Chapter 5.104
NEWSRACKS
Sections:
5.104.030 Location and installation of newsracks.
5.104.040 Newsrack space permits.
5.104.050 Provision of newsrack spaces.
5.104.060 Unallocated, abandoned or surrendered newsrack spaces.
5.104.070 Abandonment of publication dispensing devices.
5.104.080 Installation, maintenance, and repair of newsracks, spaces and inserts.
5.104.090 Maintenance of publication dispensing devices.
5.104.100 Temporary dislocations.
5.104.140 Correction or impoundment.
5.104.160 Return of impounded publication dispensing devices.
5.104.170 Disposal of impounded publication dispensing devices.
5.104.180 Administrative guidelines.
5.104.010 Applicability.
The provisions of this chapter shall apply to publication dispensing devices, newsracks and newsrack spaces throughout the city of Dublin. (Ord. 2-10 § 3 (part))
5.104.020 Definitions.
When used in this chapter, unless another meaning is clear from the context, the following terms shall have the following meanings:
“Allocation” means an allocation made by the Director under Section 5.104.040.
“Director” means the Director of Public Works of the city of Dublin, or the Director’s designee.
“Install” includes construct, erect, fabricate and affix.
“Newsrack” means a structure owned and installed by the city with spaces in which publications may be inserted.
“Newsrack space” or “space” means an area within a newsrack that is constructed to hold, display and dispense a publication.
“Permit” or “newsrack space permit” means a paid newsrack space allocation or reallocation invoice issued pursuant to this chapter.
“Permit period” means the two (2) year period for which spaces are allocated under Section 5.104.040.
“Permittee” means a person to which or to whom a newsrack permit has been issued pursuant to this chapter.
“Publication” means any written or printed matter, including, but not limited to, daily and/or periodical newspapers, leaflets, magazines, visitor information publications, or other publication that is materially distinct from all other publications for which there is already another permit.
“Publication dispensing device” means any stand, box, rack or other device, other than a newsrack, located in a public right-of-way, used to dispense any publication. For purposes of this definition, a natural person shall not be deemed a device.
“Publisher” means an owner or authorized agent of the owner of a publication. The Director may adopt rules defining the term “owner” or “authorized agent” for purposes of this definition.
“Reallocation” means a reallocation of unallocated, abandoned or surrendered spaces made by the Director. (Ord. 2-10 § 3 (part))
5.104.030 Location and installation of newsracks.
A. Newsracks shall be installed at locations designated by the Director. Unless the Director determines that the locations of the publication dispensing devices existing as of the date of enactment of the ordinance codified in this chapter are problematic based on the considerations listed in subsection C of this section, the newsracks shall be installed in roughly the same locations as the then-existing publication dispensing devices.
B. The newsracks will be installed in two (2) or more phases. In the first phase, the city will replace the publication dispensing devices on Dublin Boulevard with newsracks. In one (1) or more subsequent phase(s), remaining publication dispensing devices in the city will be replaced with newsracks.
C. The design, dimensions, location, materials and orientation of each newsrack shall be determined by the Director and shall be based on sound traffic engineering principles, pedestrian safety factors, traffic safety factors, and compliance with the Americans with Disabilities Act (ADA).
D. Upon notice from the city that a newsrack will replace a publication dispensing device, the owner will have thirty (30) days to remove, at the publisher’s cost, the publication dispensing device. After thirty (30) days, the city will have the right to remove the publication dispensing device and bill the owner for the costs of removal and disposal. (Ord. 2-10 § 3 (part))
5.104.040 Newsrack space permits.
A. Publishers using newsrack spaces shall first have obtained a newsrack space permit permitting such use. Any publisher desiring the use of a newsrack space in a newsrack for purposes of dispensing a publication shall submit an application for a newsrack space permit to the Director. Publishers must submit one (1) application for each publication. Only those publishers submitting completed applications shall be eligible to obtain a newsrack space permit.
The Director shall determine the form of, and provide to interested persons copies of, the newsrack space permit application form.
B. The application for a newsrack space permit shall be submitted by the publisher and shall include the following:
1. The name, mailing address, telephone number and/or cellular telephone number, and, if any, the facsimile number and/or e-mail address of both the owner of the publication and the applicant and the names under which the owner and applicant conduct business, if any.
2. The name, mailing address, telephone number and/or cellular telephone number, and, if any, the facsimile number and/or e-mail address of the individual person or persons who will have supervision of and responsibility for the use and maintenance of the newsrack space.
3. The relationship between the owner of the publication and the applicant and a statement of the applicant’s authority to make the application on behalf of the owner of the publication.
4. The name of the publication for which the space is desired, a statement verifying that the publication exists as of the date of the application, and a copy of the publication for which the permit is desired.
5. Proof of liability insurance, for the term of the permit, with minimum policy limits for personal injury or death and for property damage as is determined appropriate by the Director based on the risk experience under this chapter, naming the city as an additional named insured in the event of personal injury or death or property damage caused by any negligence of the permittee in the maintenance of any newsrack space. For purposes of this subsection, “negligence” also includes reckless, knowing or intentional conduct.
6. Whether a coin-operated mechanism is desired.
7. Such other information as is requested on the form.
C. There shall be a permit fee, set by resolution, for each newsrack space allocated for a publication.
1. No refund of fees shall be made if the publication abandons or surrenders a space.
2. All fees shall be paid before issuance of the permit. When one (1) applicant has submitted applications on behalf of a number of publications, the applicant shall pay the permit fees for all spaces and for all of the publications before a permit may be issued for any of the publications.
3. A permit shall not be issued to an applicant, or for a publication, which fails to pay the applicable permit fee for all spaces allocated to the applicant for the publication. Failure to pay the permit fee will result in the newsrack space being deemed unallocated and available to be allocated to another publisher.
D. The requirement that a copy of the publication be submitted with the application is intended to ensure only that the publication exists at the time of the application; the Director may not deny a permit for any publication based upon its content. No permit shall be issued for a publication that does not exist at the time of the application.
E. The Director shall maintain a record of all newsrack spaces that have been allocated or reallocated, the permittees to which the spaces have been allocated or reallocated, and the publication permitted to be dispensed from the spaces.
F. Each newsrack space permit will allow the distribution of one publication in a specific newsrack location.
G. Permits are not transferable.
H. Permits issued under this section shall expire on December 31st of each odd-numbered year. (Ord. 2-10 § 3 (part))
5.104.050 Provision of newsrack spaces.
A. When the city replaces the publication dispensing devices on Dublin Boulevard with newsracks, the Director will make one (1) newsrack space available for each publication a publisher is distributing from a publication dispensing device on Dublin Boulevard as of the effective date of the ordinance codified in this chapter, as long as that publisher submits a completed application within sixty (60) days of the effective date of the ordinance codified in this chapter and complies with all the provisions of this chapter. The newsrack space provided will be in the same general location as the current publication.
B. When publication dispensing devices are replaced in other parts of the city, the Director will make one (1) newsrack space available for each publication a publisher is distributing from a publication dispensing device as of the date the city purchases the newsracks. The newsrack space provided will be in the same general location as the current publication.
C. The city will consider requests for additional newsracks in locations where all the existing spaces are full and one (1) or more publishers wishes to distribute publications in that location.
D. If, for ADA compliance, safety, aesthetic or financial reasons, the city cannot continue to install additional newsracks to accommodate all publishers wishing to distribute publications in a single location, and no publisher is willing to move to a different location where newsrack space is available, then the city shall implement a first-come, first-served system. Additional rules and procedures related to implementing the system may be adopted pursuant to Section 5.104.180. (Ord. 2-10 § 3 (part))
5.104.060 Unallocated, abandoned or surrendered newsrack spaces.
A. The Director may make an initial determination that a newsrack space has been abandoned or surrendered when the newsrack space has been empty for sixty (60) days or longer or the publication for which the permit was issued has ceased publication.
B. When the Director makes an initial determination that a newsrack space has been abandoned or surrendered, the affected permittee shall be notified of the Director’s initial determination in accordance with Section 5.104.140(C).
C. The permittee shall have an opportunity to contest the initial determination by filing a request for a hearing in accordance with the procedures described in Section 5.104.150.
D. Upon a final determination that the newsrack space is abandoned, any permit purporting to be a permit for the space or spaces finally determined to be surrendered or abandoned shall be void as to the space or spaces so determined, and the holder of the voided permit shall no longer be deemed a permittee as to the space or spaces so determined.
E. A permittee may surrender a newsrack space prior to expiration of the permit for the space when the permittee no longer wishes to dispense the publication through the space.
F. Any person desiring to use a newsrack space that is unallocated, or that has become available through abandonment or surrender, may apply for the reallocation of such newsrack spaces.
G. The Director shall maintain a record of unallocated, abandoned and surrendered spaces. Unallocated, abandoned or surrendered spaces shall be reallocated by a first-come, first-served system.
H. No person, including the person to whom a newsrack space has been allocated or reallocated, may place any publication in the space if the space has been finally determined to have been abandoned or surrendered, until such time as the space has been reallocated, after which the permittee under the reallocation may insert its publication in the space. (Ord. 2-10 § 3 (part))
5.104.070 Abandonment of publication dispensing devices.
Publication dispensing devices remaining empty for sixty (60) days or not claimed within thirty (30) days of seizure shall be deemed abandoned. An abandoned publication dispensing device may be removed by the Director or his or her designee and may be disposed of if it is not claimed by the responsible party within thirty (30) days. (Ord. 2-10 § 3 (part))
5.104.080 Installation, maintenance, and repair of newsracks, spaces and inserts.
A. It shall be the responsibility of the city to install, maintain and repair the city-owned newsracks, except for any coin-operated mechanisms on the newsracks, either directly, by contract with a private contractor or through a special improvement district.
B. It shall be the responsibility of the permittee to maintain any newsrack space, and any coin-operated mechanism, for which it holds a permit, in good working order. Any cost to maintain the space or the coin-operated mechanism shall be borne by the permittee. (Ord. 2-10 § 3 (part))
5.104.090 Maintenance of publication dispensing devices.
Publication dispensing devices already existing as of December 1, 2009, may be entirely removed, but may not be moved or modified and shall continue to be maintained in a neat and clean condition until they are replaced by a city-owned newsrack. (Ord. 2-10 § 3 (part))
5.104.100 Temporary dislocations.
A. The Director may direct a permittee to temporarily remove copies of the permitted publication from a newsrack during any public, private or utility construction work, conducted on the public sidewalk, the abutting roadway, an adjacent building or structure or to any utility, when the Director determines that the removal is necessary to facilitate such work.
B. The Director may direct a permittee to remove copies of the permitted publication from a newsrack during any installation or repair work on the newsrack.
C. In the event such direction is given, the Director shall specify a reasonable date by which the publications shall be removed. If the publications are not removed by that date, the Director may have them removed. (Ord. 2-10 § 3 (part))
5.104.110 Prohibitions.
A. The following prohibitions shall apply to publication dispensing devices:
1. Except for publication dispensing devices already installed as of December 1, 2009, there shall be no publication dispensing device allowed, and no person may install or direct another person to install any publication dispensing device, on any sidewalk within the city.
2. Any publication dispensing device installed in violation of this chapter shall be subject to removal by, and forfeiture to, the Director if not removed within five (5) days of demand for removal thereof by the Director. The publication dispensing device will not be returned to the owner thereof unless and until the city’s reasonable cost of removal and storage has been paid to the city.
3. The Director or a person designated by the Director shall be responsible for the removal and forfeiture of the publication dispensing device.
4. No person may offer for sale in any publication dispensing device any harmful matter, as defined in Penal Code Section 313, in a manner that violates Penal Code Section 313.1(c)(2). In addition, no person may display a publication containing harmful matter on the cover unless such publication is covered by a device commonly known as a blinder rack, so that the lower two-thirds (2/3) of the publication is not exposed to view.
B. The following prohibitions shall apply to newsracks and newsrack spaces:
1. No person may move, remove, destroy, deface or detach any newsrack unless directed to do so by the Director.
2. No advertising, signage or lettering of any kind shall appear on the exterior of, or be otherwise visible from the exterior of, any newsrack or any space within a newsrack. For the purposes of this section, the display of a copy of the publication being dispensed, the designation assigned to a space by the Director, and/or instructions on the dispensing of the publication from the newsrack insert shall not be deemed advertising, signage or lettering.
3. No publication may be inserted within a space in a newsrack, except pursuant to a current and valid permit issued under this chapter. Any publication so inserted without a current and valid permit shall be subject to removal by and forfeiture to the Director.
4. No person may place any trash, rubbish, or, without the approval of the Director, any other material, other than copies of the permitted publication, in a space in a newsrack.
5. No person may move, remove or deface any publication that has been inserted into a newsrack space under a current and valid permit without authorization of the permittee or the city.
6. No person may offer for sale in any newsrack any harmful matter, as defined in Penal Code Section 313, in a manner that violates Penal Code Section 313.1(c)(2). In addition, no person may display a publication containing harmful matter on the cover unless such publication is covered by a device commonly known as a blinder rack, so that the lower two-thirds (2/3) of the publication is not exposed to view. (Ord. 2-10 § 3 (part))
5.104.120 Enforcement.
The Director and any person or agency designated by the Director may enforce and administer the provisions of this chapter. (Ord. 2-10 § 3 (part))
5.104.130 Penalty.
Any person violating any provision of Section 5.104.110, any other provision of this chapter, or any rule adopted pursuant to Section 5.104.180 shall be fined not less than one hundred dollars ($100) and not more than five hundred dollars ($500) for each violation. In addition, a permittee violating any provision of Section 5.104.110, any other provision of this chapter, or any rule adopted under Section 5.104.180 may have the permit suspended or revoked, may have some or all of the spaces allocated or reallocated to the permittee deemed abandoned or surrendered, or may be precluded for a time from the allocation or reallocation of newsrack spaces under this chapter. (Ord. 2-10 § 3 (part))
5.104.140 Correction or impoundment.
In addition to the penalties described in Section 5.104.130, the Director may:
A. Immediately correct any violation of Section 5.104.110 if such correction can be accomplished simply, easily, quickly and without substantial public expense;
B. Immediately remove and impound any publication dispensing device in violation of this chapter if the violation is creating a dangerous or hazardous condition which cannot be corrected under subsection A of this section. Notice of such action and the right to request a hearing shall be mailed to the owner within two (2) working days after such action;
C. Notify the owner maintaining a publication dispensing device or the publisher using a newsrack space found in violation of this chapter, by mail, that unless the violation is corrected or a hearing requested, within seven (7) working days of the date of the notice, that the publication dispensing device will be impounded, the publications will be seized, or the newsrack space permit will be revoked. If no identification is shown on the publication dispensing device or newsrack space and no permit has been obtained, posting of the notice on the publication dispensing device or the newsrack space alone shall be sufficient; or
D. Impound any publication dispensing device in accordance with the decision of any hearing requested pursuant to this chapter. (Ord. 2-10 § 3 (part))
5.104.150 Hearings.
A. Any owner aggrieved by a decision under Section 5.104.140 may request a hearing before the City Manager at any time within seven (7) working days of the date of notice under Section 5.104.140(B) or (C).
B. A hearing shall be held, within seven (7) working days of the request for a hearing. At the hearing, any person may present evidence or argument as to whether the publication dispensing device should not be impounded or should be returned without payment of an impound fee.
C. The City Manager shall render a written decision within five (5) working days after the close of the hearing. The decision of the City Manager shall be final. Failure to render the decision within five (5) working days shall not affect the validity of such decision. (Ord. 2-10 § 3 (part))
5.104.160 Return of impounded publication dispensing devices.
The owner may, at any time up to and including the thirtieth day after the impounding, and if a hearing is held concerning the publication dispensing device at any time up to and including the thirtieth day after the written decision, obtain a return of the publication dispensing device and its contents, upon paying an impound fee of ninety dollars ($90) plus the reasonable additional cost, if any, of impounding the publication dispensing device in excess of ninety dollars ($90), unless such fee is waived. (Ord. 2-10 § 3 (part))
5.104.170 Disposal of impounded publication dispensing devices.
If a hearing on the impounding of the publication dispensing device is not timely requested or if the publication dispensing device is not returned in accordance with the provisions of this chapter within thirty (30) days, the Director may sell or otherwise dispose of the publication dispensing device, and its contents, and deposit the proceeds, if any, from any such sale or other disposition, and any moneys contained in said publication dispensing device, in the city’s general fund. (Ord. 2-10 § 3 (part))
5.104.180 Administrative guidelines.
The Director may adopt administrative guidelines for the interpretation, implementation, administration and enforcement of this chapter. (Ord. 2-10 § 3 (part))