A.
Purpose.
The purpose of this chapter is to promote the public health, safety,
and welfare by establishing objective standards for locating news
racks through the regulation of location, appearance, size, and maintenance
of news racks on City rights-of-way in order to:
1.
Protect
the right to distribute information, protected by the United States
and California Constitutions, through the use of news racks.
2.
Provide
for pedestrian and vehicular safety and convenience.
3.
Minimize
interference with the flow of pedestrian or vehicular traffic, including,
but not limited to, ingress into or egress from any place of business
or residence, from the street to the sidewalk or from parked vehicles
to the sidewalk, by establishing objective standards for locating
news racks.
4.
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.
5.
Reduce
visual blight on City streets, promote tourism, encourage well-designed
and aesthetically compatible news racks, and protect the aesthetics
and value of surrounding properties.
B.
Legislative
Findings. The City Council finds that, with the exception of those
regulations governing the display of harmful matter, the time, place
and manner restrictions established by this chapter are content-neutral,
narrowly tailored to serve significant government interests, and leave
open ample alternative channels of communication in that:
1.
The
news rack location, appearance, size, and maintenance regulations
established in this chapter apply regardless of the content of the
publication.
2.
The
news rack location, appearance, size, and maintenance regulations
established in this chapter serve a substantial government interest
by protecting the aesthetic appearance of the City, avoiding visual
clutter, assuring safe and convenient pedestrian circulation, helping
to promote tourism and economic vitality, and preventing dangerous
installations of news racks.
3.
The
number, size, construction, placement and appearance of news racks
can have a significantly adverse visual impact in designated a Landmarks
District like El Pueblo Viejo and other aesthetically sensitive areas.
4.
The
Downtown Plaza has become very congested, with street furniture and
other sidewalk encroachments, automobiles, and other means of travel
competing with pedestrians for the public space; and that special
standards for the design and location of news racks, in conjunction
with a program for the furnishing and installation of uniform street
furniture, and the enforcement of existing regulations for other encroachments
in the downtown commercial area, will help to create a sense of order
and provide a friendly environment for those who come to the area.
The Downtown Plaza is both crucial and unique for the City because
it is the congregating point for most tourism and establishes the
basic character of the City.
5.
The
news rack location, appearance, size, and maintenance regulations
established in this chapter for the Downtown Plaza leaves open ample
alternative channels of communication in that only a small fraction
of the City is subject to the required use of City-owned and maintained
modular news rack cabinets, and hundreds, if not thousands, of locations
remain available in the City for the installation of privately owned
and maintained news racks.
6.
With
respect to the display of harmful matter, there is a compelling government
interest in protecting the welfare of minors by preventing access
to materials deemed obscene as to minors, as defined in Section 313
of the Penal Code, and that the use of blinder racks is a narrowly
tailored solution to serve this interest.
7.
Annual
permit renewal fees for news racks located in City-owned modular cabinets
within the Downtown Plaza will be higher than registration fees for
independently owned and maintained news racks due to depreciation
and maintenance during the useful life of the modular cabinets.
(Ord. 3381 § 1, 1969; Ord. 4077, 1980; Ord. 4513, 1988; Ord. 4536, 1988; Ord. 5718, 2015)
This chapter establishes the sole regulations governing the
placement and maintenance of news racks within the City on public
property. This chapter establishes application and permit requirements,
including location, appearance, size, and maintenance standards for
all news racks in the City. In addition, this chapter establishes
special time, place, and manner regulations for the Downtown Plaza
where City-owned and maintained modular news rack cabinets have been
installed. In the Downtown Plaza, freestanding private news racks
are not permitted. This chapter also establishes regulations governing
the display of harmful matter in news racks. Finally, this chapter
establishes definitions of the significant terms it uses.
(Ord. 5718, 2015)
For the purposes of this chapter, the following words and phrases
are defined and shall be given the meaning set out in this section
unless it is apparent from the context that a different meaning is
intended:
Any news rack which remains empty for 14 consecutive days.
A news rack or news rack unit within a City-owned modular cabinet
without a permit or expired permit. Notwithstanding the forgoing,
a news rack remaining empty due to labor strike or any temporary and
extraordinary interruption of distribution or publication by the newspaper
or other publication sold or distributed from that news rack shall
not be deemed abandoned.
Cabrillo Boulevard/Shoreline Drive between the easterly end
of Shoreline Park and the intersection of Cabrillo Boulevard and Channel
Drive.
The record of approved applications, permits and field inventory
data that may be established and updated from time to time by the
City, and which shall be available on the City's website.
State Street and within 200 feet of State Street between
its intersection with Cabrillo Boulevard and Victoria Street, and
all publicly owned or controlled paseos or walkways which connect
with State Street between Cabrillo Boulevard and Victoria Street.
Annual permit fee for each news rack and the additional fee
for news racks in the City modular news rack cabinets shall be established
by Council resolution in an amount not to exceed the actual costs
of the news rack program, including permitting, inspection, and administration.
This fee may be adjusted annually for inflation by the percentage
change in the Consumer Price Index (CPI) for Urban Consumer of the
Los Angeles - Riverside - Orange County, CA, as published by the Bureau
of Labor Statistics, commencing on July 1, 2016. Indexing shall be
considered as part of the annual fee resolution update. The City will
notify registered news rack Owners in writing a minimum 60 days in
advance of a proposed adoption by City Council of any Fee Resolution
that will result in any fee increase above the annual CPI percentage
adjustment.
Any news rack located within the City, including news racks
located within City modular cabinets in the Downtown Plaza, prior
to the effective date of this chapter, which has been verified by
the City Inventory as of the effective date of this chapter.
A district established pursuant to Chapter 22.22 of the Code.
Any self-service or coin-operated box, container, storage
unit or other dispenser, installed, used or maintained for the display,
distribution or sale of any written or printed material, including,
but not limited to, newspapers, news periodicals, magazines, books,
pictures, photographs, advertising circulars, and records (hereinafter
collectively referred to as "news rack material").
The person or representative of a business with current City
Business License duly responsible for news rack ownership, application
submittal, application requirements, placement, maintenance, removal,
payment of fees and signatory of the permit for a news rack in a right-of-way.
Owner may also be referred to as person, applicant, distributor, publisher,
or vendor.
The area between the sidewalk and the curb of a street and,
where there is no sidewalk, the area between the edge of the roadway
and the nearest right-of-way boundary line and any area within a roadway
not used for vehicular traffic.
An individual, corporation, business entity, or association,
and their principals, officers, agents, or employees.
Public property refers to all improved or unimproved real
property owned, maintained, or leased by a public agency or governmental
entity.
The Director of the City Public Works Department or his or
her designee.
Any public property under the ownership and control of the
City and used for public street and related purposes.
The portion of a right-of-way designed and used for vehicular
traffic.
The foundation, columns, and rack assembly used for attachment
of multiple news rack units and maintained by designated Owner according
to the annual permit.
Any public surface provided for the use of pedestrians.
That area dedicated to public use for public street purposes
and shall include, but not be limited to, roadways, parkways, alleys,
and sidewalks.
(Ord. 3381 § 1, 1969; Ord. 4077, 1980; Ord. 4513, 1988; Ord. 4536, 1988; Ord. 5718, 2015)
It is unlawful for any person to install, place or maintain
a news rack on or projecting onto public property, roadways, streets,
sidewalks, or right-of-way unless and until a news rack has been registered
and an annual permit has been obtained from the Public Works Director.
No other City permit shall be required.
(Ord. 5718, 2015)
A.
Submittal
of Applications. Applications for news rack permits shall be made
to the Public Works Director on forms established by the City with
payment of an annual permit application fee. Applications that are
on file with the City that have current information may be used for
subsequent annual permits.
1.
Proposed
New Installation or Relocation of News Rack. An application shall
be approved and permit granted if the application proposes a new installation
or relocation of a news rack in conformance with all requirements
of this chapter. An application that proposes new installation of
a news rack not in conformance with all requirements of this chapter
shall be denied and no permit issued.
2.
Existing
News Rack With Current Permit. Existing news racks with evidence of
an existing permit are subject to submittal of application and annual
permit fee.
3.
Existing News Rack Without Current Permit. News racks located within the City prior to enactment of this chapter, which have been verified by the current City Inventory, without evidence of a current permit will be required to submit an application and obtain an annual permit pursuant to subsection B below. Existing news racks that are affixed to a shared pedestal as of the effective date of this chapter but are relocated to an adjacent area on a stand-alone mount during the initial application process set forth in subsection B below, shall be considered existing news racks for the purpose of this section.
4.
Existing
New Racks in City Modular Cabinets in the Downtown Plaza. News racks
in the City modular cabinets in the Downtown Plaza prior to enactment
of this chapter, which have been verified by the City Inventory upon
the effective date of this chapter, may continue to remain in use
in the same location by the same Owner and publication if an application
is submitted and approved.
5.
Existing
City Modular Cabinets That Become Available in the Downtown Plaza
After the Effective Date of the Ordinance. With respect to permits
for news racks located in City-owned modular cabinets that become
available due to abandonment, applications submitted shall be approved
for that specific location on a first-come first-served basis.
6.
New
City Modular Cabinet Spaces for News Racks Located Within the City
Downtown Plaza. With respect to permits for news racks that are newly
installed by the City in the Downtown Plaza, an initial implementation
period shall take place, at which time the City shall accept permit
applications for the new spaces for a period of 60 calendar days from
the rack becoming installed. Permits shall be issued within 20 days
of the last day of the initial implementation period in accordance
with paragraphs (a) and (b) of this paragraph 6.
a.
Initial Implementation Period for Permit Applications Fewer Than
the Number of Available Cabinets. Where fewer permit applications
are received during the initial implementation period than the number
of available cabinets, applications will be approved on a first-come
first-served basis. If there is more than one application for a specific
geographic location pending, then the priority for granting the applications
shall be set forth in paragraph (b) below.
b.
Initial Implementation Period for Permit Applications Greater Than
the Number of Available Cabinets. If permit applications exceed the
number of potential locations that are then available, priority shall
be given based on frequency of publication, with the higher priority
given to publications for which new editions or issues were published
on a daily or weekly basis in the full calendar month preceding the
date of application. If no applications are submitted by publications
issued on a daily or weekly basis, then priority shall next be given
based on frequency of publication, based on the number of new editions
or issues published most frequently in the full calendar month preceding
the date of application. Within groups of applicants with the same
priority, permits shall be granted to the maximum allowable in a block
by the drawing of lots in a process established by the Public Works
Director. It shall be a condition of any permit granted according
to a priority set forth in this section to maintain editions in the
news rack according to the frequency for which the priority was given.
B.
Registration and Application for Existing News Rack. Any owner of existing news racks, including existing news racks located within City modular cabinets in the Downtown Plaza, shall within 30 days of the effective date of this chapter, provide the City with the owner's news rack registration numbers and location consistent with the City Inventory. The registration of the existing news rack shall be the basis for accepting applications for the initial annual permit of existing news racks. Any owner of an existing news rack shall then within 90 days of registration, submit an application for an annual permit and pay fees to obtain a City annual permit pursuant to Section 5.66.050.C, and shall from the date of permitting be subject to the provisions of this chapter. The Public Works Director may approve alternative compliance and permitting schedules, which shall not extend beyond the fiscal year of the effective date of this chapter for owners of 30 or more registered existing news racks. Failure to obtain an approved annual permit within 90 days or the date specified by the Public Works Director in the approved alternate schedule shall subject the existing news rack to enforcement and removal pursuant to Section 5.66.100. The initial permit is valid for the remainder of the fiscal year and shall be renewed pursuant to Section 5.66.060. Permit fees shall not be reduced or prorated based on the remaining months in the fiscal year for which the permit was issued.
C.
Contents
of Application. Application forms will be provided by the Public Works
Director and shall include all of the following information:
1.
The
applicant's name, street and mailing addresses, email address, and
telephone number for the purposes of receiving copies of notices of
violations and other official communications. The name, street and
mailing addresses, email address and telephone number of the owner
of each publication subject to the permit(s). For news racks not in
the City Inventory, the application will include a description of
the exact proposed location, including a map or site plan, drawn to
scale, with adequate location information to verify conformance with
this chapter.
2.
For
news racks not in the City Inventory, the application will include
a description of each proposed news rack, including its dimensions,
brand and model type, the number of publication spaces it will contain,
and whether it contains a coin-operated mechanism.
3.
The
name and frequency of publication of each publication to be contained
in each news rack.
4.
A
statement signed by the news rack owner that the owner agrees to indemnify,
defend and hold harmless the City and its representatives from all
claims, demands, loss, fines or liability to the extent arising out
of or in connection with the installation, location, use or maintenance
of any news rack on public property by or on behalf of any such person,
except such injury or harm as may be caused solely and exclusively
by the negligence of the City or its authorized representatives.
5.
A
statement signed by the applicant that the applicant agrees, upon
removal of a news rack, to repair at applicant's cost, any damage
to the public property caused by the news rack or its removal.
6.
An
acknowledgement that prior to the issuance of the permit, the owner
shall deposit with the Public Works Director a certificate of insurance
evidencing that a liability insurance policy in a minimum amount of
one million dollars per occurrence and in the general aggregate, naming
the City as an additional insured under the same terms and conditions
as the primary insured, and containing a provision that the policy
cannot be cancelled except upon 10 days' advance written notice to
the City of the fact of such cancellation; and that if such insurance
is cancelled at any time during the terms of such permit, same shall
be grounds for revocation of the said permit.
D.
Review
of Application. A permit shall be granted or denied within 20 business
days after a completed application is filed in conformance with this
chapter. The Public Works Director shall issue a permit if an application
complies with the provisions of this chapter. If a permit is denied,
the City shall, within 10 business days, mail to the owner a notice
of denial that identifies the reasons for denial. Applicant may resubmit
an updated application that has been denied, one time, within 10 business
days from the date of denial without payment of a new application
fee. Failure to complete the application review and obtain permit
within 90 business days shall void the application.
E.
Issuance of Permit. Upon approval of a news rack application, the City shall issue a Public Works Permit that applies to the news rack at the approved location for the remainder of the fiscal year. If an annual permit is obtained after the beginning of a fiscal year, the permit shall expire at the end of the fiscal year without a reduction in fees. The Public Works Permit shall be signed by the applicant as the agreement to conform to the requirements of this chapter. Permits shall be renewed per Section 5.66.060. Upon issuance of a permit for a new or replaced news rack, the City will provide a registration sticker and update the City Inventory. Each registration sticker provided shall be affixed to the top front metal door frame of each corresponding permitted news rack.
(Ord. 4536, 1988; Ord. 4662, 1990; Ord. 5718, 2015)
A news rack permit shall be valid for a period of one fiscal
year or the remainder of the fiscal year during which the permit is
obtained and shall be renewed each successive fiscal year period by
timely payment of a renewal fee established by resolution of the City
Council.
(Ord. 5718, 2015)
A.
Each
new, replaced, or relocated news rack shall conform to the following
general standards. No news rack permit application for a new, replaced,
or relocated news rack shall be approved unless it is demonstrated
that the proposed news rack or news racks will conform to each of
the following general standards. It is unlawful for any person to
install, place, or maintain a news rack in violation of any of the
provisions of this section.
1.
No
news rack shall project onto, or rest upon, along or over, any part
of the roadway of any public street.
2.
No
news rack shall, in whole or in part, rest upon, in or over any sidewalk
or parkway when such site or location is used for public utility purposes,
public transportation purposes, or other government use, or 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, hydrants, mailboxes, or other objects permitted at or
near said location, or when such news rack interferes with the cleaning
of any sidewalk or street by the use of mechanical sidewalk cleaning
machinery.
3.
Any
news rack which in whole or in part rests upon, in or over any sidewalk
or parkway shall comply with the following conditions:
a.
No news rack shall exceed 51 inches in height, 30 inches in width,
or two feet in depth, except that news racks located in the Beachfront
Area shall not exceed 48 inches in height measured from the sidewalk
to the top of the news rack, unless approved and permitted by the
Public Works Director.
b.
Name, address and telephone number, and email address of the owner
of the news rack shall be displayed on the front of the news rack
in such a manner as to be readily visible to and readable by a prospective
customer. A sticker shall be affixed to each news rack stating, "For
graffiti and maintenance reporting, please email or call the Owner
at (insert email address) or (insert phone number) with registration
number." The owner shall keep this contact information up to date
and shall maintain a written record of reporting for a period of one
year, to be provided to the City upon request.
c.
News racks located in the Landmarks District will not have an adverse
impact on access to, or views of, designated landmarks, structures
of merit, or structures of interest. News racks in the Landmarks District
shall carry no advertising except the name of the newspaper or periodical
being dispensed on the bottom one-third of the plastic hood or, if
there is no plastic hood on the news rack, the name shown at not more
than two locations on the news rack.
d.
News racks shall be painted Malaga Green (also identified as RAL
6005). Any shared pedestals supporting news racks shall be painted
black, except that in the Landmarks District, the pedestals shall
be painted Malaga Green.
e.
News racks shall only be placed near a curb or adjacent to the wall
of a building. The City shall determine the final locations. News
racks placed near the curb shall be placed such that the back of the
news rack shall be no fewer than 18 inches nor greater than 24 inches
from the face of the curb. News racks 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 news rack shall be placed or maintained
on a sidewalk or parkway opposite a news stand or another news rack.
f.
If eight or more news racks are placed at a single location, whether
placed on a single pedestal or shared pedestal mounts, they shall
be placed next to each other and a space of no fewer than three feet
shall separate each such group, except as permitted at the direction
of the Public Works Director.
g.
News racks shall not be affixed or bolted to a sidewalk improved
with decorative tile or other distinctive surface, except as permitted
at the direction of the Public Works Director.
h.
Each news rack installed on the public sidewalk shall be bolted to
the City sidewalk in accordance with City standards and specifications.
i.
News racks may not be chained or otherwise attached to one another;
nor to any street sign, streetlight pole, traffic signal equipment,
power pole, bike rack, public bench, bus shelter, or other public
street furniture.
j.
No news rack shall weigh in excess of 250 pounds when empty.
k.
New news racks shall be "K-Jack" model KJ-50E, KJ-100, or KJ-125T,
or equivalent, unless otherwise approved by the Public Works Director.
l.
No news rack shall be placed, installed, used or maintained:
i.
Within 10 feet of any marked or unmarked crosswalk;
ii.
Within five feet of any fire hydrant, fire call box, police call
box, traffic signal controller, or traffic signal;
iii.
Within three feet of any utility meter, manhole, service box, parking
meter, streetlight pole, or other public works facility;
iv.
Within 10 feet of any driveway or alley approach;
v.
Within five feet of a bike rack;
vi.
Within four feet of any bus boarding and a lighting area consisting
of the bench and/or shelter, sign and clear zones for boarding and
alighting of busses as required by the Americans with Disabilities
Act;
vii.
Within three feet of any bus bench or public bench;
viii.
At any location whereby the clear space for the passage of pedestrians
is reduced to less than four feet;
ix.
Within four feet of any permitted sidewalk dining area;
x.
Within the boundary of a marked valet parking area or loading zone,
or as otherwise restricted by the Americans with Disabilities Act.
B.
Condition
and Maintenance of News Racks. Each news rack shall be maintained
in a clean and neat condition and in good repair at all times. Without
limiting this general obligation, the following maintenance criteria
shall apply to all new and existing news racks:
1.
Each
news rack shall be routinely maintained and serviced so that it is
reasonably free of:
a.
Dirt and grease;
b.
Chipped, faded, peeling, and cracked paint, or graffiti on any visible
painted areas;
c.
Rust and corrosion on any visible unpainted metal areas;
d.
Cracks, dents, blemishes, and discoloration in the clear plastic
and glass parts, if any, through which publications are viewed;
e.
Tears, peeling, or fading in the paper or cardboard parts and inserts;
f.
Broken and misshapen structural parts; and
g.
Unauthorized stickers on any surface of the rack.
2.
Each
news rack, including any coin-return mechanism, shall be mechanically
operable at all times.
3.
News
racks shall contain current editions of the publication for which
the permit was issued and new editions placed in the news rack at
no less than the frequency for which any priority was given for a
permit in that location. The owner shall inform the Public Works Director
of all changes to frequency of publication within five business working
days of said changes.
4.
No
news rack or news rack card shall be used for off-premises advertising
signs other than that directly related to the display, sale, or purchase
of the publication sold therein.
5.
No
news rack shall remain empty for a period of 14 consecutive days or
longer.
6.
No
news rack may contain a publication other than the ones for which
the permit was issued.
7.
Each
news rack shall have the name, address, and telephone number of the
owner, as described in paragraph A.3.b above, as well as the City
registration number, affixed to the front of the news rack in a place
where it may be easily seen by anyone viewing the news rack.
8.
Shared pedestals shall be registered to a single owner of a permitted news rack which is affixed to the shared pedestal. Any shared pedestal that has not been permitted to a single news rack owner within 120 days of the effective date of this chapter will be deemed abandoned and will result in the City posting and removing the shared pedestal and news racks in accordance with Section 5.66.100.
9.
Shared pedestals shall be fully occupied by the maximum number of news racks designed to be affixed to the shared pedestal. The owner shall notify the City in writing prior to removing units from a shared pedestal. Failure to maintain the shared pedestal with the maximum number of new racks for 14 consecutive days will result in its removal pursuant to Section 5.66.100. Shared pedestals may be modified to fit remaining news racks with City approval and revisions to the annual permit. Where a shared pedestal is not maintained in a fully occupied condition, it shall be removed and the location restored to its previous condition by the owner of the shared pedestal, including, but not limited to, repair of any portion of the sidewalk or parkway damaged by the pedestal or its removal, and according to specifications provided by the Public Works Director. An acceptable repair is typically filling in the holes required for securing the news rack to the concrete. Failure to remove the shared pedestal will result in the City posting and removing the shared pedestal and affixed news racks in accordance with Section 5.66.100.
10.
When use of a news rack is discontinued for a period of 14 consecutive days or longer, it shall be removed, along with its shared pedestal if applicable, and the location restored to its previous condition by the news rack Owner, including, but not limited to, repair of any portion of the sidewalk or parkway damaged by the news rack or its removal, and according to specifications provided by the Director. Failure to remove the news rack will result in the City posting and removing the news rack in accordance with Section 5.66.100.
11.
Existing news racks that require painting shall be painted Malaga
Green unless otherwise approved by the Public Works Director. When
painting is required, the pedestal and base shall be painted black,
except that pedestals and bases in the Landmarks District shall be
painted Malaga Green.
12.
News racks with a current annual permit that are removed for maintenance
and substituted in kind, and in compliance with this section, will
not be required to obtain a new permit due to the substitution. The
owner shall notify City Public Works of the in-kind substitution in
writing prior to the substitution.
C.
Costs.
The costs of installation, maintenance, replacement, removal and relocation
of news racks or shared pedestals shall be at the sole expense of
the news rack owner. Upon removal of a news rack, the owner shall,
at his or her sole expense, cause the public right-of-way and any
improvements thereon to be promptly restored to the satisfaction of
the Public Works Director in a condition which would have existed
had the news rack not been placed at that location. If those repairs
are not made within seven days of removal of the news rack, the City
may undertake that repair work and collect from the Owner the costs
thereof, including reasonable attorneys' fees and related costs of
collection.
(Ord. 3381 § 1, 1969; Ord. 4513, 1988; Ord. 4536, 1988; Ord. 4662, 1990; Ord. 5718, 2015)
A.
Finding
of Special Circumstances. The City Council hereby finds that special
circumstances require special design, placement and other standards
for news racks located in the Downtown Plaza and any other area which
may be designated by City Council upon findings that the special circumstances
of the area require special design, placement and other standards
for news racks.
B.
Special
Standards and Placement. Notwithstanding any contrary provisions in
this chapter, no news rack shall be located in the Downtown Plaza
except within a City modular news rack cabinet (hereinafter referred
to as a "City news rack cabinet") owned and provided by the City.
All news racks to be inserted into a City news rack cabinet shall
be provided by the applicant at its sole expense.
(Ord. 3381 § 1, 1969; Ord. 4513, 1988; Ord. 4536, 1988; Ord. 5718, 2015)
No material which is harmful to minors, as defined in Section
313 of the Penal Code of the State, shall be displayed in a public
place, other than a public place from which minors are excluded, unless
blinder racks are placed in front of the material so that the lower
two-thirds of the material is not exposed to view.
(Ord. 4838, 1993; Ord. 5718, 2015)
A.
Removal
by the City. Any news rack or shared pedestal, installed or maintained
in violation of this chapter may be removed by the City for violation
of the ordinance, subject to the notice and hearing procedures set
forth in this section.
B.
Notice
of Violation. Before removal of any news rack, the City shall notify
the owner or distributor of the violation by written notification
via first class mail to the address or addresses shown on the offending
news rack and the permit, which shall constitute adequate notice.
If available, the City will also send the written notice of violation
by email. Before removal of any shared pedestal, written notification
will be sent via first class mail to all owners of the news racks
affixed to the offending pedestal. The City may, but need not, affix
an additional notice tag onto the offending news rack or shared pedestal.
If no identification is shown on the news rack, posting of the notice
on the news rack alone shall be sufficient. The written notice shall
state the nature of the violation and the location, shall specify
actions necessary to correct the violation, and shall give the owner
or distributor 10 business days from the date appearing on the notice
to either remedy the violation or to request a meeting before the
Public Works Director. The date on the notice shall be no earlier
than the date on which the notice is mailed or affixed to the news
rack, as the case may be.
C.
Meeting and Decision. Any owner or distributor notified under subsection B above may request a meeting with the Public Works Director by making a written request within 10 business days from the date appearing on the notice. The meeting shall be informal, but oral and written evidence may be given by both sides. The Public Works Director shall give his or her written decision within 10 business days after the date of the meeting. Any action by the City to remove the news rack shall be stayed pending the written decision of the Public Works Director following the meeting. If the Public Works Director is unable to conduct the hearing due to bias or legal disability, the City Administrator or mutually agreed upon third party shall conduct the hearing.
D.
Removal
and Impoundment. The City may remove and impound a news rack or shared
pedestal in accordance with this section following the written decision
of the Public Works Director upholding the determination of a violation,
or if the owner or distributor has neither requested a meeting nor
remedied the violation within 10 business days from the date on the
notice. An impounded news rack shall be retained by the City for a
period of at least 30 calendar days following the removal, and may
be recovered by the owner upon payment of a fee as may be established
by resolution. An impounded news rack and its contents may be disposed
of by the City after 30 calendar days.
E.
Summary Abatement. Notwithstanding the provisions of subsections B and C of this section, prior notice and an opportunity to be heard shall not be required before removal of any news rack or shared pedestal that is installed or maintained in such a place or manner as to pose an immediate or clear and present danger to persons, vehicles or property, or any news rack that is placed in any location without a permit. In such case, the City shall proceed in the following manner:
1.
Within
one working day following removal, the City shall notify the owner
by telephone of the removal. In the case of an unpermitted news rack
or shared pedestal, where possible, the City shall notify the owner
of the news rack, or a person whose name is shown on the news rack,
by telephone of the removal. Within three business days, the Public
Works Director or designee shall send written confirmation of the
telephoned notice. The written confirmation shall contain the reasons
for the removal and information supporting the removal, and shall
inform the recipient of the right to request, in writing or in person,
a post-removal meeting within four business days of the date of such
written notice.
2.
Upon
timely request, the Public Works Director shall provide a meeting
within two working days of the request, unless the requesting party
agrees to a later date. The proceeding shall be informal, but oral
and written evidence may be given by both sides. The Public Works
Director shall give his or her decision in writing to the requesting
party within two working days after such meeting. If the Public Works
Director finds that the removal was in accordance with this chapter
and City regulations, he or she shall notify the requesting party
to pay any applicable penalties and costs and recover the news rack.
If the Public Works Director finds that the removal was improper and
that placement of the news rack was in accordance with City regulations
and lawful, the Public Works Director shall order that the news rack
be released and reinstalled without charge.
3.
If
the owner of an unpermitted news rack cannot be determined and the
news rack does not contain the required identification, no notice
of the removal shall be required.
(Ord. 4536, 1988; Ord. 5718, 2015)
An abandoned news rack or shared pedestal may be removed by the City and impounded, pursuant to the notice and hearing procedures set forth in Section 5.66.100. The City may dispose of the news rack or shared pedestal if the Owner does not claim the news rack and pay any required fees within 30 days of its removal.
(Ord. 4536, 1988; Ord. 5718, 2015)
The operation or maintenance of any news rack or shared pedestal
contrary to the provisions of this chapter shall constitute a public
nuisance, which in addition to or in lieu of criminal proceedings,
may be abated, removed or enjoined by appropriate legal action brought
by the City Attorney.
(Ord. 5718, 2015)
If any section, sentence, clause, phrase or provision of this
chapter, or the application thereof to any person or circumstances,
is for any reason held to be invalid, such invalidity shall not affect
the validity of the remaining portions or provisions of this chapter
or their applicability to distinguishable situations or circumstances.
In enacting this chapter, it is the desire of the City Council to
regulate validly to the full measure of its legal authority in the
public interest. To that end, the City Council would have adopted
this chapter and each section, sentence, clause, phrase, and portion
thereof, irrespective of the fact that any one or more sections, sentences,
clauses, phrases, or portions thereof might be invalid, in whole or
in part, as applied to any particular situation or circumstance, and,
to this end, the provisions of this chapter are intended to be severable.
(Ord. 5718, 2015)
