Chino Hills Municipal Code Ch. 12.44 Newsracks

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 in such public rights-of-way, 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 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, traffic hazards, and congestion.

G. The provisions and prohibitions contained and enacted in this chapter are in pursuit 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 through the regulation of placement, appearance, number, size, and servicing of newsracks on the public rights-of-way.

H. It is not the intent of this chapter to in any way discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any printed material that is Constitutionally protected.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

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

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

"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.

Any pictorial material is "obscene" if all of the following apply:

1. The average person, applying contemporary community standards, would find that it appeals to the prurient interest when the publication or material is considered as a whole; and

2. It depicts, describes, or represents in a patently offensive manner, sexual behavior as defined below; and

3. It lacks serious literary, artistic, political, or scientific value when the publication or material is considered as a whole.

"Parkway" means the area between the sidewalk and curb of a roadway, and where there is no sidewalk, that area between the edge of the traveled roadway and the edge of a public right-of-way. "Parkway" also includes any area within a roadway that is not open to vehicular travel.

"Pictorial material" means any material suggesting or conveying a visual image, and includes but is not limited to, a photograph, painting, or drawing.

"Public right-of-way" means any place of any nature which is dedicated to use by the public for pedestrian and/or 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.

"Sexual behavior" means the patently offensive representation, depiction, or description of any of the following:

1. Ultimate sexual acts, normal or perverted, actual or simulated, including without limitation, vaginal intercourse between a male and a female, and anal intercourse, fellatio and cunnilingus between persons regardless of gender;

2. Masturbation, excretory functions, and lewd exhibition of genitals;

3. The actual or simulated infliction of pain by one individual upon another, or by an individual upon himself or herself, for the purpose of the sexual gratification or release of either individual, as a result of flagellation, beating, striking, or touching of an erogenous zone, including without limitation, the thigh, genitals, buttock, pubic region, or, if such person is a female, a breast;

4. Ultimate sexual acts, actual or simulated, between a human being and an animal.

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

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

No person shall knowingly place, install, use, or maintain 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 except in compliance with the provisions of this chapter.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

A. Within forty-eight (48) hours of the installation of any newsrack which in whole or in part rests upon, in, or over any public right-of-way, the person responsible for such newsrack shall obtain a permit from the City Engineer or the City Engineer's designated representative after providing the following:

1. The location of each newsrack to be installed or maintained in the City by the permit applicant; and

2. The name, address, and telephone number of the applicant.

B. No more than one permit shall be required per applicant regardless of the number of newsracks the applicant maintains in the City. However, an amended application for such permit shall be filed with the City Engineer within forty-eight (48) hours of the installation by the applicant of any additional newsracks in the City or removal from the City by the applicant of any newsrack subsequent to the issuing of the original permit by the City.

C. From the above information the City Engineer or his or her designated representative shall designate locations and shall be guided therein solely by the standards and criteria set forth in this chapter. Such application may be granted either in whole or in part when more than one location is proposed by the applicant, and in any event, when denial is solely as to location, it shall be without prejudice to amend such application to state a different location or locations.

D. In addition to the permit application, the applicant shall also execute an indemnity agreement which protects the City from losses, claims, or liabilities arising out of the location of any newsrack in or on a public right-of-way. Such agreement shall be in substantially the following form:

The newsrack permit-holder as a condition of operating or maintaining a newsrack upon or within the public property or rights-of-way of this City hereby agrees to indemnify, protect, defend, and hold harmless the City, its officers, employees, and agents from any loss, liability, damage, or cost sustained by any person or property, to the extent any such loss, liability, damage, or cost arises from the installation, operation, or use of such newsrack; provided, however, that such obligation to indemnify, protect, defend, and hold harmless the City, its officers, employees, and agents, shall not extend to any loss, liability, damage, or cost resulting from the acts, failure to act, or property of another.

Along with the indemnity agreement, the applicant shall submit certificates of insurance with at least one million dollars ($1,000,000.00) of coverage.

E. In the event the City Engineer determines that the application shall be denied, the applicant shall be allowed to place the newsrack at the locations set forth in the application during the pendency of any appeal of the permit denial and any subsequent judicial proceeding. However, the authorization to place the newsrack during the pendency of an appeal or subsequent judicial proceeding shall not authorize the placement of any newsrack which would endanger public safety, interfere with vehicular and pedestrian traffic, or damage public property, i.e., chaining and/or bolting newsracks to public property.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

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 advertising signs or material, other than those dealing with the name of the publication and its contents located within the newsrack, shall be displayed on the outside of the newsrack.

B. 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 by such person. The coin-return mechanisms shall be maintained in good working order.

C. 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.

D. 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 of such newsrack;

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

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

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

6. The structural parts of such newsrack are not broken or unduly misshapen;

7. If applicable, the provisions of Section 9.04.010 et seq. of this Code are complied with by the owner, operator, or distributor of such newsrack.

E. Newsracks which depict matters on their covers which fall under the definition of "harmful matter" as that term is defined in Section 313, Subdivision (a) of the Penal Code of the State of California, and which are located in a public place other than a public place from which minors are excluded, shall have devices which are commonly known as "blinder racks" in front of the material, so that the lower two-thirds of the material is not exposed to view, in compliance with Section 9.04.010 et seq. of this Code.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

A. 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:

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

2. Newsracks shall be located at the rear of the sidewalk farthest from the street or roadway curb (or, if there is no curb, the edge of the roadway) or the wall of a building. Newsracks located near the curb shall be located no less than eighteen (18) inches nor more than twenty-four (24) inches from the roadway edge of the curb. Newsracks located adjacent to a building shall be located parallel to and not more than six inches from the wall of such building. No newsrack shall be located directly in front of any display window of any building abutting a sidewalk or parkway except near the curb. No newsrack shall be located on the sidewalk or parkway directly opposite a newsstand or another newsrack.

3. No newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks, unless approved in writing by the City Engineer prior to such chaining, bolting, or other attachment.

4. Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than fifteen (15) feet, nor include more than five newsracks.

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

a. Within a twenty-five (25) foot sight triangle created by measuring along the curb beginning at the curb return to form a triangle free of any obstructions in excess of thirty (30) inches in height in accordance with City engineering standard design criteria for sight distance for streets;

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

c. Within three feet ahead or fifteen (15) feet to the rear of any sign marking a designated bus stop;

d. At any location whereby the clear space of the passageway of pedestrians is reduced to less than six feet;

e. Within three feet of, or on any public area improved with lawn, flowers, shrubs, trees, or other landscaping;

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

g. Within five hundred (500) feet of a school site.

B. The provisions contained in subsection (5) of this section shall not apply if compliance with the provisions would prohibit the placement of all newsracks on the same side of a street in the same block. However, nothing in this section limits the application of California Vehicle Code Section 21458 to any newsrack or the owner, operator, or distributor of such newsrack.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

A. Newsracks lawfully in existence on January 12, 1993 shall be made to conform with this chapter by March 12, 1993. In order to benefit from this section, a distributor must report the number and location of all existing newsracks by February 1, 1993. The City Engineer 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.

B. If, after the amortization periods provided for by this section, the City Engineer determines that a newsrack or group of newsracks is/are in violation of Section 12.44.060(A)(4), then the City Engineer shall determine which newsrack or newsracks must be removed. In making such determination, the City Engineer shall be guided solely by the following criteria:

1. First priority shall be given to newsracks used for the sale of publications which have been adjudicated to be newspapers of general circulation for San Bernardino County or the City of Chino Hills, pursuant to the procedure set forth in Division 7, Article 2 of the California Government Code.

2. Second priority shall be given to newsracks used for the sale of daily publications (those published on five or more days in a calendar week) which have not been adjudicated to be newspapers of general circulation for San Bernardino County or the City of Chino Hills.

3. Third priority shall be given to newsracks used for the sale of weekly publications (those published on at least one but less than five days in a calendar week) which have not been adjudicated to be newspapers of general circulation for San Bernardino County or the City of Chino Hills.

4. All other newsracks shall be given lowest priority.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

It is unlawful and a misdemeanor, subject to punishment in accordance with Section 1.36.010 et seq. of this Code, for any person to knowingly place or maintain any publication or material in newsracks which exposes to public view any pictorial matter that is obscene.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

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, he or she 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 12.44.050. 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 ten (10) days (excluding Saturdays, Sundays, and other legal holidays) after dispatch of the order, or file an appeal as permitted under Section 12.44.100, the City Engineer shall cause the offending newsrack to be removed and processed as unclaimed property under applicable provisions of law relating to such removal. 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 or equity.

(Ord. 29 § 1 (part), 1993: Ord. 91-11 § 2 (part))

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, and ultimately to the City Council in accordance with Section 1.20.010 et seq. of this Code.

(Ord. 29 § 1 (part), 1993: Ord. 91-11 § 2 (part))

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. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

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. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

In the event a newsrack remains empty for a period of thirty (30) continuous days, the newsrack shall be deemed abandoned, and may be treated in the manner as provided in Section 12.44.090 for a newsrack in violation of the provisions of this chapter.

(Ord. 29 § 1 (part), 1993: Ord. 92-11 § 2 (part))

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 deemed a misdemeanor. Penalties for a violation of this chapter shall be as designated in Section 1.36.010 et seq. of this Code.

(Ord. 29 § 1 (part), 1993: Ord. 91-11 § 2 (part))