Alameda Municipal Code § 22-7 Newspaper and Periodical Vending Machines

The purposes of this section are to:

a. Promote the City's substantial interests in preserving and enhancing the public health, safety, welfare and convenience by ensuring that the public streets, sidewalks and parkways are not unreasonably obstructed by newspaper and periodical vending machines;

b. Recognize and support the use of public streets, sidewalks and parkways as public forums for the sale and distribution of newspapers and periodicals through vending machines;

c. Establish reasonable regulations that balance the right to distribute information through newspaper and periodical vending machines with the right of persons to reasonably access and use public property;

d. Provide for the designation of "special newsrack areas" upon findings that the special circumstances of an area require special design, placement and other standards for newspaper and periodical vending machines in order to promote less congested and more visually appealing public streets, sidewalks and parkways; and

e. Ensure that the regulations on the time, place and manner of the placement, location and maintenance of newspaper and periodical vending machines set forth in this section are carefully tailored to implement the purposes stated in this section while still providing ample opportunities for the distribution of information through newspaper and periodical vending machines to the public.

(Ord. No. 2915 N.S. § 2)

As used in this section:

Abandoned newsrack shall mean any newsrack or special newsrack insert, which remains empty for fourteen (14) calendar days. However, a newsrack or special newsrack insert remaining empty due to labor strike or any temporary or extraordinary interruption of distribution or publication by the newspaper shall not be deemed abandoned.

Newsrack shall mean any City-authorized self-service or coin-operated box, container, cubicle, storage unit or other dispenser installed, used or maintained for the display and sale or free distribution of newspapers, news periodicals, commercial handbills or other publications.

Public Works Director shall mean the Public Works Director or the Director's designated agent. Special newsrack area shall mean any area of the City so designated by the City Council upon findings that the special circumstances of the area require special design, placement and other standards for newsracks. The Council shall designate a special newsrack area by resolution.

Special newsrack container shall mean a permanently affixed container or pedestal provided by or on behalf of the City within which shall be the exclusive location for the placement of permitted newsracks in a special newsrack area.

Special newsrack insert shall mean a self-service or coin-operated insert, cubicle, box, container, storage unit or other dispenser installed, used or maintained within a special newsrack container for the display and sale or free distribution of newspapers, news periodicals, commercial handbills or other publications. All special newsrack inserts installed within an approved special newsrack area shall conform to the exact specifications of the approved special newsrack container for that area.

(Ord. No. 2915 N.S. § 2)

a. No person shall install, use or maintain any newsrack or special newsrack container which rests on, projects onto, into or over any part of the roadway. Roadway shall mean the paved travelway curb to curb.

b. No person shall install, use or maintain any newsrack or special newsrack container which in whole or in part rests on or projects over any sidewalk when such installation, use or maintenance endangers the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other government use, or when such newsrack or special newsrack container unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, the ingress into or egress from any residence, place of business, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, parking meters, or other objects permitted at or near the location. For the purposes of Section 22-7, ″sidewalk″ is defined in subsection 22-16.1.

c. No newsrack shall exceed five (5′) feet in height, thirty (30″) inches in width, or two (2′) feet in depth.

d. Newsracks or special newsrack containers shall only be placed near a curb or adjacent to the wall of a building. No portion of any newsrack or special newsrack container placed near the curb shall be placed less than eighteen (18″) inches or more than twenty-four (24″) inches from the edge of the curb. Newsracks and special newsrack containers placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six (6″) inches from the wall. No newsrack or special newsrack container shall be placed or maintained on a sidewalk opposite a newsstand, another newsrack or another special newsrack container.

e. Newsracks, which otherwise conform to the provisions of this subsection, may be chained, bolted or otherwise attached to any pole or standard located within the public right-of-way, provided that any such rack shall be removed immediately upon request of the City Engineer Public Works Director when removal is in the public interest or when the rack is subject to seizure pursuant to subsection 22-7.5.

f. Newsracks may be chained or otherwise attached to one another provided that there is a three (3′) foot space between each fifteen (15′) feet of newsracks.

g. Newsracks or special newsrack containers may be installed using recessed tie down, concrete rack holders or other methods subject to the approval of the Public Works Director.

h. No newsrack or special newsrack container shall be placed, installed, used or maintained:

1. Within any neighborhood that is zoned residential;

2. Within five (5′) feet of the curb return of any signalized intersection;

3. Within fifteen (15′) feet of the curb return of any unsignalized intersection;

4. Within three (3′) feet of any fire hydrant, fire call box, police call box or other emergency facility;

5. Within three (3′) feet of any driveway;

6. Within fifteen (15′) feet to the rear of any sign marking a designated bus stop, or three (3′) feet ahead of such marking or designation where another pole or standard, which conforms to the provisions of this subsection, is located within ten (10′) feet of each marking or designation;

7. Within (3′) three feet of any bus bench;

8. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six (6′) feet; or

9. Within three (3′) feet of any area improved with lawn, flowers, shrubs or trees.

i. No newsrack or special newsrack container shall be used for advertising signs or publicity purposes other than that dealing with the display, sale or purchase of the newspaper or periodical sold therein.

j. Each newsrack, special newsrack container or special newsrack insert shall be maintained in a neat, painted, graffiti-free and clean condition and in good repair at all times and shall be cleaned on a regular basis. For example, without limitation, every newsrack, special newsrack container or special newsrack insert shall be reasonably free of dirt and grease, be reasonably free of chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, have no broken or cracked plastic or glass parts, and have no broken structural parts.

k. Every person who places or maintains a newsrack or special newsrack insert within the public right-of-way in the City of Alameda shall install a permanent (i.e., reasonably vandal-proof) plaque or sticker on the insert, no smaller than a standard business card (i.e., approximately two (2″) inches by three (3″) inches), specifying his/her name, current address and current phone number affixed thereto in a place where such information may be easily seen.

l. Abandoned newsracks or special newsrack inserts may be removed pursuant to subsection 22-7.5 if the owner of the newsrack or special newsrack insert fails to remedy the violation to the satisfaction of the Public Works Director. Further, the City may revoke the encroachment permit of the abandoned newsracks.

m. It shall be unlawful to locate a newsrack within a special newsrack area.

n. It shall be unlawful to locate a special newsrack insert within a special newsrack container without first obtaining an encroachment permit as outlined in subsection 22-7.7.

(Ord. No. 2915 N.S. § 2)

a. The City Council hereby finds that special circumstances require special design, placement and other standards for newsracks, special newsrack containers and special newsrack inserts located within certain areas of the City; and such areas are hereby designated as "special newsrack areas."

b. In order to designate an area as a special newsrack area, a written request must be made to the Development Services Director by either an established business association or retail shopping center or by sixty (60%) percent of the property owners within a proposed special newsrack area. The request must identify the boundaries of the proposed special newsrack area and the locations of each special newsrack container. The boundaries of the area and locations of the containers must be approved by the Public Works Director. The request must also identify a funding source and plan for the purchase, installation, maintenance and enforcement of any special newsrack containers and special newsrack inserts.

c. In determining whether to designate an area as a special newsrack area, the City Council shall consider the characteristics of the area, including but not limited to: whether the area is in a downtown area; whether the area is congested with street furniture and other sidewalk encroachments, automobiles and other means of travel competing with pedestrians for the public space; and whether special standards for the design and location of newsracks is appropriate to help create a less congested and more visually appealing environment for those who come to the area.

d. The City Council shall determine whether an area should be designated as a special newsrack area and shall do so by resolution.

e. Notwithstanding any contrary provisions in this section, the following special standards shall apply to special newsrack inserts and placement of publications in special newsrack containers within any special newsrack area:

1. No special newsrack inserts shall be located in a special newsrack area except in City-approved special newsrack containers at locations approved by the Public Works Director. In order to be able to place a special newsrack insert within the special newsrack container, the owner must first obtain an encroachment permit in accordance with subsections 22.7-6 through 22-7.8.

2. The special newsrack insert shall meet the special design standards established by the City and on file with the permit center. The name and/or logo of the publication shall be on the front face of the special newsrack insert only and shall be displayed in the color white or an alternate color approved by the Public Works Director.

3. A plan designating the locations of City-approved special newsrack containers shall be on file with the permit center.

f. Within thirty (30) days from the effective date of a resolution designating a special newsrack area, or as soon as practicable thereafter, the Public Works Director shall establish a date (the "cut-off date") by which existing newsracks shall be removed and application shall be made to the permit center for every special newsrack insert proposed to be located in the special newsrack area. No application shall be considered that is filed later than the cut-off date established for that area. The Public Works Director shall give notice of the cut-off date by publication once in a newspaper of general circulation in the City. The Public Works Director shall also make a reasonable effort to mail notices of the cut-off date to the owners and/or distributors of newsracks existing within the special newsrack area; provided, however, that failure to provide mailed notice to any person shall not invalidate any action taken pursuant to this section.

(Ord. No. 2915 N.S. § 2)

a. The City has discretion in deciding whether to relocate or seize newsracks or special newsrack inserts that are in violation of Section 22-7. The City may move the non-compliant newsrack or special newsrack inserts to another location nearby or may seize the newsrack or special newsrack inserts in accordance with the procedures set forth below. If the City (or its designated agent) chooses to relocate the non-compliant newsrack to a location within fifty (50) yards, the owner will not be notified. A newsrack or special newsrack container that is placed in a special newsrack area in violation of Section 22-7 will not be moved to another location by the City but will be seized in accordance with the procedures set forth below.

b. Before any newsrack, special newsrack container or special newsrack insert is seized, the owner shall be notified and given ten (10) calendar days to remedy the violation or to appear at the office of the Public Works Director to contest seizure in an informal administrative forum.

c. Notwithstanding the provisions of subsections (a) and (b), prior notice of seizure is not required where the newsrack, special newsrack container or special newsrack insert poses a danger to pedestrians or vehicles, provided notice of the seizure and opportunity to contest is given the owner within ten (10) calendar days of the seizure.

d. Owners shall be notified of the seizure of a newsrack, special newsrack insert or special newsrack container within ten (10) calendar days of seizure. An owner shall have ten (10) days from the date notice was mailed to file an appeal with the Public Works Director stating why the owner believes the seizure was made in error. Within fifteen (15) calendar days of receiving an appeal, the Public Works Director shall render a written decision as to whether the newsrack or special newsrack insert violated this section.

e. Seized newsracks, special newsrack containers or special newsrack inserts shall be retained and may be recovered by their owner within thirty (30) calendar days from their seizure upon payment by the owner of the cost of removal and storage. If the Public Works Director determined that the seizure was made in error, the owner will not be charged for the cost of the removal or storage and may place the newsrack, special newsrack container or special newsrack insert in its previous location.

f. Newsracks, special newsrack containers or special newsrack inserts which have been seized and are not claimed within thirty (30) calendar days shall be deemed abandoned and may be disposed of or destroyed by the City or its designated agent.

g. In addition to the seizure and abatement remedies described above, the City may also pursue civil and/or criminal remedies. For purposes of a criminal action, violations of Section 22-7 constitute a misdemeanor.

(Ord. No. 2915 N.S. § 2)

a. Each owner of a newsrack or special newsrack insert shall, within thirty (30) days of the effective date of this section, furnish to the permit center a certificate that the owner has then in force public liability and property damage insurance, naming the City as an additional insured, in an amount not less than three hundred thousand ($300,000.00) dollars minimum liability combined single limit (bodily injury and property damage) per person and per occurrence. The owner shall provide and keep in force the policy of public liability insurance during such time as it continues to locate any newsrack or special newsrack insert within the City. The evidence of insurance filed with the City shall include a statement by the insurance carrier that thirty (30) days' notice shall be given to the City before any cancellation. Copies of these policies or certificates evidencing the same shall be filed with the City Clerk.

b. Every person who places, maintains or causes the placement or maintenance of a newsrack or special newsrack insert in the public right-of-way shall file a written statement with the City Clerk satisfactory to the City Attorney whereby the person agrees to hold harmless, defend, and indemnify the City, its City Council, boards and commissions, officers and employees from any loss or liability or damages, including expenses and costs for bodily or personal injury related to or caused by the newsrack or special newsrack insert, and for property damage sustained by any person as a result of the installation, use or maintenance of such newsrack or special newsrack insert. Such statement shall be filed no later than thirty (30) days after the effective date of this section.

(Ord. No. 2915 N.S. § 2)

a. In addition to complying with subsection 22-7.6 regarding liability coverage, in order to place a special newsrack insert within a special newsrack container, an owner must first obtain an encroachment permit and pay all applicable permit fees.

b. Unless sooner suspended or revoked, the term of the encroachment permit shall be for one (1) year. The permit owner shall pay an annual renewal fee as set forth in the master fee resolution.

c. Encroachment permits are nontransferable and may not be sold, assigned or otherwise transferred. If the Public Works Director determines that a special newsrack insert in a special newsrack area has been abandoned, the City (or its designated agent) may revoke the encroachment permit and issue that permit to another publication.

d. The City will use its best efforts to approve an application for an encroachment permit within fifteen (15) calendar days of receipt of the application if the type of special newsrack insert and the location(s) proposed meet the standards set forth in Section 22-7.

e. If an application is disapproved, in whole or in part, the Public Works Director shall notify the applicant(s) in writing, explaining the reasons for denial of the encroachment permit. The applicant(s) shall have fifteen (15) calendar days from the mailing of such notice to file an appeal of the decision with the permit center. The City Clerk shall schedule the appeal before the City Council who may reverse, affirm or modify the decision so long as such action is in conformity with the provisions of Section 22-7.

(Ord. No. 2915 N.S. § 2)

a. In the event that there are more applications for special newsrack inserts than there are spaces in a particular special newsrack container or in a particular special newsrack area, then the Public Works Director shall issue permits as set forth below.

b. The Public Works Director shall allocate spaces in special newsrack containers as follows:

1. First priority shall be given to daily publications;

2. Second priority shall be given to twice weekly publications;

3. Third priority shall be given to weekly publications;

4. Fourth priority shall be given to publications published less than weekly but more than monthly; and

5. Fifth priority shall be given to publications published monthly or less frequently.

c. In the event of a tie in any of the above categories, the following rules shall apply to break that tie:

1. No publication may receive a space in the particular special newsrack container until the other publications that have applied for a space in that container have had an opportunity to select a space in at least one (1) container within the special newsrack area.

2. In the event that this does not break the tie, no publication may receive more than one (1) space for a special newsrack insert in any particular special newsrack container until the other publication that applied for a space in that container has had the opportunity to select a space.

3. Finally, if a tie still exists, priority shall be given to the publication that has been "historically located" closest to the location where the special newsrack container will be placed. Prior to designating an area as a special newsrack area, the City (or its designated agent) will complete a survey of the area in order to identify the location of every publication's freestanding newsrack in the area. The publication which is "historically located" closest to the special newsrack container according to the City's (or its designated agent's) survey will take priority in selecting a space within that container.

(Ord. No. 2915 N.S. § 2)