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Chapter 7.40
REGULATION OF NEWSRACKS

Sections:

7.40.010    Findings and purpose.

7.40.020    Definitions.

7.40.030    Encroachment permit required.

7.40.040    Permit application – Fee – Terms – Issuance.

7.40.050    Indemnification – Liability insurance – Bond.

7.40.060    Permitted types of newsracks – Coordination for multiple-unit newsracks.

7.40.070    Location of newsracks.

7.40.080    Unlawful obstructions.

7.40.090    Newsrack operating requirements – Identification – Material harmful to minors – Maintenance.

7.40.100    Removal by the city – Notice, hearing, appeal, disposition, costs.

7.40.110    Nonconforming newsracks.

7.40.010 Findings and purpose.

A. Findings. The city council finds that the uncontrolled placement and maintenance of easily movable, individual, freestanding newsracks upon public rights-of-way poses sight distance and other hazards to the traveling public; interferes with the property rights of adjacent owners and with other legitimate users of the rights-of-way; causes visual blight and detracts from the aesthetics of adjacent uses and the city as a whole; and results in an unnecessary degree of exposure of the city to liability claims.

B. Purpose. The purpose of this chapter is to regulate the placement and use of newsracks in the city. The regulation of newsracks as set forth in this chapter is the least intrusive and burdensome means for ensuring that the purposes stated in this chapter are carried out, while still providing ample opportunities for the distribution of newspapers to the citizens of the city. (Ord. 735 § 1, 1999; 1991 code § 11-7.1)

7.40.020 Definitions.

In this chapter, the following definitions apply:

A. Director means the director of public works and community development or his or her designee.

B. Newspaper means any publication which qualifies for second class newspaper mailing status under federal law, pursuant to 39 U.S.C. § 4352(c). As of the enactment of this chapter, a publication fails to qualify for second class mailing status if it has more than 75% advertising in more than one-half of its issues during any 12-month period. Nonnewspaper publication means any publication which is not a newspaper as defined here.

C. Newsrack means any self-service or coin-operated box, container, storage unit or other dispenser used for the display and sale or other distribution of a newspaper or nonnewspaper publication. The term newsrack includes one or more newsracks physically connected or joined to one or more other newsracks in a multiple-unit configuration (see PHMC § 7.40.060).

An abandoned newsrack is one remaining empty for 30 consecutive days or not claimed within 30 days of seizure, under PHMC § 7.40.100. A newsrack remaining empty due to a labor strike or a temporary interruption of distribution or publication by the newspaper sold from the newsrack is not considered abandoned if the city is notified in writing of this fact before the 30-day period has run.

D. Planter strip means any of the following areas, if unpaved, whether planted or not:

1. The area between the sidewalk and the curb of the street;

2. The area between the sidewalk and the property line, where the sidewalk is adjacent to the curb;

3. The area between the edge of the roadway and the property line, where there is no sidewalk.

E. Public right-of-way means land which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for or dedicated to the general public for street, highway, alley, public utility, or pedestrian walkway purposes, whether or not the land has been improved or accepted for maintenance by the city. Public right-of-way includes but is not limited to street, roadway, planter strip or sidewalk.
(Ord. 735 § 1, 1999; 1991 code § 11-7.2)

7.40.030 Encroachment permit required.

No person may place, install, or maintain a newsrack in the public right-of-way without first obtaining an encroachment permit from the director. If there is an inconsistency between this chapter and PHMC Chapter 11.05, Encroachments, this chapter prevails. (Ord. 735 § 1, 1999; 1991 code § 11-7.3)

7.40.040 Permit application – Fee – Terms – Issuance.

A. Application. The application for an encroachment permit for a newsrack shall be made to the director on a form provided by the city. The application may include all newsracks of the applicant and shall include or be accompanied by the following:

1. The name, street address and telephone number of the applicant.

2. The name, street address and telephone number of a distributor or other responsible person whom the city may notify or contact at any time concerning the applicant’s newsrack.

3. A site plan at a scale of at least one inch equals 20 feet, showing:

a. The total number of newsracks for which a permit is sought;

b. The exact locations of the proposed newsracks;

c. Newsrack dimensions;

d. The location of the closest existing streets, driveways, rights-of-way and buildings; and

e. Where and how the newsrack will be secured (under PHMC § 7.40.070.B.

4. If the newsrack is a multiple-unit configuration, a description of its dimensions and the number of publication spaces it will contain.

5. Evidence that the applicant has sent written notice of the proposed application to each adjoining property owner at least two weeks before the application is made.

B. Encroachment permit fee. At the time of application, the applicant shall pay an encroachment permit fee equal to not more than three hours of time as set forth on the council’s fee resolution.

C. Other permit terms. The encroachment permit shall incorporate the requirement that the permittee conform to the requirements of this chapter.

D. Permit issuance. The director shall issue a permit as soon as possible after receiving a complete application but in no event more than 30 days after he or she finds that the applicant has met the requirements of this chapter.

E. Term – Revocability. A permit is valid for and renewable every five years. A permit issued under this chapter is nontransferable. The director may revoke a permit upon 30 days’ written notice. (Ord. 735 § 1, 1999; 1991 code § 11-7.4)

7.40.050 Indemnification – Liability insurance – Bond.

A. Indemnification. Every person operating or maintaining a newsrack within the public right-of-way shall indemnify and hold harmless the city, its officers and employees from any claims, demands, actions, losses, damages, injuries and liability, direct or indirect, arising out of the issuance of the encroachment permit or from the installation, operation or use of the newsrack. However, the obligation to indemnify and hold harmless the city, its officers, and employees shall not extend to any claims, demands, actions, losses, damages, injuries or liability resulting solely from the active negligence, sole negligence or willful misconduct of the city, its officers, agents or employees.

B. Liability insurance. Before the director grants an encroachment permit, the applicant shall furnish to the director a certificate showing that the applicant has then in force general liability and property damage insurance naming the city as an additional insured in an amount not less that $1,000,000 per person and per occurrence, combined single limit. The permittee shall keep the insurance in force during all times it continues to maintain a newsrack under the terms of the permit. The certificate of insurance filed with the city shall include a statement by the insurance carrier that 30 days’ notice will be given to the city before cancellation.

C. Bond. If the encroachment permit authorizes securing a newsrack to the public sidewalk or other public property (under PHMC § 7.40.070.B), the permittee shall post with the director a cash deposit or a bond for $500.00 for each pedestal to be affixed to public property. The city may use this security if damage occurs to public property during installation or removal of the newsrack. (Ord. 735 § 1, 1999; 1991 code § 11-7.5)

7.40.060 Permitted types of newsracks – Coordination for multiple-unit newsracks.

A. Permitted types. A single newsrack not located in the same city block and on the same side of the street as another newsrack shall be a Sho-Rack 84 model or a Sho-Rack 4916, or their equivalents. Wherever there are two or more newsracks located in the same city block and on the same side of the street, all shall be grouped in a multiple-unit configuration and shall be pedestal-mounted, Sho-Rack 4916 model or its equivalent. In all cases, the color of the newsrack shall be Sho-Rack color Safeway tan or its equivalent.

B. Coordination for multiple-unit newsracks. When more than one newsrack is located in the same city block and on the same side of the street, the shared multiple-unit newsrack may be coordinated through the Contra Costa Times, Single Copy Manager. (Ord. 735 § 1, 1999; 1991 code § 11-7.6)

7.40.070 Location of newsracks.

A. A newsrack on a sidewalk may be placed only on the side furthest from the street. A newsrack placed adjacent to a wall of a building shall be placed parallel to the wall and not more than six inches from the wall. A newsrack may not be located in or on a landscaped area.

B. A newsrack must be bolted and secured either to private property if the owner of the property has filed written consent with the city or to the public sidewalk, with the city’s specific approval set forth in the permit.

C. No more than 16 individual newsracks (eight doubles or four quads) are allowed on any one city block, on the same side of the street.

D. 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 director shall give priority to permit applicants awaiting space as follows:

1. First priority shall be given to newsracks used for the sale of newspapers of general circulation in Contra Costa County under Government Code sections 6020 through 6027;

2. Second priority shall be given to newsracks used for the sale of newspapers (inclusive of their Saturday, Sunday, or other weekend editions, whether or not published jointly with another newspaper) published at least five times per week;

3. Third priority shall be given to newspapers published at least one time per week;

4. Fourth priority shall be given to all other newspapers; and

5. Fifth priority shall be given to nonnewspaper publications.

E. The director may waive or modify the standards for newsrack location contained in this chapter upon a showing of good cause and upon his or her determination that placing a newsrack at the modified location would not endanger the public health or safety or unreasonably interfere with the users of the public right-of-way. Any approved modification shall be stated on the encroachment permit. (Ord. 735 § 1, 1999; 1991 code § 11-7.7)

7.40.080 Unlawful obstructions.

No person may place, install or maintain a newsrack:

A. Within a portion of a roadway or projecting into a portion of a roadway;

B. Within five feet of any marked crosswalk;

C. Within 15 feet of the curb return of an unmarked crosswalk;

D. Within five feet of a fire hydrant, fire call box, police call box or other emergency facility;

E. Within five feet of a driveway, building entrance, or sidewalk leading to the entrance of a building;

F. Within five feet ahead of, and five feet to the rear of, a sign or pavement marking designating a bus stop or within three feet of a city-approved bus shelter;

G. Within five feet of a bench, seat or chair placed for public use within a public right-of-way;

H. At any location where the clear space for the passageway of pedestrians is reduced to less than four feet;

I. In such a place or manner as to create a traffic hazard;

J. In such a place or manner as to obstruct access to or use of abutting property or as to obstruct visibility to and from windows of the abutting property;

K. In such a place or manner as to endanger persons or property. (Ord. 735 § 1, 1999; 1991 code § 11-7.8)

7.40.090 Newsrack operating requirements – Identification – Material harmful to minors – Maintenance.

A. Operating requirements. Every newsrack shall have an automatic coin return if it dispenses newspapers for sale.

B. Identification. The permittee shall permanently display the permittee’s name, street address, telephone number and instructions on how to receive a refund in the event of coin return malfunction upon each newsrack.

C. Display of material harmful to minors unlawful. No person may display or exhibit in a public newsrack or other display device any material which is defined by Penal Code section 313 as harmful to minors unless such material is displayed in an area from which minors are excluded or is covered by a device commonly known as a blinder rack, so that the lower two-thirds of the material is not exposed to view.

D. Maintenance.

1. Each newsrack shall be maintained in a neat, graffiti-free, clean condition and in good repair at all times and shall be painted on a regular basis.

2. A newsrack that is damaged or defective shall be replaced or repaired as soon as is practical or within 30 days after notice from the director. If the permittee wishes to abandon the location, he or she shall promptly remove the newsrack (unless another user has applied for an encroachment permit for the same location). The permittee shall repair all damage to sidewalks, newsrack enclosure or multiple-unit newsracks resulting from placement and removal of a newsrack. When use of a newsrack is abandoned, it shall be removed and the location restored to its previous condition, normal wear and tear excepted. The city may use a deposit or bond to cover the cost of removal and restoration if the owner fails to perform.

3. No newsrack shall be used for advertising signs or publicity purposes other than the one concerned with display, sale or distribution of the newspaper or nonnewspaper publication distributed from it. There may be no sign on the back or side of a newsrack. (Ord. 735 § 1, 1999; 1991 code § 11-7.9)

7.40.100 Removal by the city – Notice, hearing, appeal, disposition, costs.

A. Removal. The director may require a permittee to move, remove or temporarily relocate a newsrack, at the permittee’s expense, if the director determines that the placement of the newsrack does not meet the criteria of this chapter or if it interferes with a scheduled construction project.

The city may remove and retain a newsrack installed, maintained or abandoned in violation of this chapter in accordance with this section. Where practical, the violation may be remedied by moving the newsrack to another point on the sidewalk or public right-of-way.

B. Notice before removal.

1. Before the city may remove a newsrack, it shall give the permittee notice to remedy the violation or request a hearing before the director. Written notice shall be sent to the address stated on the newsrack permit or on the newsrack. The city may attach an additional copy of the notice to the newsrack. Notice affixed to the newsrack is sufficient when no identification is shown on the newsrack and no permit has been issued. The notice shall give the permittee 30 days from the date of mailing or the date notice was affixed to remedy the violation or request a hearing before the director.

2. Notwithstanding subsection B.1 of this section, prior notice of removal is not required where the newsrack poses an immediate danger to pedestrians or vehicles. However, the city shall mail notice to the permittee of the summary removal of the newsrack and an opportunity to request a hearing to contest the removal to the permittee within five business days after the removal.

C. Hearing procedure. A person notified under subsection B of this section may request a hearing before the director by making a written request within 30 days after a notice was mailed or attached to the newsrack. The hearing shall be informal, but oral and written evidence may be given by both sides. Action by the city with respect to the alleged violation shall be stayed pending the director’s decision following the hearing. The director shall give written notice of the decision within five working days of the conclusion of the hearing.

D. Appeal. A permittee or applicant for an encroachment permit aggrieved by a decision of the director may appeal that decision to the city manager by filing written notice within 10 calendar days of such a decision. The city manager shall hear the appeal within 45 calendar days. The city manager may reverse, affirm, or modify the director’s decision. The city manager’s written decision shall be rendered within 10 working days of the conclusion of the appeal hearing. A decision of the city manager may be appealed to the city council by filing a written notice within 10 calendar days after the city manager has issued a decision. The city council shall hear the appeal within 45 calendar days and issue its decision on the appeal within 10 calendar days of the hearing. The decision of the city council is final.

E. Disposition. The city may remove and dispose of an abandoned newsrack if the responsible party does not, within 30 days, claim the newsrack and pay a fee established by the city council for the cost of removal. The city shall hold money it finds in a newsrack destroyed or otherwise disposed of under this chapter for a period of one year and then dispose of it under the law governing found or abandoned property.

F. Costs of removal. The cost to the city for removal of a newsrack is a debt to the city and is the obligation of the permittee and the owner of the newsrack. The amount due accrues interest at the rate of 10% annually from the date the city incurs the cost.

No newsrack abandoned or removed for violation of this chapter and impounded shall be restored to the owner, or to another person entitled to possession, unless and until the city’s reasonable cost of removal and storage of the newsrack has been paid to the city. However, if after a hearing before the director it is determined that the newsrack was improperly removed by the city, there shall be no charge for restoration of such a newsrack to the person entitled to possession. (Ord. 846 § 6, 2010; Ord. 735 § 1, 1999; 1991 code § 11-7.10)

7.40.110 Nonconforming newsracks.

The owner of a newsrack which does not conform to this chapter but which lawfully existed and was maintained before this chapter went into effect shall remove it or conform it to this chapter within 90 days of the effective date of this chapter. (Ord. 735 § 1, 1999; 1991 code § 11-7.11)