Chapter 9.75
REGULATIONS APPLICABLE TO NEWSRACKS ON PUBLIC RIGHT-OF-WAY
Sections:
9.75.040 Application for permit
9.75.050 Conditions for permit
9.75.060 Standards for maintenance and installation
9.75.070 Location and placement of newsrack
9.75.080 Display of certain matter prohibited
9.75.090 Display in area where minors are not excluded; Harmful matter restricted
9.75.100 Violations of chapter
9.75.010 Intent and Purpose
The purpose of this chapter is to establish a comprehensive set of regulations applicable to newsracks on public right-of-ways. The purpose of this chapter is to advance and improve safety and aesthetics by controlling the number, size, construction, placement and appearance of newsracks without restricting the free dispersal of information guaranteed by the Constitution of the United States and the State of California.
More specifically, the purpose of this chapter is to promote the public health, safety and general welfare by regulating the placement, appearance, servicing and insuring newsracks so as to protect against the dangers of impairing or distracting the vision of motorists and pedestrians; the hazards of unreasonably interfering with or impeding 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; unreasonably interfering with the use of public property for its intended purpose; unduly restricting access to the use of poles, ports, traffic signs or signs, hydrants, mailboxes or locations used for transportation purposes; unsightly structures inconsistent with the intent and purpose of the City’s design regulations; neglectful servicing of newsracks resulting in visual blight on public right-of-ways and other public property and detracting from the aesthetics of store window displays, adjacent landscaping and other improvements; reduction in value of surrounding properly; and unnecessary exposure of the City to personal injury or property damage claims or suits.
The City Council finds and determines that the strong and competing interests of the public and of newspapers require a reasonable accommodation which can only be satisfactorily achieved through the means of this chapter which is designed to accommodate such interests by regulating the time, place and manner of using newsracks. 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.
9.75.020 Definitions
For the purposes of this chapter, the following words, terms and phrases shall have the meaning attributed:
“Distributor” shall mean any person responsible for placing and maintaining a newsrack in a public right-of-way.
“Newsrack” shall mean any self-service or coin-operated box, container, storage unit or other dispenser installed, used, or maintained for the display or distribution or sale of publications.
“Public right-of-way” shall mean any place of any nature, which is dedicated to use by the public for pedestrian travel, and includes, but is not limited to, a sidewalk, curb, parkway, lane, mall, court, park, square, and any other similar public way.
“Roadway” shall mean that part of a public right-of-way that is designated and used primarily for vehicular traffic.
9.75.030 Permit required
It shall be unlawful for any person to erect, place, maintain or operate any newsrack which rests in whole or in part upon, in, or on any portion of a public right-of-way or which projects onto, into, or over any part of a public right-of-way in the City without first having obtained a permit from the City Business License Clerk specifying the exact location of such newsrack. One (1) permit may be issued to include any number of newsracks.
9.75.040 Application for permit
Application for such permit shall be made in writing to the City Business License Clerk upon such form as shall be provided by that department, and shall contain the name and address of the applicant, the proposed specific location of each newsrack and shall be signed by the applicant.
9.75.050 Conditions for permit
As an express condition of the acceptance of such permit, the permittee thereby agrees to defend, indemnify and save harmless the City, its officers, directors, and employees against any loss or liability or damage including expenses and costs for bodily or personal injury, and for property damage sustained by any person as the result of the installation, use, or maintenance of a newsrack within the City.
Permits shall be issued for the installation of a newsrack or newsracks without prior inspection of the location, but such newsrack or newsracks and the installation, use or maintenance thereof shall be conditioned upon observance of the provisions of this chapter. Permits shall be issued within twenty-four (24) hours (excluding Saturdays, Sundays and legal holidays) after the application has been filed. A permit fee of Ten Dollars ($10.00) per newsrack, up to a maximum of One Hundred Dollars ($100.00) per permit, is required.
Such permits shall be valid for two (2) years and shall be renewable pursuant to the procedure for original applications referred to in Section 9.75.040 and upon payment of the Ten Dollars ($10.00) per newsrack renewal fee, up to a maximum of One Hundred Dollars ($100.00) per permit.
Stickers showing the permit number shall be issued with the permit and must be displayed on the front of each newsrack at all times.
9.75.060 Standards for maintenance and installation
Any newsrack, which in whole or in part rests upon, in or over any public right-of-way, shall comply with the following standards:
a) No newsrack shall exceed four (4) feet in height, thirty (30) inches in width, and two (2) feet in depth.
b) No newsrack shall be used for advertising signs or publicity purposes other than that dealing with the display, distribution or sale of the newspaper or news periodical sold therein.
(c) Each newsrack shall be equipped with a coin return mechanism to permit a person using the machine to secure an immediate refund in the event he or she is unable to receive the publication paid for. The coin-return mechanisms shall be maintained in good working order.
(d) Each newsrack shall have affixed to it, in a readily visible place so as to be seen by anyone using the newsrack, a notice setting forth the name and address of the distributor and the telephone number of a working telephone service to call to report a malfunction, or to secure a refund in the event of a malfunction of the coin-return mechanism, or to give the notices provided for in this chapter.
(e) Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that:
(1) It is reasonably free of dirt and grease;
(2) It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas thereof;
(3) It is reasonably free of rust and corrosion in the visible unpainted metal areas thereon;
(4) The clear plastic or glass parts thereof, if any, through which the publication therein are viewed are unbroken and reasonably free of cracks, dents, blemishes and discoloration;
(5) The paper or cardboard parts or inserts thereof are reasonably free of tears, peeling or fading; and
(6) The structural parts thereof are not broken or unduly misshapen.
9.75.070 Location and placement of newsrack
Any newsrack which rests in whole or in part or on any portion of a public right-of-way, or which projects onto, into, or over any part of a public right-of-way, shall be located in accordance with the previsions of this section.
(a) No newsrack shall be used or maintained which projects onto, into, or over any part of a roadway, or which rests, wholly or in part, upon, along, or over any portion of a roadway.
(b) No newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks.
(c) Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than eight (8) feet along a curb, and a space of not less than three (3) feet shall separate each group of newsracks.
(d) No newsrack shall be placed, installed, used or maintained:
(1) Within three (3) feet of any marked crosswalk;
(2) Within twelve (12) feet of the curb return of any unmarked crosswalk;
(3) Within five (5) feet of any fire hydrant, fire call box, Sheriff’s call box or other emergency facility;
(4) Within five (5) feet of any driveway;
(5) Within three (3) feet ahead or fifteen (15) feet to the rear of any sign marking a designated bus stop. The provisions of this subsection shall not apply if compliance with the provisions would prohibit the placement of a newsrack for a distance of one hundred fifty (150) feet on the same side of the street in the same block;
(6) Within three (3) feet of the outer end of any bus bench:
(7) At any location whereby the clear space for the passageway of pedestrians is reduced to less than six (6) feet;
(8) Within three (3) feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping;
(9) Within one hundred (100) feet of any other newsrack on the same side of the street in the same block containing the same issue or edition of the same publication;
(10) On any handicap access ramp.
9.75.080 Display of certain matter prohibited
Publications offered for sale from newsracks placed or maintained on a public right-of-way shall not be displayed or exhibited in a manner which exposes to public view from the public right-of-way or roadway any of the following;
(a) Any statements or words describing explicit sexual acts, sexual organs, or excrement where such statements or words have their purpose or effect sexual arousal, gratification or affront;
(b) Any picture or illustration of genitals, pubic hair, peritoneum, anuses or anal regions of any person where such picture or illustration has as its purpose or effect sexual arousal, gratification or affront; and
(c) Any picture or illustration depicting explicit sexual acts where such picture or illustration has as its purpose or effect sexual arousal, gratification or affront.
“Explicit sexual act” as used in this section means depictions of sexual intercourse, oral copulation, anal intercourse, an oral-anal copulation, bestiality, sadism, masochism, or lewd exhibition of genitals, whether any of the above conduct is depicted or described as being performed above or between members of the same or opposite sex or between humans and animals, or other act of sexual arousal involving any physical contact with a person’s genital, pubic region, pubic hair, peritoneum, anus or anal region.
9.75.090 Display in area where minors are not excluded; Harmful matter restricted
No person shall knowingly display a cause to be displayed, on a public right-of-way or in any other place open to the public where minors are not excluded, any harmful matter as defined in California Penal Code § 313 unless such matter is displayed in newsracks equipped with devices commonly known as “blinder racks” affixed in such a manner that the lower two-thirds (2/3) of the matter is not exposed to view.
9.75.100 Violations of chapter
Upon determination by the Community Development Director that a newsrack has been installed, used or maintained in violation of the provisions of this chapter, an order to correct the offending condition will be issued to the distributor of the newsrack. Such order may be telephoned to the distributor and a copy of the order shall be mailed to the distributor, by certified mail, return receipt requested. The order shall specifically describe the offending condition, suggest actions necessary to correct the condition, and inform the newsrack distributor of the right to appeal. Failure to properly correct the offending condition within ten (10) days after the mailing date of the order, or to appeal the order, shall result in the offending newsrack being removed and deemed unclaimed property in possession of the Sheriff’s Department. If the offending newsrack is not properly identified as to distributor under the provisions of Section 9.75.060 hereof; it may be removed without prior notice and deemed property in possession of the Sheriff’s Department. An impound fee, which shall be measured by the City’s cost and expense of impounding, shall be assessed against each newsrack removed. The City Business License Department shall cause inspection to be made of the corrected condition or of a newsrack reinstalled after removal under this section. The distributor of the newsrack shall be charged a Ten Dollar ($10.00) inspection fee for each newsrack so inspected. This charge shall be in addition to all other fees and charges required under this chapter.
Notwithstanding the provisions of subsection (a) above, prior notice of seizure is not required where the newsrack poses an immediate danger to pedestrians or vehicles; provided, written notice of the seizure is mailed to the distributor of the newsrack by certified mail, return receipt requested, within five (5) days after the seizure. The notice shall specifically describe the offending condition, and inform the newsrack distributor of the right to appeal.
9.75.110 Appeals
Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this chapter may appeal and shall be apprised of his, her or its right to appeal to the City Council. An appeal must be perfected within ten (10) days after mailing of notice of any protested decision or action by filing with the Office of the City Clerk a letter of appeal briefly stating therein the basis for such appeal. A hearing shall be held on a date no more than twenty (20) days after receipt of the letter of appeal. Appellant shall be given at least five (5) days notice of the time and place of the hearing. The City Clerk 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 City Business License Department should not be upheld. Following the hearing, the City Council shall make a final decision. A written notice of decision will be mailed within five (5) days following the hearing.
9.75.120 Abandonment
In the event a newsrack remains empty for a period of thirty (30) continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided for in Section 9.75.100 hereof for newsracks in violation of the provisions of this chapter.
9.75.130 Existing newsracks
No newsracks installed prior to the effective date of this chapter shall fail to comply with the provisions of this chapter as of ninety (90) days after the effective date of this chapter except any such newsrack shall not, as of the effective date of this chapter exceed four (4) feet in height, thirty (30) inches in width, and two (2) feet in depth.