Chapter 12.36
RIGHT-OF-WAY ENCROACHMENT OF PUBLICATION VENDING MACHINES
Sections:
12.36.030 Machines on roadways prohibited.
12.36.040 Placement permit required.
12.36.050 Placement permit—Application and issuance.
12.36.060 Design, placement and maintenance standards.
12.36.070 Information on machine.
12.36.090 Indemnification and insurance.
12.36.120 No criminal sanctions.
12.36.010 Purpose.
The purpose of this chapter is to establish a comprehensive set of regulations applicable to publication vending machines in the public right-of-way. These regulations do not restrict the rights of freedom of the press or distribution of information but ensure the protection of the public health, safety and aesthetics. Regulating the placement, design, appearance and servicing of publication vending machines is intended to protect against:
(1) The danger of impairing the vision of motorists and pedestrians, particularly small children;
(2) The dangers of unreasonably impeding the flow of pedestrian or vehicular traffic, including ingress into or egress from any place of business, or from the street to the sidewalk by persons exiting or entering parked or standing vehicles;
(3) Poorly designed and constructed publication vending machines which are inadequately secured to the underlying foundation, being knocked down, thrown and windblown onto public streets;
(4) Neglectful servicing of publication vending machines resulting in a visual blight on the city’s parkways and sidewalks and detracting from the aesthetics of adjacent landscaping and other improvements;
(5) Unduly restricting access to the use of poles, posts, traffic signs or signals, hydrants, mail boxes or locations used for public transportation purposes;
(6) To avoid unnecessary exposure of the city to personal injury or property damage claims or suits and to protect the public safety and welfare. (Ord. 781 § 1, 1997)
12.36.020 Definitions.
The following words and phrases shall, for the purpose of this chapter, be defined as follows unless it is clearly apparent from the context that another meaning is intended:
(1) “Applicant” or “permittee” means the publisher or distributor, or custodian, clerk, employee, officer or other person who, as an agent of the publisher or distributor, has applied for (applicant) or been granted (permittee) a placement permit pursuant to the provisions of this chapter.
(2) “Blinder rack” means a device attached to a publication vending machine which shields from view the lower two-thirds of any material contained in the publication vending machine.
(3) “Custodian” means a person who has the responsibility of placing, servicing or maintaining a publication vending machine and/or collecting moneys from the machine.
(4) “Director” means the director of community development or the official exercising the duties of that office as it now exists, or the designee of such official.
(5) “Harmful matter” or “material harmful to minors” means matter, taken as a whole, which, to the average person applying contemporary state-wide 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 a whole, lacks serious literary, artistic, political, educational or scientific value for minors.
(6) “Minor” means any person under eighteen years of age.
(7) “Parkway” means that area between the sidewalk and the curb of any street and, where there is not sidewalk, that area between the edge of the roadway and the property line adjacent thereto. “Parkway” also includes any area within a street which is not a sidewalk and is not open to vehicular traffic.
(8) “Person” means any individual, company, corporation, association, business, firm, partnership or other legal entity.
(9) “Publication vending machine” means any self-service or coin-operated box, container, storage unit or other dispenser installed or used for printed material, including, but not limited to, newspapers, news periodicals, magazines, books, pictures, and photographs.
(10) “Roadway” means that portion of the street generally used for public use for public vehicular traffic.
(11) “Sidewalk” means that portion of the street provided for the exclusive use of pedestrians.
(12) “Street” means all that area dedicated to public use for public travel purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks. (Ord. 781 § 1, 1997)
12.36.030 Machines on roadways prohibited.
No person shall install, use or maintain any publication vending machine which projects onto, into or over any part of the roadway or which rests wholly or in part upon, along or over any portion of the roadway. (Ord. 781 § 1, 1997)
12.36.040 Placement permit required.
(1) No person shall install, use or maintain any publication vending machine on public property in the city without following the procedures set forth in this chapter.
(2) No person shall place or permit the placement of a publication vending machine on any public sidewalk or parkway within the city unless either the publisher or the distributor of the publication, or the person placing the machine upon the sidewalk or parkway, has a placement permit for said machine.
(3) Placement permits shall be issued for the calendar year. The annual fee for the permit shall be established by city council resolution. (Ord. 781 § 1, 1997)
12.36.050 Placement permit—Application and issuance.
(1) All applications for a placement permit shall be submitted to the director.
(2) The applications for the placement permit shall include sufficient information from which the director can readily determine:
(a) The specific location proposed for placement of each publication vending machine;
(b) Whether the design and construction of the publication vending machine(s) satisfy the requirements established in this chapter; and
(c) Whether the method proposed for securing the publication vending machine(s) to the underlying foundation satisfies the requirements established in this chapter.
(3) Upon compliance with the applicable provisions of this section, persons holding a valid placement permit may propose that additional sites for publication vending machines on public sidewalks and parkways within the city be included under the same permit.
(4) The application shall include a document, approved as to form by the city attorney, signed by the applicant, by which the applicant agrees to indemnify and hold harmless the city, its officers, councilmembers and employees from any loss, liability or damage, including expenses and costs for bodily or personal injury and for property damage sustained by any person as a result of the installation, use or maintenance of a publication vending machine within the city.
(5) Within one week after submission of any complete application, the director shall either approve the application and issue the requested permit, or, if the application does not satisfy the requirements of this chapter, shall reject such application and shall inform the applicant in writing of the reasons for such rejection. (Ord. 781 § 1, 1997)
12.36.060 Design, placement and maintenance standards.
A publication vending machine which rests in whole or in part upon, in or over any public sidewalk or parkway shall comply with the following standards:
(1) No person shall install, use or maintain any publication vending machine which in whole or in part rests upon, in or over any sidewalk or parkway, when such installation, use or maintenance endangers the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other government use, or when such publication vending machine interferes with or impedes the flow of pedestrian or vehicular traffic, the ingress into or egress from any 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 permitted at or near said location, or when such publication vending machine interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.
(2) No publication vending machine shall exceed four feet in height, thirty inches in width, or two feet in depth.
(3) No publication vending machine shall be chained, bolted or otherwise attached to any property or to any permanently fixed object not owned by the owner of the publication vending machine unless the consent of the owner of such property or object is obtained in writing and presented with the permit application.
(4) Publication vending machines may be placed and attached to one another; however, no more than three publication vending machines may be joined or placed together in this manner, and a space of no less than eighteen inches shall separate each group of three publication vending machines so attached. All publication vending machines attached as a group must open in the same direction. A maximum of six publication vending machines may be permitted to be located in any one-hundred-foot distance measured along the public right-of-way not separated by a roadway. The director shall be guided solely by the following criteria:
(a) First priority shall be given to publication vending machines used for publications which have been adjudicated to be newspapers of general circulation pursuant to the procedures set forth in the Government Code section for the city of Cerritos;
(b) Second priority shall be given to publication vending machines used for daily publications, those published five or more days in a calendar week, which have not been adjudicated to be newspapers of general circulation for the city of Cerritos;
(c) Third priority shall be given to publication vending machines used for weekly publications, at least one publication published in a calendar week, which have not been adjudicated to be newspapers of general circulation for the city of Cerritos;
(d) Any publication not deemed to fall under the above.
In the event there is a conflict between publications within the same priority seeking the same location and there are insufficient publication vending machine spaces remaining to accommodate them after first filling as many spaces as possible utilizing the criteria above, the director of community development shall assign the space(s) at random by placing names of all applicants for the remaining spaces at the location into a container from which a name shall be drawn, one at a time, until the particular locations remaining have been filled. The drawing shall be open to the public at a time and date designated by the director.
(5) No publication vending machine, or group of attached publication vending machines allowed under subsection (4) of this section, shall weigh, in the aggregate, in excess of one hundred twenty-five pounds when empty.
(6) Every publication vending machine shall be installed on a single pedestal or a multiple post which shall be securely anchored to the ground and shall be constructed, installed and maintained in a safe and secure condition, approved by the director. No further cuts and/or holes shall be made in the public right-of-way, except as necessary to secure publication vending machines.
(7) No publication vending machine shall be placed, installed, used or maintained:
(a) Within fifteen feet of any marked crosswalk.
(b) Within fifteen feet of the curb return of any unmarked crosswalk.
(c) Within ten feet of any fire hydrant, fire call box, police call box or other emergency facility.
(d) Within thirty feet of any driveway.
(e) Within twenty-five feet of any sign marking a designated bus stop.
(f) Within twenty-five feet of any bus bench or bus shelter.
(g) At any location whereby the clear space for the passageway of pedestrians is reduced to four feet or less.
(h) Within five feet of a curb painted blue pursuant to the provisions of California Vehicle Code Section 21458.
(i) Within one foot of the curb.
(j) Within four feet of the curb if the machine opens toward the roadway.
(8) The placement of all publication vending machines in the city shall comply with all local and state handicapped accessibility regulations.
(9) No publication vending machine shall be used for advertising signs or publicity purposes other than reference to the name of the printed material being dispensed.
(10) Each publication vending machine shall be maintained in a clean and neat condition and in good repair at all times.
(11) No publication vending machine shall be abandoned. A publication vending machine shall be deemed to be abandoned when no new publication has been placed in such machine for a period of forty days.
(12) Any person installing or removing or causing the installation or removal of a publication vending machine shall be responsible for the repair of any resulting condition, including, without limitation, the filling in of any holes left in the sidewalk or parkway, such work to be done to the satisfaction of the director at no cost to the city. (Ord. 781 § 1, 1997)
12.36.070 Information on machine.
Every person who places or maintains a publication vending machine in or over any sidewalk or parkway shall permanently affix to each publication vending machine the permittee’s name, address, telephone number and permit number in a place where such information may be easily seen. (Ord. 781 § 1, 1997)
12.36.080 Harmful matter.
Any publication vending machine which contains material harmful to minors shall have a blinder rack attached to the machine. All publication vending machines shall comply fully with the provisions of Section 313.1 of the California Penal Code. (Ord. 781 § 1, 1997)
12.36.090 Indemnification and insurance.
Vending machine owners shall indemnify and hold harmless the city, its officers, officials, employees, agents and volunteers from and against all claims, damages, expenses, costs, including attorneys’ fee, for bodily or personal injury, death or for property damages sustained as a result of the installation, use or maintenance of such publication vending machine. Vending machine owners shall be required to maintain during the permit general liability insurance in an amount not less than two hundred fifty thousand dollars combined for single limit per occurrence for death, bodily injury or property damage. Said policy shall name the city, its officers, officials, employees, agents and volunteers as additional named insured and shall not be canceled or modified unless thirty days’ written notice is provided. (Ord. 781 § 1, 1997)
12.36.100 Removal.
(1) Except as noted in subsections (2) and (3) of this section upon determination by the director that a publication vending machine has been installed, used or maintained in violation of the provisions of this chapter, a notice to correct the offending condition shall be issued to the person identified in Section 12.36.070. Such notice shall be telephoned to said person and confirmed by mailing a copy of the order by certified mail return receipt requested. The notice shall specifically describe the offending condition, suggest actions necessary to correct the condition and inform said person of the right to appeal. Failure to properly correct the offending condition or to appeal the notice within seven days after the mailing date of the notice shall result in the offending publication vending machine being summarily removed and processed as unclaimed property. Appeals shall be processed pursuant to Section 12.36.110. If the offending publication vending machine is not properly identified under the provisions of Section 12.36.070 of this chapter, it shall be removed immediately and processed as unclaimed property. An impound fee, which shall be determined by the city’s cost and expense of impounding, shall be established by city council resolution and assessed against each publication vending machine removed. The director shall cause inspection to be made of the corrected condition or of a publication vending machine reinstalled after removal under this section.
(2) In the case of violation of this chapter relative to restrictions upon attachment of publication vending machines to property or fixed objects other than that owned by the owner of the publication vending machines and restrictions upon location of publication vending machines, the director may, as an alternative to removal, remove such attachment and/or move such publication vending machine in order to restore it to a legal condition; and thereafter the permittee shall be notified of such corrective action and shall pay the cost thereof. No renewal placement permit shall be issued for such publication vending machine until the cost of the corrective action is paid to the city.
(3) Further provided, however, that the director may summarily remove any publication vending machine where its installation, use or maintenance poses a danger to pedestrians or vehicles, creates a health or safety hazard for pedestrians or vehicles, or otherwise unreasonably interferes with the safe use of public streets or sidewalks. After the removal of the publication vending machine, the permittee shall be notified thereof. Upon failure of the permittee, following such notice, to claim the publication vending machine and pay the expenses of removal and storage within thirty days after notice, the publication vending machine shall be deemed unclaimed property in possession of the city and may be disposed of pursuant to law. (Ord. 781 § 1, 1997)
12.36.110 Appeals.
Any person aggrieved by a finding, determination, notice, order or action taken under the provisions of this chapter may appeal and shall be appraised of his/her right to appeal to the property preservation commission. An appeal must be perfected within seven days after the mailing date of notice of any decision or action by filing with the director a letter of appeal briefly stating therein the basis for such appeal. A hearing shall be held on a date not more than forty days after the receipt of the letter of appeal. The appellant shall be given at least five days notice of the time and place of the hearing. The property preservation commission shall give the appellant and any other interested party a reasonable opportunity to be heard in order to show cause why the determination of the director should not be upheld. The property preservation commission shall either grant, deny or modify the director’s order. Correction order by the commission shall be performed within seven days of the decision. The decision of the commission shall be final. This decision shall be immediately appealable to a court of competent jurisdiction. (Ord. 781 § 1, 1997)
12.36.120 No criminal sanctions.
With the exception of California Penal Code Section 313.1, no person shall be subject to the imposition of criminal liability for any violation of this chapter. (Ord. 781 § 1, 1997)