A. 
The city council makes the following findings:
1. 
The uncontrolled placement and maintenance of newsracks in public rights-of-way present an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services.
2. 
Newsracks so located as to cause an inconvenience or danger to persons using public rights-of-way, and unsightly newsracks located therein, constitute public nuisances.
3. 
It is a matter of public necessity that the city protect minors and unconsenting adults in and on its public streets, sidewalks and other public rights-of-way from viewing public displays of words and pictorial material describing and depicting explicit sexual conduct, which are thrust indiscriminately upon unwilling audiences of adults and minors and constitute assaults upon individual privacy. Additionally, it is a matter of public necessity that the city protect minors from materials which are harmful to their psychological or physical well being.
4. 
Although California Penal Code Section 313.1 makes the knowing sale, distribution or display of harmful matter to minors a criminal offense, Penal Code Section 313.1(d) explicitly authorizes the city to adopt an ordinance restricting the display of material that is harmful to minors in a public place, other than a public place from which minors are excluded, by requiring the placement of devices known as blinder racks in front of the material, so that the lower two-thirds of the material is not exposed to view.
5. 
These factors constitute an unreasonable interference with, and obstruction of, the use of public rights-of-way, constitute an unwarranted invasion of individual privacy, are injurious to public health, safety and welfare, offensive to the senses, and constitute such an obstruction of the free use of property as to interfere in the comfortable enjoyment of life and property by the entire community.
6. 
The city council recognizes, however, that the use of such rights-of-way is so historically associated with the sale and distribution of newspapers and publications that access to those areas for such purposes should not be absolutely denied. The city council further finds that these strong and competing interests require a reasonable accommodation which can only be satisfactorily achieved through the means of this chapter which is designed to accommodate such interests regulating the time, place and manner of using such newsracks.
B. 
The purpose of the city council in enacting this chapter is to secure and promote the public health, safety, and welfare of persons in the city in their use of public rights-of-way through the regulation of placement, appearance, number, size, and servicing of newsracks on the public rights-of-way so as to:
1. 
Provide for pedestrian and driving safety and convenience;
2. 
Restrict the unreasonable interference with the flow of pedestrian or vehicular traffic, including ingress to, or egress from, any place of business, the street to the sidewalk, or any legally parked or stopped vehicle;
3. 
Provide reasonable access for the use and maintenance of sidewalks, poles, posts, traffic signs and signals, hydrants, mailboxes, and similar appurtenances, and access to locations used for public transportation purposes;
4. 
Eliminate newsracks which may result in a visual blight on the public rights-of-way or which may unreasonably detract from the aesthetics of surrounding properties, adjacent businesses, store window displays, adjacent landscaping and other improvements, and residential communities;
5. 
Maintain and protect the values of surrounding properties;
6. 
Reduce exposure of the city to personal injury or property damage claims and litigation; and
7. 
Protect the right to distribute newspapers and periodicals through newsracks as protected by the United States and California Constitutions.
C. 
It is not the intent of this chapter to in any way discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any material that is constitutionally protected.
(Ord. 617 § 2, 2003)
For the purpose of this chapter, unless the context clearly requires otherwise, the words and phrases used herein shall have the following meanings:
"Block"
means one side of a street between two consecutive interacting streets.
"Distributor"
means the person responsible for placing and maintaining a newsrack in a public right-of-way.
"Newsrack"
means any self-service or coin operated box, container, storage unit or other dispenser installed, used, or maintained for the display and sale of newspapers or other news periodicals or publications.
"Parkway"
means the area between the sidewalk and the curb of any street, and where there is no sidewalk, the area between the edge of the roadway and the property line adjacent thereto. "Parkway" shall also include any area within a roadway that is not open to vehicular travel.
"Person"
means any person or persons, or entity including, but not limited to, a corporation, partnership, unincorporated association or joint venture.
"Public works director"
means the director of public works or the designee of the director of public works.
"Roadway"
means that portion of a street improved, designed, or ordinarily used for vehicular travel.
"Sidewalk"
means any surface provided for the exclusive use of pedestrians.
"Street"
means all the area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks.
(Ord. 617 § 2, 2003)
A person who proposes to install, use or maintain a newsrack in the public right-of-way shall first obtain a permit for such newsrack from the public works director, or his or her designee. The director shall charge a newsrack permit fee as set forth by resolution of the city council. Any permit issued shall be valid for one year and shall be renewable annually. Each newsrack or group of newsracks in one location shall require a separate permit.
The public works director shall issue the permit within two business days of receipt of a complete application as set forth in Section 14.20.040, if the public work director finds that the application complies with each provision of this chapter. If the permit is denied, written notice of the specific cause of the denial shall be given by the public works director, or his or her designee, sent by U.S. mail within two business days of receipt of the application.
(Ord. 617 § 2, 2003)
A. 
A person seeking issuance of a permit pursuant to this chapter shall file with the public works department a written application on a form supplied by the city. The application shall include the following information:
1. 
The name, address and telephone number of the applicant;
2. 
The name, address and telephone number of a representative of the applicant or other responsible person whom the city may contact regarding the applicant's newsrack and to whom notices may be sent;
3. 
The proposed specific location of the newsrack by provision of a diagram or site map, drawn to scale, showing the proposed location of the newsrack and the sidewalk, streets, and other adjacent improvements within 25 feet, including, but not limited to, buildings, building entrances, driveways, marked and unmarked crosswalks, traffic signals, street light poles, fire hydrants, bus stops and bus benches, utility poles, telephones, existing newsracks.
4. 
A written statement in a form approved by the city attorney, whereby the applicant agrees to indemnify and hold harmless the city, Moreno Valley community services district and community redevelopment agency of the city, and their officers, employees, agents and representatives, from any loss, claim, liability, or damage, including expenses and costs, for bodily or personal injury, and for property damage sustained by any person as a result of the installation, use, placement and/or maintenance of a newsrack within the city.
(Ord. 617 § 2, 2003)
Any newsrack which rests in whole or in part upon, or on any portion of a public right-of-way or which projects onto, into, or over any part of a public right-of-way shall be located in accordance with the following provisions of this section.
A. 
No newsrack shall be installed, used or maintained 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 newsrack shall be installed, used or maintained which in whole or in part rests upon, in or over any public sidewalk or parkway, when such installation, use or maintenance endangers the safety of persons or property, or when such site or location is used for public utility or public transportation purposes, or other governmental use, or when such newsrack unreasonably interferes with or impedes the flow of pedestrian, wheelchair or vehicular traffic, including any legally parked or stopped vehicle, the ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or the use of poles, posts, traffic signs or signals, fire hydrants, mailboxes or other objects permitted at or near such location, or when such newsrack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery;
C. 
Newsracks shall only be placed near a curb or adjacent to the wall of a building. Newsracks placed near the curb shall be placed not less than 18 inches nor more than 24 inches from the edge of the curb. Newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. No newsrack shall be placed or maintained on a sidewalk or parkway opposite a newsstand or another newsrack;
D. 
Except with the written permission of the owner of such property, no newsrack shall be chained, bolted or otherwise attached to any property not owned by the owner of the newsrack or to any permanently fixed object;
E. 
No newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks. No more than six newsracks may be joined together in this manner, and a space of no less than eighteen inches (18) shall separate each group of six newsracks so attached;
F. 
Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than eight feet along a curb, and a space of not less than three feet shall separate each group of newsracks.
G. 
No newsrack shall be placed, installed, used or maintained:
1. 
Within five feet of any marked crosswalk;
2. 
Within 15 feet of the curb return of any unmarked crosswalk;
3. 
Within five feet of any fire hydrant, fire call box, police call box or other emergency facility;
4. 
Within five feet of any driveway;
5. 
Within three feet ahead or 25 feet to the rear of any sign marking a designated bus stop;
6. 
Within five feet of the outer end of any bus bench;
7. 
Within five feet of any sidewalk obstruction which shall include, but not be limited to, traffic signals, street light poles, trees, sign posts, telephone and utility poles;
8. 
At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet;
9. 
Within three feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping, 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 100 feet of any other newsrack on the same side of the street in the same block containing the same issue or edition of the same publication, unless the distributor establishes to the satisfaction of the public works director that (a) there is insufficient room in one newsrack for the publications which may be sold in one day, or (b) it publishes more than one edition for sale at the same time;
11. 
On any access ramp for disabled persons;
12. 
Within 100 feet of the entrances to public gathering places where queuing of pedestrian traffic may occur;
13. 
At any location where vehicular sight distance is impaired as determined by standard traffic engineering principles.
(Ord. 617 § 2, 2003)
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. 
No newsrack shall exceed five feet in height, 30 inches in width, or two feet in depth;
B. 
No newsrack, or group of attached newsracks allowed under Section 14.20.050 above, shall weigh, in the aggregate, in excess of 125 pounds when empty;
C. 
No newsrack shall be used for advertising signs or publicity purposes other than that dealing with the display, sale, or purchase of the newspaper or news periodical sold therein;
D. 
Each newsrack shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event the person is unable to receive the paid for publication. The coin-return mechanism shall be maintained in good working order;
E. 
Each newsrack shall have affixed to it in a readily visible place so as to be seen by anyone using the newsrack, a notice setting forth the name, address, and permit number of the distributor and the telephone number of a working telephone service to call to report a malfunction, or to secure a refund in the event of a malfunction of the coin-return mechanism, or to give the notices provided for in this chapter;
F. 
Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that:
1. 
It is reasonably free of dirt and grease;
2. 
It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas thereon;
3. 
It is reasonably free of rust and corrosion in the visible unpainted metal areas thereon;
4. 
It is reasonably free of graffiti, as that term is defined in Moreno Valley Municipal Code Section 6.06.020. The permittee shall be required to remove graffiti on any newsrack within 24 hours of oral or written notification by the city to the permittee of the existence of the graffiti. If the graffiti is not removed within that time, the permittee is deemed to have given the city authority to remove the graffiti at the permittee's expense;
5. 
The clear plastic or glass parts thereof, if any, through which the publications therein are viewed are unbroken and reasonably free of cracks, dents, blemishes and discoloration;
6. 
The paper or cardboard parts or inserts thereof are reasonably free of tears, pealing or fading; and
7. 
The structural parts thereof are not broken or unduly misshapen.
(Ord. 617 § 2, 2003)
Publications offered for sale from newsracks placed or maintained on or projecting over the street or sidewalk shall not be displayed or exhibited in a manner which exposes to public view from the street, sidewalk, roadway or parkway 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 a person's genitals, pubic hair, perineum, anus, or anal region of any person, or of a mature female breast below a point immediately above the top of the areola where such picture or illustration has as its purpose or effect sexual arousal, gratification, or affront; or
C. 
Any picture or illustration depicting explicit sexual acts as defined in this section where such picture or illustration has as its purpose or effect sexual arousal, gratification, or affront.
"Explicit sexual acts," as used in this section, 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 other acts of sexual arousal involving any physical contact with a person's genitals, pubic hair, perineum, anus or anal region.
(Ord. 617 § 2, 2003)
No person shall knowingly display or cause to be displayed, in any public place, other than a public place from which minors are excluded, and with knowledge of, or failure to exercise reasonable care in ascertaining, the age of the persons to whom the material is displayed, any harmful matter as defined in Section 313 of the California Penal Code, unless such matter is displayed in or upon newsracks, newsstands, shelves, containers, storage units, or any other dispensers equipped with devices commonly known as blinder racks affixed in such a manner that the lower 2/3 of the matter is not exposed to view.
(Ord. 617 § 2, 2003)
In the event that a newsrack is unused for a period of 30 continuous days, it shall be considered abandoned and the public works director may thereupon give notice to the distributor to remove the newsrack. If the newsrack is not removed or again placed in use as a newsrack within 15 days of the notice, the public works director may remove and store the newsrack pursuant to Section 14.20.100.
(Ord. 617 § 2, 2003)
A. 
Upon determination by the public works director that a newsrack has been installed, used or maintained in violation of this chapter, a notice to correct shall be given to the permittee by first class mail, and shall specify the manner in which this chapter is violated and request compliance. Failure to either properly correct the offending condition or request a hearing on the notice within five business days after the mailing date of the notice shall result in removal and impoundment of the newsrack by the public works director or his designee at any time after expiration of eight business days from the date of the notice.
B. 
If a hearing is requested, it shall be provided within 10 business days of the request and shall be conducted by the city manager or his/her designee. The permittee shall be given at least five days notice of the time and place of the hearing and shall be entitled to present evidence showing that the newsrack was not installed, used or maintained in violation of this chapter. Formal rules of evidence shall not be applicable, nor shall any party have the right to require that witnesses be sworn or subject to cross examination. The notice to correct shall be stayed pending completion of the hearing and rendering of the decision. The city manager or designee shall issue a written decision either affirming, vacating or modifying the notice to correct within five business days of the conclusion of the hearing. The decision of the city manager, or his/her designee, shall be final. Failure to so render the decision within five business days shall not affect the validity of such decision. If the notice to correct is not vacated, the permittee shall comply with the notice within five business days of issuance of the written decision. Failure of the permittee to comply shall result in removal and impoundment.
C. 
Any newsrack in violation of the provisions of this chapter which creates an immediate danger to the health, safety or welfare of the public, which violation cannot be corrected by moving or otherwise repositioning the newsrack, may be summarily removed and stored in a convenient location so as to eliminate the danger to the health, safety and welfare of the public. The public works director shall inform the permittee/newsrack owner of the date the newsrack was removed, the reasons therefor, the location and procedure for claiming the newsrack and the procedure for obtaining a post-removal hearing. Any such newsrack removed and stored pursuant to this subsection shall be released to the owner/permittee thereof if claimed within 30 days after the mailing of written notice of removal and upon the payment of reasonable charges of removal and storage or upon a determination in a post-removal hearing that the newsrack complies with all of the provisions of this chapter.
D. 
The costs of removal and storage of any newsrack shall be borne by the permittee. No newsrack which has been removed and impounded by the city shall be released to the permittee unless the costs of removal, impoundment and any necessary repair to the premises on which the newsrack was placed have been paid. If a newsrack which has been removed and impounded remains unclaimed for a period of 60 days, it shall be deemed to be unclaimed personal property and disposed of in accordance with law.
E. 
The public works director may, after a hearing in accordance with this chapter, order the newsrack returned upon payment of costs of storage and/or removal; or, without cost to the newsrack owner/permittee if no violation of this chapter is found.
(Ord. 617 § 2, 2003)
In addition to any and all remedies set forth in this chapter for violations of this chapter, any person, firm, association or corporation violating any of the provisions of this chapter shall, upon conviction thereof, be punished in accordance with the provisions of Sections 1.01.200 through 1.01.230 of this code.
(Ord. 617 § 2, 2003)
Except as otherwise provided in this chapter, any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this chapter may appeal to the city council in accordance with the provisions set forth in Sections 2.04.100 through 2.04.130 of this code.
(Ord. 617 § 2, 2003)
If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional by a final determination of a court of competent jurisdiction, such determination shall not affect the validity of the remaining portions of this chapter. The city council declares it would have enacted this chapter, and each section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, and phrases might be declared invalid or unconstitutional.
(Ord. 617 § 2, 2003)