Del Mar Municipal Code Ch. 9.24 Newsracks on Public Right-of-Way

The purpose of this Chapter is:

A. To protect the safety and welfare of the City's residents and visitors from unregulated newsracks being placed in locations in public rights-of-way that pose a danger to pedestrian or vehicular traffic or that unreasonably interfere with the public's use of those rights-of-way; and

B. To protect the unique architectural features and scenic amenities of the City.

For purposes of this Chapter:

A. Distributor shall mean any person responsible for placing or maintaining a newsrack.

B. Director shall mean the City Manager or the City Manager's designee.

C. Cluster shall mean a group of newsracks placed side by side or in proximity to one another so as to appear to be in a continuous row.

D. Designated Cluster Site shall mean a location designated by the City Manager as being consistent with the provisions of this Chapter.

E. Newsrack shall mean any self-service box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of publications.

F. Sidewalk shall mean any public right-of-way provided for the exclusive use of pedestrians.

It is unlawful for any person to place, install, use or maintain a newsrack on or within a public right-of-way in violation of the provisions of this Chapter.

No person shall place or maintain a newsrack within the public right-of-way without being in the possession of a valid Newsrack Permit issued in accordance with the provisions of this Chapter.

A. An application for a Newsrack Permit shall be submitted to the Director.

B. An 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 a responsible person whom the City may notify or contact at any time concerning the applicant's newsrack;

3. The name of the publication to be placed in the newsrack;

4. The type or brand of newsrack, including a description of the newsrack and mounting system;

5. A scaled diagram showing the size and dimensions of the proposed newsrack and the location proposed for installation of the newsrack; and

6. Any additional information which is necessary for the proper disposition of the application in accordance with the regulations of this Chapter.

C. The applicant shall pay a permit application fee which shall be set by resolution of the City Council in an amount that shall not exceed the reasonable cost of processing the application.

A. A Newsrack Permit shall be issued unless the Director makes a written finding that an application is not in compliance with the provisions of this Chapter.

B. The Director shall act within ten calendar days of the receipt of a complete application.

C. A Permit may be issued for the installation of a newsrack(s) without prior inspection of the location. However, the continuation of the privilege conferred in the Permit shall be conditioned upon compliance with the provisions of this Chapter.

D. Newsrack Permits are not transferable.

E. Newsrack Permit applications shall be reviewed on a first-come, first-serve basis.

F. Upon the issuance of a Newsrack Permit, the applicant shall be issued a Newsrack Permit sticker. The Newsrack Permit sticker shall be permanently affixed to the front of the newsrack.

G. The Permit Holder shall agree to indemnify and hold harmless the City of Del Mar, 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 newsracks; provided, however, that such obligation to indemnify and hold harmless the City of Del Mar, its officers and employees, shall not extend to any loss, liability damage or cost resulting from the acts or property of another.

H. Prior to the granting of a Newsrack Permit, the applicant shall provide the City with a certificate showing that such person or distributor has in force at that time, public liability and property damage insurance naming the City as an additional insured, in an amount not less than $100,000.00 minimum liability combined single limit (bodily injury and property damage) per person and per occurrence. The Permit Holder shall provide and keep in force that policy of public liability insurance during such time as they continue to locate any newsrack under the terms of this Section. The evidence of insurance filed with the City shall include a statement by the insurance carrier that 30 days notice will be given to the City before cancellation becomes effective.

I. The Director may attach additional conditions of approval to a Newsrack Permit as may be necessary to assure compliance with the provisions of this Chapter.

A newsrack placed or maintained within a public right-of-way shall be situated in accordance with the following:

A. If placed near a curb, the back of the newsrack shall be situated not less than 20 inches nor more than 24 inches from the edge of the curb (measured from the street side of the curb in a straight line away from the street). If placed near a wall, the back of the newsrack shall be situated not more than six inches from the face of the wall.

B. No newsrack shall be placed within five feet of:

1. A marked crosswalk;

2. A curb return of any unmarked crosswalk;

3. Fire hydrant, call box or other emergency facility;

4. A driveway;

5. A governmental mailbox; or

6. A designated loading zone or handicap parking space.

C. No newsrack shall be placed in a location where placement obstructs, interferes with or impedes vehicular or pedestrian traffic, including pedestrian traffic in the location of bus stops. Any placement which would reduce the width of usable sidewalk in that location to less than four feet shall be considered to interfere with pedestrian traffic.

D. No newsrack shall be placed where placement obstructs, interferes with or impedes the governmental use of the right-of-way.

E. No newsrack shall be placed where placement 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.

F. No newsrack shall be placed where placement endangers public health or safety.

G. No newsrack shall be placed on the opposite side of a sidewalk or parkway across from an another newsrack.

H. No newsrack shall be placed where placement involves attachment to any fire hydrant, power pole, sign post, tree, refuse container, or any other existing fixture.

I. No newsrack shall be placed directly in front of a display window of any commercial structure abutting a sidewalk, (except near a curb as regulated herein) without the written authorization of the property owner.

J. No newsrack shall be placed within the R1-40; R1-14; R1-10; R1-10B; R1-5; R1-5B; RM-West, East, Central, or South; R-2; R-C; CVPP or FW zones.

A newsrack may be placed with other newsracks, in a cluster, at a designated cluster site, in accordance with the following:

A. The length of any cluster of newsracks shall not exceed 15 feet measured from the outside edges of the newsracks at each end of the cluster.

B. An exception allowing a longer cluster length than the limitation of Subsection A above may be granted by the Director, or the Director's designee, following a written finding that:

1. The exception will maintain sufficient clear space for the safe pedestrian traffic; and

2. The intensity of pedestrian traffic or the width of the sidewalk in a particular location would safely accommodate a larger length of a cluster of newsracks than would otherwise be allowed and authorized by this Chapter and that a larger length would not adversely affect the visual amenities of the area.

C. An exception mandating a shorter cluster length than provided for in Subsection A. may be imposed by the Director, or the Director's designee, following a finding that: the intensity of pedestrian traffic or the width of the sidewalk in a particular location necessitates a lesser length of a cluster of newsracks than would otherwise be allowed and authorized by this Chapter.

D. No newsrack or cluster of newsracks shall be placed within 200 feet of any other cluster site within a public right-of-way.

E. For purposes of this Section, the prohibition on locating a newsrack or newsrack cluster within 200 feet of another newsrack cluster site shall not apply to newsracks located on the opposite side of a public street.

A. No newsrack shall be taller than 52 inches in height measured from the ground to the highest part of the newsrack, including coin box; nor more than 30 inches in width measured parallel to the adjacent curb or wall; nor more than 24 inches in depth measured perpendicular to the adjacent curb or wall.

B. No surface of a newsrack shall be used to display advertising; except that:

1. The newsrack may be used to display the name of the newspaper or periodical.

2. Each newsrack shall have affixed to it, a notice, visible to the public, containing the name and address and telephone number of the distributor. In the alternative, this information shall be available in the Newsrack Permit application on file.

3. Each newsrack shall have affixed to it, a Newsrack Permit sticker issued by the Director.

A. No publication offered for sale in a newsrack placed or maintained on a public right-of-way shall be displayed or exhibited in a manner which exposes to public view, from any public place, any of the following:

1. Any statement or word describing explicit sexual acts, sexual organs or excrement where such statement or word has as its purpose or effect, sexual arousal, gratification or affront; or

2. Any picture or illustration of genitals, pubic hair, perineum, anus or anal region of any person or any picture or illustration of any portion of the breast below the areola thereof of any female person, other than a child under the age of puberty, where such picture or illustration has as its purpose or effect: sexual arousal, gratification or affront; or

3. Any picture or illustration depicting explicit sexual acts where such picture or illustration has as its purpose or effect, sexual arousal, gratification or affront.

B. For purposes of this Section, the term "explicit sexual acts" means the depiction of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism, or excretory functions in conjunction with sexual activity, lewd exhibition of the genitals or masturbation, whether any of the above is depicted or described as being performed alone or between members of the same or opposite sex, or between humans and animals, or other acts of sexual arousal involving any physical contact with a person's genitals, pubic region, pubic hair, perineum, anus or anal region.

A. Damage to public property resulting from the installation of a newsrack shall be repaired immediately by, and at the expense of, the persons directing, managing or accomplishing the installation.

Failure of the persons directing, managing or accomplishing the installation to make the required repairs shall result in City forces undertaking to make such repairs.

B. The cost of repairs by the City shall be chargeable as a civil debt to the persons directing, managing or accomplishing the installation and may be collected by the City in the same manner as it collects any other civil debt or obligation.

A. All newsracks shall be maintained by the distributor in a neat, clean, and operable condition to include without limitation an appearance:

1. Reasonably free of dirt and grease.

2. Reasonably free of chipped, faded, peeling or cracked paint.

3. Reasonably free of rust and corrosion.

4. With clear plastic or glass maintained in an unbroken and uncracked condition.

5. With paper or cardboard parts, or inserts free of rips, cracks or tears.

6. With structural portions in an unbroken condition.

A. A newsrack installed, located, maintained or abandoned contrary to the provisions of this Chapter shall constitute a public nuisance and may be abated subject to the provisions of this Chapter.

B. A newsrack installed, located, maintained or abandoned contrary to the provisions of this Chapter may be removed and stored by the Director or the Director's designee, in accordance with the following:

1. A "Notice to Cure" shall:

a. Be mailed to the distributor at the address shown on the newsrack;

b. Be affixed to the newsrack;

c. Contain a description of the violation, a request for compliance with the Chapter within ten calendar days, and a warning that the newsrack will, after the expiration of the ten-day period, be removed and stored at the expense of the distributor; and

d. Contain a notice that at any time within said ten-day period, an administrative hearing to challenge the existence of the violation may be requested by the distributor.

2. If the distributor requests a hearing, the Director shall schedule the hearing to occur within ten calendar days of the request. The hearing shall be conducted by the Director. The distributor shall have ten calendar days from the date of any adverse ruling which may result from the hearing to comply with the provisions specified in the ruling. If, to comply with the provisions of this Chapter cited in the decision, the subject newsrack may be removed and stored by the Director.

C. The cost of removal and/or storage by the City Administrator or his designee of any newsrack subject to this Chapter shall be chargeable as a civil debt to the owner thereof, and may be collected by the City 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.

D. A newsrack which remains empty for 30 consecutive days shall be considered to be abandoned and shall be subject to abatement according to the provisions of this Chapter.

A. If a newsrack is placed so as to constitute an immediate threat to public safety; and allowing the newsrack to remain until the newsrack owner is notified would allow the danger to continue; and such danger cannot otherwise be corrected, the City may remove the dangerous newsrack from the public right-of-way in accordance with the following procedures:

1. The City Manager shall determine whether the newsrack poses the type of danger specified in this Section.

2. As soon as possible following the City Manager's determination that the newsrack poses the type of danger specified in this Section, the City shall notify the newsrack distributor of the seizure of the newsrack.

3. The notice shall include:

a. The date, time and location of the post-seizure hearing; and

b. The procedure for reclaiming the seized newsrack.

4. A post-seizure hearing shall be conducted by the City manager and shall occur no sooner than three working days after notice to the newsrack owner.

5. At the hearing, the owner of the seized newsrack shall be determined, and there shall be a review of the factual basis supporting the seizure.

6. Following the hearing, if the City Manager determines that the seizure was appropriate, the owner of the newsrack may take possession of the seized newsrack upon:

a. The payment of all costs incurred by the City in removing and storing the newsrack;

b. Payment of a civil penalty in an amount to be determined by the City Manager necessary to cover all administrative costs involved with removal of the newsrack and the hearing process; and

c. The owners' execution of a statement agreeing to abide by the newsrack regulations contained in the Municipal Code.

7. If, following the hearing, the City Manager determines that the newsrack was not seized in accordance with the provisions of this Section, the City Manager shall direct that the newsrack be returned to the site from which it was seized.

(Ord. No. 644)