Downey Backs Away From Ban on Newspaper Racks

The City Council has backed away from a proposal to ban all newspaper vending machines from public property as a way to keep adult magazines out of the hands of children.

Instead, the council decided to more closely police vending machines containing adult publications to ensure that they do not violate state law prohibiting the distribution of harmful material to children.

The council also decided to support a Northern California city that is trying to win court support to enforce its zoning ordinance, which severely restricts vending machines containing adult publications, and to back state legislation that would give cities power to regulate the sale of adult publications in vending machines. The action, announced after a closed council session earlier this month, drew criticism from Councilman Robert G. Cormack, who wanted newspaper vending machines banned from public property in the city.

“I think it’ll go on for 40 years before anything happens this way,” Cormack said of the proposals this week.

When Cormack first proposed the ban last month, it drew warnings from his colleagues, who said the measure was an attack on First Amendment rights protecting freedom of the press because it interfered with newspaper distribution.

While the City Council sidestepped a potentially unconstitutional ordinance, it may have violated California’s Brown Act by discussing the issue in closed session. The so-called open meeting law requires governmental, policy-making bodies to deliberate and take action in public with few exceptions.

The council first considered regulating vending machines containing adult publications last month after a coalition of church and community groups presented a petition containing more than 2,500 signatures calling for the machines to be removed from city sidewalks.

Joseph C. Grana, pastor of the First Christian Church and one of the organizers of the petition drive, said the coalition did not want to ban the publications, but wanted them sold in stores where sales could be supervised and purchases by minors could be prevented.

At issue are tabloid newspapers that contain brief stories but mostly advertisements for massage parlors, escort services and telephone services offering sexually explicit messages. Nude women are pictured in many of the ads.

Grana said the tabloids could be purchased from vending machines in 19 locations throughout the city.

Grana said this week that he supports the City Council’s cautious action. The City Council “probably could pass something now, but it’s probably not the wisest thing,” he said.

At a Feb. 10 meeting, the council directed City Atty. Carl Newton to report how the city might remove the vending racks from city streets. When Newton advised the council that it could not regulate the machines to protect children because state law already addressed the issue, Cormack proposed an ordinance to ban all newspaper vending machines.

Rely on Public Pressure

Cormack reasoned that public pressure could be put on private property owners to properly supervise or prohibit the sale of adult publications on their premises. He said legitimate newspapers would have no problem finding locations for their vending machines.

The council voted 3 to 2 on Feb. 24 to draft such an ordinance but withdrew it almost immediately when Councilman Randall R. Barb warned during the public meeting that it would raise constitutional questions.

The City Council directed Newton to report on the feasibility of such a ban, a report which was delivered and acted upon in closed session.

“I reported to them on the status of the law relative to their power to regulate newspaper vending machines on city streets, including the possibility of prohibiting them,” Newton said. “I would have serious doubts as to the constitutional validity of an action of that nature.”

The City Council justified the closed session, saying attorney-client communications were discussed.

But a spokesman for the California Newspaper Publishers Assn., when contacted by The Times, said the City Council apparently had no reason to move into closed session to discuss the issue, which had drawn more than 100 residents to the council chambers a month before.

No Litigation Pending

The Brown Act permits a policy-making body to deliberate and act in closed session for certain personnel matters and when it is receiving advice from legal counsel regarding “pending litigation.”

“(Downey) doesn’t have an ordinance that is facing a legal challenge. It doesn’t have the experience of going around confiscating racks that may be the basis for a suit,” said Terry Francke, legal counsel for CNPA. “None of these (council actions) implicates a current risk to the city, and furthermore, the public has a right to be informed of the policy discussions that take place in the city.”

Newton countered that the confidentiality of an attorney-client relationship is guaranteed under common law, which supersedes the Brown Act. “They’re (the council members are) entitled to confidentiality as any client is,” Newton said.

If successfully challenged in court, the council actions could be invalidated, Francke said.

Newton said he would meet with a representative of the Los Angeles County district attorney’s office and Downey Police Chief William Martin to work out a plan to more closely monitor sales of adult publications.

He said he did not think the adult publications in question violated city law, which prohibits the public display of written material describing sexual acts and pictures of sexual acts and genitals. But he said the materials could be deemed harmful to children under state law.

“Harmful matter for minors is a very different thing from obscenity,” he said.

Support for Alameda

The council decided to lend its support to the city of Alameda, which passed a zoning ordinance last month that restricts vending machines offering adult publications from being placed within 500 feet of a residential zone, City Atty. Carter Stroud said.

The Northern California city has asked an Alameda Superior Court judge to enjoin publishers of adult publications currently sold in violation of the ordinance, Stroud said.

The Downey council also decided to support Assembly Bill 711, which would allow a city or county to pass an ordinance prohibiting the display of material which is harmful to minors in any place where minors may be present and able to view the material.

The bill, introduced last month by Assemblyman Gary Condit (D-Stanislaus), is in the Assembly Committee on Public Safety.

Grana said he would organize a letter-writing campaign urging passage of AB-711.