[Ord. #98-03, § 1]
The purpose of this section is to acknowledge and achieve the
following:
a.
There is a substantial governmental interest in promoting the public
health, safety, welfare and convenience by ensuring that persons may
reasonably use the public streets, sidewalks, rights-of-way and other
public property without interference with such use.
b.
Newsracks placed and maintained on the streets, sidewalks or other
public right-of-way, absent some reasonable regulation, may unreasonably
interfere with the use of such streets, sidewalks and public rights-of-way,
and may present hazards to persons or property.
c.
The streets, sidewalks and public right-of-way are historically associated
with the sale and distribution of newspapers and other publications,
and that access to and use of these areas for such purposes is not
to be denied except where such use unreasonably interferes with the
use of these areas by pedestrians or traffic, or where such use presents
a hazard to persons or property.
d.
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 the public
streets and grounds 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 properties
adjoining the public rights-of-way be protected.
e.
Given the limited space available and the increasing congestion throughout
the community, the City has a substantial interest in devising a systematic
approach to newsrack placement to ensure a fair and equitable distribution
of news publications. This objective may be achieved by allowing modular
newsracks and prohibiting all freestanding newsracks in highly congested
areas or areas with particular public safety, aesthetic or historical
concerns, where the sole use of modular newsracks will promote the
City's aesthetic interest in the appearance of the area, result in
more news publications in less space and thereby reduce congestion.
f.
The regulation of the sale or free distribution of newspapers and
other publications dispensed in newsracks as set forth in this section
provides the least intrusive and least burdensome means for ensuring
that the purposes stated in this section are carried out while still
providing ample opportunities for the distribution of news to the
citizens of Albany.
g.
A reasonable accommodation of these competing interests can be achieved
by adoption of this section, which regulates the placement and maintenance
of newsracks.
[Ord. #98-03, § 1]
a.
The Director shall review and may approve nontransferable permits
for the installation and maintenance of newsracks within the public
right-of-way. The number and location of such newsracks and their
installations shall be subject to the review and approval of the Director
under the criteria and standards set forth in the City's newsrack
specifications. No modular newsrack pedestal housing or temporary
freestanding newsracks shall be installed or maintained in the public
right-of-way without having first obtained a newsrack permit.
b.
The provisions of this section shall be the exclusive requirements
for newsrack encroachments onto public property in the City of Albany
and preempt any other provisions in this Code.
c.
The Director shall not consider the content or viewpoint of the material
to be distributed through newsracks in administering or enforcing
this section, except as may otherwise be authorized in this section
or pursuant to State or Federal law.
d.
The newsrack permit application form shall be completed in accordance
with City newsrack specifications. The application shall be completed
by a duly authorized representative of both the publication and, if
applicable, any independent distributor authorized to service that
publication's newsrack. A nontransferable newsrack permit may be issued
within ten (10) working days if the type of newsrack and location(s)
proposed meet the standards set forth in this section and the City's
newsrack specifications.
e.
Prior to obtaining a newsrack permit, the applicant shall provide
notice to property owners and businesses immediately adjacent to the
requested location of his/her intention to place a newsrack. Any objections
conveyed to the Director by a member of the public shall be considered
prior to the approval of a newsrack permit.
f.
If a newsrack permit is disapproved, the Director shall notify the
applicant promptly, explaining the reasons for newsrack permit denial.
The applicant shall have ten (10) calendar days within which to appeal
the decision to the City Council in accordance with the appeals provisions
of this section.
g.
The applicant shall provide a nonrefundable encroachment permit application
fee in an amount established by resolution of the City Council. Such
permits shall be valid for, and renewable every year.
h.
All persons who obtain a newsrack permit shall also obtain and prominently
display an identification/permit marker on the newsrack provided by
the City of Albany.
i.
A person securing a newsrack permit may install and maintain additional
newsracks by obtaining an encroachment permit for each newsrack. The
rules and procedures of this section shall apply to each location.
j.
If the applicant desires, the City will provide the newsrack and
the applicant shall pay a fee covering the cost of the newsrack and
permanent installation in an amount established by resolution of the
City Council.
k.
The applicant shall submit a written statement agreeing to hold harmless
and indemnify the City of each and every newsrack to be installed
or maintained over or on any public right-of-way.
[Ord. #98-03, § 1]
Approval of encroachment permits for newsracks in the public right-of-way shall be based on compliance with the standards for design, placement and maintenance set forth in the City newsrack specifications. Failure to comply with any of these requirements shall constitute a violation of this section, and shall be grounds for imposition of penalties in accordance with subsection 14-5.13.
a.
The style, color, design and dimensions of the newsrack installation
shall be approved by the Director and identified in the City newsrack
specifications. At such time as the City develops a uniform street
furniture scheme including provisions for newsracks, all publications
shall be contained in City-designated newsracks and comply with the
procedural requirements associated with such newsracks.
b.
Freestanding newsracks may be used for groupings of one (1) to three
(3) newsracks and shall be installed in accordance with City newsrack
specifications.
c.
All groupings of four (4) or more newsracks, with the exception of
temporary newsracks, shall be pedestal mounted modular racks.
d.
Temporary newsracks shall be permitted for up to forty-five (45)
days and shall be installed in accordance with City newsrack specifications.
[Ord. #98-03, § 1]
Newsracks shall be placed by permit only in a manner consistent
with City newsrack specifications.
[Ord. #98-03, § 1]
a.
The Director shall give local priority to publications as follows:
1.
First priority shall be given to daily and local weekly publications
(inclusive of their Saturday, Sunday or weekend editions whether or
not published jointly with another newspaper) that are published at
least one (1) day per week. If necessary, within category 1, priority
shall be given to publications based on the frequency or number of
daily editions distributed in Albany, for example publications with
four (4) editions shall receive priority over those with three (3)
editions and so on;
2.
Second priority shall be given to publications published less than
once per week but more than once per month;
3.
Third priority shall be given to monthly or less frequent publications.
b.
In implementing this allocation scheme, the Director will accept
applications for new locations through April 1 on an annual basis,
and conduct a meeting within four (4) weeks of this deadline. The
publications in each category may agree amongst themselves as to the
order they will follow in selecting positions; if they are unable
to agree, the Director shall determine the order within each category
based upon the frequency of publication or edition, as circumstances
require.
c.
If all modular newsrack unit locations are filled in the modular
newsrack area and a publication decides to vacate a space in a modular
newsrack unit, other publications may reach an agreement among themselves
to reassign the space. If no agreement is reached, the Director shall
assign a publication on that space based upon frequency of circulation
or edition, as circumstances require. If no available spaces exist
at a modular newsrack unit location, the publication shall be permitted
to locate in a modular newsrack unit near the location, subject to
the provisions of this section.
d.
Where a publication not previously distributed in a modular newsrack
area seeks access to modular newsrack units in that area, such publication
shall first endeavor to locate in any vacant spaces in modular newsrack
pedestal units located in that area before securing a separate modular
newsrack unit in that area.
e.
The application, upon request, may be placed on a waiting list for
such location on a first come, first serve basis.
f.
In the event a newspaper or news periodical is distributed in more
than one (1) newsrack at a single location, and the newsracks are
not fully utilized, the Director may order that newsracks that are
not fully utilized as such location be made available to the first
eligible publication on the waiting list. For purposes of this section,
a newsrack is not "fully utilized" if there are excess newspapers
or news periodicals remaining in the newsracks at the end of the day
for a daily periodical, at the end of a week for a weekly periodical
and at the end of the month for a monthly periodical.
g.
In the event that a location becomes available for the placement
of new newsracks, not more than one (1) permit may be issued per location
for any single newspaper or periodical; except that, if a newsrack
location is available for more than three (3) months, more than one
(1) permit may be issued to any newspaper or periodical at that location.
[Ord. #98-03, § 1]
a.
Newsrack Violations. A newsrack in violation of this section may
be removed by the Director if it is not possible to remedy the violation
and said violation poses a danger to health and safety, pedestrians
and vehicular traffic. Vacant, graffitied or broken newsracks shall
also constitute a danger to public health and safety.
1.
Illegal Newsracks and Violations Posing Immediate Danger. Newsracks
installed or maintained in such a place or manner as to pose an immediate
or clear and present danger to persons, vehicles or property, nontemporary
freestanding newsracks in violation of this section, newsracks impeding
the movement of disabled persons and modular newsracks which are not
covered by a current permit are subject to immediate seizure and impoundment
by the City without prior notice to the permittee or owner in accordance
with the following procedures.
(a)
Notice of Violation. Within twenty-four (24) hours after such removal, the Director shall notify by telephone the permittee or his/her designee for notice of the removal and the reasons therefor, including the facts constituting immediate or clear and present danger if any. Where an unpermitted newsrack is seized, the Director shall give written, return receipt notice to the owner of the newsrack. Within three (3) business days, the Director shall notify the permittee, the permittee's designated agent for notice, or, in the case of an unpermitted newsrack, the owner of the newsrack, in writing of the removal and the reasons therefor, including the facts constituting immediate or clear and present danger. A hearing may be requested by the permittee in accordance with subsection 14-5.10.
2.
Violation Not Posing an Immediate Danger. Any newsrack that is maintained
or placed in violation of any provisions of this section, does not
pose an immediate or clear and present danger to persons, vehicles
or property or which is not otherwise subject to paragraph a may be
removed by the City, subject to the notice and hearing procedures
set forth below.
(a)
Notice of Violation. Before such newsrack is removed, the Director shall notify the permittee or the permittee's designated agent for notice of the violation. The notice shall be in writing, sent return receipt, and shall state the nature of the violation, and shall give the permittee four (4) business days from the date appearing on the notice to either remedy the violation or to request a meeting before the Director. An additional notice tag may be affixed to the offending newsrack. A hearing may be requested by the permittee in accordance with subsection 14-5.10.
b.
Removal and Impoundment of Newsracks. The City may remove and impound a newsrack in accordance with this section following the written decision of the Director upholding the determination of a violation, or if the permittee has neither requested a meeting nor remedied the violation within four (4) business days following the date affixed to the postmark, return receipt, proof of mailing or proof of transmission by fax associated with the City's violation notice. An impounded newsrack shall be retained by the City for a period of at least thirty (30) calendar days following removal, or until recovered, and may be recovered by the permittee upon payment of a fee to be determined by the Director to cover the costs of removal, storage, administrative expenses and all other costs related to impoundment, along with any additional penalties imposed pursuant to subsection 14-5.13. An impounded newsrack may be disposed of by the City if not recovered within thirty (30) calendar days. No fee shall be imposed under this paragraph if the Director determines that the violation was remedied within the four (4) day period following notice of the violation to the permittee.
c.
Abandoned Newsrack. An abandoned newsrack may be removed by the City and impounded, pursuant to the notice and hearing procedures set forth in subsection 14-5.10. A permittee may challenge the notice by showing that the empty newsrack box is attributable to a labor strike or a temporary or extraordinary interruption of distribution or publication by the newspaper sold or dispensed from that newsrack box. The City may dispose of the newsrack if the permittee does not claim the unit and pay any costs required under subsection 14-5.6b.
d.
Impounded Newsracks. The permittee, owner, or any person entitled to possession of an impounded newsrack, who fails to recover it and pay any costs required pursuant to subsection 14-5.19, shall be deemed to have abandoned the newsrack and it shall be disposed of in a manner prescribed by law for the disposal of abandoned personal property. The permittee will remain liable for all costs of removal, impoundment, storage and disposition, in addition to any additional penalties imposed pursuant to subsection 14-5.13 regardless of whether the newsrack is actually recovered except where the Director determines that the newsrack was not in violation of this section.
[Ord. #98-03, § 1]
Upon the removal of a newsrack, the public right-of-way shall
be returned to its original condition by the permittee, or publication
if a permit has not been issued, including but not limited to the
refilling of holes installed for purposes of maintaining newsracks.
[Ord. #98-03, § 1]
The permittee, or a claimant who provides sufficient proof of
ownership of an impounded newsrack may, at any time up to and including
the thirtieth day after the impounding, or the thirtieth day after
a final hearing decision on the newsrack, obtain a return of the newsrack
and its contents, upon paying an impound fee.
[Ord. #98-03, § 1]
The accumulation and storage of abandoned, wrecked, dismantled
or inoperative newsracks or parts thereof on sidewalks or in the public
right-of-way is hereby found to create a condition tending to reduce
the value of property, to promote blight and deterioration and to
be injurious to the health, safety and general welfare. Therefore,
the presence of an abandoned, wrecked, dismantled or inoperative newsrack
on the sidewalk or other public right-of-way is hereby declared to
constitute a public nuisance which may be abated as such in accordance
with the provisions of this section.
[Ord. #98-03, § 1]
a.
Requests for Hearing. Any person notified under subsection 14-5.6 may submit a written request for a hearing before the Director which hearing shall be held not less than ten (10) business days after the request was made.
b.
Stay Pending Decision. A timely request for hearing made prior to
any impounding shall operate to stay any impounding until five (5)
working days after a final decision is rendered.
c.
Conduct of Hearing. The hearing shall be informal but oral and written
evidence may be given by both sides. Any action by the City with respect
to the alleged violation shall be stayed pending the Director decision
following the hearing, which decision shall be rendered no later than
ten (10) business days after the hearing.
d.
Decision. A decision shall be rendered within five (5) working days
after the close of the hearing. The Director shall take any one of
the following actions:
1.
Determine there was no violation of this section;
2.
Determine there was a violation of this section and order that the
violation be corrected within a reasonable period of time and if not,
order the removal or impound of the newsrack found in violation of
this section;
3.
Determine there was a violation of this section and order the newsrack
removed. If the newsrack which is found in violation of this section
is not removed, it shall be impounded.
e.
Notice of Decision. The Director may give oral notice of the decision
at the close of the hearing and shall send notice of the decision
by mail.
[Ord. #98-03, § 1]
[Ord. #98-03, § 1]
a.
Filing Requirements. Appeals shall be addressed to the appellate
body, on a prescribed form and shall state the basis of the appeal.
Appeals shall be filed with the secretary of the appropriate appellate
body within ten (10) days following the date of the action from which
an appeal is taken.
b.
Notice Required. Notice of such appeal shall be given to the Director
whose interpretation is appealed from and the Director shall submit
to the appellate body a report setting forth the reasons for the action
or interpretation, or shall be represented at the appeal hearing.
c.
Time Limit. The appellate body shall render its decision within sixty
(60) days.
d.
Failure of Appellate Body to Act. Failure of the appellate body to
act within the time specified shall be deemed concurrence with the
previous decision rendered.
e.
Conditions and Findings. The appellate body may impose or prescribe
conditions in its determinations as are, in its opinion, necessary
to serve the objectives of this chapter, and may require such guarantee
and evidence of compliance with such conditions.
[Ord. #98-03, § 1]
a.
Penalty. Any permittee, or the owner of an unpermitted newsrack found to have any of the provisions of this section shall receive a notice of violation in accordance with subsection 14-5.6. If the same newsrack is found to be in violation of this section following four (4) business days from the date of the notice, the permittee shall be subject to a civil penalty of one hundred ($100.00) dollars per violation.
b.
Impound Fee. In addition, the permittee, or in the case of an unpermitted
newsrack, the owner of the newsrack shall pay an impound fee as set
forth above for newsracks which are impounded for violations of this
section. No fee shall be imposed if the Director determines that the
newsrack was improperly impounded. Except in the case of an improper
impoundment, no newsrack abandoned or removed and impounded for violation
of this section shall be restored to the permittee, owner, or to another
person entitled to possession, unless and until the impound fee is
paid.
c.
Other Remedies. The provisions of this subsection shall not limit
any other remedies authorized by law.
[Ord. #98-03, § 1]
Each permittee installing or maintaining a newsrack under this
section shall furnish to the City a certificate showing that such
person has in force a policy or policies of public liability and property
damage insurance in a form and with insurers acceptable to the City,
naming the City as an additional insured, in an amount not less than
one hundred thousand ($100,000.00) dollars minimum liability combined
single limit (bodily injury and property damage) per person and per
occurrence. Each such permittee shall provide and keep in force such
policy or policies of public liability insurance during such time
as he or she continues to place or maintain any newsrack under the
terms of this section. The evidence of insurance filed with the City
shall include a statement by the insurance carrier that such carrier
will give the City thirty (30) days notice before canceling such insurance.
[Ord. #98-03, § 1]
Any permittee installing or maintaining a newsrack under this
section shall further be required to execute an agreement with the
City that he or she agrees to indemnify, defend and hold harmless
the City and its representatives from all claims, demands, loss, fine
or liability to the extent arising out of or in connection with the
installation, use or maintenance of any newsrack on City streets,
sidewalks and public right-of-way 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 or its authorized representatives.
[Ord. #98-03, § 1]
The Director is authorized to phase in the implementation of
this section. In order to accomplish this purpose, the Director is
authorized to establish implementation zones and to establish dates
by which all newsracks in the implementation zones shall be in compliance
with the requirements of this section. The deadlines for placing all
newsracks in compliance with this section and guidelines shall be
prominently posted in the implementation zones. The Director shall
designate the implementation zones and schedule for compliance in
each zone in the guidelines. All newsracks authorized to be on City
streets, sidewalks, and public right-of-way in an implementation zone
shall have one hundred-eighty (180) days from the initial date specified
in the guidelines for implementation of this section in that implementation
zone to be brought into compliance with the provisions of this section
and the guidelines issued by the Director.
[Ord. #98-03, § 1]
a.
All notices, consents, demands and other communications required
or permitted to be given under this section shall be effective only
if rendered or given in writing and shall be delivered either by (1)
postage prepaid, return receipt requested, registered or certified
mail; (2) expedited messenger service; (3) personal delivery to an
authorized representative; (4) facsimile; or (5) air courier addressed
to the party or parties for whom intended at the addresses set forth
in the party's applications or such other address as the intended
recipient shall have designated in writing to the Director from time
to time (provided, however, notice of change of addresser facsimile
number shall be effective only upon receipt).
b.
Notice to the City shall be addressed to: City of Albany, Attention:
Director of Community Development & Environmental Resources, 1000
San Pablo Avenue, Albany, California, 94706.
c.
All notices and other communications shall be deemed to have been
rendered or given (i) if sent by registered or certified mail, on
the date it is officially recorded as delivered to the intended recipient
by return receipt or equivalent, and in the absence of such record
of delivery, the effective date shall be presumed to have been on
the third business day after the date when it shall have been deposited
in the mail; (ii) if sent by expedited messenger service, on the date
it is officially recorded by the messenger service carrier as delivered
to the intended recipient; (iii) if personally delivered, upon receipt
by an authorized representative; (iv) if by facsimile, one (1) hour
after its transmission, if such time is during the hours of 9:00 a.m.
and 5:00 p.m. in the place of its receipt or, if it is not, on the
opening of business on the succeeding business day in place of the
receipt, subject to having in fact been received in legible form;
and (v) if sent by air courier, one (1) business day after delivery
to an air courier for overnight expedited delivery.
[Ord. #98-03, § 1]
The Director is hereby authorized and directed to establish
a Newsrack Advisory Committee comprised of newspaper and news periodical
representatives, their designated distributors and other interested
parties to assist the Director in the implementation and administration
of this section, with particular attention to ongoing maintenance
of the newsracks, and to minimize the cost to the City of the implementation
and administration of this section.
[Ord. #98-03, § 1]
Will be established in the Master Fee Schedule.
