The purpose of this report is to present the City Council with an ordinance amending Chapter 20 of the Burbank Municipal Code relating to the regulation of newsracks. Specifically, the amendment will provide that newsracks that display "harmful matter" as defined by the California Penal Code must comply with the state law requiring supervision of such newsracks by adults and that those adults must submit to a background investigation prior to acting as supervisors of the newsracks.

In 1988, the City of Burbank adopted a comprehensive ordinance regulating newsracks in the city. The ordinance withstood a challenge from a newsrack vendor and was upheld in the case of Fishel v. City of Burbank in 1991. The court found that the ordinance was a valid content-neutral regulation on the time, place, and manner of the use of the city's sidewalks.

In 1995, the State of California banned the sale of "harmful matter"¹ in unsupervised sidewalk newsracks, see Penal Code � 313.1(c)(2). This ban was upheld in the case of Crawford v. Lungren (9th Cir. 1996) 96 Fed. Rptr. 3d 380.

After reviewing the newsrack ordinance in light of Penal Code � 313.1(c)(2) and the Crawford case, the City Attorney's Office has concluded that the City's newsrack ordinance must be amended in order to ensure that the City's valid regulation of newsracks does not invite or encourage violations of state law. In order to accomplish this goal, the proposed ordinance provides that newsracks that display, sell or offer to sell harmful matter must be supervised by an adult and that such adult must submit to a background investigation as part of the newsrack registration process.

The other affected departments, Public Works, Police, and Community Development agree with our conclusion.

The background investigation provided for in the proposed ordinance requires the submission of fingerprints to the Department of Justice (DOJ). The DOJ charges a fee to provide criminal history information accessed through the use of fingerprints. In order to account for this cost, a resolution amending the City's Fee Resolution is submitted to the Council with the proposed ordinance.

Staff recommends the City Council adopt the proposed ordinance and related amendment to the Burbank Fee Resolution.

¹  "Harmful matter" is defined by Penal Code � 313(a) as "...matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as whole lacks serious literary, artistic, political, or scientific value for minors." In other words, it is material that is legally obscene to a specific group, in this case minors.