An attorney for a distributor of sexually oriented newspapers told a Superior Court judge this week that a Glendale city ordinance restricting the number of news racks on city streets is unconstitutional because it favors large, daily newspapers.
Attorney Donald Cook told Superior Court Judge Joseph Kalin during closing arguments in a non-jury trial Monday afternoon that the ordinance violates the constitutional guarantee of free speech because it limits the number of news racks at any given site, based on the content of newspapers.
Cook said the ordinance gives the government the power to decide "what better suits the needs of the people" when it comes to reading material. "I don't think that's permissible," he said. "It is not the government's function to show favoritism to a paper" because it "may in fact be a lot more popular than another paper."
Kalin will decide the matter within 90 days.
News Racks Were Seized
Paul and Eunice Duffy, owners of the San Fernando-based Kimbo Distributors, filed a lawsuit challenging the ordinance in January, 1986, after the city seized some of their news racks and ordered them to move others. Paul Duffy told the court that moving the racks would eliminate 75% of his business in Glendale. The Duffys are in the process of selling the firm to Ralph Fishel, who is also named as a plaintiff.
For the Record
Los Angeles Times Thursday December 10, 1987 Home Edition Glendale Part 9 Page 3 Column 1 Zones Desk 1 inches; 32 words Type of Material: Correction
An article appearing on Dec. 3 incorrectly identified the National Singles Register as a sexually oriented newspaper. The publication focuses on events and news for singles and does not contain sexually explicit material.
Among the papers Kimbo distributes are the sexually oriented Los Angeles Free Press, The Singles Register and Impulse.
Since the lawsuit was filed, the city has not enforced the news rack ordinance and today, most of the Duffys' racks are on the sidewalk, pending the outcome of the case.
At issue in the case is a 1975 ordinance that limits to eight the number of news racks in any given location and allows no more than 16 racks on any one side of a city block. It gives first priority to general-circulation newspapers--those published five or more times a week and devoting at least 25% of their news space to local or wire service news. Second priority goes to newspapers that publish two to four days a week and third priority goes to those publishing once a week. Many of Duffy's papers publish once a week or once every two weeks.
Random Drawing Suggested
Cook suggested the city instead assign space to newspapers on the basis of a random drawing.
But Glendale Assistant City Atty. Scott Howard argued that such a method would cause "chaotic problems" since a drawing would be required every time a distributor wanted to add more news racks in Glendale. Cook's rebuttal that the city could limit the drawings to once or twice a year would be subject to challenges, Howard said.
"If we restricted a drawing to one time per year, you can best be assured that we would be in court the next day," he said.
The Duffys' lawsuit also contends that the notification process established in the ordinance violates due process of the law because it does not ensure that a distributor is told of the violation.
Under the ordinance, city officials tag violating racks with a notice and wait five days for the distributor to either move the rack or contest the violation. If neither is done, the rack is seized by the city.
Cook argued that the court should require Glendale to notify violators by certified mail and allow seven to 10 days after receipt of the notice for a response.
In the summer of 1985, city officials seized 18 of the Duffys' street racks because they violated the ordinance, Howard said. The city asked that the racks be moved an average of 20 feet, Howard said. The racks were tagged and confiscated five days later because the Duffys did not request a hearing in time.
"We only come (to Glendale) once a week or every 10 days," Duffy said outside the courtroom. "They could pick them up and we wouldn't know. We're not a daily paper."
The following January, when the city tagged 14 of the Duffys' news racks at eight locations, the couple filed their lawsuit.
In depositions filed in connection with the case, Paul Duffy testified that forcing him to move his racks away from the more popular newspapers would cut his business by 75%.
Because the papers do not have widespread name recognition, "it is particularly important to these papers that they have the good locations," Cook said.
But Howard dismissed Duffy's contention.
"There is no evidence whatsoever that 75% of his business . . . is going to erode at all," Howard said. "They don't know how much money they make from their news racks, they can't even tell the court which news racks produce the most income. . . . They've never had any study or data indicating that clustering their news racks . . . increases sales."
"There is no evidence that anybody's news rack has caused a problem recently," Cook said.