A. 
The City Council finds and declares that it is necessary to establish comprehensive news rack regulations in order to achieve substantial government interests. The unregulated placement of news racks affecting the public right-of-way presents an inconvenience and danger to the health, safety and welfare of the inhabitants of the City in that, unless regulated, news racks may:
1. 
Interfere with the safe path of travel and flow of pedestrian and vehicular traffic and inhibit wheelchair access and/or interfere with the safe use of the public rights-of-way by disabled persons;
2. 
Impair the vision and distract the attention of motorists and pedestrians, particularly small children, and cause injury to the person or property of such persons;
3. 
Inhibit safe entry and departure from vehicles or buildings;
4. 
Inhibit reasonable access to bus stops, bus benches and bus shelters;
5. 
Inhibit reasonable access by all individuals of varying abilities for use and maintenance of sidewalks, poles, posts, traffic signs and signals, hydrants, mailboxes and similar appurtenances;
6. 
Detract from the appearance of streets, sidewalks and adjacent businesses;
7. 
Cause loss of funds to patrons in the event of a malfunction;
8. 
Expose the City to liability claims for personal injury and property damage.
B. 
News racks presenting any of the characteristics enumerated in subsection A of this section constitute a public nuisance, which the provisions of this chapter are enacted to prevent.
(Ord. 2010-1108 § 1)
Whenever the following words and phrases are used in this chapter, they shall have the following meanings:
"Department"
means the Public Works Department.
"Director"
means the Director of the Public Works Department or designee.
"News rack" or "newsrack"
means any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, distribution or sale of publications.
"Person"
means the person or entity who owns any news rack located in the right-of-way in the City, or located so as to attempt to utilize or take advantage of the right-of-way, or who places or maintains, is responsible for, or directs the placing or maintenance of such news rack.
"Public right-of-way"
means any place owned by the City or dedicated to use of the public for pedestrian or vehicular travel, including, but not limited to, a street, sidewalk, curb, gutter, parkway, highway, alley, mall, court, park or square.
"Roadway"
means that part of a public right-of-way that is designed or used primarily for vehicular travel.
"Sidewalk"
means the area of the public right-of-way that is designated or ordinarily used for pedestrian travel.
(Ord. 2010-1108 § 1)
No person shall place or maintain a news rack so as to endanger safety of person(s) or property or unreasonably interfere with or impede the flow of pedestrian or vehicular traffic on a roadway or public right-of-way. In addition, no person shall place or maintain upon or over a public right-of-way a news rack, unless in conformance with all provisions of this chapter.
(Ord. 2010-1108 § 1)
A. 
No person shall place or cause to be placed or maintained or cause to be maintained any news rack, or other device used or maintained for the display, distribution, or sale of publications, hereinafter referred to in this chapter as "news rack," in or upon any roadway, public right-of-way or City-owned property in the City, or permit any news rack to remain upon any roadway, public right-of-way or City-owned property without first obtaining a written permit from the City. A permit will not be issued unless the application is completed in full, the requested installation meets all the appropriate placement and appearance criteria as set forth below, and the application is accompanied by the permit fee.
B. 
Any owner of a news rack currently existing on any City right-of-way must apply for a permit pursuant to this chapter within 60 days of the effective date of the ordinance codified in this chapter, provided that the existing news rack is in a location deemed to be legal as of the effective date of the ordinance codified in this chapter. Any news rack that is not the subject of a valid permit application as required by this chapter, will be deemed to be in violation of this chapter and subject to removal from the right-of-way as set forth herein.
C. 
This chapter shall not apply to an owner or occupant of property who places or maintains a news rack on private property, in such manner that the news rack will not interfere with the movement of pedestrians or vehicular traffic.
(Ord. 2010-1108 § 1)
A person desiring a permit for the placement of one or more news racks as required by this chapter shall file an application for such permit with the Community Development Department.
(Ord. 2010-1108 § 1)
A. 
The Community Development Department shall be responsible for the receipt, distribution, tracking, permit fee and return of the permit to the applicant. The distribution will include routing the application to the Director for review, evaluation and conditions of approval or denial.
B. 
Each application shall be accompanied by a detailed plan giving a full description of the proposed location of each news rack, the type and design of the news rack to be used, and such other information regarding the appearance and placement as may be required by the Director.
C. 
If the application for a permit is denied, the Director shall notify the applicant setting forth the grounds for denial of the permit in clear and concise language. Within five days of receipt of the Director's notification of denial of the application for a permit, the applicant may file a written request with the City Manager for a hearing before the City Manager. The City Manager shall set a time and place for the hearing and shall notify the applicant thereof at least five days before the hearing date. The hearing shall be held within 30 days after the request is filed. At any hearing held pursuant to this section the applicant shall have the right to be heard and to present witnesses and documentary evidence on its behalf. The decision of the City Manager shall be final.
(Ord. 2010-1108 § 1)
A person desiring a permit shall pay a fee in an amount to be set by City Council resolution, to the City upon the filing of each application for a permit as provided in this chapter for the purpose of defraying the expense of processing the application.
(Ord. 2010-1108 § 1)
A. 
The Director shall approve the permit applied for if the application meets all the requirements of this chapter.
B. 
The Director shall determine priorities related to the location of news racks as follows:
1. 
An application for a news rack in an unoccupied location deemed to be legal as of the effective date of the ordinance codified in this chapter shall be given priority on a first-come, first-served basis. In the event that available spaces remain in an occupied location deemed to be legal as of the effective date of the ordinance codified in this chapter after the lottery provided for in subsection (B)(3) of this section is concluded, if such lottery is required, such remaining spaces shall also be given priority on a first-come, first-served basis.
2. 
News racks already placed at a location deemed to be legal as of the effective date of the ordinance codified in this chapter shall have priority over new applicants for the same location, provided the owners of the existing news racks submit an application for a permit as required by Section 12.76.040(B), and the then existing or newly proposed news racks comply with the appropriate placement and appearance criteria within six months, as set forth in Section 12.76.110(F).
3. 
In determining which preexisting news rack(s) shall be permitted to remain at an occupied location deemed to be legal as of the effective date of the ordinance codified in this chapter, the Director shall assign the space(s) at random by means of a public lottery if necessary. The owners of such news racks must also apply for a permit as required by Section 12.76.040(B), and comply with the appropriate placement and appearance criteria within six months, as set forth in Section 12.76.110(F).
(Ord. 2010-1108 § 1)
Prior to the issuance of a permit pursuant to this chapter, the applicant shall file a policy of insurance, or certificate thereof, issued by a company authorized to do business in the State with the Director. Said policy shall name the City as a named insured, and shall indemnify the City for any loss, damage or liability suffered by the City by reason of the existence of such news rack in or upon the City right-of-way and/or the operation and maintenance of such news racks. Said policy of insurance shall indemnify the City in the sum of $1,000,000.00 or more against loss or liability arising from the injury or death of one person, and shall indemnify the City in the sum of $1,000,000.00 or more against loss or liability arising from the injury or death of two or more persons in any one accident, and the sum of $300,000.00 or more with respect to any property damage aforesaid. Such indemnity, public liability and property damage insurance shall be maintained in full force and effect during the entire term of the permit granted pursuant to this chapter.
(Ord. 2010-1108 § 1)
Prior to the issuance of a permit pursuant to this chapter, the applicant shall enter into an agreement with the City whereby the permittee shall agree as follows: The City, its agents, officers and employees, shall not be held liable for any claims, liabilities, penalties, fines or for any damage to any goods, properties or effects of any person whatsoever, or for personal injuries to or deaths of any person, whether caused by or resulting from any acts or omission of permittee, or his or her agents, employees or representatives, or for dangerous or defective conditions of the property of the permittee or any way caused by news racks placed or maintained pursuant to the permit; the permittee further agrees to indemnify and save free and harmless and defend in any lawsuit the City and its authorized 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.
(Ord. 2010-1108 § 1)
A. 
No news rack shall exceed 48 inches in height, 20 inches in width or 20 inches in depth.
B. 
Each news rack shall be constructed entirely of opaque, shatterproof materials.
C. 
No photographs, drawings, advertising signs, or material other than the printed name of the publication contained within the news rack, and the notice described in subsection D of this section, shall be displayed on the outside of any news rack.
D. 
Each news rack shall have affixed to it in a readily visible place, a notice not larger than three inches high and six inches long, setting forth the name and address of the person responsible for maintaining the news rack and a working telephone number to call to report a malfunction, or to obtain a refund in the event a person using the news rack is unable to receive the publication paid for. The name, address and telephone number given shall be those desired for receipt of all notices provided by this chapter.
E. 
Each news rack shall be maintained in a neat and clean condition and in good repair at all times. Evidence that the news rack is not maintained in a clean condition and good repair includes, but is not limited to, the presence of:
1. 
Graffiti.
2. 
Broken or unreasonably misshapen structural components.
3. 
Cracks, dents or discoloration of the news rack.
4. 
Substantial accumulation of dirt, grease, rust, or corrosion.
5. 
Substantial amount of chipped, faded, peeling, or cracked paint.
F. 
The provisions of this section shall apply to all news racks, whether installed and maintained prior to or after the effective date of the ordinance codified in this chapter that, in whole or in part, rests upon, in, or over any dedicated sidewalk, right-of-way or roadway.
G. 
In addition to any other provisions of this section, news racks shall otherwise comply with all applicable federal, state, and local laws and regulations including, without limitation, the Americans with Disabilities Act (ADA) and other laws and regulations relating to barrier-free design.
(Ord. 2010-1108 § 1)
A. 
No news rack shall be located, maintained or placed at or within:
1. 
Twenty-five feet of the intersection of two or more roadways;
2. 
Five feet of any crosswalk, bus bench, fire hydrant or other emergency facility;
3. 
Forty-five feet ahead or 45 feet to the rear of a bus stop as measured along the street curb;
4. 
Ten feet of any driveway;
5. 
Five hundred feet of any cluster of three other news racks, whether or not containing the same edition of the publication.
B. 
All news racks shall be placed in a location that preserves a minimum of four feet of unobstructed pedestrian accessible sidewalk between the rack and the street side of the sidewalk.
C. 
News racks upon sidewalks or other pedestrian ways shall be located only at the edge thereof farthest from the roadway. If a roadway adjoins such sidewalk or pedestrian way, news racks shall only be located at the edge away from the roadway, and if the wall of a building adjoins the edge away from the roadway, then news racks must be parallel to and within six inches of such wall, but neither directly in front of any display window nor within three feet of any entrance to such building.
D. 
No news rack shall be chained, bolted or otherwise attached to the ground or to any fixture unless it is affixed in a manner acceptable to the Director pursuant to a validly issued encroachment permit.
E. 
In addition to any other provisions of this section, news racks shall be otherwise located so as not to create a danger to persons using the news rack in a reasonably foreseeable manner, and that all news racks will comply with all applicable federal, state, and local laws and regulations including, without limitation, the Americans with Disabilities Act and other laws and regulations relating to barrier-free design.
(Ord. 2010-1108 § 1)
The permittee shall at all times keep and maintain each of the news racks in a good state of repair and in a neat, clean condition to the satisfaction of the Director. Said maintenance shall include: painting at such intervals as may be specified from time to time by the Director to ensure that the news racks have a neat appearance; and repairing of any damage within 72 hours after written notification of damage given by the Director.
(Ord. 2010-1108 § 1)
Upon the removal or relocation of any news rack, the person so removing or relocating the news rack shall be responsible for the repair of any resulting condition, including filling in of any holes left in the sidewalk and/or the removal of any bolts or other devices used to affix the news rack to the sidewalk such that there are no obstructions above the grade of the sidewalk. Such work is to be done to the satisfaction of the Department.
(Ord. 2010-1108 § 1)
The Director shall be responsible for the enforcement of this chapter and shall authorize periodic inspections of news rack locations, including inspections upon the removal or relocation of a news rack, to accomplish the purposes of this chapter.
(Ord. 2010-1108 § 1)
A. 
Upon determining that a news rack exists in violation of any provision of this chapter, the City Manager shall:
1. 
Cause the news rack to be removed and processed as unclaimed property under applicable provisions of law if the news rack is in violation of Section 12.76.110(D), and the City Manager is unable to otherwise ascertain the name and address of its owner.
2. 
Cause an order to be issued to the person named in the notice required by Section 12.76.110(D) to correct the offending condition if the news rack is in compliance with Section 12.76.110(D). The order shall be telephoned to the distributor and confirmed by mailing a copy of the order by certified mail, return receipt requested, to the person at the address shown on the notice required by Section 12.76.110(D). The order shall specifically describe the offending condition and suggest actions necessary to correct it. If the distributor fails to make the corrections within five days (excluding Saturdays, Sundays and legal holidays) of receipt of the order, and no request for a hearing is filed, the City Manager shall cause the offending news rack to be seized. The person named in the notice required by Section 12.76.110(D) shall be notified of the seizure by certified mail within 30 days. If no response is made, the City Manager shall cause the news rack to be processed as unclaimed property under applicable law.
3. 
Cause the news rack to be seized and processed under the provisions of subsection B of this section relating to summary correction of a violation, if the news rack poses an immediate danger to pedestrians or vehicles, irrespective of whether it is in compliance with Section 12.76.110(D).
B. 
In the case of minor violations of this chapter that can be corrected at the site, any City employee, as an alternative to removal of the news rack, is authorized to correct the violation summarily.
C. 
Any news rack existing in violation of any provision of this chapter shall constitute a public nuisance, and may be abated in accordance with applicable provisions of law.
(Ord. 2010-1108 § 1)
Within five days after receipt of the City Manager's order issued pursuant to the provisions of Section 12.76.160(A)(2), any party affected by the order may file a written request with the City Manager for a hearing before the City Manager. The City Manager shall set a time and place for the hearing and shall notify the party thereof at least five days before the hearing date. The hearing shall be held within 30 days after the request is filed. At any hearing held pursuant to this section or Section 12.76.190, the permittee shall have the right to be heard and to present witnesses and documentary evidence on its behalf. The decision of the City Manager shall be final.
(Ord. 2010-1108 § 1)
After a hearing as provided in this chapter, or if no hearing is requested, the City Manager may revoke or modify any permit which has been granted pursuant to this chapter on any one or more of the following grounds:
A. 
That such permit was obtained by fraud;
B. 
That the use for which such permit was granted is not being exercised;
C. 
That the use for which such permit was granted has ceased or has been suspended for 30 days or more;
D. 
That any person making use of or relying upon the permit has violated any condition of such permit, or that the use for which permit was granted, is being, or recently has been exercised contrary to the terms or conditions of the permit, or in violation of any statute, ordinance, law or regulation or such person has failed to comply with any order of the Director authorized by this chapter;
E. 
That the use for which the permit was granted is so exercised as to be detrimental to the public health, safety or welfare or so as to be a nuisance.
(Ord. 2010-1108 § 1)
A. 
The City Manager, upon the filing of a complaint by the Director shall hold a hearing for modification or revocation of any permit issued as provided for in this chapter. Such hearing shall be held within 40 days after the filing of a written complaint with the City Clerk setting forth the grounds of revocation or modification in clear and concise language. At least 10 days before the hearing, a copy of said complaint shall be mailed to the permittee together with a notice of the time and place of the hearing. The permittee may file an answer to the grounds set forth in the complaint at or before the hearing. After the hearing, the City Manager may:
1. 
Revoke or modify the permit as requested in the complaint; or
2. 
Deny the revocation and modifications requested in the complaint in whole or in part.
B. 
The decision of the City Manager shall be final and conclusive. Appeals shall be governed by the procedures set out in California Code of Civil Procedure Section 1094.8 for expedited judicial review.
(Ord. 2010-1108 § 1)
A. 
Each permit issued pursuant to this chapter shall terminate at the expiration of one year from the date of issuance by the Department unless the permit is issued for a shorter period, in which event it shall terminate at the end of such shorter period. In the event no use in reliance on a permit issued pursuant to this chapter is commenced within a period of 30 days from the date of issuance, or within an extension of said time as granted by the City Manager, then the permit shall terminate and expire.
B. 
Upon the termination or revocation of any permit issued pursuant to this chapter, the person to whom the permit was issued shall remove all news racks placed or maintained upon any City right-of-way or City-owned property pursuant to such permit. In the event such person fails to remove such news racks within 10 days after notice by the Director to do so, the City may elect to treat such news racks as having been abandoned and may remove and dispose of such news racks at the expense of such person.
(Ord. 2010-1108 § 1)
If any section, subsection, clause or phrase of this chapter is held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such decisions shall not affect the validity of the remaining portions of this chapter or any part thereof. The City Council hereby declares that this chapter, and each section, subsection, sentence, clause and phrase hereof, would have been prepared, proposed, adopted, approved and ratified irrespective of the fact that any one or more sections, subsections, sentence, clauses or phrases be declared invalid or unconstitutional.
(Ord. 2010-1108 § 1)