HomeMy WebLinkAbout04-22-03
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CITY COUNCIL COMMITTEE ON
NEIGHBORHOOD IMPROVEMENT/CODE ENFORCEMENT
Meeting Minutes
April 22, 2003
CALL TO ORDER
The meeting convened at 5:40 p.m. in Room 831 of City Hall.
ATTENDANCE
The following Council members were present: Lisa Bist and Alberta Christy
Staff present were: David Ream, City Manager; Ben Kaufman, Chief Assistant City Attorney;
Joseph Edwards, Planning Manager; and Teri Cable, PWA Administrative Services Manager.
AGENDA ITEMS
1. APPROVAL OF MINUTES - FEBRUARY 25,2003 MEETING
Approved by a vote of 2:0
2.
VENDING MACHINE ORDINANCE
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Joseph Edwards provided an update on the status of the proposed vending machine
ordinance. On April 14, 2003, a work study session was held with the Planning
Commission to discuss the major components of the ordinance which would limit the
number of outdoor vending machines within commercial developments, regulate size,
location, height and provide specific design parameters. Members of the vending
machine industry were present during the discussion.
The Planning Commission requested an additional work study session be scheduled to
allow more time to review the proposal and discuss prior to the creation of a draft
ordinance. The commission also was interested in the financial impacts that the
ordinance may have on the business community and requested that staff research this
issue and present its findings at the work study session on April 28.
3. NEWSRACKS UPDATE
Ben Kaufman reviewed the legal issues involved in the creation of an ordinance to
regulate newsboxes in the public right-of-way (Attachment 1). Of primary concern is the
courts ruling that First Amendment protections apply to newsboxes and that any
ordinances adopted by the city to regulate newsboxes cannot in any way infringe on
constitutionally protected speech. However, reasonable controls may be applied such
as regulating the number, size, construction, placement and appearance if done to
protect a legitimate interest such as public safety or aesthetics.
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The City may require a permit for a news box for one year and may assess appropriate
application fees per newsbox. The City can regulate the placement of newsboxes, the
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number within a grouping, and may limit the design and color. The banning of
advertising on the newsboxes is still an open issue. The City Attorney's Office is
currently monitoring a Supreme Court case to be heard in the upcoming weeks which
may have an impact on the ability of cities to regulate commercial advertisement. The
outcome of the lawsuit may determine the extent to which the city can limit advertising
on news boxes. It is anticipated that once the Supreme Court has ruled on the case has
been made that a discussion will occur with the NI/CE committee to discuss the
approach to create a draft ordinance.
4.
PUBLIC COMMENTS
Mr. Reshed Shah and Joe Orpeza spoke regarding the need to pass an ordinance to
regulate vending truck operations in the City. They both own business on West First
Street and are impacted by a vending truck operating at First and Susan Streets. Mr.
Ream informed them that a discussion on the Vending Truck Ordinance will take place
at the Community Linkage Meeting on April 24, which they indicated they would attend
to voice their concerns.
Evangeline Gawronski spoke regarding the need to follow through on code enforcement
of City regulations.
Dave Lopez raised concerns over the need to include a two-hour limit on the parking of
commercial vehicles in the municipal code to prevent tow trucks and other commercial
vehicles from parking in the residential neighborhoods.
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5.
COMMITTEE MEMBER COMMENTS - None
6. ITEMS FOR NEXT MEETING
A. Vending Truck Ordinance Update
B. Vending Machine Ordinance Update
C. Newsracks Update
7. NEXT MEETING DATE: Tuesday, June 24,2003
ADJOURNMENT - 6:40 P.M.
a
Planning Manager
S:Council Comm/NICE CCINICE Minutes 04-22-03
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Neighborhood ImprovemenVCode
Enforcement Council Committee Minutes
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April 22. 2003
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CITY OF SANTA ANA
OFFICE OF THE CITY ATTORNEY
CONFIDENTIAL
MEMORANDUM
To:
Members of the NICE Committee
From:
By
Joseph W. Fletcher, City Attorney
Mike Vigliotta, Deputy City Attorney
Date:
March 7, 2003
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Re:
Councilmember Bist's Inquiry regarding Newsboxes
cc:
City Manager; Asst. City Manager; Deputy City Manager; Police Chief;
Community Preservation Manager
We have prepared this memorandum to address some of the legal issues involved in revising
Santa Ana Municipal Code Chapter 33 in anticipation of newsbox discussion during the NICE
committee meeting.
Legal Issues
The primary legal issue raised by enacting or modifying any ordinances related to the
distribution of news materials is the infringement upon constitutionally protected speech. The
courts have uniformly held that First Amendment protections apply to newsboxes. I While
existing law allows us to regulate the "time, place, and manner" of news boxes in the public right
of way, the regulations must be narrowly drawn and definite and protect a legitimate state
interest while preserving First Amendment rights? For example, a total ban on newsboxes is a
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1 Kash Enlewr;ses v. City of Los Angeles, (1977),19 Ca!. 3d. 294.
2 Kash, ld al 295
THIS DOCUMENT IS CONFIDENTIAL AND SUBJECT TO THE ATTORNEY CLIENT AND/OR
ATTORNEY WORK PRODUCT PRIVILEGES.
DISCLOSURE OF THIS DOCUMENT OR THE CONTENTS THEREOF MAY BE A VIOLATION OF
LAW.
ATTACHMENT 1
violation of the First Amendment. 1 However, reasonable controls i.e. controlling the number,
"" size, construction, placement and appearance of the newsboxes will survive a constitutional
attack ifthe basis for the regulation is to protect a legitimate state interest. 4 Two examples of
legitimate state interests are aesthetics, and safety. For example the City can regulate newsboxes
that interfere with pedestrian or vehicular traffic safety, public transportation or other
government use of the street, or the ingress into or egress from any residence, place of business,
or any legally parked or stopped vehicle, or the use of poles, posts, traffic signs or signals,
hydrants, mailboxes, or other objects permitted at or near said location.5
We must be very wery of any ordinance modifications requiring service fees that exceed the cost
of performing the service as those types offees are a violation of Proposition 218.6
The courts have asserted that the right to distribute newspapers and other periodicals on public
streets lies at the heart of our constitutional guarantees of freedom of speech and freedom of the
press. Therefore, the City must be very cautious in revising the newsbox ordinance or face a
constitutional challenge where the courts will likely "side" with the plaintiff.
The following are a range ofregulations (some of which are provided in SAMC Chapter 33) that
have been upheld by the courts as constitutional regulations of newsboxes.
1. Requiring Permits. In general, SAMC 33-152 requires that a one year permit and
identification decal be obtained to operate a newsbox. Said permit is subject to the approval of
the Executive Director and must be approved or denied within 120 days. The courts assert that it
"" is OK to require permits if the permit:
a. Is for 1 year;
b. Conditioned upon applicant paying all City fees;
c. Conditioned upon applicant obtaining a identification decal required;
d. Conditioned upon applicant providing a complete application package including required
Insurance;
e. The City must provide a reasonable time period (30 days) and definable standards in
which to accept or reject permit;
f. Application fees must accurately reflect the cost to process the application.
g. Fees be paid per newsbox.
2. Limiting Placement: In general, SAMC 33-157 identifies locations where newsboxes can be
placed. The courts assert that in general it is OK to limit where newsboxes are placed. For
example City may require that newsboxes:
.......
3 Remerv. City ofEl Cajon, ( ) 52 Ca!. App 3d. 441 at 444
, Id.
, Kash, at 298
6 Prop 2t8 prohibits local agencies from charging more than the cost of the service.
THIS DOCUMENT IS CONFIDENTIAL AND SUBJECT TO THE ATTORNEY CLIENT AND/OR
ATTORNEY WORK PRODUCT PRlVELEGES.
DISCLOSURE OF THIS DOCUMENT OR THE CONTENTS THEREOF MAYBE A VIOLATION OF
LAW.
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a. Not be placed in any parkway;
b. No more than four (4) newsboxes placed side by side and each grouping and be no closer
than I 0 feet a part;
c. Not be placed within specified distances of utilities, driveways, trees and fire, or police
equipment, etc;
d. Located only on arterial streets.
3. Requiring Design Standards: In general, SAMC 33-161 provides certain standards that all
newsboxes must follow. The courts assert that in general, it is OK to limit the "design" of
newsboxes to certain dimensions and colors. For example the City may require that:
a. All newracks shall be K-Jack model KJ 950, or equivalent and painted Green in color.
b. Advertising shall not be allowed on the newsboxes.
The following are a range of regulations the courts have found to be unconstitutional and
therefore not recommended.
I. Total ban of all newsboxes.
2. Standards that ban patented newsboxs.
3. Allowing for "subjective" interpretation of the standards imposed by the ordinance.
4. Denial of the permits based upon existing violations.
5. Lengthy approval or denial period for a newsbox permit.
~ 6. Fees that exceed the cost to provide the service.
The Process
We have been keeping the City Staff informed of our research recognizing that any additional
regulations will have a manpower impact on staff, particularly Public Works. We also have
agreed to bring the issue to the N.I.C.E. Committee for discussion at an upcoming meeting.
As a cautionary note, regulating the news media is very dangerous proposition, as it has been
said, "never pick a ink fight with someone who purchases ink by the barrel".
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THIS DOCUMENT IS CONFIDENTIAL AND SUBJECT TO THE ATTORNEY CLIENT AND/OR
ATTORNEY WORK PRODUCT PRIVELEGES.
DISCLOSURE OF THIS DOCUMENT OR THE CONTENTS THEREOF MAY BE A VIOLATION OF
LAW.
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