Burbank Municipal Code Art. 10 News Racks (CA)

5-3-1001: PURPOSE AND INTENT:

A. Findings: The Council of the City of Burbank finds and declares that:

The uncontrolled placement and maintenance of news racks in the public right of way can constitute a threat to public health, safety, and welfare.
News racks which display materials describing and depicting explicit sexual conduct and nudity are thrust indiscriminately on children and unwilling adults.
These factors constitute an unreasonable interference with and obstruction of the use of public rights of way, constitute an unwarranted invasion of individual privacy, are injurious to health, offensive to the senses, and constitute such an obstruction of the free use of property as to interfere in the comfortable enjoyment of life and property by the entire community.
The Council recognizes, however, that the use of such rights of way is so historically associated with the sale and distribution of newspapers and publications that access to those areas for such purposes should not be absolutely denied. The Council further finds that these strong and competing interests require a reasonable accommodation which can only be satisfactorily achieved through the means of this article which is designed to accommodate such interests by regulating the time, place and manner of using such news racks.

B. Purpose: The purpose of this article is to promote the public health, safety, and welfare through the regulation of placement, appearance, number, size, and servicing of news racks on the public rights of way so as to:

Provide for pedestrian and driving safety and convenience.
Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into, or egress from, any place of business or from the street to the sidewalk.
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.
Reduce visual blight on the public rights of way, protect the aesthetics and value of surrounding properties, and protect the quiet of residential areas.
Reduce exposure of the City to personal injury or property damage claims and litigation.
Protect the right to distribute information, protected by the United States and California Constitutions, through the use of news racks.

C. Preservation of Constitutional Rights: It is not the intent of this article to in any way discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any printed material that is constitutionally protected. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1002: DEFINITIONS:

As used in this article, unless the context otherwise clearly indicates:

EXPLICIT SEXUAL ACTS: Depictions of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism, or excretory functions in conjunction with sexual activity, masturbation, or lewd exhibition of genitals, whether any of the above conduct is depicted or described as being performed alone or between members of the same or opposite sex or between humans and animals, or other acts of sexual arousal involving any physical contact with a person’s genitals, pubic region, pubic hair, perineum, anus or anal region.

HARMFUL MATTER: For purposes of this article, “harmful matter” is as defined in Title 9, Chapter 7.6 (section 313) of the California Penal Code and any subsequent amendments thereof.

NEWS RACK: Any self-service or coin operated box, container, storage unit or other dispenser installed, used, or maintained for the display, sale, or free distribution of newspapers or news periodicals.

PARKWAY: 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. Parkway shall also include any area with a roadway which is not open to vehicular travel.

PERSON: Any person or persons, or entity including but not limited to a corporation, partnership, unincorporated association or joint venture.

PUBLIC WORKS DIRECTOR: Refers to the Public Works Director or the designee of the Public Works Director.

ROADWAY: That portion of a street improved, designed, or ordinarily used for vehicular travel.

SEXUAL AROUSAL, GRATIFICATION OR AFFRONT: When used in this article to state the purpose or effect of statements, words, pictures or illustrations means depictions of the following subjects or acts:

A. Sexual intercourse, oral copulation, anal intercourse, oral-anal contact, bestiality, direct physical stimulation of genitals, flagellation or torture in the context of a sexual relationship, or any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprolagnia, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or

B. Human genitals in a state of sexual stimulation, arousal, or tumescence; or

C. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejaculation; or

D. Fondling or touching of human genitals, pubic region, buttock, or female breast; or

E. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or

F. Erotic or lewd touching, fondling or other contact with an animal by a human being; or

G. Human excretion, urination, menstruation, vaginal or anal irrigation.

SIDEWALK: Any surface provided for the exclusive use of pedestrians.

STREET: All that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks. [Added by Ord. No. 2553; formerly numbered Section 20-71; Amended by Ord. No. 3413, eff. 10/21/95; 3108, 3058, 2973.]

5-3-1003: NEWS RACKS PROHIBITED ON ROADWAYS, PARKWAYS, AND SIDEWALKS:

A. Roadway Prohibition: No person shall install, use, or maintain any news rack which projects onto, into, or over, or which rests, wholly or in part, upon any part of the roadway or parkway of any public street.

B. Sidewalk Restrictions: No person shall install, use, or maintain any news rack which in whole or in part rests upon, in, or over any public sidewalk: 1) when such installation, use, or maintenance endangers the safety of persons or property; 2) when such site or location is used for public utility purposes, public transportation purposes, or other governmental use; 3) when such news rack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including legally parked or stopped vehicles; the ingress into or egress from any residence or place of business; the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects permitted at or near said location; 4) when such news rack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery; or 5) in any other manner inconsistent with or in violation of the provisions of this chapter. [Added by Ord. No. 2553; formerly numbered Section 20-72; Amended by Ord. No. 3413, eff. 10/21/95; 3108, 3058.] [Former BMC 20-24(a), California Newspaper Publishers Association v. City of Burbank (1975) 51 Cal.App.3d 50, 52, 123 Cal.Rptr.880]

5-3-1004: REGISTRATION OF LOCATION:

A. Registration: Except as provided in this article, no person shall install or maintain any news rack which in whole or in part rests upon, in, or over any public sidewalk without first registering with the Public Works Director the following:

The name, address, and telephone number of the owner of the news rack;
The location of each news rack to be installed or maintained in the City.
If a registered space remains vacant for two (2) weeks at any time after registration, the registration shall be void.

B. Location Designation: From the above registration information the Public Works Director shall approve the locations. They shall be guided therein solely by the standards and criteria set forth in this article. In any case where the Public Works Director disapproves of a particular location, such disapproval shall be without prejudice to the registrant designating a different location or locations.

C. Removal and Relocation of News Racks: The Public Works Director’s approval of a news rack location shall not in any event constitute an easement on nor an encumbrance against the public right of way. No right, title or interest in the public property on which the news rack is located, or any part thereof, shall vest or accrue in the owner of the news rack by reason of the Public Works Director’s approval of a news rack location. In the event that the news rack must be removed due to either public or private improvements of the location in which the news rack is located, the owner of the news rack shall bear the cost of such removal and relocation.

D. Special Requirements for News Racks on San Fernando Boulevard:

It is the intent of the City Council to strictly regulate the location of news racks on San Fernando Boulevard between Angeleno Avenue and Magnolia Boulevard so as to not adversely impact the aesthetic nature of the area. The placement of news racks in this area shall be restricted to locations on existing city built low concrete landscape walls as designated by the Public Works Director per map of area maintained in the Public Works Department. The news racks shall be bolted directly to the concrete landscape walls and not the sidewalk. Two (2) or more news racks stacked vertically are prohibited in this area.
No person shall place or maintain a news rack on San Fernando Boulevard between Angeleno Avenue and Magnolia Boulevard except in areas designated by the Public Works Director.
The Public Works Director shall allocate the news rack spaces available on San Fernando Road between Angeleno Street and Magnolia Boulevard to the distributors of news rack publications on the basis of the priorities established in subsection 5-3-1007D of this article.

E. Registration Fee: In order to provide for the costs of the administration of this article, there shall be imposed a nonrefundable registration fee and annual renewal fee for each news rack as established by the Burbank Fee Resolution.

F. Application: All persons required by Penal Code Section 313.1(c)(2) to supervise news racks that display, sell, or offer to sell “harmful matter” as defined by Penal Code Section 313 shall complete an application that inquires as to whether or not the person has been convicted of any misdemeanor or felony offense specified in Penal Code Section 11105.3(h)(1). By submitting such an application, applicants are deemed to agree to a criminal history search and shall, with the application, submit fingerprints for that purpose as provided in Penal Code Section 11105(b)(10) and 11105(i). [Added by Ord. No. 3108; Amended by Ord. 3615, eff. 2/15/03; 3413.]

5-3-1005: HOLD HARMLESS:

A. Indemnification: Every owner of a news rack who places or maintains a news rack on a public sidewalk in the City of Burbank shall file a written agreement with the Public Works Director in a form satisfactory to the City Attorney, whereby such owner agrees to indemnify and hold harmless the City, its officers, and employees, from any loss, liability, or damage, including expenses and costs, for bodily or personal injury, and for property damage sustained by any person as a result of the installation, use and/or maintenance of a news rack within the City of Burbank. The agreement will further provide that the owner of the news rack is responsible for removal of the news rack and repair of the sidewalk in the event the owner no longer uses the news rack for the display, sale, or free distribution of newspapers or other periodicals.

B. Insurance: Every owner of a news rack who places or maintains a news rack on a public sidewalk in the City of Burbank shall file with the Public Works Director in a form satisfactory to the City Attorney, a certificate of insurance providing evidence that the owner is covered by public liability insurance in an amount of not less than five hundred thousand dollars ($500,000.00). The owner shall name the City of Burbank as an additional insured on a separate endorsement to the insurance policy and provide proof of this endorsement. The endorsement shall require the insurance company to provide the City of Burbank with a minimum of ten (10) days’ notice prior to the cancellation of the policy. The owner of a news rack shall keep current the insurance required by this provision. [Added by Ord. No. 3108; Amended by Ord. No. 3413, eff. 10/21/95.]

5-3-1006: NEWS RACK IDENTIFICATION REQUIRED:

Every person who places or maintains a news rack on the streets of the City of Burbank shall have their name, address, and telephone number affixed to the inside transparent lid face. [Added by Ord. No. 2553; formerly numbered Section 20-76; Amended by Ord. No. 3413, eff. 10/21/95; 3108, 3058.]

5-3-1007: STANDARDS FOR THE INSTALLATION, MAINTENANCE AND OPERATION OF NEWS RACKS:

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

A. Placement:

News racks shall be placed on sidewalks adjacent to the curb with the back of the news rack to the roadway and not less than eighteen inches (18") nor more than twenty four inches (24") from the face of the curb, unless otherwise approved by the Public Works Director.
Except for those news racks placed as provided for in subsection 5-3-1004D of this article, all news racks shall be bolted to the sidewalk.

B. Location: In addition to the provision of Section 5-3-1003 of this article, no news rack shall be placed, installed, used, or maintained:

Within five feet (5') of any marked crosswalk.
Within fifteen feet (15') of the curb return of any unmarked crosswalk.
Within five feet (5') of any fire hydrant, fire call box, police call box or other emergency facility.
Within five feet (5') of any driveway.
Within five feet (5') ahead of, and twenty five feet (25') to the rear of any sign marking a designated bus stop.
Within five feet (5') of any bus bench or any other bench on the sidewalk for public convenience.
At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet (6').
On or within three feet (3') of any area improved with lawn, ground cover, flowers, shrubs or trees, or any tree well, or within three feet (3') of any display window of any building abutting the sidewalk or in such a manner as to impede or interfere with the reasonable use of such window for display purposes.
Adjacent to any painted curb.
Upon any decorative sidewalks including, but not limited to decorative tile, and colored or stamped concrete.
Within five feet (5') from any power pole, streetlight, traffic signal, or utility pole.
Within three feet (3') from any utility meter, traffic sign, maintenance hole, catch basin, utility vault, mail box, under sidewalk storm drains, pull box for street lights and traffic signals, utility and fire hydrant shutoff valves, bench marks, or centerline ties.

C. Total Number of News Racks: No more than eight (8) news racks shall be located on any public right of way within a space of two hundred feet (200') in any direction within the same block of the same street; provided, however, that no more than sixteen (16) news racks shall be allowed on any one block. Two (2) news racks stacked vertically shall be counted as two (2) news racks. As used herein “block” shall mean one side of a street between two (2) consecutive intersecting streets.

D. Priority Criteria: In determining which news racks shall be permitted to be located whenever more than eight (8) news racks are proposed for any one location (200 foot space) or more than sixteen (16) news racks are proposed for any one block the Public Works Director shall be guided solely by the following criteria:

First priority shall be given to news racks used for the sale of publications which have been adjudicated to be newspapers of general circulation for Los Angeles County, pursuant to the procedure set forth in Division 7, Article 2 of the California Government Code.
Second priority shall be given to news racks used for the sale of daily publications [those published on five (5) or more days in a calendar week] which have not been adjudicated to be newspapers of general circulation for Los Angeles County.
Third priority shall be given to news racks used for the sale of weekly publications [those published on at least one (1) but less than five (5) days in a calendar week] which have not been adjudicated to be newspapers of general circulation for Los Angeles County.
As between newspapers included within any single category of priority above, the Public Works Director shall also be guided by the following criteria of priorities:

a. First priority shall be daily publications [published five (5) or more days per week].

b. Second priority shall be publications published two (2) to four (4) days per week.

c. Third priority shall be publications published one (1) day per week.

Once eight (8) racks have been established in any one (1) location, no news rack containing a higher priority publication may be installed. In no event shall more than two (2) news racks be allowed in any one location for any one publication.

E. Dimensions:

No news rack shall exceed five and one-half feet (51/2') in height, thirty inches (30") in width, or two and one-half feet (21/2') in thickness.

F. Maintenance: Each news rack shall be maintained in a clean, neat and attractive condition, including, but not limited to, being free of graffiti, and in good repair at all times.

G. Advertising: No news rack shall be used for advertising signs or publicity purposes other than that dealing with the display, sale or purchase of the newspaper or news periodical contained therein.

H. Supervising: All news racks that display, sell, or offer to sell “harmful matter” as defined by Penal Code Section 313 shall be supervised by an adult as required by Penal Code Section 313.1(c)(2). [Added by Ord. No. 2553; formerly numbered Section 20-75; Amended by Ord. No. 3615, eff. 2/15/03; 3413, 3108, 3058, 2704, 2622, 2566, 2561, 2557.]

5-3-1008: DISPLAY OF CERTAIN MATTER PROHIBITED:

Publications offered for sale from news racks placed or maintained on or projecting over the street or sidewalk shall not be displayed or exhibited in a manner which exposes to public view from the street or sidewalk any of the following:

A. Any statements or words describing explicit sexual acts, sexual organs, or excrement where such statements or words have as their purpose or effect sexual arousal, gratification, or affront.

B. Any picture or illustration of a person’s genitals, pubic hair, perineum, anus, or anal region where such picture or illustration has as its purpose or effect sexual arousal, gratification, or affront.

C. Any picture or illustration depicting “explicit sexual acts” as defined in this chapter where such picture or illustration has as its purpose or effect sexual arousal, gratification, or affront. [Added by Ord. No. 2553; formerly numbered Section 20-77; Amended by Ord. No. 3108, eff. 5/21/88; 3058, 2973.]

5-3-1009: NEWS RACK VIOLATIONS:

A. Notice of Violation; Tag: Any news rack installed or maintained in violation of the provisions of this article shall be tagged with a “Notice of Violation” stating the violation, date of tagging, notice of intention to remove the news rack if the violation is not corrected or a hearing requested within fifteen (15) days (“correction period”), and procedure for requesting a hearing before the Public Works Director, if desired. A timely request for a hearing shall stay any removal of the news rack. If, however, the violation is not corrected within five (5) days after the decision at such hearing becomes final, the news rack may be summarily removed.

B. Alternatives to Tagging: Notwithstanding subsection A of this section, in the case of violations of this article relative to location of news racks, restrictions upon attachments of news racks to property other than that owned by the owner of the news rack, to fixed objects, or to each other, the Public Works Director may, as an alternative to tagging said news rack, move, align, remove such attachment, or otherwise move such rack or racks in order to restore them to a legal condition.

C. Removal: Any news rack which has been tagged and remains in violation of the provisions stated on the tag past the fifteen (15) day correction period, and where no hearing has been requested, shall be removed by the Public Works Director and stored in any convenient place.

D. Notification of Removal: The Public Works Director shall notify the owner or their designate of the removal by mailing a “Notice of Removal” to the last known address of the owner/designate. Such notice shall be mailed within five (5) days after the end of the fifteen (15) day correction period and shall state: 1) the date the news rack was removed; 2) the reasons for the removal; 3) the locations of and procedure for claiming the news rack; and, 4) the procedure for obtaining a post removal hearing before the Public Works Director if desired.

E. Release: Any news rack removed and stored pursuant to these provisions shall be released to the owner thereof within forty five (45) days after the mailing of written notice of removal upon providing satisfactory proof of ownership and payment of an impound fee in an amount equal to the reasonable cost to the City of removing and storing the news rack. If, after a hearing, the impounded news rack is determined not to have been in violation of this chapter, the news rack shall be returned to the owner without payment of any removal and/or storage fee. If such news rack remains unclaimed after this forty five (45) day period, it shall be deemed to be unclaimed property in possession of the Police Division and may be disposed of pursuant to the provisions of Title 2, Chapter 2, Article 4 of this code.

F. Removal in Exigent Circumstances: In the case of any news rack which in violation of the provisions of this article creates an immediate danger to the health, safety or welfare of the public, which cannot be corrected by moving or otherwise repositioning the news rack, said news rack may be summarily removed and stored in a convenient location so as to eliminate the danger to the health, safety and welfare of the public. The Public Works Director shall notify the owner of the removal by mailing a “Notice of Removal” to the last known address of the owner. Such notice shall be mailed within five (5) days after the removal of the news rack and shall contain the same information as set forth in subsection D of this section. Release of any such news rack shall be accomplished in the same manner as set forth in subsection E of this section. [Added by Ord. No. 2553; formerly numbered Section 20-78; Amended by Ord. No. 3108, eff. 5/21/88; 3058, 3048, 2618, 2561.]

5-3-1010: HEARING PROCEDURE:

Within fifteen (15) days of the notice of violation or notice of impound of a news rack summarily impounded, the owner may request a hearing before the Public Works Director. The request shall be in writing, shall state the basis thereof, and shall be filed with the Public Works Director.

The hearing shall be held within five (5) working days of the filing of the request before the Public Works Director. At the hearing any person may present evidence or argument as to whether the news rack has been installed or maintained in violation of this article. Within two (2) working days after the close of the hearing, the Public Works Director shall render a decision in writing and shall give such written decision to the person who requested the hearing. The decision of the Public Works Director shall be final. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1011: NOTICES:

Notices required pursuant to the provisions of this article shall be given in writing by United States mail, certified mail, return receipt requested, addressed to the person to be notified at their last known address. The giving of notice under this article shall be deemed to have occurred as of the date of deposit in the United States mail. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1012: APPLICABILITY:

The provisions of this article shall apply to all news racks, whether installed and maintained prior to or after the effective date of any of the provisions herein. Those news racks installed prior to the effective date of any of these provisions shall be brought into compliance with these provisions within thirty (30) days of their effective date.

Any news rack not brought into compliance within this thirty (30) day time period shall be deemed to be in violation of this article. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1013: ABANDONED NEWS RACKS:

A news rack shall be deemed abandoned when no printed material is contained therein for a period of more than fifteen (15) consecutive days. If the Public Works Director determines that a news rack has been abandoned, they shall summarily impound such news rack and, notwithstanding Section 5-3-1009 of this article, the news rack shall immediately be deemed to be unclaimed property in the possession of the City and shall be disposed of according to applicable law. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1014: UNMARKED NEWS RACKS:

Whenever the Public Works Director finds that a news rack does not have the name, address, and telephone number of the owner thereof placed upon such news rack, in compliance with this article, they shall make every reasonable effort to ascertain the owner thereof. If the Public Works Director is unable to determine ownership, they shall summarily impound such news rack and, notwithstanding Section 5-3-1009 of this article, the news rack shall immediately be deemed to be unclaimed property in possession of the City and shall be disposed of according to applicable law. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1015: BLINDER RACKS REQUIRED FOR DISPLAY OF ALL HARMFUL MATTER:

No person shall display in a public place, other than a public place from which minors are excluded, any material which is harmful to minors unless a device such as that commonly known as a “blinder rack” is placed in front of the materials or the material is otherwise displayed so that the lower two-thirds (2/3) of the material is not exposed to view. For purposes of this section, “harmful matter” is as defined in Title 9, Chapter 7.6 (section 313) of the California Penal Code and as such provisions may be amended from time to time. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1016: SEVERABILITY:

Each phrase, clause, sentence, section, and provision of this article is hereby declared to be severable. Therefore, if any phrase, clause, sentence, section, or provision of this article or application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other phrase, clause, sentence, section, provision, or application of this article. [Added by Ord. No. 3108, eff. 5/21/88.]

5-3-1017: ENFORCEMENT AUTHORITY:

Except as specifically provided herein, the provisions of this article shall be enforced by the City Manager or their designee pursuant to Section 2-1-1402 of this code. [Added by Ord. No. 3108, eff. 5/21/88.]