Division 8 — NEWSRACKS

The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning.

"Harmful matter" means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

"Development Services Director" means that person who serves as the City's Development Services Director or his or her designee.

"Newsrack" means any self-service or self-operated box, container, storage unit, or other dispenser placed, installed, used or maintained for the display and sale of newspapers, news periodicals, magazines, other publications or any other written or pictorial matter or materials, whether commercial, political, recreational or otherwise in nature.

"Parkway" means that area between the sidewalk and the curb of any street and, where there is no sidewalk, that area between the edge of the roadway and the property line adjacent thereto. The term also includes any area within a roadway which is not open to vehicular traffic.

"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 that area dedicated to public use for public street purposes and includes, but is not limited to, roadways, parkways, alleys and sidewalks.

This Article shall apply to all newsracks.

The purpose of this Article is to promote the public peace, health and safety by regulating the placement, design, appearance and servicing of publication vending machines so as to protect against:

(a)

The dangers of impairing the vision of motorists and pedestrians, particularly small children;

(b)

The dangers of unreasonably impeding 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 the parked or standing vehicles;

(c)

Neglectful servicing of publication vending machines resulting in a visual blight on the City's parkways and sidewalks, and detracting from the aesthetics of store window displays, adjacent landscaping and other improvements.

(a)

Whenever the License Officer is advised that a newsrack has been placed or installed or is being maintained in violation of this Article, they shall so notify the person in whose name the newsrack is registered pursuant to Section 6438.4. Such notice shall state the nature of the violation, the intention to impound the newsrack if the violation is not corrected or a hearing is not requested in writing before the Business License Review Board within ten (10) days after the giving of such notice and the procedure for requesting such a hearing. A timely request for a hearing shall stay any impounding, provided, however, if the violation is not corrected within five (5) calendar days after the decision made at the conclusion of such hearing becomes final, the License Officer may impound the newsrack in accordance with Subsection (c) of this Section.

(b)

Notwithstanding Subsection (a) of this Section, for violations of this Article relative to restrictions upon the attachment of newsracks to property other than that owned by the owner of the newsrack, to fixed objects or to each other and upon location of newsracks, the License Officer may, without first giving the registrant of the newsrack written or oral notice, move, align, remove such attachment or otherwise move such racks in order to restore them to a safe and legal condition, as an alternative to the procedure specified in Subsection (a) of this Section.

(c)

Whenever a newsrack is impounded pursuant to Subsection (a) of this Section, the newsrack shall be removed by the License Officer and stored in any convenient place where other items of personal property confiscated in connection with a City investigation or enforcement of this Code are stored. The License Officer shall notify the person who, according to the City's most recent records, is the owner of the newsrack by mailing a notice of newsrack removal to the last known address of the owner. Such notice shall state 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 before the Business License Review Board, if desired. Any such newsrack removed and stored pursuant to this Section shall be released to the owner thereof if claimed within forty-five (45) days after the mailing of written notice of removal and upon the payment of reasonable charges of removal and storage thereof. Upon failure of the owner to claim such newsrack and pay the reasonable charges within the forty-five (45) day period, such newsrack shall be deemed to be unclaimed property in possession of the City's Police Department and may be disposed of in accordance with the City's policy of disposing of unclaimed property.

(d)

Notwithstanding anything herein to the contrary, any newsrack maintained within the City in violation of this Article, which violation creates an immediate danger to the health or safety of the public, as determined by the License Officer, and 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 or safety of the public. The License Officer shall notify the owner thereof by mailing a notice of removal to the last known address of the owner. Such notice shall state 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 before the Business License Review Board, if desired. Any such newsrack removed and stored pursuant to this Subsection shall be released to the owner thereof if claimed within forty-five (45) days after the mailing of written notice of removal and upon the payment of reasonable charges of removal and storage therefor. Upon failure of the owner to claim such newsrack and pay the reasonable charges within the forty-five (45) day period, such newsrack shall be deemed to be unclaimed property in possession of the City's Police Department and may be disposed of in accordance with the City's policy of disposing of unclaimed property.

(e)

Within ten (10) days of the date on which the notice of violation or notice of removal of a newsrack summarily impounded is sent by the City, the person in whose name the newsrack is registered pursuant to Section 6438.4 or other person who provides satisfactory proof of ownership may request a hearing before the Business License Review Board. The request shall be in writing, shall state the basis thereof and shall be filed with the Business License Review Board. The hearing shall be held within thirty (30) working days

of the Board's receipt of the request, unless continued for good cause as determined in the Board's reasonable discretion. At the hearing, any person may present evidence or argument as to whether the newsrack has violated this Article. Within ten (10) working days after the close of the hearing, the Business License Review Board shall render a decision in writing. Notice of the decision shall forthwith be given to the person who requested the hearing.

(f)

All notices shall be sent by registered mail to the registrant and the owner at the address shown on the registration and at their last known address.

(Amended by Ord. 2263 adopted 12-1-09)

(a)

No person shall place, install or maintain any newsrack which in whole or in part rests upon, in or over any street without first obtaining a newsrack permit from the Business License Officer and without otherwise complying with this Article. An application for a permit shall be made upon the form required by the Development Services Director and shall contain the following:

(1)

The name, address and telephone number of the owner of the newsrack and the name and address of the person to whom any notice pursuant to this Article should be given;

(2)

The location at which the newsrack is to be installed and maintained;

(3)

An executed document, approved as to form by the City Attorney, by which the owner of the newsrack agrees to indemnify and hold harmless the city, its officials, officers, employees and agents from any claim, demand or judgment in favor of any person, arising out of activities or inactivities of the owner of the newsrack, his officers, employees and agents with respect to injuries and damages to persons or property arising from the location, installation, maintenance or removal of the owner's newsracks;

(4)

A certificate of insurance and endorsement form(s) evidencing that both a liability insurance policy and a property damage insurance policy have been obtained by the owner, naming the city and its officials, officers, employees and agents as additional insureds, in an amount not less than one hundred fifty thousand dollars ($150,000.00) minimum liability per occurrence on account of personal injury, including bodily injury, per person and four hundred fifty thousand dollars ($450,000.00) limit per occurrence. The minimum for property damage shall be in the amount of one million dollars ($1,000,000.00). The policies shall also be endorsed to provide that the insurance carrier will give the City thirty (30) days' written notice by certified mail before any cancellation of coverage;

(5)

If the proposed newsrack will contain harmful matter, the application shall contain a separate written attachment containing all of the following:

(i)

A summary of Penal Code Sections 313.1 and 313.4 as they exist on the date the application is submitted,

(ii)

A detailed description of how the newsrack will be "adult supervised" and what precautions will be put into place to prevent access to the newsrack by minors, and

(iii)

If tokens or special cards will be used to access the newsrack, a list of the locations at which the tokens or cards will be made available. The list of locations shall include the name of the residence or business location, the address, the telephone number and the name of a contact person at the location who shall be responsible for selling, distributing or giving out the tokens or cards;

(b)

Any application that complies with the requirements of this Code and any other applicable County, State or Federal law shall be approved.

The Development Services Director shall keep and maintain an index file of all newsrack permits issued pursuant to this Article.

The provisions of this Article providing for administrative remedies is declared to be an alternative procedure to any other remedy provided by law.

No person shall place, install, use or maintain any newsrack in a location where it projects into, onto or over any part of any roadway of any public street or which rests wholly or in part upon, along or over any portion of the parkway of any public street.

No person shall install, use or maintain any newsrack which, in whole or in part, rests upon, in or over any public sidewalk or pathway when such installation, use or maintenance endangers the safety of persons or property or which site or location is used for public utility purposes, public transportation purposes or other governmental use or when such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including any legally marked or stopped vehicle, the 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.

No newsrack shall be placed, installed, used or maintained in a parkway or sidewalk adjacent to property zoned residential, as such zone is defined in this Code. This Section shall not prohibit the placement of a newsrack in a parkway or sidewalk in such residential zones where the newsrack is on a parkway or sidewalk directly in front of a public building which is open to and used regularly by the public, so long as such public buildings are not elementary, middle or high schools.

Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway shall comply with the following standards and specifications:

(1)

The newsrack shall not exceed sixty (60) inches in height, thirty (30) inches in width or twenty-four (24) inches in depth.

(2)

The newsrack shall not be chained, bolted or otherwise attached to any property not owned by the owner of the newsrack or to any object permanently affixed to the public right-of-way; provided, however, that the newsrack shall be mounted so that the area from the ground surface to sixteen and one-half (16½) inches above the ground surface remains open to a significantly unobstructed view.

(3)

The newsrack shall be installed on a single or multiple pedestal-type or modular-type base; provided, however, that not more than four (4) newsracks shall be installed on any one (1) base.

(4)

The newsrack shall be constructed of sturdy, corrosive-resistant materials.

(5)

The newsrack shall have wood grain panels and the mount shall be painted gloss black.

(6)

Each vendor may have no more than two (2) machines in any one (1) location; in some instances, depending upon space available, the vendor may be limited to a single installation.

(7)

The newsrack shall comply with such other requirements consistent with the foregoing standards which the Development Services Director may reasonably determine are necessary to protect the public safety.

Any newsrack which, in whole or in part, rests upon, in or over any public sidewalk or parkway shall comply with the following standards:

(1)

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 eighteen (18) inches and not more than twenty-four (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 (6) inches from the wall. Newsracks shall not be placed or maintained on the sidewalk or parkway opposite a newsstand or another newsrack. All newsracks must be level.

(2)

Notwithstanding Section 6438.8, no newsrack shall be placed, installed, used or maintained within the following distances:

(a)

Five (5) feet of any marked crosswalk;

(b)

Five (5) feet of any curb return;

(c)

Five (5) feet of any fire hydrant, fire callbox, police or other emergency facility;

(d)

Five (5) feet of any driveway;

(e)

Five (5) feet ahead of and twenty-five (25) feet to the rear of any sign marking a designated bus stop;

(f)

Six (6) feet of any bus bench or transit advertising shelter;

(g)

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

(3)

Newsracks shall be maintained in a clean, neat and safe condition and in good repair at all times. Graffiti shall be removed within forty-eight (48) hours of the time the Development Services Director notifies the newsrack owner of the graffiti.

(4)

Newsracks may be placed next to each other; provided, however, no group of newsracks shall extend more than fifteen (15) feet along a curb or wall, and no such group of newsracks shall be located within five (5) feet of any group of newsracks.

(a)

Any newsrack which contains harmful matter and which is located on a public sidewalk, parkway, street or other publicly owned property shall have a blinder rack attached in such a manner as to shield the harmful matter from viewing by the public in accordance with Penal Code Section 313(d).

(b)

Harmful matter shall not be exhibited, displayed, sold or offered for sale in any newsrack located in a public place without adult supervision, other than a public place from which minors are excluded. A newsrack shall be considered to be "supervised by an adult" when either of the following measures is taken to restrict access to harmful matter by persons under eighteen (18) years of age: (1) the person receiving the harmful matter is required to use an authorized access or identification card to the newsrack and the owner of the newsrack has taken reasonable measures to assure that the card is issued only to persons eighteen (18) years old or older and has established a procedure to immediately cancel the card of any person after receiving notice that the card has been lost, stolen or used by persons under eighteen (18) years of age, or that the card is no longer desired; or (2) the owner of the newsrack requires the person using the newsrack to retrieve the harmful matter to use a token and takes reasonable measures to ascertain that only those people who are eighteen (18) years of age or older obtain tokens for the newsrack.

Every person who places, installs or maintains a newsrack in any public location in the City, including, but not limited to, streets, sidewalks and parkways, shall have his name, address and telephone number affixed thereto in a place where such information may be easily seen.

No person or custodian, whether as a principal or agent, clerk or employee, either for himself/herself or any other person, or as an officer of any corporation or otherwise, shall place or permit the placement of any newsrack in any location within the City, unless either the publisher or distributor of the publication or the person placing the machine upon the sidewalk, parkway, street or other public place, has a valid business permit issued pursuant to this Code, or otherwise is exempted from such requirement.

If any Section, Subsection, clause or phrase of this Division or any part thereof is for any reason held to be invalid, unconstitutional or enforceable by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of the Division. The City Council declares that it would have passed each Section, Subsection, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one (1) or more Section; Subsection, sentence, clause or phrase would be declared invalid, unconstitutional or unenforceable.

(Division 8 (Sections 6438 and 6439) was repealed and a new Division 8 added by Ord. 2117 adopted 2-15- 00)