The city council finds that newsracks, stands, containers, and
similar newspaper and vending devices have proliferated and increased
in areas of the city to the extent that, in some instances, they constitute
a threat to the public health, safety, and welfare by impeding pedestrian
traffic and interfering with ingress and egress to and from buildings,
vehicles, and public modes of transportation. The purpose of this
chapter is to promote the public health, safety and welfare through
the regulation of placement, appearance, number, and size and servicing
of newsracks on public rights-of-way so as to:
A. Provide
for pedestrian and driving safety and convenience;
B. 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 persons
exiting or entering parked or standing vehicles;
C. Provide
reasonable access for the use and maintenance of sidewalks, poles,
posts, traffic signs or signals, hydrants, mailboxes, and access to
locations used for public transportation services;
D. Reduce
visual blight on the public rights-of-way and protect the aesthetics
of store window displays, public landscaping, and other improvements;
E. Maintain
and protect the value of surrounding properties;
F. Reduce
exposure to the city to personal injury or property damage claims
and litigation;
G. Protect
the right to distribute information as protected by the state and
federal constitutions through the use of newsracks;
H. Avoid
interference with the emergency activities of public safety agencies.
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 newspapers or other written materials.
(Code 1980, § 12.16.010; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
For purposes of this chapter, 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:
"Director"
means the director of community development of the city or
designee.
"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 other
acts of sexual arousal involving any physical contact with a person's
genitals, pubic region, pubic hair, perineum, anus, or anal region.
"Newsrack"
means any self-service or coin-operated box, container, storage
unit or other dispenser, including any attached support structure
that is installed, used or maintained for the display, sale or distribution
of any publication.
"Owner"
means any person or company whose name appears as an owner on a newsrack as required by section
12.16.050(L).
"Parkway"
means that area between the sidewalks 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.
"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, public easement,
crossing, intersection, parkway, highway, alley, lane, mall, court,
way, avenue, boulevard, road, roadway, viaduct, bridge, thoroughfare,
park, square, and any other 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 all that area dedicated to public use for public street
purposes and shall include, but not be limited to, roadways, parkways,
alleys, and sidewalks.
(Code 1980, § 12.16.020; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
No person shall install, use or maintain or cause to be installed,
used or maintained, any newsrack that, in whole or in part, rests
upon, in or over any public right-of-way, except as provided in this
chapter.
(Code 1980, § 12.16.030; Ord. No. 812, § 1, 4-1-2009)
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; or which projects or rests within any required setback
area or where otherwise prohibited by the development code of the
city. For purposes of application of the development code to newsracks,
a newsrack shall be deemed to be a structure.
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 persons or property;
2. Is
on a site or location used for public utility purposes, public transportation
purposes or other governmental purpose;
3. Would
likely and unreasonably interfere with or impede the flow of pedestrian
or vehicular traffic, including access to any legally parked or stopped
vehicle;
4. Would
likely and unreasonably interfere with or impede ingress into or egress
from any residence or place of business or the use of poles, posts,
traffic signs or signals, hydrants, mailboxes or other objects permitted
at or near the location; or
5. Would
interfere with the cleaning of any sidewalk by the use of mechanical
sidewalk cleaning machinery.
(Code 1980, § 12.16.040; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
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. Each
newsrack shall be installed in an upright and secure position.
B. Each
newsrack shall be of a type that is completely enclosed with a self-closing
door that is either self-latching or otherwise requires manual or
mechanical release at each use.
C. No
newsrack shall exceed 40 inches in height, 30 inches in width, or
24 inches in thickness.
D. Newsracks
shall only be placed near a curb or adjacent to the wall of a building.
Newsracks placed near the curb shall be placed no less than 18 inches
nor more than 24 inches from the edge of the curb and shall not open
toward the roadway. Newsracks placed adjacent to the wall of a building
shall be placed parallel to the wall and not less than six inches
nor more than 18 inches from the wall. No newsrack shall be placed
or maintained on a sidewalk or parkway opposite a newsstand or another
newsrack.
E. No
newsrack shall be chained, bolted, or otherwise attached to:
1. Any
property without the express written permission of the owner of such
property; provided, however, that the director may require newsracks
to be secured to the sidewalk by means of an approved device; or
2. Any
fixture located in the public right-of-way, except to other newsracks,
including, but not limited to, any tree, streetlight post, traffic
signal or sign.
F. Attachment
to other newsracks. Newsracks, when placed side-by-side, may be chained
or otherwise attached to one another, provided that no group of newsracks
shall extend for a distance of more than ten feet along a curb, and
a space of not less than six feet shall separate each group of newsracks.
G. Notwithstanding the provisions of section
12.16.040, no newsrack shall be placed, installed, used or maintained:
1. Within
ten feet of any marked mid-block crosswalk;
2. Within
30 feet of any street or alley curb return;
3. Within
eight feet of any fire hydrant, fire call box, curb bordering any
fire access lane, police call box or other emergency facility;
4. Within
ten feet of any driveway;
5. Within
five feet ahead of or 25 feet to the rear of any sign marking a designated
bus stop;
6. Within
six 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 four feet; or
8. 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 manner as to impede or interfere
with the reasonable use of such window for display purposes.
H. Color.
Newsracks shall be of unobtrusive neutral colors of grey, brown or
black in order to blend in with the streetscape.
I. Materials.
Newsracks shall be constructed of metal, except for the display window.
J. 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 printed material sold therefrom.
K. Each
newsrack shall be constructed and located in compliance with this
chapter and in such manner as to comply with all state and federal
regulations concerning access by disabled persons.
L. Each
newsrack shall have affixed thereto, in a place where such information
may be easily seen, the correct name, address, and telephone number
of the current owner. By placing a newsrack within or upon any public
sidewalk or parkway, the owner shall be deemed to have consented to
receive any notices given pursuant to this chapter, by mail, at the
address affixed to such newsrack.
M. Upon
transferring ownership of a newsrack, the new owner shall be responsible
for continued compliance with the provisions of this chapter.
(Code 1980, § 12.16.050; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
Each newsrack shall be maintained in a clean and neat condition
and in good repair at all times in accordance with the following provisions:
A. Each
newsrack shall prominently display the correct name, address and telephone
number of the current owner thereof.
B. Each
newsrack shall be maintained in a condition that is free of accumulations
of outdated printed materials, trash, rubbish or debris.
C. Each
newsrack shall be regularly serviced, repaired and/or maintained so
that:
1. It
is kept reasonably free of chipped, faded, peeling and cracked paint
in the visible, painted areas thereof;
2. It
is kept reasonably free of rust and corrosion in the visible, unpainted
metal areas thereof;
3. The
clear glass or plastic parts thereof, if any, through which the printed
material being dispensed, are not broken and are kept reasonably free
of tears, peeling, fading, dirt or grime;
4. The
structural parts of the newsrack are not broken or unduly misshapen
and are otherwise safe for normal use;
5. The newsrack bears no visible evidence of graffiti, as that term is defined in section
8.24.020.
(Code 1980, § 12.16.060; Ord. No. 812, § 1, 4-1-2009)
Publications offered either for sale or at no charge from newsracks
placed or maintained on or projecting into or over a 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.
(Code 1980, § 12.16.070; Ord. No. 812, § 1, 4-1-2009)
A. Definitions.
For purposes of this section, the terms "harmful matter," "matter,"
"person," "knowingly," "exhibit," and "minor" shall have the meanings
specified in
Penal Code § 313, or any successor provisions
thereto. For the purposes of this section, the term "blinder rack"
shall mean opaque material placed in front of, or inside, the newsrack
and which prevents exposure to public view.
B. Prohibition.
No person shall knowingly exhibit, display, or cause to be exhibited
or displayed, harmful matter in any newsrack located, in whole or
in part, in or on a public right-of-way or other public place from
which minors are not excluded, unless blinder racks have been installed
so that the lower two-thirds of the matter is not exposed to public
view.
(Code 1980, § 12.16.080; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
Whenever any newsrack is found to be in violation of this chapter, the director may cause a tag to be attached to such newsrack specifying the date and nature of the violation. Within three calendar days thereafter, a written notice of such violation shall be sent by first-class mail by the director to the owner, provided the owner's name and address appear on the newsrack as required in section
12.16.050(L), specifying the nature of the violation and that the newsrack shall be impounded if corrections are not made. The owner shall, within ten calendar days from the date on which the notice of violation was mailed, either cause the violation to be corrected or request a hearing pursuant to section
12.16.140.
(Code 1980, § 12.16.090; Ord. No. 812, § 1, 4-1-2009)
A. If
an owner fails to timely correct the violation specified in the written
notice, and fails to request a hearing within the time provided herein,
the director may impound such newsrack or newsracks.
B. In the event a newsrack does not have the owner's name, address, and telephone number affixed thereto as required by this chapter, then such newsrack may be impounded if, within ten calendar days of the date the violation tag was affixed, the owner has not requested a hearing as provided in section
12.16.140, in which case the newsrack shall be deemed to be abandoned.
C. Where the installation, use or maintenance of a newsrack creates an immediate threat to the public health, safety or welfare, it may be impounded, provided written notice is thereafter provided to the owner by first-class mail pursuant to section
12.16.110.
D. When such newsrack has been abandoned, it may be impounded. For purposes of this section, a newsrack shall be deemed abandoned when it has remained empty for 30 consecutive days or longer or no new publication has been placed in the newsrack for 45 days or longer. Upon abandonment, a newsrack may be impounded without prior notice, provided post-impoundment notice is given to the owner, if the owner can be identified, pursuant to section
12.16.110.
(Code 1980, § 12.16.100; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
Whenever any newsrack is impounded, the director shall provide
written notice by first-class mail to the owner at the address shown
on the newsrack within three calendar days of such impoundment and
of the rights of the owner to recover such impounded newsrack.
(Code 1980, § 12.16.110; Ord. No. 812, § 1, 4-1-2009)
A. Any
newsrack, together with its contents which has been impounded, shall
be returned to the owner:
1. If
a hearing is not timely requested, upon receipt of an impound fee
within 30 days of impoundment, the amount of which has been set by
resolution of the city council;
2. Upon
a determination, after hearing by the director, that the newsrack
should not have been impounded and should be returned to the owner;
or
3. Upon
a decision by the administrative hearing officer on appeal that the
newsrack should not have been impounded.
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.
(Code 1980, § 12.16.120; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
The director may sell or otherwise dispose of any newsrack,
together with its contents, and retain the proceeds, on behalf of
the city, from any such or other disposition and any moneys contained
in the newsrack at the time of its impoundment, provided that either:
A. Thirty
days have elapsed since impoundment occurred; and:
2. Required
notice was given to the listed owner but no hearing has been requested
within the time permitted, and the owner has failed to pay all impound
fees assessed; or
B. A hearing
or an appeal, if filed, has resulted in a final determination that
the newsrack was properly impounded and impound fees assessed have
not been received within 30 days from the date of said final determination.
(Code 1980, § 12.16.130; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
A. Request for hearing. Any newsrack owner may file a written request with the director for a hearing within the time specified in section
12.16.090, for the purpose of demonstrating that a newsrack should not be impounded, was improperly impounded, or that a violation as specified in the notice of violation has not in fact occurred.
B. Notice
of hearing. Within five calendar days from the date on which the request
for hearing is received, the director 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 ten calendar
days of the date of mailing the notice.
C. Conduct
of hearing. At the time set for the hearing or at the date to which
the hearing is continued, the director shall receive all evidence
relevant to the occurrence or non-occurrence of the specified violation,
the compliance or noncompliance with any or the provisions of this
chapter, and any other relevant information. The hearing need not
be conducted according to technical rules relating to evidence and
witnesses.
D. Decision
after hearing. Within ten calendar days after the conclusion of the
hearing, the director shall find and determine, from the facts adduced
at the hearing, whether the newsrack is in violation of this chapter.
The decision of the director 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. Thereafter, the
director may order the owner to remove such newsrack, if determined
to be in violation of this chapter, within ten calendar days of the
mailing date of the decision. If a notice of appeal is not timely
filed during said ten-day period, the director may thereafter order
the newsrack to be impounded without further notice to the owner.
E. Notice
of decision. The director shall send to the owner, by first-class
mail, a copy of the decision and order.
(Code 1980, § 12.16.140; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
A. Any newsrack owner may, within ten calendar days of the mailing date of the copy of the director's decision and order, appeal such decision to an administrative hearing officer appointed by the city manager in accordance with the provisions of section
1.12.150, by filing a written notice of appeal with the director. If no hearing was timely requested and a newsrack was impounded, then the owner may appeal such impoundment, provided a written notice of appeal is received by the director within ten calendar days of such impoundment.
B. An appeal shall set forth in writing specifically wherein the appellant believes there was error or abuse of discretion on the part of the director. The director shall, within ten calendar days, transmit the appeal, together with a copy of his or her file, decision and order, to the appointed administrative hearing officer who shall set the matter for hearing. The hearing shall be conducted in accordance with the procedures set forth in sections
1.12.160 and
1.12.170.
C. The
administrative hearing officer shall, upon receipt of the material
specified in the preceding subsection from the director, and after
a hearing:
1. Affirm
the decision and order of the director;
2. Reverse
or modify the decision and order and refer the matter back to the
director; or
3. Where
no hearing before the director was timely requested, sustain the impoundment
or impose fees or order the newsrack returned with or without fees
being imposed.
(Code 1980, § 12.16.150; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)
In the event an owner removes any newsrack, or has a newsrack
removed by the director following hearing and/or appeal, if any, it
shall be such owner's responsibility to restore the site of the newsrack
to an undamaged condition. The term "undamaged condition" shall mean
a condition which is smooth, free of holes, fasteners, and physical
devices of any nature, such that another newsrack may be located on
that specific site without further restoration. In the event such
newsrack owner fails to restore the site as required herein, the city
shall be authorized, at its discretion, to restore the site following
the expiration of five calendar days' prior written notice to the
owner stating his or her obligation to perform restoration. The cost
of such restoration performed by the city shall be recoverable from
the owner as a debt in a contract action.
(Code 1980, § 12.16.160; Ord. No. 812, § 1, 4-1-2009; Ord. No. 870 (Recodification),
2014)