Chapter 11.36
NEWSRACK AND NEWSSTAND REGULATIONS
Sections:
11.36.010 Findings and declarations.
11.36.020 Definitions of words and phases.
11.36.040 Requirements and duties.
11.36.050 Display of harmful matter.
11.36.070 Removal of newsracks.
11.36.100 Severability – Supplemental provisions.
11.36.010 Findings and declarations.
The city finds that:
A. The uncontrolled placement of newsracks in public rights-of-way causes an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services.
B. The uncontrolled placement of newsracks detracts from the appearance of streets, sidewalks and adjacent businesses; inhibits safe entry and departure of vehicles; impairs the vision and distracts the attention of motorists and pedestrians, particularly small children and may cause injury to the person or property of such person.
C. Newsracks located so as to cause an inconvenience or danger to persons using public rights-of-way, and unsightly newsracks located therein, constitute public nuisances.
D. The unregulated display of harmful matter (as defined by Section 313 of the California Penal Code) adversely affects the welfare of minors and others.
E. The intent of the city council of the city in adopting this chapter is to establish reasonable time, place and manner regulations of the use and placement of newsracks for the purpose of securing and promoting the public safety and general welfare of persons in the city in their use of public rights-of-way. It is the further intent of the city council to protect the general welfare by establishing reasonable time, place and manner restrictions on the display of harmful matter in public places and places open to the public.
F. By adopting this chapter, the city council does not intend to authorize the placement of newsracks on property owned by the city, or public, except on public rights-of-way as defined herein. (Ord. 157 § 1, 1992)
11.36.020 Definitions of words and phases.
The following words and phrases when used in this chapter shall for the purpose of this chapter have the meanings respectively ascribed to them in this section:
A. “Newsrack” means any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of publications.
B. “Parkway” means the part of the public right-of-way between the sidewalk and curb of a roadway, the area between the edge of the traveled roadway and the edge of a public right-of-way when there is no sidewalk and any part of a roadway that is not open to vehicular travel.
C. “Public right-of-way” means any place owned and maintained by or dedicated to use of the public for the purpose of pedestrian or vehicular travel, including but not limited to a street, sidewalk, curb, gutter, parkway, highway, alley, mall or court. Public right-of-way does not include improved or unimproved pedestrian, equestrian or bicycle trails; pathways, walkways, driveways, or similar areas within parks or other city-owned property; or easements not previously used for the purpose of pedestrian or vehicular travel, and unless otherwise specifically permitted by the city council newsracks are prohibited in such areas.
D. “Publication” means any form of printed literature offered or available to the public including but not limited to hard and soft-covered books, magazines, print advertising and calendars.
E. “Roadway” means that part of a public right-of-way that is designed or used primarily for vehicular travel. (Ord. 157 § 1, 1992)
11.36.030 Newsrack permits.
A. Newsracks are prohibited on property owned by the city or by the public except that newsracks may be installed, placed and maintained on a public right-of-way subject to the issuance of a permit pursuant to this chapter. A newsrack permit issued in accordance with this chapter is required before the installation of, placement or maintenance of any newsrack which in whole or in part rests upon, in or over any public right-of-way.
B. Subject to the provisions of this section and SBMC 11.36.040, any person desiring to keep a newsrack placed, installed and maintained before July 15, 1993, shall apply for a permit therefor not later than November 1, 1993; provided, however, that any person that submitted an application under a previous version of this chapter shall not be required to resubmit an application. Newsracks for which a permit is not obtained shall be removed pursuant to the provisions of SBMC 11.36.070. Nothing in this subsection shall be construed to require the city to issue a permit for a preexisting newsrack.
C. Newsrack permits shall be issued pursuant to the following requirements:
1. Application. A written application for a newsrack permit shall be filed with the city clerk, and shall contain the following information:
a. Name, address, and telephone number of the applicant and owner of the newsrack;
b. Name, address, and telephone number of a representative or other responsible person whom the city may notify or contact at any time concerning the applicant’s newsrack;
c. The number of newsracks covered by the permit along with a diagram of the location proposed for the installation of each newsrack covered by the permit showing dimensions and distances sufficient to allow a determination whether the proposed location of each newsrack complies with the provisions of this chapter;
d. The number of existing newsracks, if any, at the proposed location. The location of each existing newsrack shall be shown on the diagram required by paragraph (c);
e. Names of publications to be contained in each newsrack for which the applicant seeks a permit;
f. Type or brand of newsrack, including a description of each newsrack and mount.
2. Fee. Each application for initial issuance of a newsrack permit shall be accompanied by an application fee as established by resolution of the city council. In addition, if the permit is approved the applicant shall pay a fee for the annual permit sticker for each newsrack covered by the permit, which fee shall not exceed the actual cost of printing and providing the sticker.
3. Issuance and Denial. Upon receipt of a complete application and payment of the application fee, the city clerk shall refer the application to the city engineer and the code enforcement office for a report and recommendation. If the proposed installation as set forth in the application complies with the provisions of this chapter, the city clerk shall issue the newsrack permit. If a permit is denied, the applicant shall be notified in writing of the specific reason for such denial and of the right to appeal the denial pursuant to SBMC 11.36.090. The city clerk shall endeavor to complete all processing and issue the permit within 30 days following acceptance of the application.
An application for a newsrack permit shall be approved for the newsrack or newsracks covered by the permit unless with respect to a newsrack it is determined that:
a. The proposed newsrack 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;
b. The proposed newsrack is to be installed in whole or in part, in or over any sidewalk or parkway; and:
i. The newsrack, at its proposed location, would endanger the safety of persons or property; or
ii. The proposed location is used for public utility purposes, public transportation purposes or other public use; or
iii. The newsrack, at its proposed location, would unreasonably interfere with or impede the flow of pedestrian or vehicular traffic, the ingress into or egress from any residence, 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 present at or near said location; or
iv. The newsrack, at its proposed location, would violate federal, state or local standards relating to access for disabled persons; or
v. The newsrack does not meet the other requirements of this chapter.
A newsrack permit may be approved, conditionally approved or denied in whole or in part. If a newsrack permit is conditionally approved the conditions of approval shall be limited to the imposition of requirements that would assure installation of a newsrack in compliance with the provisions of this chapter. Any conditions of approval shall be met before issuance of the annual sticker permit sticker for the conditionally approved newsrack or newsracks.
4. Term and Annual Permit Sticker. A newsrack permit shall be valid for the calendar year in which it was first issued and may be renewed from year to year by obtaining an annual permit sticker from the city clerk. Upon the initial issuance of a newsrack permit the city clerk shall give the applicant a permit sticker for each newsrack covered by the permit. The permittee shall place the permit sticker on the front cover of the newsrack in such a manner that it is permanently affixed to the newsrack. Any newsrack requiring a permit that does not have a permit sticker affixed to it shall be presumed to be located or installed in violation of this chapter.
The annual permit sticker shall be valid for the calendar year for which it is issued. Before January 31st of the year following the year for which the sticker is issued, the permittee shall obtain a new annual permit sticker for each permitted newsrack. The city clerk shall issue the renewed annual permit sticker upon verification by the permittee that the newsrack continues to be installed and located in compliance with the permit and payment of the annual permit sticker fee. The city clerk may adopt administrative procedures for determining the year for which a sticker is issued. (Ord. 180 § 1, 1993; Ord. 157 § 1, 1992)
11.36.040 Requirements and duties.
Any newsrack which, in whole or in part, rests upon, in or over any sidewalk or parkway shall substantially comply with the following:
A. Physical Location, Numeric Limits and Installation Methods.
1. Newsracks may be located near a curb (or if there is no curb, the edge of the roadway) or to the rear of a sidewalk. Newsracks located near a curb shall be placed not less than 18 inches nor more than 24 inches from the edge of the curb. Newsracks placed adjacent to the rear of the sidewalk shall be placed parallel to the wall and at least six inches from the wall. No newsrack shall be located directly in front of any display window of any commercial building abutting a sidewalk or parkway except near the curb without written permission of the owner of the business.
2. Newsrack mounts shall be bolted in place in accordance with specifications provided by the city.
3. Newsracks shall not be chained, bolted or otherwise attached to any private property without the consent of the property owner.
4. Up to five newsracks may be attached to one another.
5. No more than five newsracks may be placed in any space of 200 feet in any direction within the same block of the same street. No more than 10 newsracks may be placed on any one block. For the purposes of this section, a block means one side of a street between two consecutive intersecting streets.
The number of newsracks permitted on any public right-of-way within a space of 200 feet in any direction within the same block may be increased to eight upon a determination of the city manager that the increase is necessary because of the high demand for publications at the specified location and that the additional racks will not interfere with the public use of the right-of-way for access purposes.
6. In determining which newsracks shall be permitted to be located in a particular place for which there are no existing newsracks or less than the permitted number of newsracks the city clerk shall give first priority to preexisting newsracks for which an application for a permit is submitted within the time period specified by this chapter or for which an application was previously submitted pursuant to any prior version of this chapter, and second priority to other newsracks based upon the date of submission of the application for a permit pursuant to this chapter. For the purposes of this subsection, a preexisting newsrack is one located, maintained and continuously used by the present applicant or publication on and after July 15, 1992.
7. In determining which newsracks shall be permitted to remain in a location where the number of preexisting newsracks exceeds the permitted number, the city clerk shall be guided by the following criteria:
a. First priority shall be given to newsracks used for the sale or other distribution of publications which have been adjudicated to be newspapers of general circulation for the city of Solana Beach, pursuant to the procedure set forth in Division 7, Chapter 2 of the California Government Code;
b. Second priority shall be given to newsracks used for the sale or other distribution of publications which have been adjudicated to be newspapers of general circulation for San Diego County;
c. Third priority shall be given to newsracks used for the sale or other distribution of all other publications;
d. Each publication shall be permitted only one newsrack at the particular location;
e. Within each category established by paragraphs (a), (b) and (c) priority shall be determined based upon the date of submission of the application for a newsrack permit pursuant to this chapter;
f. For the purposes of this subsection, a preexisting newsrack is one located, maintained and continuously used by the present applicant or publication on and after July 15, 1993.
8. Newsracks shall not be placed, installed, used or maintained:
a. Within 15 feet of any marked crosswalk;
b. Within 20 feet of the curb return of any unmarked crosswalk;
c. Within 10 feet of any fire hydrant, fire call box, police call box or other emergency facility;
d. Within 20 feet of any driveway;
e. Within three feet ahead, or 15 feet to the rear of any sign marking a designated bus stop;
f. Within three feet of any bus bench;
g. At any location whereby the clear space for the passageway of pedestrians is reduced to less than four feet;
h. Within 100 feet of another newsrack containing the same newspaper or other publication except where separated by a street or corner, or except where:
i. An applicant demonstrates that there is insufficient room in one machine for the number of publications which are generally sold in one day at that location, or
ii. Where an applicant demonstrates that it publishes more than one edition of the publication for sale at the same time.
If more than one publication desires a permit for a particular location, the provisions of this paragraph shall apply without application of the exception;
i. Facing another newsrack, divided only by the width of a public sidewalk or public pedestrian walk;
j. Within five feet of a curb painted blue, pursuant to the provisions of California Vehicle Code Section 21458;
k. Within a 25-foot sight triangle created by measuring along the curb beginning at the curb return to form a triangle free of any obstructions in excess of 30 inches in height;
l. In whole or in part in any roadway.
9. Newsracks shall not be located on any street identified in the circulation element of the city general plan as a local or collector street within any area of the city zoned for single-family residential uses.
B. Identification of Responsible Person. The name, address and telephone number of a responsible person who may be contacted at any time concerning the newsrack shall be displayed on the hood of a newsrack in such a manner as to be readily visible to and readable by a prospective customer.
C. Advertising Concerns. Newsracks shall carry no advertising except:
1. The name of the publication being dispensed in the same newsrack;
2. Advertising rack cards contained in card pans which are attached to and located on the front of the newsrack and do not exceed 15 inches in height and 22 inches in length. The rack cards shall be related to the display, sale, use or purchase of the newspaper or periodical being dispensed.
D. Maintenance. Newsracks shall be kept clean and maintained in good working order, freshly painted and with unbroken hoods or parts.
E. Physical Characteristics of Newsracks. Newsracks shall not exceed a height of 42 inches (not including the coin-box), a width of 27 inches or a depth of 20 inches. 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 the person is unable to receive the publication paid for. The coin-return mechanism shall be maintained in good working order at all times.
F. Hold Harmless Agreement. Each permit issued pursuant to this chapter shall be subject to a requirement that the permittee shall defend, indemnify and hold harmless the city and its officers and employees from and against any claim, damage, or liability arising or resulting from the permit or from the placement or location of the newsrack. By acceptance of the permit the permittee shall agree: The city, its agents, officers and employees shall not be, nor be held liable for any claims, liabilities, penalties, fines or for any damage to any goods, properties or effects of any personal injuries to or death of any person, whether caused by or resulting from any acts or omission of owner or permittee, or his or her agents, employees or representatives, or for dangerous or defective conditions of the property of owner or permittee in any way caused by newsracks placed or maintained pursuant to the permit; owner or permittee further agrees to indemnify and save free and harmless and defend in any action, suit or proceeding the city, its agents, officers, and employees against any of the foregoing liabilities and any cost and expenses incurred by the city, its agents, officers or employees on account of any claims therefor.
G. Insurance Requirement. No person, association, firm or corporation shall place, locate or maintain a newsrack on public rights-of-way unless there is on file with the city manager, or his or her designee, in full force and effect at all times, a document issued by an insurance company authorized to do business in the state of California evidencing that the permittee or owner is insured under a liability insurance policy providing minimum coverage of $500,000 for each person who suffers injury or death arising out of the location, placement or operation of the company’s equipment. A separate certificate is not required for each newsrack so long as the certificate evidences coverage for all newsracks placed, located or maintained by the person, association, firm or corporation involved. (Ord. 180 § 2, 1993; Ord. 157 § 1, 1992)
11.36.050 Display of harmful matter.
This section is adopted pursuant to Penal Code Section 313.1(d). Nothing in this section shall be construed to authorize any sale, rental, distribution, sending, or exhibition of harmful matter, or other act with respect to harmful matter, made unlawful by Penal Code Section 313.1.
A. Definitions. For the purposes of this section, the terms “harmful matter,” “matter,” “person,” “distribute,” “knowingly,” “exhibit,” and “minor” shall have the meanings specified in Section 313.1 of the California Penal Code. For the purposes of this chapter, the term “blinder rack” shall mean an opaque material placed in front of, or inside a newsrack or on a newsstand which prevents exposure of matter to public view.
B. Prohibition. No person shall exhibit, display, or cause to be exhibited or displayed, harmful matter in any newsrack or any other display rack, case or shelf located on a public right-of-way, in a public place, or in a place open to the public from which minors are not excluded, unless blinder racks have been installed so that the lower two-thirds of the matter is not exposed to public view. (Ord. 180 § 3, 1993; Ord. 157 § 1, 1992. Formerly 11.36.060.)
11.36.060 Costs.
The costs of installation, maintenance, replacement, removal and relocation of newsracks shall be at the sole expense of the permittee or owner of the newsrack. Upon removal of any newsrack, the permittee or owner shall, at his or her sole expense, cause the public right-of-way to be repaired to a condition in conformity to the surrounding area Upon failure of the permittee or owner to make such repairs, the work may be done by the city and charged to the permittee or owner. (Ord. 180 § 4, 1993; Ord. 157 § 1, 1992. Formerly 11.36.070.)
11.36.070 Removal of newsracks.
A. Commencing December 2, 1993, any newsrack which has not obtained a permit pursuant to this chapter will be deemed nonconforming.
B. In the event that the city code enforcement officer determines that a newsrack does not comply with the provisions of this chapter or is nonconforming, he or she shall provide written notice of such determination to the permit applicant or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the city code enforcement officer to remove the nonconforming newsrack in the event a hearing is not requested, and the right of the permittee to request a hearing, before the city code enforcement officer, within 15 days from the date of the notice. If the newsrack is one which ownership is not known, and is not apparent after inspection, a notice complying with this section shall be affixed to the newsrack.
C. In the event that a hearing is held pursuant to this section, the city code enforcement officer shall render a decision, in writing, within 10 days from the date of the hearing, and the decision shall advise the owner of his or her right to appeal to the city manager, pursuant to the provisions of SBMC 11.36.080. Notice of the decision shall be mailed to the owner using the owner’s address of record by placing such notice in the United States mail with first class postage prepaid.
D. The city manager may take possession of a newsrack and, upon the expiration of 30 days after taking possession and after additional mailed notice to the owner or apparent owner of the newsrack dispose of the newsrack, if:
1. No hearing is requested by the permittee or owner within 15 days of notice of violation as provided in this section; or
2. The appeal period specified in SBMC 11.36.080 has expired; or
3. The permittee or owner fails to remove the rack within 10 days from the date of the decision of the city manager on appeal.
E. In the event that any newsrack is abandoned, the city manager may remove it pursuant to the procedures set out in this section. For the purposes of this section, a newsrack is “abandoned” if no publication had been displayed in the newsrack for a period of 30 consecutive days, no prior written notice has been given by the permittee to the city manager specifying the reason(s) for nonuse, and the condition of the rack and related circumstances indicate it will not be actively used within a reasonable period of time. (Ord. 180 § 5, 1993; Ord. 157 § 1, 1992. Formerly 11.36.080.)
11.36.080 Appeals.
The city manager shall have the power to hear and decide appeals based upon enforcement or interpretation of the provisions of this chapter. Any permittee or owner who is aggrieved by any decision of the city code enforcement officer may appeal that decision by submitting a written notice of appeal to the city clerk within 21 days of the date on which notice of the decision was mailed. The city manager may preside over the hearing on appeal or may designate a hearing officer to take evidence and submit a proposed decision together with findings, within 15 days from the date of the hearing. The city manager or designated hearing officer shall, within 30 days from the date of the hearing, render its decision on the appeal, together with findings. The decision of the city manager shall be final subject only to review by a court of competent jurisdiction. (Ord. 180 § 6, 1993; Ord. 157 § 1, 1992. Formerly 11.36.090.)
11.36.090 Penalty.
Any person who places, installs or maintains a newsrack in violation of any provision of this chapter or who otherwise violates SBMC 11.36.050 is guilty of a misdemeanor punishable according to SBMC 1.16.010. In addition, the violation of any provision of this chapter shall be deemed a public nuisance subject to the additional remedies specified in SBMC 1.16.010. Each day, or part thereof, that a violation exists is a separate offense. (Ord. 180 § 7, 1993)
11.36.100 Severability – Supplemental provisions.
A. If any provision of this chapter as herein enacted or hereafter amended, or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect the other provisions or applications of this chapter (or any section or portion of section hereof) which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are, and are intended to be, severable.
B. The provisions of this chapter are intended to augment and be in addition to other provisions of the Solana Beach Municipal Code. Whenever the provisions of this chapter impose a greater restriction upon persons, premises, or practices than are imposed by other provisions of the Solana Beach Municipal Code, the provisions of this chapter shall control. (Ord. 157 § 1, 1992)