Carlsbad Municipal Code Ch. 11.36 Locations and Standards for Newsracks on Public Rights-of-Way

The City Council of the city finds and declares that:

A. The uncontrolled placement of newsracks in public rights-of-way presents an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services.

B. Newsracks located so as to cause an inconvenience or danger to persons using public rights-of-way, and unsightly newsracks located therein, constitute public nuisances.

C. The uncontrolled proliferation of newsracks detracts from the appearance of streets, sidewalks, and adjacent businesses.

D. The uncontrolled placement of newsracks inhibits safe entry and departure of vehicles.

E. The uncontrolled placement of newsracks impairs the vision and distracts the attention of motorists and pedestrians, particularly small children and may cause injury to the person or property of such persons.

F. The placement of newsracks without a permit based on detailed findings in public rights-of-way adjacent to residential areas, detracts from and reduces neighborhood aesthetics and increases the exposure of residents to noise, traffic volume and hazards and congestion.

G. The provisions and prohibitions contained and enacted in this chapter are in pursuance of and for the purpose of securing and promoting the public safety and general welfare of persons in the city in their use of public rights-of-way.

(Ord. NS-99 § 1, 1990)

Whenever the following words and phrases are used in this chapter, they shall have the meaning ascribed to them in this section:

"Blinder rack"

means an opaque material placed in front of, or inside, a newsrack which prevents exposure of matter to public view.

"Cluster"

means a group of newsracks placed side-by-side so as to appear in a continuous row.

"Distributor"

means the person responsible for placing and maintaining a newsrack in a public right-of-way.

"Harmful matter"

means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is a 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.

"Newsrack"

means any self-service or coin-operated box, container, storage unit, or other dispenser installed, used or maintained for the display, sale or distribution of publications.

"Public right-of-way"

means any place of any nature which is dedicated to use by the public for pedestrian and vehicular travel, and includes, but is not limited to, a street, sidewalk, curb, gutter, crossing, intersection, parkway, highway, alley, lane, mall, court, way, avenue, boulevard, road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park, square, and any other similar public way.

"Roadway"

means that part of a public right-of-way that is designated and used primarily for vehicular travel.

"Sidewalk"

means that part of a public right-of-way that is designated and ordinarily used for pedestrian travel.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 1, 1990; Ord. NS-273 § 1—3, 1994; Ord. NS-323 §§ 1, 2, 1995)

Newsracks are prohibited on property owned by the city or by the public except that newsracks may be installed, placed and maintained on a public right-of-way subject to the issuance of a business license pursuant to this chapter. Each distributor must obtain a business license as provided in Carlsbad Municipal Code Chapters 5.04 and 5.08, and at that time execute a hold-harmless agreement in favor of the city and show proof of insurance as specified in this chapter, naming the city as an additional insured.

The ordinance codified in this section shall have a delayed operative date of January 1, 1996. Newsracks lawfully in existence upon enactment of the provisions contained herein shall be allowed to remain at their location in their condition until January 1, 1996, at which time they must be brought into conformance with this chapter and distributors must have a business license.

(Ord. NS-323 § 3, 1995)

Any newsrack which rests in whole or in part upon, in or on any portion of a public right-of-way or which projects onto, into or over any part of a public right-of-way shall comply with the standards set forth in this section.

A. No newsrack shall exceed 50 inches in height, 27 inches in width, or 24 inches in depth.

B. No advertising signs or material, other than those dealing with the name of the publication contained within the newsrack, shall be displayed on the outside of the newsrack.

C. Each newsrack shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event he or she is unable to receive the publication paid for, unless the publication is provided free of charge.

D. Each newsrack shall have affixed to it in a readily visible place so as to be seen by anyone using the newsrack a notice setting forth the name and address of the distributor and the telephone number of a working telephone service to call to report a malfunction, or to secure a refund in the event of a malfunction of the coin-return mechanism, or to give the notices provided for in this chapter.

E. Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that:

1. It is reasonably free of dirt and grease;

2. It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas thereof;

3. It is reasonably free of rust and corrosion in the visible unpainted metal areas thereof;

4. The clear plastic or glass parts thereof, if any, through which the publications therein are viewed are unbroken and reasonably free of cracks, dents, blemishes and discoloration;

5. The paper or cardboard parts or inserts thereof are reasonably free of tears, peeling or fading; and

6. The structural parts thereof are not broken or unduly misshapen.

F. Newsracks shall be of unobtrusive neutral colors of gray, black or brown to blend in with the streetscape. Lettering may be black and/or white. However, the bottom six inches of the newsrack door may be of other colors that may be identified with the publication.

G. Newsracks lawfully in existence on June 1, 1989 shall be allowed to remain at the same location, provided they are not determined to be a public nuisance or dangerous to the public safety or general welfare, for a period of one year following adoption of the ordinance codified in this chapter. In order to benefit from this subsection, a distributor must report the number and location of all newsracks existing on June 1, 1989 to the engineering department within 60 days of the effective date of the ordinance codified in this chapter which shall compile an inventory of such existing newsracks. Such inventory list shall be conclusive as to the location and existence of such newsracks. Thereafter, all such newsracks shall be required to comply with all provisions of this chapter.

(Ord. NS-99 § 1, 1990; Ord. NS-323 § 4, 1995)

Any newsrack which rests in whole or in part upon, in, or on any portion of a public right-of-way or which projects onto, into or over any part of a public right-of-way shall be located in accordance with the provisions of this section:

A. No newsrack shall be located in whole or in part in any roadway.

B. Newsracks may be located near a curb (or if there is no curb, the edge of the roadway) or to the rear of a sidewalk, farthest from the street or roadway. Newsracks located near a curb shall be placed not less than 18 inches nor more than 24 inches from the edge of the curb. Newsracks placed adjacent to the rear of the sidewalk shall be placed parallel to any wall and at least six inches from the wall. No newsrack shall be located directly in front of any display window of any commercial building abutting a sidewalk or roadway except near the curb without written permission of the owner of the business.

C. Newsrack mounts shall be bolted in place in accordance with specifications provided by the city.

D. Newsracks may be placed next to each other, provided that no cluster of newsracks shall extend for a distance of more than 10 feet.

E. No newsrack shall be placed, installed, used or maintained:

1. Within 25 feet of a curb-return or driveway approach. In no case shall a newsrack impair the sight distance of a vehicle or pedestrian proceeding along, or ingressing or egressing the public right-of-way, as may be determined by the Transportation Director;

2. Within five feet of any fire hydrant, fire call box, police call box or other emergency facility;

3. Within five feet of the outer end of any bus bench;

4. Within three feet ahead or 15 feet to the rear of any sign marking a designated bus stop;

5. Within three feet of the outer end of any bus bench;

6. At any location whereby the clear space of the passageway of pedestrians is reduced to less than five feet; in the case of sidewalks that are 10 feet wide, the placement of the newsrack shall allow for a pedestrian passageway of not less than six feet in width;

7. Within three feet of or on any publicly maintained property improved with lawn, flowers, shrubs, trees or other landscaping;

8. Within 20 feet of any other cluster of newsracks whether or not containing the same publication;

9. Within five feet of a curb painted blue, pursuant to the provisions of California Vehicle Code Section 21458;

10. Within 500 feet of a school site. The provisions contained in this subsection shall not apply if compliance with the provisions would prohibit the placement of newsracks for a distance of 1,000 feet on the same side of the street in the same block;

11. Where placement unreasonably obstructs, interferes with, or impedes access to or use of abutting property, including, but not limited to, residences, places of business, or legally parked or stopped vehicles.

(Ord. NS-99 § 1, 1990; Ord. NS-323 § 6, 1995; Ord. CS-164 § 2, 2011)

Newsracks shall not be located on any street identified in the circulation element of the city general plan as a local or collector street within any area of the city zoned for single-family residential uses. If no prime or major arterial is located within one-half mile of a residential neighborhood, the distributor may petition the City Engineer for a permit.

(Ord. NS-99 § 1, 1990; Ord. NS-323 § 7, 1995)

Each business license issued pursuant to this chapter shall be subject to a requirement that the licensee agrees to defend, indemnify and hold harmless the city and its officers and employees from any claim, damage or liability arising from the placement or location of the newsrack or its operation.

(Ord. NS-323 § 8, 1995)

No person, association, firm or corporation shall place, locate or maintain a newsrack on public rights-of-way unless there is on file with the city finance department, in full force and effect at all times, a document issued by an A-:V rated insurance company authorized to do business in the State of California evidencing that the licensee is insured under a liability insurance policy providing minimum coverage of $500,000.00 for each person who suffers injury or death arising out of the location, placement or operation of the licensee's equipment. A separate certificate is not required for each newsrack so long as the certificate evidences coverage for all newsracks placed, located or maintained by the person, association, firm or corporation involved.

(Ord. NS-323 § 9, 1995)

No person shall display, or cause to be displayed, harmful matter in any newsrack in a public place, other than a public place from which minors are excluded, unless a blinder rack has been installed in front of the matter, so that the lower two-thirds of the material is not exposed to view.

(Ord. NS-104 § 2, 1990; Ord. NS-273 § 4, 1994)

Commencing January 1, 1996, any newsrack which has not obtained a business license in accordance with this chapter upon initial application or renewal, shall be deemed nonconforming. Upon a determination by the City Engineer that a newsrack has been installed, used or maintained in violation of any of the provisions of this chapter, the City Engineer shall cause an order to be issued to the distributor to correct the offending condition. The order shall be telephoned to the distributor and confirmed by mailing a copy of the order by certified mail, return receipt requested to the distributor at the address shown on the notice required by Section 11.36.040. The order shall specifically describe the offending condition and specify actions necessary to correct it. If the distributor fails to correct properly the offending condition within three days (excluding Saturdays, Sundays and other legal holidays) after receipt of the order, or file an appeal as permitted under Section 11.36.090, the City Engineer shall cause the offending newsrack to be summarily removed and processed as unclaimed property under applicable provisions of law relating thereto. If the distributor of the offending newsrack cannot be identified, the newsrack shall be removed immediately and processed as unclaimed property under applicable provision of law. The foregoing provisions are not exclusive, and are in addition to any other penalty or remedy provided by law.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 3, 1990; Ord. NS-323 § 10, 1995)

Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this chapter may appeal and shall be advised of his or her right to appeal to the City Manager. An appeal must be perfected within three working days after receipt of the notice of any decision or action by filing with the City Engineer a letter of appeal briefly stating therein the basis for such appeal. The hearing shall be held on a date no more than 10 days after receipt of the letter of appeal. Appellant shall be given at least five days' notice of the time and place of the hearing. The City Manager shall give the appellant and any other interested party the reasonable opportunity to be heard, in order to show cause why the determination of the City Engineer should not be upheld. Within five days of the hearing the City Manager shall make a written decision. The City Manager's decision may be appealed to the City Council by filing a written notice of appeal with the City Clerk within 10 calendar days of the date of the decision of the City Manager. Fees for filing an appeal shall be set by resolution of the City Council.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 3, 1990)

In the case of minor violations of this chapter that can be corrected on the spot, any city employee, as an alternative to removal of the newsrack, is authorized to correct the violation summarily.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 3, 1990)

Any newsrack, or any publication offered for sale or distribution, in violation of this chapter shall constitute a public nuisance, and may be abated in accordance with applicable provisions of law.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 3, 1990)

In the event a newsrack remains empty for a period of 30 continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided in Section 11.36.080 for newsracks in violation of the provisions of this chapter.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 3, 1990)

Any person or corporation who violates any of the provisions of this chapter is guilty of an infraction except for the fourth or each additional violation of a provision within one year which shall be a misdemeanor. Penalties for a violation of this chapter shall be as designated in Section 1.08.010.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 3, 1990)

If any section, subsection, sentence, clause, phrase or part of this chapter is for any reason held to be invalid or unconstitutional by the final decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining parts of this chapter. The City Council declares that it would have adopted this chapter and each section, subsection, sentence, clause, phrase or part thereof irrespective of the fact that any one or more sections, subsections, clauses, phrases, or parts be declared invalid or unconstitutional.

(Ord. NS-99 § 1, 1990; Ord. NS-104 § 3, 1990)