Every person, principal or agent, clerk or employee, either
for himself or herself or any other person or as an officer of any
corporation, who places or maintains or causes to be placed or maintained
a news rack on or projecting onto any portion of a public right-of-way
shall permanently and clearly affix to each news rack, identification
which includes the news rack owner's name, address, and telephone
number as required by Business and Professions Code Section 17570
for the purposes of all notification pursuant to this chapter.
(Ord. 2035-82 § 1)
No person shall place or maintain any news rack on any portion
of, or projecting onto, into or over any portion of the roadway on
which vehicles are lawfully permitted.
(Ord. 2035-82 § 1)
No news rack shall be placed, installed, used, or maintained
in the public right-of-way in the following locations:
(a)
Within
three feet of any marked crosswalk.
(b)
Within
fifteen feet of the curb return of any unmarked crosswalk.
(c)
Within
fifteen feet of any fire hydrant or other emergency facility.
(d)
Within
three feet of any driveway.
(e)
Within
three feet ahead of and fifteen feet to the rear of any sign or pavement
markings marking a designated bus stop measured parallel to the flow
of traffic.
(f)
Within
three feet of any bus bench.
(g)
At
any locations where the news rack causes, creates, or constitutes
a traffic hazard.
(h)
Where
the news rack will physically endanger persons or property.
(i)
Where
the news rack will unreasonably interfere with or obstruct the flow
of pedestrian or vehicular traffic on the highway.
(j)
At
any location whereby the clear space for the passage of pedestrians
is reduced to less than three feet.
(Ord. 2035-82 § 1; Ord. 2828-07 § 1)
Due to the unique nature of the Murphy Avenue downtown area,
the city council finds and declares that special criteria for the
design and placement of news racks are necessary to preserve and enhance
both the appearance of Murphy Avenue and the surrounding commercial
district, as well as to ensure the ability of businesses to operate
without unreasonable impacts from news racks.
(a)
Designated
Area. The downtown special news rack district is hereby designated
as the area bounded by and including the south side of Evelyn Avenue,
the west side of Sunnyvale Avenue, the north side of Washington Avenue,
and the east side of Frances Avenue, including both sides of the 100
block of South Murphy Avenue between Evelyn Avenue and Washington
Avenue.
(b)
Permit
Required. It is unlawful to install, place, maintain or cause to be
placed, installed, or maintained a news rack within the downtown special
news rack district without first receiving a permit therefor from
the director of community development and unless such news rack is
in compliance with the provisions of this chapter.
(c)
Standards
for Design and Placement of News Racks. Notwithstanding any contrary
provisions of this chapter, the following standards shall apply to
news racks and the placement of publications in new racks within the
downtown special news rack district:
(1)
Every news rack shall be a modular design, dark brown in color, 49-16
or K-100 style (as manufactured by "ShoRack") or KJ50/KJ55F (as manufactured
by "K-Jack") or M-30/M-33 (as manufactured by National Newsvend) or
the equivalent, as determined by the director of community development.
(2)
News racks shall be pedestal mounted, double-stacked, with curved
or slanted tops, and shall be equal in height not exceeding fifty
inches from the sidewalk to the top of the unit (including the pedestal),
twenty-four inches in width and sixteen inches in depth. The highest
operable part of the coin slot, if provided, and all controls, dispensers
and other operable components of a news rack shall be no higher than
forty-eight inches above the ground, and no lower than fifteen inches
above the ground. Permittees may be required to provide devices commonly
known as "spacers" to ensure that all news racks in a single location
group of racks are the same height. Permittees who use news racks
of a brand other than Sho-Rack may be required to furnish spacers
to achieve height uniformity.
(3)
News racks shall be placed only in sites which shall be designated
by the director of community development upon a finding that the location
is consistent with the purpose and intent of the Murphy Avenue streetscape
revitalization project.
(4)
News racks shall be placed in clusters not exceeding a combined distance
of ten feet in length.
(5)
Every news rack shall be bolted or safely secured to the sidewalk
or concrete slab as approved by the director of community development.
News racks shall not be chained or otherwise attached to any traffic
sign, post, bus shelter, bench, street light, tree or any other object.
(6)
The name and/or logo of the publication may be placed only on the
front face of the box. No words or pictures may be displayed on the
back or sides of the news rack.
(7)
In the event that a news rack is relocated, the permittee shall bear
the cost of repairing and restoring the sidewalk to a safe and attractive
condition as soon as practicable after removal or relocation of the
news rack.
(e)
Obtaining a Permit. Applications for a permit for one or more
news racks in the downtown special news rack district shall be made
to the director of community development on a form prescribed by the
director of community development, 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 news rack 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 may notify
or contact at any time concerning the applicant's news rack(s);
(3)
The number of proposed news racks and 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 each proposed news rack;
(4)
A description of each proposed news rack, including its model, dimensions,
color, 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 each news rack;
(6)
A statement signed by the applicant that the applicant agrees to
indemnify, defend and hold harmless, the city 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 news rack 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 or its authorized representatives; and
(7)
A statement signed by the applicant that the applicant agrees, upon
removal of a news rack, to repair any damage to the public property
caused by the news rack or its removal.
(f)
Issuance
of Permit. A permit shall be issued within ten working days from the
date of filing the application with the director of community development
if the application is properly completed and the type of news rack
and location proposed for each news rack meet the standards set forth
in this chapter. A single permit shall be issued for all news racks
applied for by an applicant which meet the standards of this chapter.
A permit shall not be transferable.
(g)
Period
of Permit Validity. All permits issued within three years from the
effective date of this section shall expire on the date three years
from the effective date of this section, regardless of the date of
issuance. All permits issued within the second and succeeding three
year periods shall, likewise, expire at the end of such three-year
period.
(h)
Issuance
of Permit Sticker. Each permittee shall be issued a preprinted sticker
for each permitted news rack, which shall be affixed to the lower
right corner of the front of each news rack.
(i)
Denial of Permit. If a news rack permit is disapproved, in whole or in part, the director of community development shall notify the applicant within ten working days from the date of filing a complete application with the city engineer, explaining the reasons for the denial of the permit. The applicant shall have ten calendar days within which to appeal the decision to the city manager in accordance with the appeal provisions set forth in subsection (j).
(j)
Appeal
of Permit Denial. After receiving a notice of appeal, the city manager
or the designee of the city manager shall conduct a hearing within
thirty 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. 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 fifteen
days after the date of the hearing. The decision of the city manager
shall be final.
(k)
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 director of community development. A permittee may install
and maintain additional news racks 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.
(l)
Existing
News Racks. Owners of existing news racks shall have sixty days after
the effective date of the ordinance establishing the downtown special
news rack district to apply for a permit. The director of community
development shall provide a reasonable time for the conversion of
existing news racks to a modular installation. The costs of the conversion
shall be borne by the permittees. If sufficient space does not exist
to accommodate all news racks sought to be placed at one location
without violating the standards set forth in this chapter, and the
permit holders are unable to agree among themselves regarding the
allocation of spaces, the director of community development shall
give priority as follows:
(1)
First priority shall be publications that are published two 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.
(5)
In the event that the above system of prioritization fails to resolve
a conflict between two or more publications that are published at
the same frequency, historical presence at the location will be the
determining factor.
|
In the event the director of community development is required to utilize the priority system described in subsections (1) through (5) of this subsection, he or she shall permit only one rack per publication in a single location, provided that the Sunday edition of a daily publication shall be considered as a separate publication and shall be in the second category.
|
(m)
Waiting List. After the original assignment of spaces within the downtown special news rack district, if application is made to place a news rack at a location where no space is available, the director of community development shall place the applications on a waiting list. In the event that a space becomes available, the director of community development will determine which applicant shall receive a space according to the priority described in subsection (l) of this section.
(n)
Renewal of Permits. At the expiration of each three-year permitting period, a valid permit holder shall be entitled to keep its previously assigned space(s), as long as the permittee files a timely application for renewal according to procedures developed by the director of community development, and if the application is properly completed and the news rack meets the standards set forth in this chapter. Remaining available spaces shall be allocated according to the priority described in subsection (l) of this section.
(Ord. 2828-07 § 2)
Publications offered for sale from news racks placed or maintained
on or projecting over or in the public right-of-way shall not be displayed
or exhibited in a manner which exposes to public view any of the following:
(a)
Any
statements or words describing explicit sexual acts, sexual organs,
or excrement, where such statements or words have as their purpose
or effect sexual arousal, gratification, or affront.
(b)
Any
picture or illustration of genitals, pubic hair, perineums, anuses,
or anal regions of any person where such picture or illustration has
as its purpose or effect sexual arousal, gratification, or affront.
(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.
(Ord. 2035-82 § 1)
as used in this chapter means depictions of sexual intercourse,
oral copulation, anal intercourse, oral-anal copulation, bestiality,
sadism, masochism, or excretory functions in conjunction with sexual
activity, masturbation or lewd exhibition of the genitals, whether
any of the above conduct is depicted or described as being performed
alone or between members of the same or opposite sex or between humans
and animals, or any other act or sexual arousal involving any physical
contact with a person's genital, pubic region, pubic hair, perineum,
anus or anal region.
(Ord. 2035-82 § 1)
The director of public safety or his or her designee:
(a)
May immediately correct any violation of Section 9.42.030, and shall do so, without impounding if such correction can be accomplished simply, easily, quickly, and without expense.
(b)
May,
notwithstanding any other provisions of this chapter, immediately
remove and impound any news rack in violation of this chapter if the
violation is creating a physically dangerous or hazardous condition
which cannot be corrected simply, easily, quickly, and without expense.
Notice of such action and the right to request a hearing in accordance
with this chapter shall be mailed to the name and address appearing
on the news rack identification within three working days after such
action.
(c)
May
notify the party named on the news rack identification when a news
rack is in violation of this chapter, either in person, by telephone,
or by mail, in his or her discretion, and/or by affixing a notice
to the news rack, that the news rack will be impounded unless the
violation is corrected or a hearing requested within three working
days of date of such notice, if the notice is in person or by telephone;
within eight working days of the date of the notice, which date shall
be specified in the notice, if the notice is by mail; or within ten
working days of the date of notice, which date shall be specified
in the notice, if the notice is by affixing a notice to the news rack.
(d)
May impound any news rack in accordance with the decision following any hearing requested pursuant to this chapter, upon a finding of facts sufficient to constitute a violation of any section of this chapter, or following expiration of the time periods set out in subsection (c), above, if no request for hearing is received within that time.
(e)
If a hearing on the impounding of the news rack is not timely requested pursuant to Section 9.42.080 or if the news rack is not otherwise returned in accordance with the provisions of this chapter, the director of public safety may sell or otherwise dispose of the news rack, and its contents, and deposit the proceeds, if any, from any such sale or other disposition, and any monies contained in said news rack, in the city treasury.
(Ord. 2035-82 § 1)
(a)
Unless
the news rack and its contents are being held as evidence in a criminal
prosecution, the person whose name appears on the news rack identification
or if such person is unknown, a claimant who provides sufficient proof
of ownership of an impounded news rack may, at any time up to and
including the 30th day after the impounding, obtain a return of the
news rack and its contents, upon paying an impound fee of $25.00 plus
the reasonable additional cost, if any, of impounding the news rack,
in excess of $25.00. If a hearing pursuant to this chapter is held
concerning the news rack, said person may, at any time up to and including
the 30th day after the decision at which such hearing becomes final,
obtain a return of the news rack and its contents, upon paying an
impound fee of $25.00 plus the reasonable additional cost, if any,
of impounding the news rack in excess of $25.00.
(b)
The
director of public safety or his or her designee shall, after a hearing
in accordance with this chapter, order the news rack returned without
payment of any impound fee, or if an impound fee has previously been
paid, return such impound fee whenever it is determined that this
chapter has not been violated.
(c)
A
court before whom criminal charges concerning an impounded news rack
are pending, shall, upon dismissal of the charges or a finding of
acquittal, and upon a finding of good cause order an impounded news
rack returned with or without payment of an impound fee or the return
of the impound fee paid.
(Ord. 2035-82 § 1)
(a)
Request
for Hearing. Any person maintaining a news rack, who is notified that
such news rack is being maintained in violation of this chapter may,
at any time within thirty days after notice of the alleged violation
is given, request in writing a hearing before the director of public
safety or his or her designee. For purposes of this section, notice
is deemed to be given as follows:
(1)
In the case of verbal notice or personal service, notice is deemed
given on the date of such notice or service.
(2)
In the case of mailed notice, notice is deemed given upon the date
such notice is deposited in the United States mail, first class, postage
prepaid, addressed as specified on the news rack. Such notice shall
state the date of notice.
(3)
In the case of notice posted on the news rack, notice is deemed given
upon expiration of seven days from the date of posting.
(b)
Stay
Pending Decision. A timely request for a hearing made prior to any
impounding, shall operate to stay any impounding until five working
days after the decision is rendered, unless further stayed pending
any appeal therefrom.
(c)
Conduct
of Hearing. A hearing shall be held, unless continued by agreement,
within five working days of the request for a hearing. At the hearing
any person may present evidence or argument as to whether the news
rack was in violation this chapter or whether the news rack should
be returned without payment of an impound fee.
(d)
Decision.
A decision shall be rendered within five working days after the close
of the hearing.
(e)
Notice
of Decision. The director of public safety or his designee may give
oral notice of the decision at the close of the hearing or may send
written notice of the decision by mail.
(Ord. 2035-82 § 1)
(a)
Appeal.
Any person who requested a hearing may, within five days after notice
of the decision therein is given pursuant to this chapter, appeal
such decision to the city manager of the city of Sunnyvale or to the
city manager's designee.
(b)
Contents
of Appeal. The appeal shall be in writing, shall state the legal and
factual basis upon which the appeal is to be based and shall be filed
with the director of public safety and the city manager or their respective
designees. The director of public safety shall forward the notice
of appeal, together with a notice of the decision to the city manager
or the city manager's designee.
(c)
Stay
Pending Appeal. A timely appeal of the director of public safety's
decision shall operate to stay any impounding pending a decision on
appeal by the city manager or the city manager's designee pursuant
to this section.
(d)
Action
by the City Manager. Within ten working days of receipt of both the
notice of appeal and the director of public safety's decision, the
city manager or his/her designee may take any of the following actions:
(1)
Grant a stay of the decision or any impounding pending further consideration
by the city manager or designee.
(2)
Approve the director of public safety's decision and order.
(3)
Disapprove the director of public safety's decision and order.
(4)
Modify the director of public safety's decision or order.
(5)
Set aside the director of public safety's decision and order and
hold a hearing de novo as if no hearing previously had been held.
(Ord. 2035-82 § 1)
Notwithstanding any other provisions of this chapter, any person who violates Section 9.42.010, 9.42.020, 9.42.030 or 9.42.040 of this chapter shall be guilty of an infraction and may be punished by: (1) a fine not exceeding fifty dollars for a first violation; (2) a fine not exceeding one hundred dollars for a second violation of this chapter within one year; (3) a fine not exceeding two hundred fifty dollars for each additional violation of this chapter within one year. Each day such violation continues shall constitute a separate violation.
(Ord. 2035-82 § 1)
The provisions of this chapter shall not limit any other remedies
authorized by law.
(Ord. 2035-82 § 1)
If any section, subsection, subpart or provision of this chapter
or the application thereof to any person or circumstances is held
invalid, the remainder of the chapter and the application of such
to other persons or circumstances shall not be affected thereby.
(Ord. 2035-82 § 1)
