Cupertino Municipal Code Ch. 10.21 Newsracks

The purpose of these regulations is to acknowledge and achieve the following:

A. There is a substantial governmental interest in promoting the public health, safety, welfare and convenience by ensuring that public streets, sidewalks, walkways and all other rights-of-way are not restricted for public use and access.

B. Newsracks placed and maintained within public rights-of-way, absent some reasonable regulation, may unreasonably interfere with the use of such rights-of-way.

C. Streets and sidewalks within public rights-of-way are historically associated with the sale and distribution of newspapers and other publications and access to and use of these areas for such purposes would not be denied, except where such use unreasonably interferes with the use of public rights-of-way by pedestrians or traffic, or where such use represents a hazard to persons or property.

D. Unrestricted placement of newsracks within public rights-of-way, which display or describe explicit sexual conduct and nudity may constitute an unwarranted invasion of individual privacy and is unsafe and obscene.

E. Reasonable accommodation of these competing interests can be achieved by the adoption of the ordinance codified in this chapter, which regulates the design, placement, maintenance and time, place and manner of newsracks on public-rights-of-way.

F. The public health, safety, welfare and convenience require that: interference with vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight distance and views of traffic signs and street-crossing pedestrians be avoided; damage done to sidewalks or streets be minimized or repaired; a positive visual appearance of public streets and grounds be maintained; trees and other landscaping be allowed to grow without interference; access to emergency and other public facilities be maintained; litter adjacent public rights-of-way be controlled; and access to and from properties adjoining major roadways be protected.

G. It is intended that the provisions of this chapter be consistent with the accessibility standards established by the Department of Justice pursuant to the Americans with Disability Act (ADA) of 1990. These provisions affect the general safety and welfare of all residents and visitors to the City of Cupertino and it is the responsibility of the owner of each newsrack to comply with these provisions.

H. Improve the aesthetic appearance of streets and roadways in the community by promoting the placement of modular newsracks rather than standalone newsracks.

I. The regulation of the sale or free distribution of newspapers and other publications in vending machines as set forth in this chapter provides the least intrusive and burdensome means for ensuring that the purposes stated in this section are carried out while still providing ample opportunities for the distribution of news and opinions to the community.

(Ord. 1830, (part), 1999)

“Abandoned newsrack” means any newsrack which has been left empty for a period of thirty continuous days, except a newsrack remaining empty due to a labor strike or other extraordinary interruption or publication by the newspaper or other publication sold or distributed from that newsrack.

“Modular newsrack” means an industry standard structure composed of a group of individual newspaper dispensing cabinets mounted in multiple rows of two or more cabinets on a rack base that is supported by a maximum of two pedestals.

“Newsrack” means any self-service or coin operated box, container, storage unit or other dispenser installed, used or maintained for the display and sale, or distribution with or without the charge of newspapers, periodicals or other publications.

“Public right-of-way” means the area and those areas dedicated for public use for public street purposes, including but not limited to roadways, parkways, alleys and sidewalks.

“Roadway” means as defined in the California Vehicle Code.

“Temporary newsrack” means any newsrack maintained within a public right-of-way for a trial period of up to ninety days.

(Ord. 1830, (part), 1999)

This chapter shall apply only to newsracks placed within public rights-of-way or encroaching over public rights-of-way.

(Ord. 1830, (part), 1999)

A. Approval of permits for newsracks shall be based on compliance with the design of newsracks set forth in the City newsrack specifications, adopted separately by the City, as well as the placement and maintenance provisions established in this chapter. Design specifications are intended to foster a unified, aesthetically pleasing modular newsrack configuration.

B. A publication not previously circulating in a given area which chooses to do so may place a temporary newsrack for a maximum of ninety days as long as:

1. The newsrack is tagged by the publisher or distributor with the placement date and date of removal;

2. By the ninety-first day, the publisher or distributor shall either obtain a newsrack permit or remove the newsrack;

3. During the ninety-day trial period the owner or distributor shall adhere to all other aspects of this chapter.

C. Failure to comply with any of these requirements shall constitute a violation of this chapter and shall be grounds for abatement in accord with Section 10.21.090.

(Ord. 1830, (part), 1999)

Publications dispensed from newsracks placed or maintained on or over the public right-of-way shall not be displayed or exhibited in a manner which exposes to public view from the public right-of-way 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 genitals, pubic hair, anuses or anal regions of any person, 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, where such picture or illustration has as its purpose or effect sexual arousal, gratification or affront;

D. Any pictures, photographs, illustrations or pictorial representations of any of the following acts: sodomy, oral copulation, sexual intercourse, masturbation, or a photograph of a penis in an erect and turgid state.

(Ord. 1830, (part), 1999)

There is conferred on the City Manager those powers and duties necessary for the administration of this chapter. In addition, there is also conferred upon the City Manager the authority and power to designate such officers and officials of the City and of other cooperating public agencies, as may be required to assist in the carrying out the intent and purpose of this chapter. An ad hoc newsrack committee may also be established by the City consisting of representatives of publishers and/or distributors whose publications are distributed within the community, members of the general public and City staff.

Membership of the ad hoc newsrack committee shall be until successor members are appointed by the City Manager and Mayor. The committee shall be advisory to the City Manager on an as-needed basis for the purpose of resolving disputes regarding location of newsracks, advising the City as to any suggested changes to design standards and resolving disputes regarding allocation space for newspapers and periodicals.

(Ord. 1830, (part), 1999)

A. Each newsrack shall be reasonably kept free of dirt and grease, be free of graffiti, be reasonably free of chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, have no cracked or broken plastic or glass parts and have no broken structural parts. Adhesive labels, other than those required by the City of Cupertino and unrelated to publications, shall not be displayed on newsracks.

B. Abandoned newsracks shall be unlawful and may be removed by the City of Cupertino or its designee pursuant to the provisions of this chapter.

(Ord. 1830, (part), 1999)

A. No person shall place, maintain or relocate a newsrack in the City public right-of-way or which projects onto a public right-of-way unless and until an encroachment permit has been issued by the City of Cupertino Public Works Department.

B. Permits shall not be transferable and shall remain renewable on a yearly basis for as long as the newsrack complies with the provisions of this chapter.

C. Applications for a permit shall include the name, address, telephone number and facsimile number of those responsible for the installation, use and maintenance of the newsrack(s).

D. The proposed permittee shall provide evidence of adequate types and levels of insurance as may be required by the Public Works Department. Said insurance shall be in full force and effect during the time newsrack(s) are maintained in the City. The certificate of insurance filed with the City shall include a statement by the insurance carrier that thirty days advance notice shall be given the City prior to cancellation.

E. A newsrack permit shall be issued within ten working days following submittal of a complete application if the newsrack complies with the standards set forth in this chapter and the supplemental design standards.

F. A person or distributor who has been issued a newsrack encroachment permit may install and maintain additional newsracks and change the location of an existing permitted newsrack by requesting a new permit. The rules and procedures of this section shall also apply to the review and approval of any such amendment.

G. Newsrack encroachment permittees shall obtain and display an identification/permit marker provided by the City or its designee. Such marker shall be affixed to each permitted newsrack within plain view.

H. In the event of a change of ownership of a newsrack the new owner(s) shall, within ten working days, modify the existing permit providing the name, address, telephone number and facsimile number of the new owner(s) and obtain and affix a new marker to the newsrack.

(Ord. 1830, (part), 1999)

A. Before any newsrack is removed, relocated or corrected by the City, the owner shall be notified by posting and mailing, where feasible, to the address for such party as stated on the encroachment permit and given ten days to remedy the violation and/or contest the removal. If no identification is shown on the newsrack and no permit has been issued, posting of a notice of violation on the newsrack itself shall be sufficient. Both forms of notice shall state the code violation, the length of time within which the violation must be cured, and the forum within which the owner may contest the removal, relocation or correction of the newsrack.

B. The City may immediately correct any violation if such violation is deemed to be an immediate hazardous or dangerous condition. This may entail immediate removal and impoundment of a newsrack by the City. If such action is taken, written notice of such action shall be sent to the permittee or owner of the newsrack within two working days after impoundment. Necessary fees shall be charged to the permittee or owner to retrieve the newsrack.

C. Any person notified of a correction or violation under this chapter may submit a written request for a hearing before the Cupertino City Council in accord with Section 10.21.100 of this chapter.

D. The City or its designee may remove a newsrack if the person responsible for such newsrack has (1) neither requested a hearing by the City pursuant to subsection A of this section nor remedied the violation within thirty calendar days following the date of the notice; or (2), following an appeal hearing has failed to remedy the violation within ten calendar days after receiving a copy of the written decision that the newsrack was installed or maintained in violation of this chapter, following a hearing as set forth in this section.

E. Removed or impounded newsracks shall be retained by the City or its designee and may be recovered by their owner within ninety days of their removal. Newsracks, which are not claimed within ninety days, shall be deemed permanently abandoned and shall be disposed according to the appropriate sections of California Civil Code.

F. Before release of the newsrack, the person responsible for such newsrack shall pay an impound fee to the City covering actual cost of transporting, storing and disposing of such newsracks.

G. Abatement hereunder is a cumulative remedy and does not prohibit the City of Cupertino from pursuing other appropriate civil or criminal action with regard to the enforcement of this chapter.

(Ord. 1830, (part), 1999)

An applicant or owner/operator of a permitted newsrack may appeal a denial of a permit or order of the City or its designee to correct an alleged violation of this chapter by filing a written appeal in accord with Chapter 1.16 of the Municipal Code.

(Ord. 1830, (part), 1999)

Any person who violates any provision of this chapter shall be guilty of an infraction and, upon conviction thereof, may be punished as prescribed in Chapter 1.12 of the Municipal Code.

(Ord. 1830, (part), 1999)

Every newsrack within or encroaching into public rights-of-way shall be removed or otherwise brought into conformance with this chapter within six months of the effective date of the ordinance codified in this chapter, including obtaining necessary permits, payment of any fees, compliance with design and placement requirements and all other sections of this chapter.

(Ord. 1830, (part), 1999)