Berkeley Municipal Code Ch. 16.40 Newsracks

The purposes of this chapter 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 street, sidewalks, rights-of-way, and other public thoroughfares are not unreasonably obstructed by newspaper vending racks;

B. Recognize and support the use of public streets, sidewalks and rights-of-way as public forums for the sale, distribution and circulation of newspapers;

C. Preserve and enhance the cultural, ethnic, intellectual and economic diversity of the City which in part results from widespread availability of diverse newspapers;

D. Enact reasonable regulations on the location and design of newsracks which are a reasonable means to achieve the purposes stated herein without inhibiting the distribution of newspapers to the citizens of the City;

E. Provide for the designation of "multi-unit newsrack locations" pursuant to the "Downtown Berkeley Public Improvements Plan," for the benefit of citizens, merchants and visitors, and in order to promote a less congested and more visually appealing downtown area. (Ord. 6326-NS § 1 (part), 1996)

For the purposes of this chapter, the following terms shall have the following definitions:

A. "Bus stop" means the horizontal length of red curb area marked for use by AC Transit or University of California buses.

B. "Downtown area" means the area encompassed by the "Berkeley Downtown Plan," as shown in Exhibit A, as well as the block bounded by Hearst Street, Berkeley Way, Shattuck Avenue and Oxford Street, and the parking lot on Berkeley Way between Shattuck Avenue and Milvia Street.

C. "Entryway to the downtown Berkeley Bay Area Rapid Transit District (BART) Station" means the ground level locations where pedestrians use stairs, escalators or elevators for access to and from the underground BART station.

D. "Multi-unit newsrack" means any assembly of two or more similar boxes, containers, storage units or other dispensers for newspapers, news periodicals or other publications when such assembly is mechanically or structurally fastened together rigidly so as to function as a group. It shall include such assemblies attached to or mounted onto a solid base, pedestal or platform which is constructed for the purpose and which is physically connected to or structurally part of the sidewalk paving area.

E. "Newsrack" means any self-service or coin operated box, container, storage unit or other dispenser installed, used or maintained for the display and sale or distribution without charge of newspapers, news periodicals or other publications, including both freestanding units and individual units within "multi-unit newsracks." Except when the context and usage indicate otherwise, "newsrack" refers to the entire dispenser.

F. "Owner" means the owner of a newsrack, or such other person or entity who has control and responsibility therefor.

G. "Pedestrian" means and includes persons in wheelchairs.

H. "Public right-of-way" means land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved and dedicated to the general public for street, highway, alley, public utility, or pedestrian walkway purposes whether or not said land has been improved or accepted for maintenance by the City. "Public right-of-way" includes but is not limited to, streets, roadways, planter strips and sidewalks.

I. "Sidewalk" means any surface provided for the exclusive or primary use of pedestrians.

J. "Street" means all that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, planter strips, and sidewalks.

K. "Vehicular traffic" means and includes bicycles. (Ord. 6326-NS § 1 (part), 1996)

Exhibit A

[Figure]

This chapter shall apply only in the downtown area. (Ord. 6326-NS § 1 (part), 1996)

A. Immediately Effective Requirements. For one year after the effective date of the ordinance codified in this chapter, existing newsracks installed prior to said effective date need only comply with the requirements of Section 16.40.070 of this chapter prohibiting obstructions, Sections 16.40.090(B), (C), (G) and (H) establishing certain design standards, Section 16.40.100 requiring regular maintenance, Section 16.40.110 prohibiting abandonment, and Section 16.40.120 regulating removal.

B. Requirements Effective After One Year. No later than one year after said effective date of this chapter, all newsracks installed prior to the effective date shall comply with the specific locational requirements of Section 16.40.080, the design standards contained in Sections 16.40.090(A) and (D) to (F), and shall obtain a permit pursuant to Section 16.40.060. (Ord. 6326-NS § 1 (part), 1996)

New newsracks installed on or after the effective date of the ordinance codified in this chapter shall comply with all the provisions of this chapter, including but not limited to the requirements of Section 16.04.060 governing permits, Sections 16.40.070 and 16.40.080 governing location, Section 16.40.090 governing design, Section 16.40.100 governing maintenance, Section 16.40.110 prohibiting abandonment, and Section 16.40.120 regulating removal. (Ord. 6326-NS § 1 (part), 1996)

A. Permit Required. No person may install, place or maintain a newsrack on any public property or public right-of-way after the effective date of the ordinance codified in this chapter without first obtaining a permit therefor from the City as provided in this section. Permits required by Section 16.40.040B for existing newsracks shall also be governed by this section. All permits required by this section shall be effective for one calendar year, and shall be renewed annually, no later than February 28 of each year. Permits shall not be assignable.

B. Application Form. An application for installation and maintenance of a newsrack shall be made in writing on a form provided by the City, and shall be filed with the City. The application form shall inform the applicant of the requirements of this chapter, and shall require at least the following information from the applicant:

1. The name, address and telephone number of the owner of the newsrack and the name and address of an agent for notice, who shall be the owner or another person to whom notice under any provision of this chapter may be given. No such address may be a post office box;

2. The precise location in which the newsrack is to be installed and maintained, as well as the location of other newsracks within a twenty-foot radius. The location shall be depicted in a manner which is sufficient to demonstrate compliance with this chapter, such as a site plan drawn to scale, or by indicating the location of the proposed newsrack on a map maintained for that purpose by the City;

3. The design of the newsrack, depicted in a manner which is sufficient to demonstrate compliance with this chapter; and

4. The proposed method, if any, by which the newsrack will be installed, and specifically, whether or not it will be bolted to the sidewalk.

C. Grounds for Approval/Denial--Time for Action. A permit which proposes installation and maintenance of a newsrack or newsracks in conformance with this chapter shall be approved. A permit which proposes installation and maintenance of a newsrack or newsracks not in conformance with this chapter, shall be denied. The City shall either approve or deny a complete permit application under this chapter within thirty days of its receipt. Upon approval, the City shall issue a registration sticker which the owner shall forthwith affix to the front of the door of, or the unobstructed top face of, the newsrack which is the subject of the permit. If a permit is denied, the City shall, within ten days, mail a notice of said denial to the owner, which identifies the grounds for denial.

D. Preference for Existing Newsracks in Existing Locations. The City shall not approve a permit application under this chapter which would result in the displacement of a permitted newsrack owned by an owner other than the applicant. Prior to the expiration of one year after the effective date of the ordinance codified in this chapter, the City shall not approve a permit application under this chapter which would result in the displacement of any newsrack owned by an owner other than the applicant. The City may establish waiting lists for permitted spaces which are already occupied.

E. No Fee for Temporary Permits for Newsracks. Upon request, the City shall issue a temporary permit effective for a period not to exceed forty-five days, for a newsrack which is in conformance with the requirements of this chapter. Upon the expiration of the permit the owner shall either remove the newsrack or obtain an annual permit under Section 16.40.060A, or the City may summarily remove such newsracks. No fee may be charged for temporary permits. (Ord. 6326-NS § 1 (part), 1996)

A. Newsracks. No newsrack shall be installed, placed, used, or maintained in any location upon public property or the public right-of-way in a location or in a manner which: endangers the safety of persons or property; unreasonably interferes with public utility, public transportation, or other public or government use; unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle; interferes with the use of traffic signs or signals, hydrants, call boxes or mail boxes; interferes with the use of bicycle racks; or interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery. In addition, groups of newsracks which are located within three feet of curbs where angle parking is permitted shall not exceed five feet in length, and each group shall be separated from each other group by at least three feet; and groups of newsracks which are located within three feet of curbs where parallel parking is permitted shall not exceed nine feet in length, and each group shall be separated from each other group by at least ten feet.

B. Newspaper and Periodical Storage Containers. No freestanding container of any sort for the storage of newspapers or other periodicals, as opposed to their distribution to the public, may be installed, placed, used, or maintained in any location upon public property or the public right-of-way, and no permit therefor may be issued under this chapter. The provisions of Sections 16.40.140 through 16.40.170 of this chapter shall apply to such containers. (Ord. 6326-NS § 1 (part), 1996)

A. Additional Locational Restrictions. In addition to the requirements of Section 16.40.070A, no new newsrack installed after the effective date of the ordinance codified in this chapter shall be placed, installed, used or maintained on the public right-of-way in any of the following locations:

1. In front of any bus bench, or within any building entrance (defined as the area the same width as a building doorway and extending from a building doorway ten feet towards the curb, but not including sidewalk areas at the bottom of stairways which are wider than building doorways);

2. At street corners, within the area defined by the sidewalks intersecting at those street corners;

3. At any location where it would reduce the clear space for the passage of pedestrians on a sidewalk or entering onto a sidewalk, to less than eight feet;

4. Within eighteen inches of any curb;

5. Within two feet of the edge of any tree well;

6. Within three feet of any raised planter in the public-right-of way or the end of any bus bench;

7. Within five feet in front of the location where any crosswalk or wheelchair curb ramp reaches the level of the sidewalk or within five feet from any yellow, blue or white painted curb;

8. Within a five-foot radius of any public or private driveway, fire hydrant, police or fire call box or other emergency facility;

9. Within six feet directly in front of any display window of any building abutting the sidewalk;

10. Within ten feet along the length of the curb at any designated bus stop;

11. Within ten feet of any installation of public art installed pursuant to a program or plan approved by the City Council, except as may be permitted in that program or plan;

12. Within ten feet to the front or rear of any bicycle rack, or three feet to either side of a bicycle rack, and

13. Any area at sidewalk level within ten feet in front any entryway to the downtown Berkeley BART station.

B. Maps to be Prepared. The locational criteria set forth in this chapter shall be shown in and implemented by maps prepared by the City, which will be updated and revised as necessary to reflect changes in conditions, including capital improvements carried out by the City or other entities, as well as designation of multi-unit newsrack areas pursuant to Section 16.40.130. (Ord. 6326-NS § 1 (part), 1996)

Except for newsrack units within multi-unit newsracks, as provided for in Section 16.40.130, all newsracks installed after the effective date of the ordinance codified in this chapter shall comply with the design standards set forth in this section.

A. Construction. Newsracks shall be self supporting, stable and rigidly assembled, and the base shall be substantially rectangular in outline. Newsrack bases shall consist of either a pedestal, or four legs which are surrounded by solid material which extends down substantially to grade level, so as to prevent trash from becoming caught between or among the legs and to reduce the hazard of tripping sight-impaired pedestrians.

B. No Fixed Newsracks. No newsrack may be chained, bolted, or otherwise attached to any other newsrack, or any structure in the public right-of-way, except pursuant to a designation under Section 16.40.130 of this chapter, or as specified herein; except that newsracks may be bolted to each other internally, if all of the owners thereof consent. As used in this subsection, "structure" shall include, but not be limited to, bus shelters, bus stop benches, sign poles, light or traffic signal poles, telephone poles, parking meters, fire hydrants, call boxes, mailboxes, telephone stands, trees, shrubs or other street furniture or landscape elements in the public right-of-way. However, newsracks may be fastened with bolts installed in concrete paving in the public right-of-way in a manner approved by the City so as not to present a hazard to pedestrians.

C. Exterior. Each newsrack shall be painted metal, plastic, or other material designed for the installation out of doors, and capable of remaining in good, stable and safe condition for an extended period of time; newsracks shall include an operable self-closing door or other equally effective mechanism or design which prevents publications from being removed unintentionally from the newsrack, or being blown about by wind.

D. Height. The maximum height of the exterior of any newsrack may not exceed fifty-four inches in height measured from the lowest immediately adjacent grade. The compartments of multi-unit newsracks shall be placed in such a manner as to utilize no more than two horizontal tiers. In no event shall any part of the newsrack which requires operation by the public, including but not limited to the coin slot, operating mechanism, handle or other such device, be greater than forty-eight inches or less than fifteen inches above the adjacent pavement in front of the newsrack.

E. Operation. Controls and operating mechanisms shall be operable with one hand and shall not require tight grasping, punching, or twisting of the wrist. The force required to activate controls or to open the door of the newsrack shall not exceed five foot-pounds.

F. Advertising. No newsrack shall be used for advertising signs or publicity purposes other than the display, sale, or distribution of the newspaper or publication distributed from it, or cross-promotions involving that newspaper or publication.

G. Identification. Every newsrack owner shall clearly and permanently affix to each newsrack the owner’s name, address and phone number and instructions for receiving a refund in the event of coin return malfunctions, as well as any annual or temporary registration sticker issued by the City.

H. Blinders. No material which is harmful to minors, as defined in Penal Code Section 313, may be displayed in a newsrack unless blinder rocks are placed in front of the material so that the lower two-thirds of the material is not exposed to view. In any criminal prosecution under this subsection, the City Attorney must establish that the owner had knowledge of the harmful character of the material displayed and the age of the persons to whom it was to be displayed. (Ord. 6326-NS § 1 (part), 1996)

Every newsrack 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. (Ord. 6326-NS § 1 (part), 1996)

Newsracks which remain empty or contain outdated issues for at least thirty consecutive days are prohibited. (Ord. 6326-NS § 1 (part), 1996)

A. No Removal Except as Authorized. No newsrack may be permanently removed except by the owner thereof or the City, in compliance with the requirements of this chapter. For purposes of this section, "permanent removal" means removal for a period of greater than thirty days.

B. Notification of Removal. Whenever an owner permanently removes a newsrack the owner shall notify the City within fifteen days of removal of the specific newsrack removed, and its location.

C. Restoration. When any newsrack is removed, the owner of that newsrack, at the owner’s expense, shall restore its location to its previous condition within ten days, normal wear and tear excepted. The City will notify the owner within thirty days after receipt of the notice of removal whether further restoration is needed.

D. Removal by City for Capital Improvements. The City may require the removal of a newsrack upon thirty days’ notice to the owner in order to construct public improvements. Upon the expiration of that period, the City may remove the newsrack. (Ord. 6326-NS § 1 (part), 1996)

A. Notice and Planning. At such time as the City Council may determine that replacement of freestanding newsracks with multi-unit newsracks will benefit citizens, merchants and visitors, and promote a less congested and more visually appealing downtown area, it may, by resolution designate areas where only multiunit newsracks will be permitted. Upon the effective date of such designation, existing newsracks in the designated area shall be removed upon no less than thirty days’ written notice by the City to the owner. However, no designation under this section shall be effective until the City has adopted design standards for multi-unit newsracks through a process which includes the public and newsrack owners whose newsracks will be affected by the designation.

B. Installation not Prohibited. Notwithstanding anything to the contrary in this chapter, the City may install newsracks in locations otherwise prohibited by this chapter as part of an urban design plan, if it determines that such locations are consistent with Section 16.40.070A. (Ord. 6326-NS § 1 (part), 1996)

A. Notice to Repair or Remove. Except as provided in Section 16.40.150, newsracks that are in any respect in violation of this chapter shall be replaced, repaired or removed within thirty days from the mailing of a notice describing the violations.

B. Contents of Notices. Notices pursuant to this section shall: state the provision of the chapter being violated by the newsrack, and the nature of such violation; state that failure to cure could result in removal and disposal of the newsrack by the City and the assessment of the costs of doing so against the owner; notify the owner of their opportunity to appeal the determination of violation within ten days; state the officer or department with whom such an appeal must be filed; and state that any such appeal may be decided only on the basis of written materials submitted within the period specified in the notice.

C. Appeal--Decision--Enforcement. Within fifteen days after receiving an appeal pursuant to this section, the City shall render a written decision, based exclusively on the requirements of this chapter, and may affirm, reverse or modify the decision or action being appealed. Such decision shall address whether and to what extent the violation(s) asserted in the notice were present, and, if applicable, set a reasonable deadline for such cure. If the owner does not comply with a decision requiring cure within the period established by the City, the City may remove and dispose of the newsrack. As used in this section, "cure" means, in the case of a violation of Sections 16.40.070 through 16.40.100 of this chapter, either moving, removing and replacing or repairing; and in the case of abandonment, removal. (Ord. 6326-NS § 1 (part), 1996)

The City may summarily remove newsracks which endanger the safety of persons, property, pedestrian or vehicular traffic, unreasonably interfere with or impede the flow of pedestrian or vehicular traffic, ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or interfere with the use of traffic signs or signals, hydrants, call boxes or mail boxes. Such removal may be done without prior notice to the owner, and the owner may be charged all reasonable costs of removal, as well as the cost of subsequent storage.

A. Notice--Contents. In cases of summary removal, the City shall provide written notice to the owner within five working days of the removal. Said notice shall conform, to the extent applicable, to the requirements of Section 16.40.140, and must additionally afford the owner an opportunity to apply for reinstallation of the newsrack in conformance with this chapter, and demand payment of the reasonable cost of removing the newsrack, including a daily rate for post-removal storage.

B. Appeal. Within ten days of the mailing of a notice under this section, the owner may appeal the City’s action. Within fifteen days after receiving an appeal, the City shall render a written decision based exclusively on the requirements of this chapter, and may affirm, reverse or modify the decision or action being appealed. Such decision shall address whether and to what extent the violation(s) asserted in the notice were present, the disposition of any newsrack which is held in storage by the City, and the amount of any costs that may be recovered from the owner of the newsrack.

C. Return of Newsracks. Newsracks which are summarily removed under this section, or which are removed under Section 16.40.120D, shall be stored by the City in a safe location, and shall be returned to the owner if a request and payment for the cost of removal and storage are made within fifteen days of removal or a decision on appeal, whichever is later; provided that if the City determines that the removal was in error the owner shall not be charged. Newsracks which are not returned as provided by this section may be disposed of or destroyed. (Ord. 6326-NS § 1 (part), 1996)

A. Infraction. Any person violating or causing the violation of this chapter or any permit issued hereunder shall be guilty of an infraction as set forth in Chapter 1.20 of this code.

B. Nuisance. Any violation of this chapter or of any permit issued hereunder is hereby deemed and declared to be unlawful and a public nuisance. In addition to any other remedy available to the City by law or equity, the City Attorney may commence a civil action or proceeding to restrain, prevent, correct, terminate, remove, abate and/or enjoin any such violation.

C. Remedies Cumulative. Nothing in this section shall preclude any other remedy afforded by law, including administrative or civil enforcement proceedings, and the remedies provided herein shall be cumulative and not exclusive. (Ord. 6326-NS § 1 (part), 1996)

Where the failure of any owner to comply with the requirements of this chapter results in injury to any person, or damage to property, the injured person, or the owner of the damaged property, may bring a civil action for actual damages. In such cases the affected newsrack owner shall indemnify and hold the City harmless for any and all liability. (Ord. 6326-NS § 1 (part), 1996)

A. Notices. All notices which are required to be given under this chapter shall be in writing and shall be given by first class mail to the party for whom intended at the address for such party stated below. However, no such address may be a post office box. It shall be the responsibility of each owner of a newsrack installed in the City limits to give notice of any change of address to the City in accordance with the terms of this section.

B. Fees. The City Council, by resolution, may adopt a fee schedule to defray the reasonable costs of administering and implementing this chapter. Any fee schedule adopted under this chapter shall provide a limited hardship exemption. No fees may be charged for temporary permits under Section 16.40.060E. (Ord. 6326-NS § 1 (part), 1996)