12-5 NEWSRACKS.

In this section, unless the context or subject matter otherwise requires:

Highway means all that area dedicated to public use for public street purposes and includes, but is not limited to, roadways, parkways, alleys and sidewalks.

Major Arterial means and refer to Camino Tassajara, San Ramon Valley Boulevard and Sycamore Valley Road.

Newsracks means any self-service or coin-operated box, container, storage unit or other dispenser installed, used or

maintained for the distribution of newspapers, periodicals, real estate advertisements or other publications.

Parkway means that area between the edge of the roadway and the adjacent property line, excluding that area occupied by the sidewalks. Parkway shall also include any area within a roadway which is not open to vehicular travel.

Public Right-of-Way means all land or interest therein which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for or dedicated to the use of the general public.

Roadway means that portion of the street improved, designed or ordinarily used for vehicular travel.

Sidewalk means any portion of a street between the curb line and the adjacent property line, intended for the use of pedestrians, excluding parkways.

• (Ord. #94-16, §2)

No newsrack may be placed in the public right-of-way by anyone unless a newsrack encroachment permit is first obtained from the Town of Danville.

• (Ord. #94-16, §2)

a. Applications for encroachment permits for newsracks shall be, made to the Development Services Manager or his/her designee. The application shall be accompanied by the following:

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

2. The name, address and telephone number of the person whom the Town may notify or contact at any time concerning the applicant’s newsrack.

3. The number of newsracks and the exact proposed location of each, including a map or site plan with adequate locational information to verify conformance with subsection 12-5.8 of this section.

b. A fee for the encroachment permit may be determined by the Town Council.

c. Upon receipt of an application, the Development Services Manager or his/her designee shall issue an encroachment permit within twenty (20) working days, unless, based on the requirements of this section, there are grounds for denial of the permit. If an application is disapproved in whole or in part, the Development Services Manager shall notify the applicant promptly, explaining the reasons for the denial. The applicant shall have ten (10) working days within which to appeal the decision to the Town Manager in accordance with the appeals provisions of this Code. Upon receipt of a timely appeal, the Town Manager shall set the matter for hearing within thirty (30) days after the filing of an appeal.

(Ord. #94-16, §2)

a. Permits may be issued for the installation of a newsrack or newsracks without prior inspection of the location but such newsrack or newsracks and the installation, use or maintenance thereof shall be conditioned upon observance of the provisions of this section.

• b. Such permits shall be valid for, and renewable every five (5) years

• (Ord. #94-16, §2)

Each newsrack installed, used or maintained pursuant to this section shall be identified with the encroachment permit number, name, address, and telephone number of the owner/permit holder in a manner so as to be clearly visible. The identification may not encompass an area larger than three inch by five inch (3 x 5) horizontal or vertical.

(Ord #94-16, §2)

a. Liability Insurance . Each applicant for a newsrack encroachment permit shall, prior to the granting of the permit under this section, furnish to the Town a certificate showing that such person has then in force public liability and property damage insurance naming the Town as an additional insured in an amount not less than one hundred thousand ($100,000.00) dollars minimum liability combined single limit (bodily injury and property damage) per person and per occurrence. The owner/permit holder shall provide and keep in force that policy of public liability insurance during such time as it continues to locate any newsrack under the terms of this section. The evidence of insurance filed with the Town shall include a statement by the insurance carrier that thirty (30) days’ notice will be given to the Town before any cancellation.

b. Indemnification . Every person operating or maintaining a newsrack upon or within the public property, rights-of-way or public easements adjacent to streets of this Town shall agree in writing, prior to the granting of an encroachment permit, to indemnify and hold harmless the Town, its officers and employees, from any loss, liability, damage or cost sustained by any person or property, arising from the installation, operation or use of such newsrack; provided, however, that such obligation to indemnify and hold harmless the Town, its officers and employees shall not extend to any loss, liability, damage or cost resulting from the acts or property of another. (Ord. #94-16, §2)

a. General Placement of Newsracks .

1. All newsracks installed, used or maintained on a public sidewalk or parkway or portion thereof in Areas 1-9 of the Downtown Business District Ordinance and other areas with a commercial general plan land use designation shall be of the SHO-RACK K-49-16 modular type or the SHO-RACK K-100 double sized rack or their equivalents. All newsracks at the above designated locations shall be part of a multi-unit configuration subject to the standards set forth in this section. Free standing or non-modular racks may be placed in other parts of Town. However, where there are more than five (5) nonmodular newsracks in any one (1) location, modular style racks shall be required. In all cases, newsrack facilities shall be located so as to maximize the public convenience, health, safety and welfare, both as to accessibility to the newsracks and the use of the public right-of-way as a thoroughfare, and the aesthetic appearance of the area.

2. Any newsrack placed in its present location prior to the effective date of this section, shall be relocated, by its owner/permit holder, to a Town-approved location and into a Town-approved newsrack facility within ninety (90) days of adoption of this section.

b. Temporary Placement of Newsracks .

1. Any free standing or non-modular newsrack of standard design commonly in trade use may be permitted in any single location for a period of ninety (90) days in order to determine the suitability of long term newsrack locations, provided that the placement of such newsrack conforms with the standards set forth in this section. However, a temporary newsrack may not be placed in a location where a permanent rack exists. In addition, temporary newsracks may not be bolted or in any other manner permanently affixed to any part of the public right-of-way.

2. An encroachment permit shall be obtained from the Town of Danville prior to placement of any temporary newsracks.

3. Prior to expiration of the ninety (90) day trial period, the person maintaining the newsrack shall either cause it to be removed or submit a written request to the Development Services Manager or his/her designee for an encroachment permit for a permanent newsrack location.

c. Installation and Maintenance .

1. Stands for newsracks shall be a supporting structure such as a multi-unit pedestal. Such a pedestal shall not exceed nineteen (19”) inches in height.

2. Newsrack mounts, pedestals and vending machines located in Areas 1-9 of the Downtown Business District Ordinance and other areas with a commercial general plan land use designation shall be painted SHO-RACK Black or its equivalent. When modular racks are used in other parts of town, they shall also be painted SHO-RACK Black.

3. No newsrack enclosure shall be used for commercial advertising, signs or publicity purposes. The name of the newspaper or periodical may be stated on the window or door of the vending machine. An exception may be made for free standing racks where eleven inch by seventeen (11” x 17”) inch cards may be placed on the front to advertise the publication in the rack and related event(s). However, the cards shall not be used to advertise commercial purposes other than the sale of the publication in the rack.

4. Each newsrack shall be maintained in good operating and physical condition by its owner/permit holder. Newsrack owner/permit holders shall maintain the exterior surfaces of their newsracks free of all graffiti, handbills and similar alterations.

5. The permittee is responsible for the installation of newsracks. All work undertaken shall be the sole responsibility of the owner/permit holder. Damage to the surrounding area (hardscape, building or landscaping) resulting from the installation of the newsrack shall be repaired to the original condition immediately by, and at the expense of, the permittee. Failure to make required repairs shall result in the Town undertaking to make such repairs. The cost of repairs shall be chargeable as a civil debt to the owner/permit holder and may be collected by the Town in the same manner as it collects any other civil debt or obligation.

6. All newsracks and newsrack facilities installed within the Town of Danville shall comply with all applicable Federal, State and local laws and regulations for barrier-free design, including but not limited to applicable provisions of the Americans With Disabilities Act.

(Ord. #94-16, §2)

No person shall install, use or maintain any newsrack pursuant to said permit which shall:

a. Project onto, into or over any part of the roadway of any public street or alley open to vehicular traffic, or rest wholly or in part upon, along or over any portion of the roadway of any public street or alley open to vehicular traffic, or be within six (6’) feet of the roadway of any public street or alley open to vehicular traffic, or be more than six (6”) inches from a wall or fence;

b. Be attached to any fire hydrant, power pole, sign post, tree, refuse container or any other existing fixtures;

• c. Be placed within five (5’) feet in a perpendicular direction from any marked crosswalk;

• d. Be within fifteen (15’) feet in a perpendicular direction from the curb return of any unmarked crosswalk;

• e. Rest within six (6’) feet of any hydrant or other emergency facility;

• f. Rest within five (5’) feet of any driveway;

• g. Rest within an area described as five (5’) feet ahead of, forty-one (41’) feet to the rear of, and ten (10’) feet in depth from any sign marking a designated bus stop;

• h. Rest within five (5’) feet of any bus bench;

• i. Restrict the clear space for the passageway for pedestrians to less than six (6’) feet;

• j. Be placed at any location where the newsrack causes, creates or constitutes a traffic hazard;

• k. Be placed at any location where the newsrack obstructs access to or the use of abutting property;

l. Be placed where the newsrack will endanger persons or property;

m. Be placed where the newsrack will unreasonably interfere or obstruct the flow of pedestrian or vehicular traffic or access to parked vehicles on a highway;

n. Be placed within two hundred (200) feet of any other newsrack facility in the public right-of-way on the same side of the street.

The Town Manager, or duly authorized designee, may grant exceptions, through the issuance of the pertinent encroachment permit, to the limitations set forth above, upon making findings that the public health, safety and welfare is not adversely affected thereby and following notification of all other permit holders in existence when the exception is under consideration. Exceptions may particularly be granted in instances where newsracks are less than two hundred (200) feet apart on the same side of the street but are separated by an intervening street. Permit holders shall be given fifteen (15) days to object prior to the granting of an exception. While objections will be taken into consideration in no case shall an objection guarantee that an exception will be denied. (Ord. #94-16, §2)

The number of newsracks at a particular corner, intersection or other location shall not exceed ten (10). Any exception to this limitation resulting in an increase or decrease in the number of authorized newsracks at any particular location shall be determined by the Town Manager or his/her designee subject to the following standards:

a. Sufficient clear space for the safe passage of pedestrians requiring amendment of the preceding limitation of six (6) feet.

b. The width of the sidewalk prohibits the installation of newsracks;

c. Density of pedestrian traffic necessitates fewer newsracks than the authorized number indicated. It is the purpose of this section to provide maximum public access to all publications of general interest and circulation. Since available space is limited and recognizing that there is considerable public demand for publications of current concern, in determining which publication vending machines shall be issued a permit to remain in a particular location the Town Manager or his/her designee shall be guided by this chapter consistent with considerations of public safety.

d. In the Old Town area along Hartz Avenue and Front Street newsracks shall generally be permitted in the areas shown on the attached map. Other placements may be approved by the Town Manager or his/her designee on a case by case basis. All requirements provided for in this section shall remain in effect except that the two hundred (200) foot minimum distance between newspaper racks may be adjusted in the Old Town area only particularly in instances where newsracks are less than two hundred (200) feet apart on the same side of the street but are separated by an intervening street.

(Ord. #94-16, §2)

No person who places or maintains a newsrack on the sidewalk of the Town shall permit such newsrack to remain unused for a period of thirty (30) days or more. A newsrack or newsrack facility shall not be deemed “abandoned” if the empty newsrack is attributable to a labor strike or a temporary or extraordinary interruption of distribution or publication by the publication sold or dispensed from that newsrack. (Ord. #94-16, §2)

12-5.11 Removal—Hearing.

a. Any newsrack installed, used or maintained in violation of the provisions of this section may be subject to the removal and storage by the Town Manager or his/her designee. Such officer shall take steps to notify the owner/permit holder thereof and request compliance within thirty (30) calendar days prior to removal. At any time within the thirty (30) day period, an administrative hearing to challenge the existence of a violation may be requested by the owner/permit holder. Failure to request the hearing shall result in removal and storage of the newsracks by the Town Manager or his/her designee at any time after the expiration of the thirty (30) day period.

b. If the owner/permit holder requests a hearing as provided in paragraph a. of this subsection, the hearing shall be administered by the Town Manager or his/her designee. The owner/permit holder shall have thirty (30) days from the date of any adverse ruling which may result from the hearing to comply with the provisions specified in the ruling. If after the thirty (30) days from the date of decision the owner/permit holder has failed to comply with the provisions of this section cited in the decision, the subject newsracks shall be removed and stored by the Town Manager or his/her designee.

c. The cost of removal and or storage by the Town Manager or his/her designee of any newsrack subject to this section shall be chargeable as a civil debt to the owner/permit holder thereof and may be collected by the Town in the same manner as it collects any other civil debt or obligation. In addition, the newsracks in question shall be deemed to be unclaimed property and may be disposed of accordingly.

(Ord. #94-16, §2)

Owner/permit holders of newsracks located within the Town on the effective date of the ordinance codified in this section shall have ninety (90) days from said date to comply with the provisions of this section; thereafter, any newsracks not in compliance shall be subject to removal by the Town Manager or his/her designee as provided in this section. (Ord. #94-16, §2)

No material which is harmful to minors, as defined in Section 313 of the California Penal Code, shall be displayed in a public place, other than a public place from which minors are excluded, unless blinder racks are placed in front of the material so that the lower two-thirds (2/3) of the material is not exposed to view. (Ord. #2000-05 §1)