Chino Municipal Code Ch. 12.10 Regulation of Newsracks on the Public Right-of-Way

A. The city council finds and declares that:

1. The uncontrolled placement and proliferation of newsracks on the public right-of-way constitutes a hazard, inconvenience and interference to persons using the public right-of-way including pedestrians, children playing in public right-of-way, persons entering and exiting buildings and vehicles, persons operating vehicles, and persons performing utility, traffic control and emergency services.

2. The uncontrolled placement and proliferation of newsracks in the public right-of-way adversely affect the visibility of persons using the public right-of-way and persons operating vehicles within the city.

3. The uncontrolled placement and proliferation of newsracks in the public right-of-way detracts from the appearance of streets, sidewalks, adjacent residences, and adjacent businesses.

4. Newsracks located in the public right-of-way so as to cause a hazard, inconvenience or interference to persons using the public right-of-way, and unsightly newsracks located therein, constitute public nuisances.

5. The uncontrolled placement and proliferation of newsracks in the public right-of-way used to display words and pictorial materials describing or depicting explicit sexual behavior which are thrust indiscriminately upon unwilling children and adults interfere with the public's use of the public right-of-way and constitute invasions of individual privacy so as to lessen the comfortable enjoyment of life and public property within the city.

B. The regulations and prohibitions contained in this chapter of the Chino Municipal Code are enacted for the purpose of securing and protecting the public safety and the general health, morals and welfare of the residents of persons in the city and their use of the public right-of-way.

C. The regulations and prohibitions contained in this chapter of the Chino Municipal Code are enacted for the purpose of securing and protecting the rights to publish and distribute printed matter that is constitutionally protected.

(Ord. 92-28 §1 (part), 1992.)

Whenever the following words or 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.

"Obscene" material is any printed or pictorial material which satisfies the following criteria:

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" 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 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 vehicle 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, for the purpose of 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, public region or, if such person is a female, a breast;

4. Ultimate sex 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. 92-28 § 1 (part), 1992.)

No person shall knowingly place, install 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 without first having obtained a permit from the director of public works specifying the exact location of such newsracks.

(Ord. 92-28 § 1 (part), 1992.)

A. An application for a permit to place, install or maintain any newsracks within the public right-of-way of the city shall be made in writing on a form prepared by the director of community development and the director of public works which shall be signed by the applicant. The form shall request the following information:

1. The location of each newsrack to be placed, installed or maintained in the city by the applicant; and

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

B. A fee may be charged to each applicant for a permit to defray the cost of the application and issuance of a permit. The amount of said fee shall be established by the city council by resolution.

C. In addition to the permit application, the applicant shall also execute a document, approved as to form by the city attorney, agreeing to indemnify the city and to hold the city, its officers, employees and agents, free and harmless from any claim, demand, liability or judgment in favor of any person, arising out of the maintenance of any newsrack located in a public right-of-way. The indemnity shall provide as follows: "As one who operates or maintains a newsrack upon or within the public property or rights-of-way of the City of Chino, I agree to indemnify and hold harmless the City of Chino, its officers, and employees 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 and hold harmless the City of Chino, its officers and employees, shall not extend to any loss, liability, damage, or cost resulting from the act, or property of another."

D. The director of community development and the director of public works, or their designees, shall issue permits for the installation or placement of a newsrack or newsracks without prior inspection of the location, but such permits shall be conditioned upon compliance with the provisions of this chapter. The permits shall be issued within twenty-four hours, excluding Saturdays, Sundays and legal holidays, from the filing of a completed application. Stickers shall be issued with the permit and the applicant shall affix a sticker to the front of each newsrack which shall be displayed at all times.

E. No more than one permit shall be required of any applicant regardless of the number of newsracks the applicant maintains in the city. Any person to whom a permit has been issued shall submit an amended list of newsrack locations upon the installation of additional newsracks or upon the removal of any newsrack(s) subsequent to the issuance of the original permit. Any person to whom a permit has been issued shall comply with such rules and regulations adopted by the director of community development and the director of public works reasonably required for the implementation of this chapter.

(Ord. 92-28 § 1 (part), 1992.)

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 shall be displayed on the outside of the newsrack except those dealing with the name and contents of the publication in 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 is unable to receive the publication paid for. 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 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 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.

E. Newsracks which depict matters on their covers which fall under the definition of "harmful matter" as that term is defined in section 313(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 the front of the material, so that the lower two-thirds of the material is not exposed to view.

(Ord. 92-28 § 1 (part), 1992.)

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. Newsracks shall be located at the rear of the sidewalk farthest from the street or roadway curb or the edge of the roadway if there is no curb. Newsracks located adjacent to a building shall be located parallel to and not more than six inches from the wall thereof. No newsrack shall be located directly in front of any display window of any building. No newsrack shall be located on the sidewalk or parkway directly opposite a newsstand or another newsrack on the same sidewalk or parkway.

B. Newsracks shall not be chained, bolted, or otherwise attached to any fixture located in the public right-of-way except upon the permission of the director of public works provided that the expense of installation and removal of any device to secure any newsrack in the public right-of-way shall be borne by the owner of the newsrack who shall submit security acceptable by the city attorney.

C. Newsracks may be placed next to each other provided that no group of newsracks shall extend for a distance of more than fifteen feet.

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

1. Within five hundred feet of a school site;

2. In whole or in part, in any roadway;

3. Within a twenty-five-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 inches in height in accordance with City engineering standard design criteria for sight distance for streets;

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

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

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

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

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

9. Within one city block of any newsrack or group of newsracks which are on the same side of the street whether or not containing the same issue or edition of the same publication;

10. Within five feet of a curb painted blue, pursuant to the provisions of California Vehicle Code section 21458.

(Ord. 92-28 § 1 (part), 1992.)

A. Newsracks lawfully in existence on September 1, 1992, shall comply with this chapter by March 1, 1993, except for section 12.10.060(C) for which compliance shall occur on March 1, 1994. In order to benefit from this section, a distributor must report the number and location of all existing newsracks to the director of public works by February 1, 1993. The director of public works shall compile an inventory of such existing newsracks. Such inventory list shall be conclusive as to the location and existence of such newsracks.

B. If the director of public works determines that a newsrack or group of newsracks is in violation of this chapter, the director of public works shall determine which newsrack or newsracks must be removed. In making that determination, the director of public works 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 the city.

2. Second priority shall be given to newsracks used for the sale of publications which have been adjudicated to be newspapers of general circulation for the county of San Bernardino.

3. Third 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 the city or San Bernardino County.

4. Fourth 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 the newspapers of general circulation for the city or San Bernardino County.

5. All other newsracks shall be given last priority.

(Ord. 92-28 § 1 (part), 1992.)

It is unlawful 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. 92-28 § 1 (part), 1992.)

Upon a determination by the director of public works that a newsrack has been installed, used or maintained in violation of any of the provisions of this chapter, he 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 12.10.050. 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 calendar days after receipt of the order, or file an appeal as permitted under section 12.10.100, the director of public works shall cause the offending newsrack to be 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. 92-28 § 1 (part), 1992.)

Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this chapter may appeal and be advised of his or her right to appeal to the city manager. An appeal must be perfected within ten business days after receipt of the notice of any decision or action by filing with the director of public works a letter of appeal briefly stating therein the basis for such appeal. The hearing on appeal shall be held on a date no more than ten 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, or the city manager's designee, 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 director of public works should not be upheld. Within five days of the hearing, the city manager, or the city manager's designee, shall make a written decision. The decision of the city manager, or the city manager's designee, shall be final.

(Ord. 92-28 § 1 (part), 1992.)

In the case of minor violations of this chapter that may be corrected quickly or easily, any city employee, as an alternative to removal of the newsrack, is authorized to correct the violation summarily.

(Ord. 92-28 § 1 (part), 1992.)

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. 92-28 § 1 (part), 1992.)

In the event a newsrack remains empty for a period of thirty continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided in section 12.10.090 for newsrack violation of the provisions of this chapter.

(Ord. 92-28 § 1 (part), 1992.)

Any person or corporation who violates any of the provisions of this chapter is guilty of a misdemeanor.

(Ord. 92-28 § 1 (part), 1992.)