A San Fernando-based distributor of sexually oriented newspapers is challenging a Glendale ordinance that restricts the number of news racks on a city block and gives priority to general-interest publications.
The Superior Court suit brought by Paul and Eunice Duffy, owners of Kimbo Distributors, asks that the ordinance be declared unconstitutional on the grounds that it limits free speech. The firm distributes such papers as the Los Angeles Free Press, Impulse, Swing World and Afterhours.
"Why favor the big papers over the marginally surviving papers? If anything, it should be the reverse," said Donald Cook, attorney for the Duffys.
'Times Will Exist'
"The Los Angeles Times will exist without street racks in Glendale. The Duffys' papers won't," Cook said.
Scott Howard, senior assistant city attorney, said that the papers distributed by the Duffys were not being singled out and were not being restricted because of their sexual content.
"We are not banishing them to a back alley. We are just trying to create a balance with the pedestrian's right to use the sidewalk,' he said.
Last summer, the city first attached warning notices to, and then removed, 18 street racks belonging to Kimbo because they violated the ordinance. Howard said the business could have met the city's requirements by moving the racks an average of 20 feet, and none no more than 200 feet, from their original locations. He said the firm never requested a hearing, which could have postponed the confiscations.
Some of the Duffy racks are now back on the sidewalk in their original locations pending the outcome of the case.
As amended in 1975, the ordinance allows no more than eight news racks in one location and no more than 16 on any one side of a city block.
It gives first priority to general-circulation newspapers--defined as those that devote at least 25 percent of news space to local or wire service news--covering Los Angeles County. Second choice is given to other daily publications, and last to other weeklies such as those distributed by the Duffys.
Violations carry a fine of $200, plus confiscation of the rack.
The Glendale City Council on Tuesday approved a motion authorizing the city attorney to defend the ordinance against the Duffys' suit. A hearing for a temporary injunction is scheduled for May 30 before Judge Robert P. Schifferman in Glendale Superior Court.
The Duffy suit is similar to one filed nine years ago by the Socialist Labor Party for what it called Glendale's discriminatory treatment of its party newspaper, The Weekly People.
In that case, a Superior Court judge ruled that sections of the ordinance were unconstitutional, but the state Court of Appeal reversed that decision in 1978, and both the state and U.S. Supreme courts refused to hear appeals. However, the ordinance is open to challenge again because the state Supreme Court, without specifying the reason, ruled that the Socialist Labor Party case should not be considered a precedent.
"There is nothing in the First Amendment that requires the community to tolerate a public nuisance which adversely affects its health and safety," Howard wrote in a legal brief filed this week, referring to sidewalk clutter.
He said he is confident that the ordinance will be upheld because of recent U.S. Supreme Court rulings approving the constitutionality of local zoning regulations that apply to other forms of free expression, such as sexually oriented movies.
Over the last decade, the Duffys have fought, and several times have won, cases against other cities' rules regarding news racks, Cook said. The firm is now appealing a January Superior Court ruling that upheld regulations in Arcadia governing the design of news racks. The Duffys said the rules discriminate against them.
They said competition for street space in the Los Angeles area has become much tougher in recent years with the introduction of news racks by USA Today and the New York Times. Even a move around a corner can turn a once-profitable stand into a losing proposition, Cook said.
"We are not challenging the fact that, yes, the cities can impose reasonable regulations. We are saying that the flat numerical limit in this case is not justifiable and neither is a content-based regulation," Cook said, referring to the Glendale suit. He suggested that a better method of allotting sidewalk space would be to hold a lottery among publications for desirable locations.
Last month, the Duffys were at the center of another Glendale controversy involving the sexual nature of some of the newspapers they distribute. Parents and administrators at Rosemont Junior High said they were upset that students were exposed to such publications and asked the Duffys to remove them from racks near the school.
The Duffys refused.