The purpose of this article is to promote the public health,
safety, and welfare through the regulation of placement, appearance,
number, size and servicing of newsracks on public rights-of-way so
as to:
(1)
Provide
for pedestrian and driving safety and convenience.
(2)
Ensure
no unreasonable interference with the flow of pedestrian or vehicular
traffic including ingress into, or egress from, any residence or place
of business, or from the street to the sidewalk, by person exiting
or entering parked or standing vehicles.
(3)
Provide
reasonable access for the use and maintenance of sidewalks, poles,
posts, traffic signs or signals, hydrants, telephones, mailboxes,
and access to locations used for public transportation services.
(4)
Reduce
visual blight on the public rights-of-way and adjacent private properties,
and protect the aesthetics of store window displays, public landscaping
and other improvements.
(5)
Maintain
and protect the value of all adjacent private surrounding properties.
(6)
Reduce
exposure of the city to personal injury or property damage claims
and litigation.
(7)
Protect
the right to distribute information protected by the state and federal
constitutions through the use of newsracks.
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It is not the intent of this article to in any way discriminate
against, regulate or interfere with the publication, circulation,
distribution or dissemination of any newspapers or other written materials.
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(Ord. No. 934, § 1, 1-23-95)
For the purpose of the provisions of this article regulating
newsracks, the following words and phrases shall be construed to have
the meanings herein set forth, unless it is apparent from the context
that a different meaning is intended:
means the City Engineer of the City of Cypress or his/her
designated representative.
means the raised edge adjacent to roadway between the sidewalk
and the roadway located within public right-of-way.
means the Public Works Department of the City of Cypress.
means to make available or locate material in such a manner
as to make the material reasonably exposed to view.
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.
means to show or display.
means any natural person under 18 years of age.
means any self-service, coin or slug-operated box, container,
storage unit or other dispenser installed, used, or maintained for
the display and/or sale of newspapers, books, magazines, flyers, periodicals
or other similar material.
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. "Parkway" shall
also include any area within a roadway which is not open to vehicular
travel.
means any individual, partnership, firm, association, corporation,
or other legal entity.
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, mall, court, way, avenue, boulevard,
road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park,
square and any other similar public way.
means that portion of a street which is improved, designed,
or ordinarily used for vehicular traffic.
means any surface provided for the exclusive use of pedestrians.
means all that area dedicated to public use for public street
purposes and shall include, but not be limited to, roadways, parkways,
alleys and sidewalks.
(Ord. No. 934, § 1, 1-23-95)
(a)
Permit required. An annual newsrack permit issued in accordance
with this article 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,
shall be filed with the city engineer upon printed forms provided
by the city. The application shall be signed by the applicant and
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 both the applicant and owner of the
newsrack.
(3)
The
name of the newspaper, periodical or other publication 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 100 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 attorney 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 approved installation, use or
maintenance of a newsrack or newsracks within the city.
(8)
Proof
of insurance. Every applicant for a newsrack permit shall provide
proof of liability insurance in an amount satisfactory to the city
attorney and naming the city as an additional insured.
(c)
Each
application for a newsrack permit shall be accompanied by a nonrefundable
application fee as established by 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. The term of the permit shall be one year.
(d)
Based upon information provided pursuant to subsection (b), above, the city engineer shall determine whether or not the applicant has complied with all requirements of this article, including those standards on file in the office of the city engineer.
(e)
Provided the applicant has complied with the requirements of this section and the proposed location(s) is in compliance with the requirements of this article, a newsrack permit or permits shall be issued. If the application is denied, the applicant shall be notified in writing of the specific cause for denial by the city engineer and of the right to appeal in accordance with section 24-73 of this article.
(f)
Each permittee shall report immediately to the city engineer any change of address of such permittee. Prior to any sale or transfer of ownership of newsracks for which a newsrack permit has been issued, the permittee shall notify the city of such sale or transfer of ownership. All new owners or newsrack transferees shall comply with the provisions of this section and the provisions of section 24-66 related to identification of newsracks, with 10 days of the effective date of such transfer or sale. A failure to comply with this subsection (f) shall be grounds for revocation of a newsrack permit.
(g)
Every
newsrack shall have affixed thereto in a place where it may be easily
seen, the annual permit tag issued by the department.
(h)
Applications
for annual renewal of existing permits shall be filed with the city
finance department and shall contain all information required under
this section.
(Ord. No. 934, § 1, 1-23-95)
(a)
No person
shall install, use or maintain, or cause to be installed, used or
maintained, any newsrack which projects onto, into or over any part
of the roadway of any public street, or which rests, wholly or in
part, upon, along or over any portion of the roadway of any public
street.
(b)
No person
shall install, use or maintain, or cause to be installed, used or
maintained, any newsrack which in whole or in part rests upon, in
or over any public sidewalk or parkway, when such installation, use
or maintenance:
(1)
Would
likely endanger the safety of person or property; or
(2)
Is
on a site or location for public utility purposes, public transportation
purposes or other governmental use; or
(3)
Would
likely interfere with or impede the flow of pedestrian or vehicular
traffic, including passage to or from any legally parked or stopped
vehicle; or
(4)
Would
likely interfere with or impede ingress into or egress from any residence
or place of business, or would likely interfere with the use of poles,
posts, traffic signs, or signals, hydrants, mailboxes or other objects
permitted at or near the location; or
(5)
Would
likely interfere with the cleaning of any sidewalk by the use of mechanical
sidewalk cleaning machinery.
(c)
No person
shall install, use or maintain, or cause to be installed, used or
maintained, any newsrack outside of any public right-of-way under
any circumstances where to do so would cause a violation of a city
zoning ordinance. A newsrack shall be deemed to be a "structure" for
purposes of this section.
(Ord. No. 934, § 1, 1-23-95)
Any newsrack which in whole or in part rests upon, in or over
any public sidewalk or parkway shall comply with the following provisions:
(1)
No newsrack
shall be chained, bolted or otherwise attached to public property
in violation of those standards on file in the office of the city
engineer; nor shall any newsrack be permitted on private property
without the express written permission of the owner of such property.
(2)
No newsrack
shall be used for advertising signs or publicity purposes other than
that dealing with the display, sale or purchase of a newspaper or
printed material sold therefrom.
(3)
Each
newsrack shall be maintained in a clean and neat condition and in
good repair at all times.
(4)
Each
newsrack shall be installed and maintained in compliance with this
article, and in such manner as to comply with all state and federal
regulations concerning access by disabled persons.
(5)
The
design, style, location, numerical limitations and method of installment
of all newsracks in any area shall be in accordance with standards
on file in the office of the city engineer.
(Ord. No. 934, § 1, 1-23-95)
Every newsrack requiring a permit pursuant to this article 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 article
by mail, at the address affixed to such permitted newsrack.
(Ord. No. 934, § 1, 1-23-95)
Whenever any newsrack is found to be in violation of this article 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 24-66, 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 10 working days of the mailing date of such notice. The owner shall, within 10 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 thereon, either cause the violation to be corrected or request a hearing in writing pursuant to section 24-72.
(Ord. No. 934, § 1, 1-23-95)
(b)
In the
event any newsrack does not have the owner's name, address and telephone
number affixed, or where a newsrack has been determined to be abandoned,
the department may impound it pursuant to procedures set out in this
article. For the purposes of this section, the term "abandoned" shall
mean no publication has been displayed in the newsrack for a period
of 21 consecutive days of the same publication has remained in the
newsrack for no fewer than 45 days. Notwithstanding the foregoing,
a permittee shall be authorized to use and maintain a newsrack containing
no publications for a period of up to 30 days, once during the term
of the permit, provided no fewer than 10 days' prior written notice
of such intended non-use has been provided to the department.
(c)
In the event that any newsrack is found in a location or in damaged condition, creating an immediate threat to the public health, safety or welfare, the department may immediately impound it pending a hearing pursuant to section 24-72 provided such hearing is requested by the owner within 10 working days of the date of mailing of a written notice of impoundment to the owner, if known.
(Ord. No. 934, § 1, 1-23-95)
Whenever any newsrack is to be impounded pursuant to subsections (a) or (b) of section 24-68, the owner may, within 10 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 24-72.
(Ord. No. 934, § 1, 1-23-95)
(a)
Any
newsrack, together with its contents, which have been impounded, shall
be returned to the owner, provided the owner's identity is known,
as follows:
(1)
Upon
receipt of an impound fee in an amount set by resolution of the city
council, within 30 days of the date of impoundment or an order affirming
an impoundment; or
(2)
Upon
a determination after hearing by the department that the newsrack
should not have been impounded or should otherwise be returned to
the owner; or
(3)
Where
an appeal is timely filed, upon a decision by the city council that
the newsrack should not have been impounded or should otherwise be
returned.
(b)
In the
event a hearing has not been requested within the time permitted,
an impound fee, the amount of which has been set by resolution of
the city council, shall be imposed upon the owner.
(Ord. No. 934, § 1, 1-23-95)
The department may sell or otherwise dispose of any newsrack,
together with its contents, and retain the proceeds including any
monies, on behalf of the city, provided that either:
(1)
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
(2)
A hearing,
if requested, and/or an appeal, if filed, have resulted in a final
determination that the newsrack was property impounded and fees assessed
have not been received within 30 days of the date of such final determination.
(Ord. No. 934, § 1, 1-23-95)
(a)
Any owner may file a written request with the department for a hearing within the time specified in section 24-69 for the purpose of demonstrating that a newsrack should not be impounded or that a violation as specified in the notice or on the tag attached to a newsrack has not in fact occurred.
(b)
Within
five working days from the date on which the request for hearing is
received, the department shall set a hearing date and shall notify
the owner by first class mail of the date, time and place of such
hearing. The hearing shall occur within 10 working days of the date
of mailing the notice.
(c)
At the
hearing, the department shall receive all evidence relevant to the
occurrence or nonoccurrence of the specified violation(s), the compliance
or noncompliance with any of the provisions of this article and any
other relevant information. The hearing need not be conducted according
to technical rules relating to evidence and witnesses.
(d)
Within
10 working days after the conclusion of the hearing, the department
shall find and determine, from the facts adduced at the hearing, whether
the newsrack was in violation of this article. The decision of the
department shall be in writing and shall contain findings of fact,
a determination of the issues presented and the amount of the impound
fee, if any, to be imposed. The department may order the owner to
remove the newsrack, if determined to be in violation of this article,
within 10 working days of the mailing date of the decision. If a notice
of appeal is not filed during said period, the department may thereafter
impound such newsrack without further notice to the owner.
(e)
The
department shall send to the owner, by first class mail, a copy of
its decision and order.
(Ord. No. 934, § 1, 1-23-95)
(a)
Any
newsrack owner, permittee or applicant, may, within 10 working days
of the mailing date of the copy of the department decision and order,
appeal such decision to the city council by filing a written notice
of appeal with the city clerk of the city.
(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 30 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 city engineer's decision.
(Ord. No. 934, § 1, 1-23-95)
The installation, maintenance, replacement, removal and relocation
of newsracks, shall be at the sole expense of the permittee or owner.
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
its original condition and in conformity to the surrounding area.
If the permittee or owner fails to make such repairs within 10 working
days of removal, the work may be done by the city and charged to the
permittee or owner.
(Ord. No. 934, § 1, 1-23-95)
It shall be unlawful for any person to violate any provision
or to fail to comply with any of the requirements of this article.
Any person violating any provision of this article or failing to comply
with any of its requirements shall be deemed guilty of a misdemeanor
and upon conviction thereof shall be punished by a fine not exceeding
$1,000, and/or by imprisonment not exceeding six months. Each person
shall be deemed guilty of a separate offense for each day or any portion
thereof during which any violation of any of the provisions of this
article is committed, continued or permitted by such person, firm,
partnership or corporation, and shall be punishable as provided in
this section.
(Ord. No. 934, § 1, 1-23-95)
The violation of any of the provisions of this article shall
constitute a nuisance and may be abated by the city through civil
process by means of restraining order, preliminary or permanent injunction
or in any other manner provided by law for the abatement of such nuisances.
(Ord. No. 934, § 1, 1-23-95)
