Berkeley Municipal Code Ch. 16.44 Regulation of Newsracks on Public Property and the Public Right-of-Way…

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 streets, sidewalks, rights-of-way, and other public thoroughfares in commercial areas 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 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" for the benefit of citizens, merchants and visitors, and in order to promote less congested and more visually appealing commercial areas. (Ord. 6471-NS § 1(1), 1999)

For the purposes of this chapter, the definitions set forth in Chapter 16.40 shall apply. "Commercial Area" means all areas of the City designated in the Zoning Ordinance with a "C" prefix, except the area regulated by Chapter 16.40. (Ord. 6471-NS § 1(2), 1999)

This chapter shall apply only in commercial areas. (Ord. 6471-NS § 1(3), 1999)

A. All newsracks installed on or after the effective date of the ordinance codified in this chapter shall comply with all the provisions of this chapter.

B. For twelve months after the effective date of said chapter, existing newsracks installed prior to its effective date need not comply with subdivisions (A), (C), (D), (E) and (F) of Section 16.44.070 of this chapter. (Ord. 6471-NS § 1(4), 1999)

A. 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.

B. 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.

C. 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 16.44.140 through 16.44.160 of this chapter shall apply to such containers. (Ord. 6471-NS § 1(5), 1999)

In addition to the requirements of Section 16.44.050A, no newsrack installed after the effective date of the ordinance codified in this chapter shall be placed, installed or maintained on the public right-of-way in any of the following locations:

A. In front of any bus bench or bus shelter or within three feet of the end of any bus bench;

B. 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);

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

D. 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;

E. Within eighteen inches of any curb;

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

G. Within three feet of any raised planter in the public right-of-way;

H. Within the extended width of any crosswalk for a distance of five feet from the point where the crosswalk reaches the level of the sidewalk or within five feet from any yellow, blue or white painted curb;

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

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

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

L. 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; or

M. Within ten feet to the front or rear of any bicycle rack, or three feet to either side of a bicycle rack. (Ord. 6471-NS § 1(6), 1999)

Except for newsrack units within multi-unit newsracks, all newsracks 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 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 16.44.110 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, bicycle racks, 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 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, pinching 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 (other than a post office box) and phone number and instructions for receiving a refund in the event of coin return malfunctions.

H. Blinders. No material which is harmful to minors, as defined in Penal Code Section 313, may be displayed in a newsrack unless blinder racks 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. 6471-NS § 1(7), 1999)

Every newsrack shall be maintained in a clean, graffiti-free, neatly-finished condition and in good repair at all times. (Ord. 6471-NS § 1(8), 1999)

Newsracks which remain empty or contain outdated issues for at least thirty consecutive days are prohibited. (Ord. 6471-NS § 1(9), 1999)

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. 6471-NS § 1(10), 1999)

A. At such time as the City Council may determine, after public hearing, that replacement of free-standing newsracks with multi-unit newsracks will benefit citizens, merchants and visitors, and promote less congested and more visually appealing commercial areas, it may, by resolution designate areas where only multi-unit 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.

B. 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 16.44.050A. (Ord. 6471-NS § 1(11), 1999)

A. Notice to Repair or Remove. Except as provided in Section 16.44.130 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. 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. 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 16.44.070 through 16.44.100 of this chapter, either moving, removing and replacing or repairing; and in the case of abandonment, removal. (Ord. 6471-NS § 1(12), 1999)

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. 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 16.44.120, and must additionally state how the owner may regain possession of the newsrack.

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. Newsracks which are summarily removed under this section or Section 16.44.100, 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 notice 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. 6471-NS § 1(13), 1999)

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. Any violation of this chapter or of any permit issued hereunder is 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 or pattern or practice of violation.

C. 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. 6471-NS § 1(14), 1999)

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. 6471-NS § 1(15), 1999)

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. (Ord. 6471-NS § 1(16), 1999)