Chapter 12.52
NEWSRACKS
Sections:
12.52.050 Special requirements for newsracks in the Downtown Mixed Use Master Plan area.
12.52.060 Removal of newsracks.
12.52.070 Amendment to permit.
12.52.110 Newsracks on private property.
12.52.010 Intent and purpose.
A. The city council finds that this chapter implements provisions of the general plan and the Downtown Mixed Use Master Plan including:
1. General Plan Program 2.12.J “Maintain public parks, streets, and sidewalks located Downtown in a clean and safe condition”;
2. General Plan Goal 2.14 “Enhance Benicia’s small-town atmosphere of pedestrian-friendly streets and neighborhoods”;
3. General Plan Goal 3.1 “Maintain and enhance Benicia’s historic character”; and
4. The Downtown Mixed Use Master Plan concludes that First Street’s relatively narrow cross-section does not allow for generous sidewalk areas that might encourage strolling and outdoor seating (pages 2 – 5).
B. The city council of the city of Benicia hereby finds that newsracks, containers and similar newspaper and vending devices have proliferated and increased in certain areas of the city of Benicia to the extent that in some instances they constitute a threat to public health, safety and welfare by impeding pedestrian traffic and interfering with ingress and egress to and from buildings and vehicles.
C. The city of Benicia finds the Downtown Mixed Use Master Plan area including First Street is a historic area and is a popular tourist destination with high pedestrian and vehicular traffic volumes. The proliferation of newsracks along First Street interferes unduly with pedestrian and traffic circulation and creates a safety hazard. Due to unique problems in the Downtown Mixed Use Master Plan area, including the historic lack of sidewalks, it is necessary to specifically limit the number of locations and spaces for newsracks.
D. The purpose of this chapter is to promote the public health, safety, and welfare through the regulation of placement, appearance, number, size and servicing of newsracks on the public rights-of-way so as to:
1. Provide for pedestrian and driving safety and convenience;
2. Provide no unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into, or egress from, any residence or place of business, or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles;
3. Provide reasonable access for the use and maintenance of sidewalks, poles, posts, traffic signs or signals, hydrants, mailboxes, and access to locations used for public transportation services;
4. Reduce visual blight on the public rights-of-way, and protect the aesthetics of store window displays, public landscaping and other improvements;
5. Maintain and protect the value of surrounding properties;
6. Reduce exposure to the city from personal injury or property damage claims and litigation; and
7. Protect the right to distribute information protected by state and federal constitutions through the use of newsracks.
E. It is not the intent of this chapter to in any way discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any newspapers. (Ord. 08-06 § 1).
12.52.020 Definitions.
“Director” shall mean the director of public works or his or her designee.
“Journal” shall mean a periodical that contains articles written by authors who are experts in a specific field. A journal article is peer reviewed by other experts in the field to assure that the research is reliable and of high quality.
“Magazine” shall mean a periodical that contains articles of broad interest intended for the general public or a particular interest group. A magazine article is usually written by reporters or journalists and does not provide extensive technical depth or scientific detail that a journal article would have.
“Newspaper” shall mean a periodical that is published on a frequent basis such as daily or weekly and contains news stories, feature articles, opinion pieces, and advertisements of interest to the general public.
“Newsracks” shall mean any type of self-service or coin-operated box, container, storage unit or other dispenser placed upon any public right-of-way for the vending or free distribution of newspapers and other periodicals or other printed material.
“Periodicals” shall mean anything that is published on a regular and continual basis. Periodicals include journals, magazines, and newspapers.
“Public right-of-way” shall mean any public property such as public streets, highways, roadways, sidewalks, parkways or alleys, used or intended for use by the traveling public, whether vehicular or pedestrian, located within the city of Benicia. (Ord. 08-06 § 1).
12.52.030 Newsrack permits.
A. Permit Required. An encroachment permit issued in accordance with this chapter and Chapter 12.12 BMC shall be required prior to the installation, placement or maintenance of any newsrack, which in whole or in part rests upon, in or over any public right-of-way.
B. Existing Newsracks. Owners of newsracks in place as of July 25, 2008, shall have 60 days after the effective date of the ordinance codified in this chapter to apply for a permit. They shall have priority to retain their current location; provided, that the owner of the rack has applied for a permit in the 60-day period and has complied with the provisions of this chapter. If sufficient space does not exist to accommodate all newsracks sought to be placed at one location without violating the standards set forth in this chapter, and the permit holders are unable to agree among themselves regarding the allocation of spaces, the director of public works shall give priority as follows:
1. First priority shall be publications that are published two or more times a week;
2. Second priority shall be given to publications that are published once per week;
3. Third priority shall be given to publications that are published less than once per week but more than once per month;
4. Fourth priority shall be given to publications that are published monthly or less frequently than monthly;
5. In the event that the above system of prioritization fails to resolve a conflict between two or more publications that are published at the same frequency, historical presence at the location will be the determining factor.
In the event the director of public works is required to utilize the priority system described in subsections (B)(1) through (5) of this section, he or she shall permit only one rack per publication in a single location; provided, that the Sunday edition of a daily publication shall be considered as a separate publication and shall be in the second category.
C. Application. A written application for a newsrack permit shall be filed with the department of public works, and shall contain the following information:
1. The name, street and mailing address, and telephone number of the applicant, which shall be the duly-authorized representative of both the publisher and, if applicable, any independent distributor authorized to service the publisher’s newsrack for which the permit is sought;
2. The name, street and mailing address, and telephone number of the distributor, or other responsible person, whom the city may notify or contact at any time concerning the applicant’s newsrack(s);
3. The number of proposed newsracks and a description of the exact proposed location (including a map or site plan, drawn to scale, with adequate locational information to verify conformance with this chapter) and the proposed means of affixing each proposed newsrack;
4. A description of each proposed newsrack, including its model, dimensions, color, the number of publication spaces it will contain, and whether it contains a coin-operated mechanism;
5. The name and frequency of each publication proposed to be contained in each newsrack;
6. A statement signed by the applicant that the applicant agrees to indemnify, defend and hold harmless the city and its representatives from all claims, damages, demands, loss, fines or liability to the extent arising out of or in connection with the installation, use or maintenance of any newsrack on public property by or on behalf of any such person, except such injury or harm as may be caused solely and exclusively by the negligence of the city or its authorized representatives; and
7. A statement signed by the applicant that the applicant agrees, upon removal of a newsrack, to repair any damage to the public property caused by the newsrack or its removal.
D. Fee. Each application for a newsrack permit shall be accompanied by an application fee as established by resolution of the city council.
E. Issuance and Denial. The director of public works shall issue a newsrack permit within 10 days of the submittal of a complete application and upon a finding the applicant is in compliance with the provisions of this chapter. An application for a newsrack permit shall not be approved if:
1. The proposed newsrack projects onto, into or over any part of the roadway or public street, or which rests, wholly or in part, upon, along or over any portion of the roadway or public street;
2. The proposed newsrack is to be installed, in whole or in part, in or over any sidewalk or parkway; and
a. The newsrack, in its proposed location, would endanger the safety of persons or property; or
b. The proposed location is used for public utility purposes, public transportation purposes or other public use; or
c. The proposed newsrack would unreasonably interfere with or impede the flow of pedestrian or vehicular traffic, 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 present at or near said location; or
d. The proposed newsrack would interfere with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.
If a permit is denied, the applicant shall be notified in writing of the specific cause of such denial by the director of public works and the right to appeal in accordance with Chapter 1.44 BMC. (Ord. 08-06 § 1).
12.52.040 Requirements.
Any newsrack which, in whole or in part, rests upon, in or over any sidewalk shall substantially comply with the following:
A. Newsracks located near a curb shall be placed not less than 24 inches from the edge of the curb. Newsracks placed adjacent to the rear of the sidewalk shall be placed parallel to any walls and/or fences and at least six inches from the wall and/or fences.
B. Newsracks shall not be chained, bolted or otherwise attached to any public property without prior approval of the director of public works and to any private property without the consent of the property owner.
C. Newsracks may be attached to one another. Each group of attached newsracks (six maximum) shall be separated by 24 inches or more. The director of public works shall review and approve the number and orientation of newsracks that can be bolted, attached or grouped on a location-by-location basis.
D. Newsracks shall not be placed, installed, used or maintained:
1. Within three feet of any marked crosswalk;
2. Within 15 feet of the curb return of any unmarked crosswalk;
3. Within 15 feet of any fire hydrant, fire call box, police call box or other emergency facility;
4. Within three feet of any driveway;
5. Within 42 inches ahead of and 15 feet to the rear of any sign marking a designated bus stop, measured parallel to the flow of traffic;
6. Within 42 inches of any bench or other seating area;
7. Within the intersection or driveway visibility area, if the newsrack is higher than three feet tall;
8. At any location whereby the clear space for the passageway of pedestrians is reduced to less than 42 inches;
9. Within 100 feet of another newsrack containing the same newspaper or news periodical except where separated by a street or corner, or except where (a) a newspaper demonstrates that there is insufficient room in one machine for the newspapers which may be sold in one day, or (b) where a newspaper demonstrates that it publishes more than one edition of the newspaper for sale at the same time;
10. Facing another newsrack, divided only by the width of a public sidewalk; and
11. Where the newsrack will interfere with a preexisting use of the adjacent property.
E. No advertising shall be affixed to the newsracks, except:
1. The name of the newspaper or periodical being dispensed; and
2. Advertising rack cards contained in card pans which are attached to and located on the front of the newsrack and do not exceed 15 inches in height and 22 inches in length. The rack cards shall be limited to the display, sale or purchase of the newspaper or periodical being dispensed.
F. Newsracks shall be kept clean and maintained in good working order at all times, freshly painted, and without stickers or graffiti.
G. Newsracks shall not be bolted to the sidewalk unless prior approval has been obtained from the director of public works.
H. No person, association, firm or corporation shall place, locate or maintain a newsrack on the public right-of-way unless there is on file with the director of public works, in full force and effect at all times, a document issued by an insurance company authorized to do business in the state of California evidencing that the permittee or owner is insured under a liability insurance policy providing minimum coverage of $500,000 for injury or death to one person arising out of the location, placement or operation of the newsrack on the public right-of-way. (Ord. 08-06 § 1).
12.52.050 Special requirements for newsracks in the Downtown Mixed Use Master Plan area.
In addition to all other applicable provisions of this chapter, the following rules shall apply to newsracks in the Downtown Mixed Use Master Plan area:
A. No more than 35 newsracks are permitted in the area.
B. Newsracks shall be located so that they are not located in front of or within 25 feet of the side of any building designated by the city as a historical resource as measured from the front entrance of the building.
C. Each location shall accommodate no more than four newsrack spaces and at no point shall exceed four per each side of a street block.
D. In the event that the newsracks proposed to be placed at any one location violate the provisions of BMC 12.52.040(D) or subsections (A) or (B) of this section, priority shall be given as follows:
1. Within 90 days after the adoption of the ordinance codified in this chapter:
a. First priority shall be given to newsracks used for the sale of daily publications (those published on five or more days in a calendar week) of general circulation in Solano County that otherwise comply with the provisions of this chapter.
b. Second priority shall be given to newsracks used for sale of weekly publications (those published on at least one day, but less than five days in a calendar week) of general circulation in Solano County that otherwise comply with the provisions of this chapter.
c. Third priority shall be given to newsracks used for sale of daily publications (those published on five or more days in a calendar week) not of general circulation in Solano County that otherwise comply with the provisions of this chapter.
d. Fourth priority shall be given to newsracks used for the sale of weekly publications (those published on at least one day, but less than five days in a calendar week) not of general circulation in Solano County that otherwise comply with the provisions of this chapter.
e. Fifth priority shall be given to all other newsracks on the basis of first-come, first-served.
In the event that an applicant disagrees with the city's priority category for such publication, it shall have the right to appeal in accordance with Chapter 1.44 BMC.
2. Commencing 90 days after the adoption date of the ordinance codified in this chapter, priority shall be given on a first-come, first-served basis. (Ord. 08-06 § 1).
12.52.060 Removal of newsracks.
A. Commencing 90 days after the adoption date of the ordinance codified in this chapter, any newsrack in violation of any provision of this chapter will be deemed nonconforming.
B. In the event that the director of public works determines that a newsrack does not comply with the provisions of this chapter, he or she shall provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the director of public works to remove the nonconforming newsrack in the event a hearing is not requested, and the right of the permittee to request a hearing, before the director of public works, within 15 days from the date of the notice. If the newsrack is one which has not been authorized by the director of public works and ownership is not known, nor apparent after inspection, a notice complying with this section shall be affixed to the newsrack.
C. In the event that a hearing is held pursuant to this section, the director of public works shall render a decision, in writing, within 10 days from the date of the hearing, and the decision shall advise the permittee or owner of his or her right to appeal pursuant to the provisions of Chapter 1.44 BMC. Notice of the decision shall be mailed to the permittee or owner and shall be considered effective on the date mailed; provided, that the notice is properly addressed and placed in the U.S. mail with first-class postage prepaid.
D. The director of public works may take possession of a newsrack and, upon the expiration of 30 days, dispose of the newsrack as required by law, if:
1. No hearing is requested by the permittee or owner within 15 days as provided in subsection (B) of this section; or
2. The appeal period specified in Chapter 1.44 BMC has expired.
E. The director of public works shall inspect any newsrack reinstalled after removal pursuant to this chapter. The permittee of the newsrack shall be charged a fee for this reinspection as established by resolution of city council.
F. In the event that any newsrack is abandoned, the director of public works may remove it pursuant to the procedures set out in this section. For the purposes of this section, the term “abandonment” shall mean:
1. The condition of the rack and related circumstances indicate it will not be actively used within a reasonable period of time;
2. No prior written notice has been given by the permittee to the director of public works specifying the reason(s) for nonuse; and
3. No publication has been displayed in the newsrack for a period of 15 consecutive days or the same publication has been displayed for more than 35 days. (Ord. 08-06 § 1).
12.52.070 Amendment to permit.
In the event of a change in any of the information contained in the application, the permittee shall submit such change in writing to the director of public works. A permittee may install and maintain additional newsracks by an amendment to the permit. The rules and procedures of this section shall also apply to the review and approval of any such amendment. (Ord. 08-06 § 1).
12.52.080 Waiting list.
After the original assignment of spaces within the Downtown Mixed Use Master Plan area, if application is made to place a newsrack at a location where no space is available, the director of public works shall place the applications on a waiting list. In the event that a space becomes available, the director of public works will determine which applicant shall receive a space according to the priority described in BMC 12.52.050. (Ord. 08-06 § 1).
12.52.090 Renewal of permits.
At the expiration of each three-year permitting period, a valid permit holder shall be entitled to keep its previously assigned space(s), as long as the permittee files a timely application for renewal according to procedures developed by the director of public works and, if the application is properly completed, the newsrack meets the standards set forth in this chapter and has not caused a public nuisance from litter or graffiti. Remaining available spaces shall be allocated according to the priority described in BMC 12.52.030 and 12.52.050. (Ord. 08-06 § 1).
12.52.100 Appeals.
Any permittee or owner who is aggrieved by any decision of the director of public works may appeal the decision in accordance with the provisions of Chapter 1.44 BMC. (Ord. 08-06 § 1).
12.52.110 Newsracks on private property.
Newsracks on private property that are within 10 feet of, and visible from, the public right-of-way shall comply with the design and spacing requirements of this chapter. (Ord. 08-06 § 1).