinance. 51. ordinance does view of the ad- ;rant, deny, or s, the Adminis- aplicable unless ;islature which rative decision. 3 -102 (1988). is Aid, 51 Ill. 2d (1972); Sullivan Commissioners, I.E.2d 636,639 this ordinance m, there is no ton to institute ,ve the conduct isions are fatal we Ball, Extra! first Amendment f Coin Operated 'es. 19 Colum. 12 -204 (1985). Newsracks scheme vests unguided dis- :ment of news- ten day waiting anager must act court does not however, why ince with objec- sire ten days. Chicago Newspaper Publishers Association o Wheaton 1S Med. L. Rptr. 2301 racks, and because the ordinance lacks the procedural safeguards to guard against abuse of that discretion, it is unconstitu- tional. However, another provision of the ordinance bans all newsracks in residen- tial zoning districts of Wheaton. Sec. 20- 148(1). This, obviously, involves neither a prior application nor municipal discre- tion. In other words, validity of the resi- dential ban is unaffected by the first part of this opinion. Plaintiffs challenge this provision as well. Residential streets are traditional pub- lic fora and their character as residential does not change their status under the First Amendment. Frisby v. Schultz, 108 S.Ct. 2495, 2499 -2500. Consequently, the ban on residential newsracks must be examined under the familiar standard: the restriction must be content- neutral, it must be narrowly tailored to serve a sig- nificant government interest, and it must leave open ample alternative channels of communication. Perry, 460 U.S. at 45. A. Content - Neutral The ban on residential newsracks ap- plies equally to all newsracks and is there- fore content- neutral on its face. See -Con- nell, 754 F.2d at 773; Miami Herald, 734 F.2d at 673 -74; Providence Journal Co. v. City of Newporl, 665 F. Supp. 107, 112 114 Nled.L.Rptr. 15451(D.R.I. 1987). Plain- tiffs suggest otherwise, alleging that Wheaton has not enforced the ban against the Wheaton Daily journal. But that allega- tion challenges the ordinance as applied, and in their motion for summary judg- ment, plaintiffs adequately raise only fa- cial challenges. B. Narrowly Tailored 12) Wheaton must demonstrate that there is a significant relationship between the regulation and the governmental in- terest, and that the means employed are the least restrictive available. City of Wat- seka v. Illinois Public Action Council, 796 F.2d 1547, 1554 (7th Cir. 1986), aff'd,107 S. Ct. 919 (1987). In enacting a total ban on residential newsracks, Wheaton has not demonstrated that they have adopted the least restrictive means available. t . sequently, the total ban is unconstitutional. The object of the ordinance appears in the preamble. The ordinance is designed to promote "motor vehicle and pedestrian safety" and to maintain the "residential character of the Residential Zoning Dis- tricts." As to the former, Wheaton cannot claim that only a total ban will adequately provide for driver and pedestrian safety, since ail other city streets are also poten- tial sites for a newsrack. The ordinance permits newsracks in non - residential dis- tricts, provided they are properly placed (e.g. not within 15 feet of a fire hydrant, not within five feet of a marked crosswalk, etc.). The second goal of the ordinance is to preserve the "residential character" of Wheaton neighborhoods. Wheaton claims this goal reflects a concern for neighbor- hood aesthetics. Granted, neighborhood aesthetics are a significant government interest. Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806 -07 (1984). However, it does not follow that a complete ban is the least restrictive means of achieving the goal. Wheaton has not explained — much less demonstrated — how a newsrack on a residential street destroys the "character" of the neighborhood any more than a mailbox, utility pole, fire hydrant, or traf- fic sign. As one court recently observed, "(ilf newsracks alone are banned and no further steps appear likely, `the commit- ment of the city to improving its physical environment is placed in doubt.' " Provi- dence Journal Co. v. City of Newport, 665 F. Supp. 107, 115 (D.R.I. 1987) (quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 531 -32 (1981) (Brennan, J., concurring)). See also Quadres, Content - Neutral Public Forum Regulations: The Rise of the Aesthetic State Interest, the Fall of Judi- cial Scrutiny, 37 Hastings L.J. 439, 474 -780 (1986). Aesthetic judgments are "necessarily subjective," Metromedia, 453 U.S. at 510, and Wheaton cannot simply raise the banner of aesthetic interest, and then leave it to this court to determine not only how the ordinance advances those interests, but why a total ban is necessary. See Southern New Jersey Newspapers u. New Jersey, 542 F. Supp. 173, 186 (D.N.J. 1982); Q_uadres, supra at 466, 468 -76. The burdden is on Wheaton to show that the ordinance is narrowly tailored, and it has failed to carry that burden. C. Ample Alternative Channels Wheaton claims alternative channels are more than sufficient. It points to the availability of home delivery, commercial outlets, and "numerous newsboxes which are legally eligible for permits. ". These channels are inadequate to justify a com- plete ban on residential newsracks. /7 _*� 15 Med. L. Rptr. 2302 Chicago Newspaper Publishers Association v. Wheaton First, a person cannot selectively sub- scribe to home delivery of plaintiffs' pa- pers. The person who relies on newsracks to purchase an occasional paper must pay considerably more to subscribe to a par- ticular paper. And when alternative chan- nels are not readily available, "the Court has shown special solicitude for forms of expression that are much less expensive than feasible alternatives...." Taxpayers for Vincent, 466 U.S. at 812 n.30; Martin v. Struthers, 319 U.S. 141, 146 (1943). Fur- thermore, though plaintiff newspapers provide home delivery, the ordinance bans all newsracks in residential districts. This includes the small, poorly funded press, without the resources to provide home delivery, but with the same claim to the protections of the First Amendment. Moreover, the availability of private sellers is irrelevant. The First Amend- ment does not allow a municipality to restrict speech on the grounds that private actors are willing to sponsor it. See Provi- dence journal Co. v. City of Newport, 665 F. Supp. at 118. If this were the rule, then the rights safeguarded by the First Amendment would be in the hands of private businesses. In other words, if pri- vate sellers are an adequate alternative channel under the Constitution, then an ordinance which is constitutional today becomes unconstitutional tomorrow, when those sellers close, relocate, or elect not to sell newspapers. The protections of the First Amendment cannot be so transitory. Wheaton, however, relies on the opin- ion of the Sixth Circuit in Lakewood, which upheld a residential ban on news- racks. The Court of Appeals relied in part on the availability of commercial sellers. 794 F.2d at 1147. But unlike the situation in Lakewood, where no residence was more than one - quarter mile from a newsrack, 794 F.2d at 1147, the parties here agree that some residential neighborhoods in Wheaton are a full three miles from a newsrack. To this, Wheaton responds that several newsracks are available in the area around Wheaton. But Wheaton can- not rely on other municipalj les to rescue them from the consequences of an im- properly drawn ordinance. Cf. Schneider v. State, 308 U.S. 147, 163 (1939) (" [01ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. ") These neighboring municipalities have the same right as Wheaton to enact valid time, placc, and manner restrictions on the placement of newsracks. These restrictions could well reduce the number of newsracks sur- rounding Wheaton. If Wheaton's view of the law were correct, then the effect of the neighboring ordinance would be to imper- il the constitutionality of the Wheaton ordinance. Wheaton cannot condition the exercise of First Amendment freedoms on events and conditions outside of Wheaton any more than it can rely on private sellers to guarantee the expression which Wheaton has abridged. Valid place and manner restrictions on residential newsracks may well be differ- ent than those appropriate to commercial areas, but Wheaton has not made a show- ing which justifies the total ban enacted in this ordinance. 111. Rental Permit Fee The holdings stated above are sufficient to invalidate the entire ordinance. That notwithstanding, to preserve judicial re- sources, and to guide Wheaton's subse- quent efforts, the court analyzes one other provision: §20- 148(4), the rental permit fee. Wheaton charges an initial fee of S25 per newsrack installed, as well as an an- nual renewal fee of S15 per newsrack. The newspapers challenge these fees as an unconstitutional tax on their First Amendment rights. Licensing fees are permissible, but a municipality can charge no more than the amount needed to cover administrative costs. Cox v. New Hampshire, 312 U.S. 569, 577 (1941); Gannett, 747 F.2d at 774; Fernandes v. Limmer, 663 F.2d 619, 633 (5th Cir. 1981), cent. denied, 458 U.S. 1124 (1982). . The administration of this ordinance is somewhat convoluted. According to Wheaton, applications are submitted to the city manager's sccretary, who for- wards it to the city manager. He then sends his assistant to inspect the proposed site for conformity with the ordinance. After the assistant reports back, the city manager then approves or disapproves the application. The yearly renewal fee cov- ers reinspection costs. Annually, the city manager receives $65,500, his assistant roughly $26,000, and his secretary 527,000. Wheaton claims that the time it takes to complete these tasks, performed by em- ployees at these salaries, justify the fee. But the newspapers note several undis- puted points in the record which under- mine Wheaton's claim. First, it is appar- ent that Wheaton does not know what it Newspaper -- costs to administer stance, before the one City Councilmz take a look at all of regarding the perm- the future we'll ac- costs us.... IS 10 w- fee, it would accu: upon our actual cc_ really know...." The Councilman that a S25 fee "reai: but there is reason Wheaton passed the tant city manager ties in the area. H- two charged fees fc. two, one city chare_- and the other S 10. the assistant recom: fee in Wheaton to c In response, W' process is more ex: quires the time an: employees, includir who is relatively we looks several thine_ tenses for approxirr tivities. Rose dept license which recev. tion of the city ma: license. Id. The re-- either the city mar. secretary. And the that his secretary monitor the permit In light of these p asked the current has to administer nance, and no oth " Ujust the way we c. at 71. Alternatively, he out that the ordinal make several disc tions. But those Measuring comps- the time and expo: cials. Wheaton is mine the duties of leave the administ with the city mar. not free to enact ar tutional restrictior charge those whos pay for the time it 1 V. c_ The remaininc with briefly. Firs when Wheaton Association v. Wheaton -strictions could well of newsracks sur- If Wheaton's view of then the effect of the cc would be to imper- ity of the Wheaton cannot condition the milment freedoms on s outside of Wheaton can rely on private ;he expression which cd. anner restrictions on s may well be differ - ,priate to commercial ias not made a show - c total ban enacted in Permit Fee d above are sufficient Lire ordinance. That preserve judicial re- le Wheaton's subse- rt analyzes one other i), the rental permit s an initial fee of S25 -d, as well as an an- S15 per newsrack. Icnge these fees as an ax on their First _ permissible, but a rge no more than the rover administrative pshire, 312 U.S. 569, 747 F.2d at 774; 663 F.2d 619, 633 -1. denied, 458 U.S. n of this ordinance is ted. According to ns are submitted to secretary, who for - manager. He then inspect the proposed with the ordinance. ,pons back, the city es or disapproves the rly renewal fee cov- i. the city 5,500, his assistant and his secretary at the time it takes to , performed by em- ries, justify the fee. note several undis- -ecord which under - n. First, it is appar- el not know what it Chicago Newspaper Publishers Association v fVhealon IS Med. I.. Rptr. 2303 costs to administer the program. For in- stance, before the vote on the ordinance one City Councilman asked the city "to take a look at all of our paper generation regarding the permits like this sn ... in the future we'll actually know what it costs us.... [S)o when we do establish a fee, it would accurately reflected (sic) upon our actual costs. 1 don't think we really know...." The Councilman went on to speculate that a 825 fee "really isn't that far off..." but there is reason to doubt him. Before Wheaton passed the ordinance, the assis- tant city manager surveyed 27 communi- ties in the area. He discovered that only two charged fees for newsracks. Of those two, one city charged S15 per newsrack, and the other 510. Based on that survey, the assistant recommended lowering the fee in Wheaton to either S10 or 515. In response, Wheaton says that the process is more expensive because it re- quires the time and attention of several employees, including the city manager, who is relatively well paid. But this over- looks several things. Wheaton issues li- censes for approximately 30 different ac- tivities. Rose deposition, 70. The only license which receives the personal atten- tion of the city manager is the newsrack license. Id. The rest are administered by either the city manager's assistant -or his secretary. And the city manager conceded that his secretary was perfectly able to monitor the permit system for newsracks. In light of these points, the newspapers asked the current city manager why he has to administer this particular ordi- nance, and no other. He said that was " [j]ust the way we decided to set it up." Id. at 71. Alternatively, he could have pointed out that the ordinance called upon him to make several discretionary determina- tions. But those provisions are invalid. Measuring compliance hardly requires the time and expertise of senior city offi- cials. Wheaton is of course free to deter- mine the duties of its employees and may leave the administration of this program with the city manager. But Wheaton is not free to enact and administer unconsti- tutional restrictions on speech and then charge those whose speech is restricted to pay for the time it took. IV. Other Issues The remaining issues may be dealt with briefly. First, plaintiffs argue that when Wheaton confiscated Tribune and .Sun -Times newsracks in March 1988, they deprived the newspapers of their rights under the First, Fifth, and Fourteenth Amendments. Wheaton admits confiscat- ing the boxes, but argues that the news- racks obstructed the sidewalk and created an imminent safety risk. [3] Plaintiffs' motion for summary judgment is denied here. If the newsracks in fact created an imminent safety risk, Wheaton could summarily confiscate them. The Court has repeatedly upheld summary administrative action in emcr- gency situations, and "deprivation of property to protect the public health and safety is '[olne of the oldest examples' of permissible summary action." Hodel v. Virginia Surface Mining b' Reclamation Ass'n, 452 U.S. 264, 300 (1981) (quoting Ewing v. Mytinger 1r Casselberry, Inc., 339 U.S. 594, 599 (1950)). Wheaton claims that the newsracks created an immediate risk, and plaintiffs offer nothing to the contrary. On this record, summary judg- ment is improper. Plaintiffs also claim they are entitled to attorney's fees for legal work needed to resist the initial newsrack ordinance passed by Wheaton. They argue* that Wheaton amended the initial ordinance in response to a letter written by plaintiffs' counsel. This, they claim, makes them a revailnf party for the purposes of p§1988. Plaintiffs' claim is denied. A party may prevail without formal judicial relief. Matter v. Gagne, 448 U.S. 122, 129 (1980); In re Burlington Northern, Inc. Employment Practices Litigation, 832 F.2d 422,425 (7th Cir. 1987). To prevail in a settled case, the actions taken by the plaintiff must be causally linked to the relief obtained. Burlington Northern, 832 F.2d at 425. The causal connection, how- ever, is a factual determination. Id.; Har- rington v. De Vito, 656 F.2d 264, 267 (7th Cir. 1981), cert. denied, 455 U.S. 993 (1982). Here, plaintiffs cannot establish the necessary causal connection, since Wheaton insists the ordinance was amended in response to the Sixth Circuit decision in Lakewood. Wheaton's position is certainly tenable, since the original or- dinance was so strikingly similar to the ordinance disapproved by the Sixth Cir- cuit. In addition, the changes made by Wheaton correspond more closely to the opinion of the Sixth Circuit than to coun- sel's letter. For instance, counsel warned against the residential ban. The Sixth Circuit upheld this ban, and the amended Wheaton ordinance included it. On a mo- tion for summary judgment, disputed / `E ;rat" r t`R , ir,�?'f�.rt�.: -ww' -ice :_�.. •��'s. -�.� ��.t..,,;,;,�,..�: •� .Sun -Times newsracks in March 1988, they deprived the newspapers of their rights under the First, Fifth, and Fourteenth Amendments. Wheaton admits confiscat- ing the boxes, but argues that the news- racks obstructed the sidewalk and created an imminent safety risk. [3] Plaintiffs' motion for summary judgment is denied here. If the newsracks in fact created an imminent safety risk, Wheaton could summarily confiscate them. The Court has repeatedly upheld summary administrative action in emcr- gency situations, and "deprivation of property to protect the public health and safety is '[olne of the oldest examples' of permissible summary action." Hodel v. Virginia Surface Mining b' Reclamation Ass'n, 452 U.S. 264, 300 (1981) (quoting Ewing v. Mytinger 1r Casselberry, Inc., 339 U.S. 594, 599 (1950)). Wheaton claims that the newsracks created an immediate risk, and plaintiffs offer nothing to the contrary. On this record, summary judg- ment is improper. Plaintiffs also claim they are entitled to attorney's fees for legal work needed to resist the initial newsrack ordinance passed by Wheaton. They argue* that Wheaton amended the initial ordinance in response to a letter written by plaintiffs' counsel. This, they claim, makes them a revailnf party for the purposes of p§1988. Plaintiffs' claim is denied. A party may prevail without formal judicial relief. Matter v. Gagne, 448 U.S. 122, 129 (1980); In re Burlington Northern, Inc. Employment Practices Litigation, 832 F.2d 422,425 (7th Cir. 1987). To prevail in a settled case, the actions taken by the plaintiff must be causally linked to the relief obtained. Burlington Northern, 832 F.2d at 425. The causal connection, how- ever, is a factual determination. Id.; Har- rington v. De Vito, 656 F.2d 264, 267 (7th Cir. 1981), cert. denied, 455 U.S. 993 (1982). Here, plaintiffs cannot establish the necessary causal connection, since Wheaton insists the ordinance was amended in response to the Sixth Circuit decision in Lakewood. Wheaton's position is certainly tenable, since the original or- dinance was so strikingly similar to the ordinance disapproved by the Sixth Cir- cuit. In addition, the changes made by Wheaton correspond more closely to the opinion of the Sixth Circuit than to coun- sel's letter. For instance, counsel warned against the residential ban. The Sixth Circuit upheld this ban, and the amended Wheaton ordinance included it. On a mo- tion for summary judgment, disputed / `E 15 tiled. L. Rptr. 2304 facts are resolved against the movant. Ox- man v. IVLS -TV, 846 F.2d 448, 452 (7th Cir. 1988). Consequently, plaintiffs' mo- tion for summary judgment on this point is denied_ IT IS THEREFORE ORDERED that: (1) Plaintiffs' motion for summary judgment is granted in pan and denied in part. (2) Defendant's motion for summary judgment is denied. (3) A status hearing is set for Novem- ber 10, 1988 at 9:15 a.m. KING BROADCASTING CO. v. FCC U.S. Court of Appeals District of Columbia Circuit KING BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION and THE, UNITED STATES OF AMERICA, No. 88 -1367, November 1, 1988 REGULATION OF MEDIA CONTENT Broadcast media regulation —Equal time (Section 315) ( §20.15) Television station's proposed series of programs providing election coverage of mayor parties' presidential candidates, in- cluding statements by each candidate, mo- derated interviews, and rebuttals, is not exempt from a ual time requirements of 47 USC 315(aa (2) as "bona fide news interview," since programs are not "regu- larly scheduled interviews," but Federal Communications Commission must de- termine whether programs constitute "on- the -spot coverage of bona fide news events" subject to exemption under Sec- tion 315(a)(4). BFoadcaster seeks to overturn Federal Communications Commission's order de- nying a request for a declaratory ruling that the broadcaster's proposed coverage of the presidential election would be exempt from the equal time requirements of 47 USC 315. Remanded to commission for determination. Henry Geller, Donna Lampert, and Edward W. Hummers Jr., for petitioner. King Broadcasting Co. v. FCC Daniel M. Armstrong, associate gener- al counsel, Diane S. Killory, general counsel, and C. Grey Pash Jr., counsel, Federal Communications Commission, and John J. Powers III and Robert J. Wiggers, Department of Justice, for respondents. Andrew Jay Schwartzman for amicus curiae Telecommunications Research and Action Center. Full 7ext of Opinion Before Wald, C-J., and Edwards and Buckley, JJ. Edwards, J.: The petitioner, King Broadcasting Company ( "King ") asks this court to overturn a Federal Communications Commission ( "FCC" or "Commission ") order denying a request for a declaratory' ruling that the petitioner would be exempt from the "equal time" require- ments of section 315 of the Communica- tions Act, 47 U.S.C. §315 (1982) in its presentation of programs designed to cov- er the presidential election. King argues that the FCC's refusal to construe the exemptions of section 315(a) so as to cover King's proposed programs results in an impermissible construction of the statute and, even if it does not, it violates the First Amendment by stifling a public debate that would otherwise ensue. On the rec- ord before us, it appears that the FCC has failed to apply the statute in a manner consistent with its own precedent, and no adequate justification has been offered to explain this failure. Therefore, we will remand this case to the agency for reconsi- deration without reaching the constitu- tional question_ I. BACKGROUND A. Statutory Structure Section 315(a) of the Communications Act provides that whatever a licensed tele- vision or radio broadcast station permits "a legally qualified candidate for any public office' to "use" a station, it "shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station." 47 U.S.C. §315(a) (1982). In 1959, the FCC ruled that the news coverage of the official du- ties of the incumbent mayor of Chicago triggered the "equal time ' requirement. In re Telegram to CBS, Inc. (Lar Daly), 18 Rad. Reg. (P &. F) 238, recon. dented, 26 V King B_yadEasl g F.C.C. 715 (1959). This r: gross to amend section 31 . four categories of broad from the statutory requirements: (1) bona fide newscas (2) bona fide news in (3) bona fide news c (if the appearance of t incidental to the presc subject or subjects cover documentary), or (4) on- the -spot cover: news events (including to political convention! incidental thereto). Pub. L. No. 86 -274, § (1959) (amending 47 U.S. Until 1975, the FCC 1 exemptions fairly narrow in 1962, the agency held exemption, dealing wit coverage of bona fide ne not extend to political G mdtuill Station, Inc., (1962); ,National Broadca. off), 40 F.C.C. 370 (1962 tule, 55 F.C.C.2d 697 (1 holm v. FCC, 538 Mcd.L.Rptr. 22071 (D.1 nied, 429 U.S. 890 (197 Commission reversed its4 the scope of the fourth e: of what it then saw as a the statute and its legis Aspen, the Commission press' objectives both tc dates equally and to c coverage of news events, section 315(a)(4) "on -ti exemption to include c nonbroadcast entities su of Women Voters; and i mission extended the e: debates sponsored by br, See Henry Geller, 95 F.' sub nom. League of W Fund v. FCC, 731 F.2 1983). While the legislative exemptions is "not-so- Lo many concrete situa- holm, 538 F.2d at 352. indisputable. First, ' concern ... was to ovc sion's Lar Daly decisic store the understandin need not be provided was the subject of "a r cast "; doing other, broadcast media from lic with full coverag M 123 CALIFORNIA REPORTER Appellant Seidman sc Seidman to re- cover its costs on appeal fnim Wolfson; Weiner to recover his costs ott appeal from Seidman & Seidman. FLEMING, Acting 1'. J., and COMP - TON, J., concur. w O 5 [[T f __ .110 51 Cal.App.3d 50 Jso j_CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, INC., a California Cor- poration, at al., Plaintiffs and Respond- ents, Y. The CITY OF BURBANK, Defendant and Appellant. Civ. 45944. Court of Appeal, Second District, Division 5. Aug. 28, 1975. Hearing Denied Oct. 23, 1975. City appealed from a judgment- of the Los Angeles County Superior Court, Jerry Pacht, J., declaring unconstitutional a city ordinance which banned placement of newspaper racks in city except in down- town shopping mall and enjoining the en- forcement of ordinance. The Court of Appeal, Kaus, P. J., held that ordinance was unconstitutional as violative of First Amendment rights and was not deemed constitutional because it did not prohibit newspaper racks on private property or be- cause it allowed newspaper racks in shop- ping mall which comprised one percent of city's total area. Affirmed. 1. Constitutional Law «90.1(4) Streets, sidewalks and parks are his- torically so associated with exercise of First Amendment rights that access to those areas for purpose of exercising such rights cannot be absolutely denied; state Y 50 Cal-APP-3d 837 and city is limited to restricting time, place, and manner of such uses. U.S.C.A. Const. Amend. 1, 2. Constitutional Law e-90.1(8) First Amendment applies to newspa- pers and newsracks; thus, the right to dis- tribute newspapers and public's right to buy and read newspapers cannot be condi- tioned on particular method of transmitting information. U.S.C.A.Const. Amend. 1. 3. Constitutional Law 490.1(8) Municipal Corporations e- 594(2) Ordinance which totally banned place- ment of newspaper racks in city except in six -block downtown shopping mall compris- ing about one percent of city's total area was overbroad and unconstitutional on its face as violative of First Amendment rights. U.S.C.A.Const. Amend. 1. 4. Judgment 181(15) Finding that ordinance which prohibit- ed placement of newspaper racks in city except in downtown shopping mall com- prising one percent of city's total area was unconstitutional authorized granting of summary judgment in action challenging ordinance's constitutionality without plain- tiff's being required to demonstrate that ordinance affected distribution of newspa- pers and that an affirmative need existed for newspaper racks. 5. Constitutional Law «90(1) One is not to have exercise of his lib- erty of expression in appropriate places abridged on the plea that it may be exer- cised in some other place. 6. Municipal Corporations 0721(2) Fact that ordinance which banned placement of newspaper racks in city ex- cept in downtown shopping mall compris- ing one percent of city's total area did not prohibit placement of newspaper racks on private property did not render ordinance . constitutional. 7. Municipal Corporations 4=721(2) Fact that ordinance which prohibited placement of newspaper racks on public -. property allowed placement of racks in Y L� CALIFORNIA NEWSPAPER PUB. ASS'N, INC. v. CITY OF BURBANK 51 Ca1.App,3d 53 Cite a +, App., 123 Cal -Hptr. &so 881 six -block downtown shopping mall compris- ing parkway," of "any movable or Immovable one percent of city's total area did not object of any character whatsoever," ex- render ordinance constitutional. U.S.C.A. Const. Amend. 1. cepting boxes in the process of being un- loaded, approved receptacles containing trees and shrubs, trash containers, and directional signs. Samuel Gorlick, City Atty., and Richard L. Sieg, Jr., Senior The section also exempts: "(4 ) Asst. City Atty., for Y y, appellant. [N]ewspaper racks within the area known Gibson, Dunn & Crutcher, Theodore B. as the Golden Mall, 112 The Golden Mall i> 6 Olson, Gordon A. Schaller, Los Angeles, for respondents (other a -block pedestrian mall, more or less in the center of Bur - than Respondent American Civil Liberties Union). bank, comprising about one percent of the Fred Okrand and Michael G. total area of the Cit•, 1 Dave, Los Angeles, for respondent American Civil Plaintiff contended, and the trial court Liberties Union. agreed, that the ordinance was unconstitu- tional on its face. _LKAUS, Presiding Justice. We decide in this case whether an ordi- nance which, except in a six -block down- town shopping mall, totally bans the place- ment of newspaper racks in a city with a Population of 85,0001 is unconstitutional on its face. 1Defendant City of Burbank appeals from a summary judgment in favor of plaintiffs — newspaper associations and newspapers — declaring the ordinance to be unconstitu- tional under the United States and Califor- nia Constitutions and permanently enjoin- ing defendant from enforcing it. These facts are not disputed: Newspa- per racks are used as one method of dis- tributing newspapers in the Los Angeles metropolitan area, which includes Burbank. Section 20 -24(a) of the Burbank Munici- pal Code, as amended in 1973, prohibits the Placement "upon any public sidewalk or 1• California Statistical Abstract (State of California 1974), p. 9 (as of January 1, 1974). (Evid.Code, § 452.) 2. The exception Provides 1n full : "(4) This section shall not apply to news- paper racks within the area known as The Golden Mall, as such area is described and delineated in Section 1 of Ordinance No. 2051, Passed and adopted on April 4, 1967, provided that such racks must be of a type equivalent to Model 97, 1{ -Jack Newspaper Rack Head maintained at all times in good 123 Cat Rptr.- -56 DISCUSSION [1] Defendant recognizes the black -let- ter constitutional law that streets, side- walks and parks are historically so asso- ciated with the exercise of First Amend- ment rights that access to those areas for the purpose of exercising such rights can- not be absolutely denied, and that the state is limited to restricting the time, place and manner of such uses. (13 Cal.Jur.3d, Con- stitutional Law, § 24; p• 453, § 252, p. 464.) 4 Defendant contends, however, that the _jL3 First Amendment does not apply to news- papers or newsracks: "The right to utilize public streets and sidewalks for communi- cating thoughts and views is an in person - am right —a right accorded to persons and not to inanimate devices, and must be per- sonally exercised rather than through unat- tended racks or other devices placed on order and repair and Installed only in the manner and at suet, locations within The Golden .Hall area as approved by the Parks and Recreation Director." 3. Dozens of streets criss -cross Burbank from city -line to city -line. Only the northeast corner of the City - -part of the Verdugo Moun- tains— appears to be sparsely settled. 4. The cases stating ano restating this propo- sition are collected, inter alia, in In re 11off- man, 67 Cel.2d 515, �til!I q50�, Cr1 - al.Rptr. 97, 434 P.2d 351 I� I I I Now- :j I; �I i�• `l i P 23 CALIFORNIA REPORTER public sidewalks and parkway,." We can- not agree. [2] Plaintiffs' First Amendment rights to distribute its newspapers and the pub- lic's right to buy and read them cannot be conditioned on a particular method of transmitting information. (Cf. Weaver v. Jordan, 64 Cal.2d 235, 244 -245, 49 Cal. Rptr. 537, 411 P.2d 289.) In any event de- fendant's theory was resolved against it in Dulaney v. Municipal Court, 11 Cal.3d 77, 83-84, 112 Cal.Rptr. 777, 782, 520 P.2d 1, 6, which held that the "posting of notices on utility poles is a form of expression com- ing within the protective umbrella of the First Amendment." ti Defendant's other contentions are pegged to its assertion that a summary judgment was improper because there were triable is- sues of fact — whether the newsrack ordi- nance significantly affects the distribution of newspapers, whether plaintiffs could ad- equately distribute newspapers using news- racks on private property, and whether the ordinance does really prohibit newsracks on public property in Burbank .6 [3, 4] Defendant's claim that there are "factual issues" misses the point. The City has indiscriminately prohibited the distri- bution of newspapers through the use of newsracks on public property in the City of Burbank: The blanket prohibition with - out more makes• the ordinance overbroad and unconstitutional on its face. (E. g., Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284- 285, 29 Cal.Rptr. 1, 379 P. 2d 481) and there is no room for factual issues. Thus, plaintiffs.are not required to demonstrate an affirmative need for news- racks. Streets and sidewali, s are, as indi- 5. In Wollam v. City of Palm Springs, 59 Cal. 2d 276, 29 Cal.Rptr. 1, 379 P.2d 481, th8 Su- preme Court struck down an ordinance which prohibited the use of stationary sound trucks. :Nothing in the opinion suggests that the ordi- nance would have been upheld if it had been limited to the amplificatiola of pre- reconled messages. 6. Defendant has submitted (�,,aborate de(lara- tions supported by photogr tpbs and tttWes Y �3 51 Ca1.App.3d 53 cated, presumed to beLappropriate places �t for First Amendment activities and the City may only impose reasonable restric- tions on the exercise of plaintiffs' First Amendment rights. (Kovacs v. Cooper (1949) 336 U.S. 77, 87, 69 S.Ct. 448, 93 L. Ed. 513; Van Nuys Pub. Co. v. City of Thousand Oaks, 5 Cal.3d 817, 827 -828, 97 Cal.Rptr. 777, 489 P.2d. 809; Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284- 285, 29 Cal.Rptr. 1, 379 P.2d 481.) [5,6] Equally without merit are the City's contentions that the ordinance is not unconstitutional on its face because, first, newsracks are not prohibited on private property, and, second, newsracks are per- mitted on the public Golden Mall. "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." (Schneider v. State (1939) 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155.) The appropriate focus is on the blanket prohibition and not on those areas left untouched. Thus, in Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 29 Cal.Rptr. 1, 379 P.2d 481 the court, in holding invalid an absolute prohibition on the use of stationary sound trucks (id., at pp. 287 - 288, 29 Cal.Rptr. 1, 379 P.2d 481), did not consider the ordinance was re- deemed by the fact that moving sound ve- hicles were to some extent permitted. (Id., at pp. 278 - 279, 29 Cal.Rptr. 1, 379 P.2d 481. See also, Van Nuys Pub. Co. v. City of Thousand Oaks, supra, 5 Cal.3d 817, 822, 97 Cal.Rptr. 777, 489 P2d 809; Young v. Municipal Court, 16 Cal.App.3d 766, 770 - 771, 94 Cal.Rptr. 331.) The suggestion that access to private fa- cilities would be constitutionally adequate which purport to show, first, the unaesthetic qualities of newsracks on public property, and, second, the number and location of newsracks on private property and in The Golden MalL Defendant's declarations also purport to con- trovert plaintiffs' declarations concerning the economic impact of the prohibition of news- racks. Other than defendant's map of Bur. bank, none of this material is relevant. CALIFORNIA NEWSPAPER PUB. ASSN INC ,:�& 51 CaLApp.3d 56 Citc nQ, , was rejected in Southeastern Promotions Ltd. v. Conrad (1975) 420 U.S. 546, 95 S. Ct. 1239, 43 L.Ed. 448, in which Chattanoo- ga officials refused to permit the play "Hair" to be shown in the municipal thea- tre. (420 U.S. at p. 548, 95 S.Ct. 1239.) The Supreme Court was not impressed with the fact that there might be other the- atres in town. "Even if a privately owned forum had been available, that fact alone would not justify an otherwise impermissi- ble prior restraint. does not matter for purposes of this ucase that the Board's decision might not have had the effect of total suppression of the musical in the community. Denying use of the municipal facility under the circum- stances present here constituted the prior restraint. That restraint was final." (420 U.S. at pp. 556-557,'95 S.Ct. at 1245.) In Van Nuys Pub. Co, v. City of Thou- sand Oaks, supra, .5 Cal.3d 817, 97 Cal. Rptr. 777,-489 P.2d 809, the court held that the city could not prohibit all distribution of all printed matter on private property without the consent .of the owner (id.Jat pp. 821 -,822, 827, 97, Cal.Rptr._ 777, 489 P.2d 809), although as argued by the city, such materials could have been distributed on the public streets or by mail. (Id., at p. 822, 97 Cal.Rptr. 777, 489 P12d 809. See also, Young v, Municipal Court, supra, 16 Ca1.App.3d - 766, 771, 94 Cal.Rptr. 331.) Given the conceded protection afforded the exercise of free speech in public places, the converse of Van Nuys certainly con- trols. [7] Nor is the prohibition against newsracks on public property less than to- tal because.the City affords such privileges on the Golden Mall. The fraction of Bur- bank open to newsracks is grossly inade- quate to meet constitutional muster. (See wolla, v. City of Palm rings, supra, 59 Cal-2d 276, 288, 29 Cal.Rptr. 1, 379 P.2d 181.) The cases relied on by defendant do not telp• In 46 South 56nd Street Corporation ' 31anlin (Pa.1960) 398 Pa. 304, 157 A.2d . v. CITY OF BURBANK X83 123 Cat Iiptr. £S80 381, the Pennsylvania :supreme Court held that a Philadelphia property owner was en- titled to an injunction against the owner of a 9 -foot by 6 -foot stand which occupied about 40 percent of width of the sidewalk in front of the plaintiff's show window, from which the defendant or his licensees sold newspapers, magazines, comic books and racing forms. (Id., at pp. 383, 390.) The dictum relied on by defendant that "newsstands are not so necessary as to cloak them with the constitutional protec- tion accorded a free press" (157 A.2d at p. 387) is contrary to a more recent Pennsyl- vania federal court case which held uncon- stitutional a municipal ordinance which prohibited the use of newspaper racks or boxes on public streets. (Philadelphia News., Inc. v. Borough C., etc., Swarth- more (E.D.Pa.1974) 381 F.Supp. 228, 241.) People v. Amdur, 123 Cal.App.2d Supp. 951, 267 P.2d 445, involved a defendant who set up a card table on the sidewalk and passed out leaflets and petitions oppos- ing the death penalty. A city ordinance prohibited the physical obstruction of the sidewalk by objects such as the card ta- ble without permission from the city coun- cil. Since the court refused to consider the case as involving First Amendment problems, holding, rather, that the ordi- nance dealt with a privilege or s,r,tivity "which may be completely prohibited'" i`id., at pp. 963 -964, 267 P21 at 452), can safely ignore it. Finally, City Investment Co. v. Racik, 88 Cal.App. 383, 384, 263 P. 555, held that the evidence was sufficient to sustain an order enjoining the defendant from maintaining a 4-- by- 10- by- 6.5_foot newsstand on the street in front of the plaintiff's property, on grounds that the particula L-tand wa, a �6 nuisance. Suffice it to say that the Bur- bank ordinance is not confined to particu- lar newspaper racks which cr)nstitute a nuisance. The judgment is affirmed, STI?PHENS, and HASi1NG:�, 17.on- cur. BERNARDO M. PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tern ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk July 9, 1990 MOORIPA,RK The Daily News 21221 Oxnard Street Woodland Hills, CA 91367 Att: David J. Lack Re: View Obstruction by Newsrack Campus Park Drive at Marquette Street Dear Mr. Lack, STEVEUIKAUENY City Manager CHERYL J.KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer The newsracks at the northwest corner of Campus Park Drive and Marquette Street are placed at a location which causes them to obstruct the view of vehicular traffic. You and the other owners of newsracks at that location are requested to rectify this potential safety problem by relocating your newsrack approximately seventy feet (701) to the west, to a point adjacent to the existing bus stop. Please be advised that this problem and this request is not related to current discussions between the City and your newspaper regarding the removal of newsracks from certain areas of the City. Your action to resolve this problem will have no bearing on that process. Your cooperation will be greatly appreciated. If you have any questions, please give mE' a call. Very Tr 1 urs, Kenneth C. Gilbert Director of Public Works ATTACHMENT 3 cc: Steven Kueny, City Manager Pat Richards, Director of Community Development I MOORYARK BERNARDO M.PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tem ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk July 9, 1990 Los Angeles Times Times Mirror Square Los Angeles, CA 90053 Att: Rhonda Heth Re: View Obstruction by Newsrack Campus Park Drive at Marquette Street Dear Ms. Heth, STEV N KUENY City Manager CHERYL J.KANE City Attorney PATRICK RICHARDS, A.I.C.P- Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer The newsracks at the northwest corner of Campus Park Drive and Marquette Street are placed at a location which causes them to obstruct the view of vehicular traffic. You and the other owners of newsracks at that location are requested to rectify this potential safety problem by relocating your newsrack approximately seventy feet (701) to the west, to a point adjacent to the existing bus stop. Please be advised that this problem and this request is not related to current discussions between the City and your newspaper regarding the removal of newsracks from certain areas of the City. Your action to resolve this problem will have no bearing on that process. Your cooperation will be greatly appreciated. If you have any questions, please give me ,3 call, Very �T y ou S, Kenneth C. Gilbert Director of Public Works cc: Steven Kueny, City Manager Pat Richards, Director of Community Development Al Brewer, Street Sales Manager MOORPARK BERNARDO M.PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tem ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk July 9, 1990 The - Enterprise 880 Easy Street Simi Valley, CA 9..065 Att: Clyde Barrow Re: View Obstruction by Newsrack Campus Park Drive at Marquette Street Dear Mr. Barrow, STEVEN KUENY City Manager CHERYL J.KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer The newsracks at the northwest corner of Campus Park Drive and Marquette Street are placed at a location which causes them to obstruct the view of vehicular traffic. You and the other owners of newsracks at that location are requested to rectify this potential safety problem by relocating your newsrack approximately seventy feet (701) to the west, to a point adjacent to the existing bus stop. Please be advised that this problem and this request is not related to current discussions between the City and your newspaper regarding the removal of newsracks from certain areas of the City. Your action to resolve this problem will have no bearing on that process. Your cooperation will be greatly appreciated. If you have any questions, please give me �t call. Very Tru Y rs, Kenneth C. Gilbert Director of Public Works cc: Steven Kueny, City Manager Pat Richards, Director of Community Development IO'lOORI'AKK BERNARDO M.PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tem ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk July 9, 1990 Star Free Press 5250 Ralston Ventura, CA 93003 Att: Maggie Bode Re: View Obstruction by Newsrack Campus Park Drive at Marquette Street Dear Ms. Bode, STEVEN KUENY City Manager CHERYL J.KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer The newsracks at the northwest corner of Campus Park Drive and Marquette Street are placed at a location which causes them to obstruct the view of vehicular traffic. You and the other owners of newsracks at that location are requested to rectify this potential safety problem by relocating your newsrack approximately seventy feet (701) to the west, to a point adjacent to the existing bus stop. Please be advised that this problem and this request is not related to current discussions between the City and your newspaper regarding the removal of newsracks from certain areas of the City. Your action to resolve this problem will have no bearing on that process. Your cooperation will be greatly appreciated. If you have any questions, please give me �:i call. Very T y u , Kenneth C. Gilbert Director of Public Works cc: Steven Kueny, City Manager Pat Richards, Director of f7ommunity Development Times Mirror u July 6, 1990 Ms. Lillian Kellerman Moorpark City Clerk 799 Moorpark Avenue Moorpark, CA 93021 i Times Mirror Times Mirror Square tos Angeles. CA 90053 213 237.3760 Glen A Smilh Staff Counsel Re: Newsrack Ordinance Violation Appeals Dear Ms. Kellerman; We have learned that the Daily News has requested that the city council delay its consideration of the newsrack ordinance violation appeals until July 25, 1990, The Los Angeles Times joins in that request. Sincer y, Gle A. SWh cc: Patrick Richards Al Brewer GAS /la ATTACH IA/I ENT `t �7IIT1 nr SENT BY :Xerox Telecopier 7020 '1— 5 -90 ; 4 :55p 2 136173246 805 529 8270 ;« 2 30 <�7'2:4?J(ti??i e/ /iC <'!%SGO?'1� b�_ CJ�1'•tfl�lT.fi DONOVAN LEISUAE NEWTON A IRVINE l /�/�J o DONOVAN LEISURE NEWTON & IRVINE R 30 ROCKEJELLC PLAZA f.�A 40 RUE DU /AU&CURO TAINT- HONORS NCw YORK. N.Y. ioiix A 76005 PARIS TCLERMONE: VIM -63e -3000 TELEPHONE: 1- 42- t6.47 -Io PAX: 211.032-3381 TELEPHONE] eL34!53-4000 FAX: 1.4i•1f -0S•Oa FAX: 20-617 -a3496 DONOVAN LEISURE. R000V4N. MUOE& OCMILLER WRITER'O DIRECT DIAL NUMBER: 1200 TWENTY- FOURTH STREET. N.W. !13•&63 4055 WASHINGTON, O.C. 20037.IIE4 July 5, 1990 TCEC PNONI: 2 6 02.4T.SSOp FAX: 802- 147 -64S4 VIA FACSIMILE Mr. Patrick J. Richards Director of Community Development City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Res Daily News, Appeal. from Notices of Violation of Moorpark Newsrack Ordinance Dear Mr. Richarde: The Daily News has been informed that its appeal of the notices of violation of the Moorpark Newsrack Ordinance before the city council has been scheduled for July 11, 1990. Due to a scheduling conflict, we would like to request a continuance until July 25, 1990. It is my understanding that you have agreed to grant this continuance if the request was made in writing. G Please confirm with us by facsimile or by telephone that the City of Moorpark will continue the hearing date of the Daily News, appeal before the city council to July 25, 1990. Very truly yours, Noriko E. Okamoto ccs David Lack, single Copy Manager, Daily News. Glen Smith, Esq., Los Angeles Times Howard B. Soloway, Esq. Llo -q Angele,6 i imet3- June 25, 1990 Ms. Lillian Kellerman Moorpark City Clerk 799 Moorpark Avenue Moorpark, CA 93021 Re: Appeal of June 18 Hearing Dear Ms. Kellerman: Times Mirror Square Los Angeles, CA 53 213 2373160 Glen A. Smith Staff Counsel This is an appeal pursuant to Municipal Code §5.60.080 of the findings of a June 18 Office Hearing. A copy of a June 20 letter from Patrick Richards, notifying the Los Angeles Times of the city's findings, is enclosed. This appeal is based on the following: 1) The subject newsracks are not placed in a hazardous location and have been properly maintained, 2) The city has not received any citizen complaints about the newracks' placement, and 3) Banning newsracks from all residential areas is unconstitutional. This point is more fully explained in the enclosed copy of a letter to the city�frOm Los Angeles Times Senior Staff Counsel Rhonda kietti A' TACK fV-,EN i - RECEIVED - JUN 2 8 1990 cw-atC 'Q#,,H CW&4Fk U \e��tin.3t�er Ms. Lillian Kellerman June 25, 1990 Page Two Please contact me if you need any additional information. I should be notified of any additional hearing dates. Sincerely, "Glen A. Smith cc: Al Brewer GAS /la DAILY NEWS F'C) F0)>1 4200 WCOC)t. 'I C-) H +LL`_3. ,: ALIF'ORNIA 91365 -4200 ,11111) '1:i -.70p0 June 22, 1990 City of Moorpark 799 Moorpark Ave Moorpark, CA 93021 Attn: Mr. Richards Dear Mr. Richards: RECEI V60 G ,, o; t�lo�rparK The Daily News does wish to request an appeal of the letter of decision to the City Council as set forth in Section 5.60.080 of the Moorpark Municipal Code. The reason for the appeal is that in our opinion section 5.60.040 is in violation of the Daily News' first amendment rights. Please notify me when the City Council will hear the appeal. This also will confirm that the enforcement of the newsrack ordinance will be stayed pending appeal. Sincerely, David J. Lack Single Copy Sales Manager CC.- City Clerk, Moorpark Noriko Okamoto, ESQ Donovan Leisure Newton & Irvine M®OnPARK �• a BERNARDO M.PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tern ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Counclmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk June 20, 1990 Los Angeles Times Glen Smith Times Mirror square Los Angeles, CA 90053 Dear Mr. Smith: CERTIFIED MAIL STEVEN KUENY City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer On June 18, 1990, an Office Hearing was held at Moorpark City Hall, 799 Moorpark Avenue. The meeting was held regarding the Los Angeles Times news racks that have been installed in an RPD Zone in violation of the City's Municipal Code. The following individuals were present at the above meeting: Patrick J. Richards, Director of Community Development Frank Mancino, Code Enforcement Officer Glen Smith, Los Angeles Timer Staff Legal Council i Al Brewer, Los Angeles Times Manager, Circulation Street Sales Philip Dolan, Los Angeles Times Assistant Manager, Circulation Street Sales At the June 18, 1990 meeting there was no agreement to remove the racks. Therefore, The Los Angeles Times continues to be in violation of Section 5.60.040 (10) of the Moorpark Municipal Code. R! At4QHM!ENT BERNARDO M. PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tern ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk June 12, 1990 Daily News David J. Lack 21221 Oxnard Street Woodland Hills, CA 91367 CE,RTIFIED MAIL 4(.91 J7C,,569 i3 ice. STEVEN KUEN'Y City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer RE: Illegal news racks - Office hearing findings, June 8, 1990 Dear Mr. Lack: On June 8, 1990, an office hearing was held at Moorpark City Hall, 799 Moorpark Avenue. The following individuals were present: Patrick J. Richards, Director of Community Development Frank Mancino, Code Enforcement Officer David J. Lack, Daily News Timothy N. New, Daily News The Office Hearing began at 2:05 p.m., you were asked if you had any questions regarding any of the correspondences sent to this office; you stated no. I then asked you if the Daily News was going to comply with the Municipal Code, Section 5.60.040 (10), which prohibits news racks to be installed on sidewalks that abut property zoned residential. You said no, that the Daily News feels that section of the ordinance was unconstitutional and against the First Amendment. As I explained to you, neither I nor the Code Officer had the authority to change the ordinance. You were also told that the Daily news would have to continue their appeal with the City Council. As far as I or the Code Enforcement Officer were concerned, the Daily News was still in violation of the Municipal Code. 799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864 DAILY NEWS P() HIDX. 4200 wUOC�L .t40 HILLS. Al IFORNIA 91365 -4 200 101B1 11 3 -3000 May , 1990 Frank Mancino Code Enforcement City of Moorpark 799 Moorpark Ave Moorpark, CA 9301 Dear Mr. Mancino: The Daily News is willing to waive the five working day time frame for a hearing regarding the Daily News newsracks at Marquette St. and Campus Park Drive and Majestic Court (near LeClub apartments). The Daily News would like to suggest a hearing date of either Wednesday June b, Thursday June 7, or Friday June 8, between the hours of 9 a.m to S p.m. Please advise me on what date and time the City of Moorpark would like to conduct the hearing. You may contact me at (818) 71:3- ;128. Sincerely, -- -1--�� David J. Lack Single Copy Sales Manager cc: Noriko Okamoto, Esq. Donovan Leisure Newton & Irvine DJL /cw �AA� 2 y 199a Ot•3 0; 4l1eoTN %� DAILY NEWS PC) I iC'X 4200 VV, D(-D()! N[.) HILLS. --ALIFORNIA 91365 -4200 MIB� 71- -3000 May 18, 1990 Frank Mancino Code Enforcement City of Moorpark 799 Moorpark Ave -- Moorpark, CA 93021 Dear Mr. Mancino: To confirm our telecon of May 17, 1990 the Daily News does wish to excercise its right to a hearing as set forth in Section 14.16.080 of the City of Moorpark Newsrack Ordinance to appeal the citing of Daily News newsracks at Marquette St. and Campus Park Dr. and Majestic Court (near LeClub apartments). The Daily News has removed the newsrack on Moorpark Avenue (near LeClub apartments) due to low sales. The reason for the request is that in our opinion Section 14.16.020 of the City of Moorpark Newsrack Ordinance is unconstitutional and is in violation of the Daily News' first amendment rights. If you should have any further questions please contact me at (818) 713 -3128. II Sincerely, David J. Lack Single Copy Sales Manager cc: Nori ►-o Okamoto, Esq. Donovan Leisuro Newton & Irvine DJL /cw MAY 1 8 is CJty ri. Moorpark As stated in Section 5.60.080 (C) Hearing Procedures, the Daily News shall request an appeal to the City Council in writing, filed with the City Clerk, within ten (10) days from the letter of decision and shall state the basis upon which the appeal is made. The City Council shall hear the appeal. within thirty (30) days of the filing of that request. If you have any questions regarding this matter, please feel free to call me or Frank Mancino at (805) 529 -6864. Sincerely, �atrick �J Richards irector of Community Development File No. cc: Steven Kueny, City Manager Cheryl Kane, City Attorney Frank Mancino, Code Enforcement Officer FMIIJUNE9 DAILY NEWS P - -.,. F3 OX 4200 F- ULL >,_ I :ALIFORNIA 91365 -42(D0 �0IM 713 -3000 May 15, 199G Frank: Mancino Code Enforcement City of Moorpark 799 Moorpark Ave Moorpark, CA 9 -c)21 Dear Mr. Mancino: The Daily News of Los Angeles does wish to appeal Section 14.16.020 of the City of Moorpark Newsrack Ordinance as it applies to the following Daily News newsrack locations: 1. Marquette Street and Campus Park Drive 2. Moorpark Avenue (near LeClub Apartments) 3. Majestic Court (near LeClub Apartments) - - RECEIVED MAY 16 15go PAUL W. LAWRASON, Jr. Mayor SCOTT MONTGOMERY Mayor Pro Tem ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember BERNARDO M. PEREZ Councilmember LILLIAN KELLERMAN MOORPARK 4-7 Daily News 21221 Oxnard St Woodland Hills, CA 91265 May 4, 1990 ertified Mail Re: Newsrack in Public Right of Way Dear Gentlemen: STEVEN KUENY City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.F Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer The City of Moorpark, Code Enforcement staff, conducted inspection of newsracks on the public right of way throughout the City on April 21, 1990. We are aware that you may not be familiar with the City of Moorpark revised Newsrack Ordinance Number 122 passed and adopted on February 7, 1990, effective on March 7, 1990. I have attached a copy of that new ordinance. In addition to the new revised ordinance, I would also like to call your attention to the violations found during that inspection of your newsracks at the following locations. 1. Marquette Street and Campus Park Drive Section 14.16.020 (10) the newsrack shall not be installed or maintained on a sidewalk that abuts property that is zoned rural, Agricultural (R -A), Rural Exclusive (R -E) sin le family Estate (R -O, one family, _ ' g residential (R -2). Multiple family 3wo family i. Home subdivision (MHS), Trailer Park Development (T P MD)lor Residential Planned Development (RPD), as such zones are defined in the City Zoning Ordinance. 2. Moorpark Avenue (near LeC1ub Apartments (10) as noted above. i Section 14.16.020 3. Majestic Court (near LeClub Apartments) Section 14.16.020 (10) as noted above. Therefore, the City of Moorpark is asking you for your voluntary compliance by removing the illegal newsracks from the locations listed above, after removing newsracks repair sidewalks to their original conditions, and do so within fifteen (15) days -from the receipt of this letter. - 799 Moorpark Avenue Moorpark, California 93021 -- _ - -- _ -- _ -_ (805) 529 -6864 y The City has the intention to impound the newsrack if the violation are not corrected or a hearing is not requested. All abatement of newsracks in violation will be in accordance with Section 14.16.060 of the Municipal Code. A follow up inspection will be conducted by this office, so as to determine compliance after the date of this letter. If you have any questions, please feel free to call this office at (805) 529- 6864. Sincerely, rank�s�cino Code Enforcement Officer File No.: cc: Patrick J. Richards, Director of Community Development fm4May9.a j i 0 SENDER: Complete items t alld 2 when additional services are desired, and complete items 3 ano 4. Put .our address in the "RETURN TO" Space on the reverse side. Failure to do this will prevent this card frcnt oemg returned to you. The return recei t fee will provide ou the name of the erson delivered to and r' • "ate of deliver .For additional ees t e o owing services are avadab e. onsult postmaster or ees �a check boxlesl or additional service(s) requested. I. _. Show to whom delivered, date, and addressee's address. 2. O Restricted Delivery (Fxtra charge) (Extra charge) 3 Article Addressed to: 4. Article Number Daily News 21221 Oxnard St Woodland Hi3.1s, CA 5. Signature — Addressee X 6. Signature — Ageni X I Date of Delivery -;7Z PS Form 381 1 , pr i I 1,'9 Type of Service: ❑ Registered ❑ Insured 5 0 ertified ❑ COD ❑Express Mail ❑Return Recei for Merchant Iways obtain signature of addressee or agent and DATE DELIVERED. \� 8. Addressee's Address (ONLY if requested and fee paid) 1 .�1 S. G.PA_ 1 9 -298 -915 DOMESTIC RETURN F /, PAUL W. LAWRASON, Jr. Mayor SCOTT MONTGOMERY Mayor Pro Tom ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember BERNARDO M.PEREZ Councilmember LILLIAN KELLERMAN fl;.. !1I...1, MOORPARK - - - - -- -- - ------------- ------ Los Angeles Times Times Mirror Square Los Angeles, CA 90053 May 4, 1990 C rtified Mail I Rer Newsrack in Public Right of Way Dear Gentlemen: STEVEN KUENY City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.: Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer The City of Moorpark, Code Enforcement staff, conducted inspection of newsracks on the public right of way throughout the City on April 21, 1990. We are aware that you may not be familiar with the City of Moorpark revised Newsrack Ordinance Number 122 passed and adopted on February 7, 1990, effective on March 7, 1990. I have attached a copy of that new ordinance. In addition to the new revised ordinance, I would also like to call Your attention to the violations found during that inspection of Your newsracks at the following locations. 1. Marquette Street and Campus park Drive Section 14.16.020 (10) the newsrack shall not be installed or maintained on a sidewalk that abuts property that is zoned rural, Agricultural (R -A), Rural Exclusive (R -E) single family Estate (R -0, one family, residential (R -1), two family residential (R -2). Multiple family-residential idn residential R -3 Home subdivision (MHS), Trailer Park Development (T-PMD)1or Residential Planned Development (RPD), as such zones are defined in the City Zoning Ordinance. 2. Moorpark Avenue (near�,eClub A artments (10) as noted above. Section 14.16.020 3. Majestic Court (near r LeClub Apartments Section 14.16.020 (10 as noted above. ) Therefore, the City of Moorpark is asking ou for your voluntary compliance by removing the .illegal newsracks from the locatios listed above, after removing newsra original con cks repair sidewalks to their ditions, and do so within fifteen (15) days from the receipt of this letter. 799 Moorpark Avenue !,10orpark. Califomia 93021 _.___— —. (805) 529 -6864 - /1101 The City has the intention to impound the newsrack if the violation are not corrected or a hearing is not requested. All abatement of newsracks in violation will be in accordance with Section 14.16.060 of the Municipal Code. A follow up inspection will be conducted by this office, so as to determine compliance after the date of this letter. If you have any questions, please feel free to call this office at (805) 529- 6864. Sincerely, rank /s'ancino Code Enforcement Officer File No.. C _ J- cc: Patrick J. Richards, Director of Community Development fm4may9.a q5� ®SENDER: Complete items 1 and 2 when additional services are desired, and complete items 3 and 4. from being returned to you.EThe Rreturn receact fee we reverse ov'de side. ou theiname ofothe`r ers�o^ de tl,I eeted tocand Y14the date of deliver For additional fees t e oBowing services are available. onsult postmaster or fees check boxes or additional service(s) requested. 1. ❑ Show to whom delivered, date, and addressee's address. 2. ❑ Restricted Delivery (Extra charge) 3. Article Addressed to: Los Angeles Times Mirror Los Angele! , 5. Signature — Addre,, X 6. Signature -- Agent, X Date of Dehyery Li t 4. Article Number t�gUIa794in T e of ic � y Times yp Serve Square ❑ Registered ❑ Insured CA 90053 XCertified ❑ COD 11 Express Mail [] Return Receipt for Merchandise Always obtain signature of addressee agent and DATE DELIVERED. yERED 8. 8. Addressee's Address (ONLY if requested and fee paid) y 0 9 1 "Q •s Lu po p \` �- /�- F® L a ' M 4 +. 4 r MA ti Es li c C T 9ct a rr s T 7. ci ATTACHMENT 7 i -WT ♦Ji'. W cow ocRcck 7- / ?..Yd AP- 4^7-* o vTs