Chapter 13.28
NEWSRACKS1
Sections:
13.28.050 Standards for maintenance and display of newsracks.
13.28.060 Size and design standards.
13.28.070 Standards for placement and location of newsracks.
13.28.080 Blinder racks required.
13.28.090 Violation – Enforcement.
13.28.110 Removal and hearing.
13.28.120 Abandoned newsracks.
13.28.010 Purpose.
The purpose and scope of the regulations in this chapter are as follows:
(1) The provisions of this chapter shall apply to all newsracks located within the city of Menlo Park; provided, that certain provisions, as specified, shall apply only to newsracks located on public property.
(2) It is in the public interest to establish regulations that balance the right to distribute information through newsracks with the right of persons to reasonably access and use public property.
(3) The public health, safety, welfare and convenience require that interference with vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight distance and views of traffic signs and street-crossing pedestrians be eliminated; damage done to sidewalks or streets be minimized and repaired; the good appearance of public property be maintained; trees and other landscaping be allowed to grow without disturbance; access to emergency and other public facilities be maintained; and ingress and egress from, and the enjoyment of store window displays on properties adjoining public property be protected.
(4) Newsracks placed and maintained on public and private property, absent some reasonable regulation, may unreasonably interfere with the use of such property, and may present hazards to persons or property.
(5) The regulations on the time, place and manner of the placement, location and maintenance of newsracks set forth in this chapter are carefully tailored to ensure that the purposes stated in this section are implemented while still providing ample opportunities for the distribution of news and other information to the public. (Ord. 1065 § 2 (part), 2020).
13.28.020 Definitions.
For the purposes of this chapter, the following words and phrases are defined and shall be given the meaning set out in this section unless it is apparent from the context that a different meaning is intended:
(1) “Abandoned newsrack” means any newsrack which remains empty or contains only outdated issues for fourteen (14) consecutive days; provided, that a newsrack remaining empty due to labor strike or any temporary and extraordinary interruption of distribution or publication by the newspaper or other publication sold or distributed from that newsrack shall not be deemed abandoned.
(2) “Harmful matter” means and is defined as in California Penal Code Section 313, as such section may from time to time be amended.
(3) “Newsrack” means any self-service or coin-operated box, container, storage unit, or other dispenser installed, used or maintained for the display and sale or distribution of newspapers, periodicals or other publications.
(4) “Person” means any individual, partnership, firm, association, corporation, limited liability company, or other legal entity.
(5) “Public place(s)” means and includes any public property owned or controlled by the city of Menlo Park or any other public agency, or any outdoor private property which is open to the public.
(6) “Public property” means any public right-of-way or any property owned or controlled by the city of Menlo Park, including, without limitation, streets, sidewalks, alleys, plazas, and rights-of-way. (Ord. 1065 § 2 (part), 2020).
13.28.030 Permit required.
It is unlawful to install, place, maintain or cause to be placed, installed or maintained a newsrack on, or projecting on or over, any public property without first receiving a permit from the city of Menlo Park public works director or its designee, and unless such newsrack is in compliance with the provisions of this chapter; provided, that a newsrack located on public property as of the effective date of this chapter may continue to remain in such location for one hundred twenty (120) days following such effective date, under the following conditions:
(1) The newsrack is in compliance with the requirements for the installation and maintenance of newsracks contained in this chapter; and
(2) A permit application for such newsrack has been filed as of that date with the city of Menlo Park public works director or its designee by the duly authorized representative of both the publisher and, if applicable, any independent distributor authorized to service the publisher’s newsrack; and
(3) A permit pursuant to such application has not been denied with respect to any such newsrack.
If no permit application has been filed by that date by the duly authorized representative of both the publisher and, if applicable, any independent distributor authorized to service the publisher’s newsrack, or such permit is denied, such newsrack shall be deemed to be in violation of the provisions of this chapter. Initial permits shall be valid until June 30, 2022. Thereafter, permits shall be valid for up to two (2) years, expiring on June 30th of each odd-numbered year.
Newsracks on private property do not require a newsrack permit, but do require design review approval by the city of Menlo Park community development department if they do not conform to the size, design, and maintenance standards in this chapter. Existing newsracks on private property shall constitute a nonconforming use to the extent they do not conform to the design standards set forth in this chapter. (Ord. 1065 § 2 (part), 2020).
13.28.040 Obtaining a permit.
(a) Exclusive Requirements. The provisions of this chapter shall be the exclusive requirements for newsracks located on or encroaching onto public property in the city of Menlo Park.
(b) Application. Application for a newsrack permit for each location sought shall be submitted to the city of Menlo Park public works director or its designee on a form prescribed by the city of Menlo Park, which shall include, without limitation:
(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 of Menlo Park may notify or contact at any time concerning the applicant’s newsrack(s);
(3) 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 the proposed newsrack;
(4) A description of the proposed newsrack, including its dimensions, the number of publication spaces it will contain, and whether it contains a coin-operated mechanism;
(5) The name and frequency of publication of each publication proposed to be contained in the newsrack;
(6) A statement signed by the applicant that the applicant agrees to indemnify, defend and hold harmless the city of Menlo Park and its representatives from all claims, 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 of Menlo Park or its authorized agents or representatives;
(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; and
(8) Each applicant shall submit along with the permit application a fee as set forth in the city of Menlo Park’s master fee schedule. Additionally each applicant shall submit an insurance certificate naming the city of Menlo Park as an additional insured under the same terms as required for a public works encroachment permit.
(c) Issuance of Permit. A permit shall be issued within thirty (30) days from the date of filing the application with the city of Menlo Park public works director or its designee if the application is properly completed and the type of newsrack and location proposed for each newsrack meet the standards set forth in this chapter. A single permit shall be issued for each newsrack location applied for by an applicant which meets the standards of this chapter. Each permit holder shall maintain an active city of Menlo Park business license throughout the term of the permit. An applicant may submit more than one (1) application, in order to apply for additional locations. Each application shall be accompanied by the applicable fee. A permit shall not be transferable without written authorization of the city of Menlo Park public works director or its designee.
(d) Period of Permit Validity. Permits shall remain valid if reregistered with the city of Menlo Park prior to expiration, on a form provided by the city of Menlo Park. Failing to reregister or explicit cancellation by a permit holder will void the permit and it will be ineffective thereafter. Unregistered newsracks may be treated as abandoned under Section 13.28.120 or other applicable enforcement mechanism.
(e) Issuance of Permit Sticker. Each permittee shall be issued a preprinted sticker for each permitted newsrack, which shall be affixed to the lower right corner of the front of each permitted newsrack. Failure to have a permit sticker affixed to a newsrack will be treated as abandoned under Section 13.28.120.
(f) Denial of Permit. If a newsrack permit is disapproved, in whole or in part, the city of Menlo Park public works director or its designee shall notify the applicant within thirty (30) days from the date of filing a complete application with the city of Menlo Park, explaining the reason(s) for the denial of the permit. The applicant shall have ten (10) days within which to appeal the decision to the city manager in accordance with the appeal provisions set forth in subsection (g) of this section.
(g) Appeal of Permit Denial. Any appeal shall be timely submitted to the city clerk, with the appeal made in writing and delivered to the city clerk by hand delivery or by certified mail, return receipt requested, or other reputable courier service, and shall be deemed given (1) when received if by hand delivery or (2) three (3) business days after being postmarked and addressed to the city clerk. After receiving the notice of appeal, the city manager or the designee of the city manager shall conduct a hearing within sixty (60) days of the receipt of the applicant’s appeal, unless otherwise agreed to by the applicant. Written notice of the time and place of the hearing shall be given to the applicant, and shall be posted in the official posting locations of the city of Menlo Park. The hearing shall be informal, but oral and written evidence may be given by both sides. The city manager or designee shall render a written decision within twenty (20) days after the date of the hearing. The decision of the city manager shall be final.
(h) 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 city of Menlo Park public works director or its designee. A permittee may install and maintain additional newsracks at the same location 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. 1065 § 2 (part), 2020).
13.28.050 Standards for maintenance and display of newsracks.
(a) Every person placing or maintaining a newsrack on public property shall comply with the following requirements:
(1) Every newsrack shall be maintained in a neat and clean condition, and in good repair at all times. For example, without limitation, every newsrack shall be reasonably free of dirt and grease, be reasonably free of chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, have no broken or cracked plastic or glass parts, and have no broken structural parts. No signs, advertising, stickers or adhesive labels, other than city of Menlo Park issued identification/approval labels, unrelated to publications in the newsracks shall be displayed on newsracks.
(2) Every newsrack shall be constructed, installed and maintained in a safe and secure condition.
(3) Every newsrack shall be made of solid material on all sides, so as to contain the material inside the newsrack in a manner as to prevent it from blowing away or otherwise becoming litter. No wire or other open form of newsrack shall be permitted.
(4) Every newsrack shall be kept free of graffiti.
(5) Every newsrack that sits on legs shall be kept free of dirt and litter under the newsrack.
(6) Every newsrack shall be painted or covered with a protective coating, so as to keep it free from rust, and shall be cleaned and repainted on a regular basis.
(7) Every coin-operated newsrack shall be equipped with a coin-return device that is maintained in good repair and working order.
(8) Every coin-operated newsrack shall display information on how to secure a refund in the event of coin return malfunction. Such information shall be placed in a visible location on the front or top of the newsrack, and shall be legible.
(9) Other than the display of the publication contained therein, no newsrack shall display or be affixed with any words or pictures except for the identifying information, and the coin return information, if applicable.
(10) Old or out-of-date material removed from any newsrack by any person who owns, maintains, or stocks the newsrack shall be recycled or disposed of in a lawful manner and not in any city of Menlo Park owned trash receptacle. Such material shall not be disposed of in any trash receptacle owned or rented by others, without the express written consent of the owner or renter of such receptacle. Such material shall be disposed of in a manner that does not cause the material to become litter.
(11) Upon the removal of a newsrack, the public right-of-way shall be returned to its original condition, with any damage to public property to be repaired to city specifications by the permit holder.
(b) Every newsrack located in a public place and/or on public property shall be affixed with identifying information, which shall contain the name, address and telephone number of the newsrack owner and of the distributor of the publication(s) contained therein. Such information shall be placed in a visible location on the front or top of the newsrack, and shall be legible. The size of the identifying information shall be no larger than three (3) inches by five (5) inches. (Ord. 1065 § 2 (part), 2020).
13.28.060 Size and design standards.
No newsrack shall be placed, installed or maintained on any public property except in compliance with the following standards:
(1) No newsrack shall be more than fifty-four (54) inches high (including the pedestal in the case of modular newsracks) measured from the ground to the top surface of the newsrack, nor more than twenty-six (26) inches deep, nor more than twenty-six (26) inches wide.
(2) The highest operable part of the coin slot, if provided, and all controls, dispensers and other operable components of a newsrack shall be no higher than forty-eight (48) inches above the ground, and no lower than fifteen (15) inches above the ground.
(3) The design of a newsrack shall not create a danger to the persons using the newsrack in a reasonably foreseeable manner. All newsracks shall comply with all applicable federal, state and local laws and regulations including, without limitation, the Americans with Disabilities Act and other laws and regulations relating to barrier-free design. (Ord. 1065 § 2 (part), 2020).
13.28.070 Standards for placement and location of newsracks.
(a) No newsrack shall be placed, installed or maintained on any public property when such installation, use or maintenance endangers the safety of persons or property. No newsrack shall be placed, installed or maintained on any public property except in compliance with the following standards:
(1) Newsracks shall be placed in one of the following locations:
(A) Near a curb, in which case, the back of the newsrack shall be placed no less than eighteen (18) inches nor more than twenty-four (24) inches from the face of the curb; or
(B) Adjacent to a wall, such as a wall of a building or similar, in which case, the back of the newsrack shall be placed parallel to such wall and not more than six (6) inches from the wall or as close to the wall as the public works director or its designee determines is appropriate and safe for the specific location; or
(C) In any location historically in which a newsrack has existed and/or otherwise as the public works director or its designee determines is appropriate and safe for the specific location.
(2) Every newsrack shall be placed so as to open toward the sidewalk.
(3) Every newsrack shall be placed, installed and maintained in a manner approved by the permit. No newsrack shall be chained to another newsrack. Newsracks shall not be chained or otherwise attached to any bus shelter, bench, street light, utility pole or device or sign pole, or to any tree, shrub or other plant, nor situated upon any landscaped area.
(4) No newsrack shall be placed, installed or maintained in the following manner:
(A) Within five (5) feet of any marked or unmarked crosswalk as measured from the curb return;
(B) Within five (5) feet of any fire hydrant, call box, or other emergency facility; or bus bench;
(C) At any location where the clear space for the passage of pedestrians is reduced to less than six (6) feet except that in areas where physical obstructions provide for less than a six (6) foot clearance, a clear space for passage of not less than four (4) feet may be permitted for a distance of not more than ten (10) feet with the written approval of the city of Menlo Park public works director or its designee;
(D) Within five (5) feet of any driveway;
(E) Within five (5) feet of any red curb of a bus stop zone;
(F) Within five (5) feet of the curb return of any wheelchair curb ramp not in a marked crosswalk;
(G) In such a manner as to impede or interfere with the reasonable use of any commercial window display or access to or from any building;
(H) In such a manner as to impede or interfere with the reasonable use of any bicycle rack;
(I) In such a manner as to block or cover any portion of an underground utility vault, manhole, or other sidewalk underground access location.
(5) Any newsrack placed within Caltrans jurisdiction (such as along El Camino Real or portions of Willow Road) must comply with the applicable Caltrans maintenance agreement held by the city of Menlo Park.
(b) The city of Menlo Park public works director or its designee may allow a permittee to place a newsrack in a location that does not meet the standards otherwise required by this section if it is found that such modifications will not be detrimental to the public safety and that, due to the existing physical constraints at that location, imposition of the standards would make placement impossible and would cause a hardship to the permittee and its patrons. An applicant seeking a modification from the standards shall submit as part of the application the proposed request, the reason for the request, the alternatives that were considered, and how the proposed request would meet the purpose of this chapter. The written findings in such a situation shall describe the grounds for approval and be made part of the permit. Prior to considering whether or not to grant the permit, the city of Menlo Park public works director or its designee shall provide written notice of the requested permit approval to the owner(s) of the real property adjacent to or abutting the proposed newsrack location.
(c) 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, the city of Menlo Park public works director or its designee shall give priority as to that location to publications on a historical “first-come first-served” basis to permit applicants as follows:
(1) First priority shall be publications that are published two (2) 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.
In the event the city of Menlo Park is required to utilize the priority system described in subsections (c)(1) through (4) of this section, the city of Menlo Park shall permit only one (1) rack per publication or distributor in a single location. (Ord. 1065 § 2 (part), 2020).
13.28.080 Blinder racks required.
Section 313.1 of the California Penal Code shall govern the display, offer for sale or selling of harmful matter as defined in California Penal Code Section 313(a), to minors in vending machines, selling such matter, unattended by an adult at the time of such sale, located in and upon public places. No material which is harmful to minors, as defined in Section 313 of the California Penal Code, shall be displayed in a public place, other than a public place from which minors are excluded, unless blinder racks are placed in front of the material so that the lower two-thirds of the material is not exposed to view. (Ord. 1065 § 2 (part), 2020).
13.28.090 Violation – Enforcement.
(a) It shall be illegal to place, install, or maintain any newsrack or any material in a newsrack in a manner contrary to any provision of this chapter.
(b) Any person who violates any provision of this chapter shall be guilty of an infraction and upon conviction thereof shall be punished as provided in Section 1.12.010, Penalty for violations.
(c) The provisions contained in this chapter shall be subject to the code enforcement authority of the city of Menlo Park as provided in Title 1. (Ord. 1065 § 2 (part), 2020).
13.28.100 Nuisance.
Any newsrack or any material in a newsrack placed, installed or maintained in violation of this chapter shall constitute a public nuisance and may be abated in accordance with applicable provisions of law. (Ord. 1065 § 2 (part), 2020).
13.28.110 Removal and hearing.
In addition to the enforcement remedies available to the city of Menlo Park, which are set forth in Title 1 and in Sections 13.28.090 and 13.28.100, any newsrack placed, installed or maintained in violation of this chapter may be removed by the city of Menlo Park, subject to the notice and hearing procedures set forth in this section.
(1) Notice of Violation. Before removal of any newsrack, the city of Menlo Park shall notify the owner and/or distributor of the violation. Written notification by first class mail to the address or addresses shown on the offending newsrack shall constitute adequate notice; and in addition the city will provide notice by sending an email to the email address listed on the owner and/or distributor’s permit application. The city of Menlo Park may, but need not, affix an additional notice tag onto the offending newsrack. If no identification is shown on the newsrack, posting of the notice on the newsrack alone shall be sufficient. The notice shall state the nature of the violation, shall specify actions necessary to correct the violation, and shall give the owner and/or distributor ten (10) days from the date appearing on the notice to either remedy the violation or to request a meeting before the city of Menlo Park public works director or its designee. The date on the notice shall be no earlier than the date on which the notice is mailed or affixed to the newsrack, as the case may be.
(2) Meeting and Decision. Any owner or distributor notified under subsection (1) of this section may request a meeting with the city of Menlo Park public works director or its designee by delivering a written request therefor within ten (10) days from the date appearing on the notice. The meeting may be in person, by telephone or by any agreed to format, and shall be informal, but oral and written evidence may be given by both sides. The city of Menlo Park public works director or its designee shall give its decision within ten (10) days after the date of the meeting. Any action by the city of Menlo Park to remove the newsrack shall be stayed pending the written decision of the city of Menlo Park public works director or its designee following the meeting.
(3) Removal and Impoundment. The city of Menlo Park may remove and impound a newsrack or newsracks in accordance with this section following the written decision of the city of Menlo Park public works director or its designee upholding the determination of a violation, or if the owner or distributor has neither requested a meeting nor remedied the violation within ten (10) days from the date on the notice. An impounded newsrack shall be retained by the city of Menlo Park for a period of at least ninety (90) days following the removal, and may be recovered by the permittee upon payment of a fee as set forth in the municipal fee schedule. An impounded newsrack and its contents may be disposed of by the city of Menlo Park after ninety (90) days.
(4) Summary Abatement. Notwithstanding the provisions of subsections (1) and (2) of this section, prior notice and an opportunity to be heard shall not be required prior to removal of any newsrack that is installed or maintained in such a place or manner as to pose an immediate or clear and present danger to persons, vehicles or property or any newsrack that is placed in any location without a permit. In such case, the city of Menlo Park shall proceed in the following manner:
(A) Within the next working day following removal, the city of Menlo Park shall notify by telephone the permittee or, in the case of an unpermitted newsrack, the owner of the newsrack or a person whose name is shown on the required identification, if available. Within five (5) business days, the city of Menlo Park shall send written confirmation to the owner of the newsrack of the telephoned notice. The written confirmation shall contain the reasons for the removal and information supporting the removal, and shall inform the recipient of the right to request, in writing or in person, a post-removal meeting within five (5) days of the date of such written notice and the person to whom such request shall be made.
(B) Upon timely request, the city of Menlo Park shall provide a meeting within thirty (30) days of the request, unless the requesting party agrees to a later date. The proceeding shall be informal, but oral and written evidence may be given by both sides. The city of Menlo Park designee hearing the matter shall give his or her decision in writing to the requesting party within two (2) weeks after such meeting. If the city of Menlo Park hearing officer finds that the removal was proper, he or she shall notify the requesting party to pay any applicable penalties and costs and recover the newsrack. If the city of Menlo Park hearing officer finds that the removal was improper and that placement of the newsrack was lawful, he or she shall order that the newsrack be released and reinstalled without charge.
(C) If the owner and distributor of an unpermitted rack cannot be determined and the rack does not contain the required identification, no notice of the removal shall be required. (Ord. 1065 § 2 (part), 2020).
13.28.120 Abandoned newsracks.
An abandoned newsrack may be removed by the city of Menlo Park and impounded, pursuant to the notice and hearing procedures set forth in Section 13.28.110. The city of Menlo Park may dispose of the newsrack if the permittee does not claim the newsrack and pay any required fees within ninety (90) days of its removal. (Ord. 1065 § 2 (part), 2020).
Code reviser’s note: Ordinance 1065, Section 5 states, “This ordinance shall be implemented in two phases. Effective thirty days after adoption the City shall have the authority to remove any abandoned newsrack that is non-compliant with the Size and Design Standards (Section 13.28.060). All early removals shall comply with the removal process in Sections 13.28.110 and 13.28.120. All other provisions of this ordinance shall take effect on January 1, 2021.”