For the purpose of the provisions of this chapter concerning
newsracks on public rights-of-way, the following words and phrases
shall be construed to have the meanings set forth in this section,
unless it is apparent from the context that a different meaning is
intended:
"Beach/Crescent Architectural Overlay Zone"
means those CG (Commercial General) and CO (Commercial Office)
zoned properties located south of Crescent Avenue to the Buena Park/Anaheim
city boundary, between Grand Avenue and Locust Drive.
"Block"
means that public right-of-way abutting on one side of a
street and lying between the two nearest intersecting streets or between
the nearest intersection street and its own termination.
"City-approved newsrack model"
means the standard K-Jack Engineering Company model series
50, or an equivalent model approved by the director, painted a color
equivalent to K-Jack Engineering Company "Mack Truck Green" for the
Entertainment Corridor Specific Plan ("ECSP"), Beach/Crescent Architectural
Overlay (BCAO) zone, and any property located on Beach Boulevard;
and the K-Jack Engineering Company freestanding model series KJ100,
or an equivalent model approved by the director, painted a color equivalent
to K-Jack Engineering Company "Mack Truck Green" for each location
outside of the ECSP, BCAO zone and Beach Boulevard Corridor boundaries.
"Curb"
means the raised edge adjacent to roadway between the sidewalk
and the roadway located within public right-of-way.
"Daily publication"
means a publication that is published on five or more days
per calendar week.
"Department"
means the community development department of the city.
"Director"
means the community development director of the city or the
director's designee.
"Driveway approach"
means the portion of public right-of-way, including curb
returns or depressed curbs, providing vehicular access to a private
roadway, building or other facility.
"Entertainment corridor"
means those properties zoned Entertainment Corridor Specific
Plan (ECSP) or Amusement Resort (AR).
"Explicit sexual acts"
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 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 of sexual arousal involving any physical contact with a
person's genitals, pubic region, pubic hair, perineum, anus or anal
region.
"Monthly publication"
means a publication that is published between one and four
days per calendar month.
"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 any publication.
"Owner"
means the person to whom a newsrack permit is issued. For
purposes of this chapter, "owner" shall be synonymous with permittee.
"Parkway"
means that area between the sidewalk and the curb of any
street, and where there is no sidewalk that area between the edge
of the roadway and the property line adjacent thereto. Parkways shall
also include any area within a roadway which is not open to vehicular
travel.
"Pre-existing publications"
means publications that on November 7, 2001, were located
in newsracks that complied with the newsrack location and placement
standards set forth in the Buena Park Municipal Code as such standards
existed immediately prior to the effective date of the ordinance codified
in this chapter.
"Public right-of-way"
means any place of any nature which is dedicated to use by
the public for pedestrian and vehicular travel, and includes, but
is not limited to, a street, sidewalk, curb, gutter, intersection,
parkway, highway, alley, lane, mail, court, way, avenue, boulevard,
road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park,
square or any similar public way.
"Roadway"
means that portion of a street improved, designed or ordinarily
used for vehicular travel.
"Sidewalk"
means any surface provided for the use of pedestrians.
"Street"
means the same as in California
Vehicle Code Section 590
or any successor provision thereto.
"Weekly publication"
means a publication that is published between one and four
days per calendar week.
(Ord. 1310 § 2, 1994; Ord. 1419 § 2, 2002)
A. Permit
Required. An annual newsrack permit issued in accordance with this
chapter shall be required prior to installation, placement or maintenance
of any newsrack which in whole or in part rests upon, in, or over
any public right-of-way.
B. Application.
Applications for new permits required hereunder, and renewal of existing
permits, shall be filed with the director upon printed forms to be
prescribed and supplied by the director. The application shall be
signed by the applicant and it shall contain the following information:
1. Name
of the street and approximate location of the newsrack to be installed
or maintained;
2. Name,
address and telephone number of the applicant;
3. The
name of the newspaper or periodical to be contained in each newsrack;
4. Type
or brand of newsrack, including a description of the newsrack and
how it will be mounted;
5. A
precise diagram showing the applicant's proposed location for the
newsrack and the location and number of all other newsracks existing
within one hundred feet thereof;
6. Number
of newsracks requested at the proposed location;
7. Hold
Harmless Statement. Every applicant for a newsrack permit shall file
a written statement satisfactory to the city whereby the applicant
agrees to indemnify, defend and hold harmless the city, its elected
officials, officers, and employees, with respect to any loss or liability
or damage, including attorneys' fees, expenses and costs, for personal
injury and for property damage sustained by any person as a result
of the applicant's installation, use or maintenance of a newsrack
or newsracks within the city;
8. Insurance.
Every applicant for a newsrack permit shall file a certificate of
endorsement evidencing that a comprehensive liability insurance policy
has been issued for the period of the requested newsrack permit by
an insurance company that both (i) is admitted and licensed to do
business in the state of California; and (ii) is rated A or better
according to the most recent A.M. Best Co. Rating Guide. The policy
limits of such insurance shall not be less than one million dollars
combined single limit or equivalent. Such policy shall name the city
as an additional insured; shall specify that it acts as primary insurance
and that no insurance held or owned by the designated additional insureds
shall be called upon to cover a loss; and shall contain a provision
that no termination, cancellation or change of coverage of insured
or additional insureds shall be effective until after thirty days
notice thereof has been given in writing to the director. Cancellation
or reduction of coverage of such policy during the term of a newsrack
permit shall be grounds for revocation of the permit;
9. Business
License. Every applicant for a newsrack permit shall present proof
of receipt of a business license pursuant to Title 5 of this code
or proof of application for such license.
C. Each
application for a newsrack permit shall be accompanied by a nonrefundable
application fee as established by a resolution of the city council.
This fee shall not exceed the actual cost of investigating the facts
contained in the application, processing the application, and field
inspection.
D. Based upon information provided pursuant to subsection
C of this section, the director shall determine whether the following findings can be made:
1. The
applicant has complied with the requirements of this section; and
2. The
proposed newsrack installation complies with the regulations of this
chapter.
If the findings can be made, then within ten city business days of the filing of a complete application the director shall issue a permit for the proposed newsrack installation; otherwise, the application shall be denied. If the application is denied, then the applicant shall be notified in writing of the specific cause of denial by the director and of the right to appeal in accordance with Section 12.16.150 of this chapter.
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E. Each permittee shall report immediately to the director any change of address of such permittee. Prior to any transfer of ownership of newsracks for which a newsrack permit has been issued, the permittee shall notify the city of such transfer of ownership. All newsrack transferees shall comply with the provisions of this section and the provisions of Section
12.16.080 related to identification of newsracks, within ten days of the effective date of such transfer. A failure to comply with this subsection shall be grounds for revocation of a newsrack permit.
F. Every
newsrack shall have affixed thereto in a place where may be easily
seen, the annual permit tag issued by the department.
G. Each
permittee shall report to the director any replacement of a newsrack
for which a newsrack permit has been issued within ten days of the
date of such replacement.
(Ord. 1310 § 2, 1994; Ord. 1419 § 3, 2002)
Any newsrack, which in whole or in part rests upon, in or over
any public sidewalk or parkway, shall comply with the following standards:
A. Newsracks
shall be forty-eight inches in height and be the city-approved newsrack
model.
B. Newsracks
shall only be placed near a curb. Newsracks placed near the curb shall
be placed no less than eighteen inches nor more than twenty-four inches
from the face of the curb. No newsrack shall be placed or maintained
on a sidewalk or parkway opposite a newsstand or another newsrack.
C. Each newsrack shall be bolted to the sidewalk upon which it is maintained unless it is vertically stacked upon another newsrack pursuant to Section
12.16.053.
D. Notwithstanding the provisions of Section
12.16.040, no newsrack shall be placed, installed, used or maintained:
1. Within
twenty feet of any marked crosswalk;
2. Within
twenty feet of the curb return of any unmarked crosswalk;
3. Within
ten feet of any fire hydrant, fire call box, police call box or other
emergency facility;
4. Within
fifteen feet of any driveway approach;
5. Within
ten feet ahead of and forty feet to the rear of any sign marking a
designated bus stop;
6. Within
ten feet of any bus bench or bus shelter;
7. At
any location whereby the clear space for the passageway of pedestrians
is reduced to less than forty-eight inches;
8. At
any location whereby the clear space for the passageway of pedestrians
is reduced to less than five feet for a length of more than thirty
feet;
9. Within
three feet of any area improved with lawn, flowers, shrubs or trees,
or within three feet of any display window of any building abutting
the sidewalk or parkway or in such a manner as to impede or interfere
with the reasonable use of such window for display purposes;
10. Within ten feet of any mailbox, utility pole, telephone pedestal
and/or any other permanent fixture located in the public right-of-way;
11. Adjacent to or on the curb abutting any fire access lane; or
12. Within the limits of any portion of curb painted yellow, white or
green.
E. No newsrack shall be used for advertising signs or publicity. Notwithstanding the preceding, the name and logo of the publication distributed in a newsrack may be stenciled upon the front and back of such newsrack, and the requirements of Section
12.16.080 shall be satisfied.
F. Each
newsrack shall be maintained in a clean and neat condition and in
good repair at all times. The owners of vertically stacked and freestanding
M100 newsracks shall be jointly responsible for maintenance of the
shared components of such newsracks. Occurrence of any of the following
conditions on a newsrack shall constitute evidence that the newsrack
is not being maintained in a clean and neat condition or in good repair:
2. Broken
or unreasonably misshapen structural components;
3. Cracks,
dents or discoloration of the display window;
4. Substantial
accumulation of dirt, grease rust or corrosion;
5. Substantial
amount of chipped, faded, peeling, or cracked paint; or
6. Substantial
amount of tearing, peeling or fading of any paper or cardboard parts
or inserts of the newsrack;
G. Each
newsrack shall be installed and maintained in compliance with this
chapter, and in such manner as to comply with all state and federal
regulations concerning access by disabled persons.
(Ord. 1310 § 2, 1994; Ord. 1419 § 4, 2002)
Publications offered for sale from newsracks placed or maintained
on or projecting into or over the public right-of-way shall not be
displayed or exhibited in a manner which exposes to public view from
any public right-of-way 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, perinea, 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. 1310 § 2, 1994)
Every newsrack requiring a permit pursuant to this chapter shall
have affixed thereto in a place where such information may be easily
seen, the name, address and telephone number of the owner thereof.
Upon acceptance of a newsrack permit, each permittee shall be deemed
to have consented to receive any notices, given pursuant to this chapter,
by mail, at the address affixed to such permitted newsrack.
(Ord. 1310 § 2, 1994)
Whenever any newsrack is found to be in violation of this chapter, the department shall cause a tag to be attached to such newsrack specifying the date and nature of the violation. Within three working days thereafter, a written notice of such violation shall be sent by the department to the person whose name appears on the newsrack as provided in Section
12.16.080, specifying the nature of the violation, that the newsrack shall be impounded if corrections are not timely made, and that a hearing may be requested within ten working days of the mailing date of such notice. The owner shall, within ten working days of the date on which the notice of violation was mailed, or the violation tag was affixed to such newsrack where no name and address or telephone number of the owner may be found thereof, either cause the violation to be corrected or request a hearing in writing pursuant to Section
12.16.140.
(Ord. 1310 § 2, 1994)
Whenever any newsrack is to be impounded pursuant to subsection
A or
B of Section
12.16.100, the owner may, within ten working days of the date of mailing of the notice of violation, or the date a violation tag was affixed to the newsrack where no name and address or telephone number of the owner may be found thereon, request a hearing in writing as provided in Section
12.16.140.
(Ord. 1310 § 2, 1994)
The department may sell or otherwise dispose of any newsrack,
together with its contents, and retain the proceeds including any
moneys, on behalf of the city, provided that either:
A. Thirty
days have elapsed since impoundment or the date of an order affirming
an impoundment, and the owner has failed to pay all impound fees assessed;
or
B. A hearing,
if requested, and/or an appeal, if filed, have resulted in a final
determination that the newsrack was properly impounded and fees assessed
have not been received within thirty days of the date of such final
determination.
(Ord. 1310 § 2, 1994)
In lieu of impounding a newsrack that is connected to another
newsrack due to vertical stacking, or the freestanding M100 placement,
the director shall impound the contents of the offending newsrack.
In lieu of selling or otherwise disposing of a newsrack whose contents
have been impounded, the city shall pay the owner thereof the fair
market value for the offending newsrack and such newsrack shall thereafter
belong to the city for disposal as deemed appropriate by the director.
In all other respects, the impound procedures of this chapter shall
be applicable.
(Ord. 1419 § 7, 2002)
A. Any
permittee or applicant, may, within ten working days of the mailing
date of the copy of the director's decision and order, appeal such
decision to the city council by filing a written notice of appeal
with the city clerk.
B. An
appeal shall set forth in writing the basis upon which the appellant
believes there was error or abuse of discretion on the part of the
department. The city clerk shall advise the department of the appeal
and the department shall, as soon as practical, transmit a copy of
its file, decision and order, to the clerk of the city council, who
shall set the matter for hearing within thirty calendar days.
C. Following
the hearing on the appeal, the city council shall make written findings
in support of its decision, which decision shall:
1. Affirm
the department's decision and order and impose impound fees;
2. Modify
the department's decision and order, with or without imposing impound
fees, and/or refer the matter back to the department;
3. Reverse
the department's decision and impose no impound fee; or
4. In
the event of an appeal of a permit denial, affirm, reverse or modify
the director's decision.
(Ord. 1310 § 2, 1994; Ord. 1419 § 8, 2002)
The installation, maintenance, replacement, removal and relocation
of newsracks shall be at the sole expense of the permittee. Upon removal
of any newsrack, the permittee shall at his or her sole expense cause
the public right-of-way to be repaired to its original condition and
in conformity to the surrounding area. If the permittee fails to make
such repairs within ten working days of removal, the work may be done
by the city and charged to the permittee.
(Ord. 1310 § 2, 1994; Ord. 1419 § 9, 2002)