Part 11 — Publication Vending Machines

For the purposes of this part, certain words and phrases shall be construed as set forth in subsections (a) through (m) of this section unless it is apparent from the context that a different meaning is intended.

"Blinder rack" shall mean a publication vending machine containing opaque material placed so as to prevent the display of harmful matter, as defined in subsection (f) below, to the public view.

"City Manager" shall mean the City Manager of the City of Downey or designee.

"Custodian" shall mean the holder of the business license and the encroachment permit for the publication vending machine.

"Display" shall mean to show.

"Director of Public Works" shall mean the Director of Public Works of the City of Downey or designee.

"Harmful matter" shall mean matter as defined in California Penal Code Section313, such as that matter which appeals to the prurient interest and which, taken as a whole, lacks significant literary, artistic, political, educational, or scientific value for minors. In prosecutions under this part, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, that evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter lacks significant literary, artistic, political, educational, or scientific value for minors.

"Matter" shall mean any book, magazine, newspaper, or other written, printed or digital material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or figure, or any recording, transcription, or mechanical, chemical or electrical reproduction or articles, equipment, machines or materials.

"Minor" shall mean a human being under 18 years of age.

"Public right-of-way" shall be defined as in Section 7100.24 of the Downey Municipal Code.

"Person" shall mean any individual, partnership, firm, association, corporation, or other legal entity, that is not a publication vending machine custodian.

"Public nuisance" shall be defined as in Article V, Chapter 9, Section 5901(Z) of the Downey Municipal Code.

"Publication vending machine" shall mean any self-service or coin-operated box, container, storage unit, or other dispenser installed, used for the display, distribution or sale of any matter.

"Street" shall mean all that area dedicated for public street purposes and shall include, but not be limited to, roadways, parkways and alleys. (Added by Ord. 1253, adopted 10-27-09)

The regulations, restrictions and procedures set forth in this Part 11 shall apply to all publication vending machines on any public right-of-way or municipal property in the City installed after the effective date of the ordinance codified in this part. Those publication vending machines installed prior to the effective date of the ordinance codified in this part shall be exempted from compliance with the provision(s) of said ordinance, and shall be regulated by the provisions of the immediate prior version of Part 11; except that if any change in location, vendor, machine type, or where damage and/or weathering of the machine is such that replacement is required, then such public vending machine(s) shall be brought into compliance with all provision(s) of the ordinance codified in this part before the beginning of the next permitting cycle, which starts January 1st of each year.

(Added by Ord. 1253, adopted 10-27-09)

• (a) No publication vending machine shall be placed on any public right-of-way or municipal property within the City unless the custodian has both a valid City of Downey business license and encroachment permit allowing the placement of such publication vending machine.

• (b) Applications for obtaining business licenses shall be made in accordance with the provisions of Chapter 2 of Article VI of this Code.

• (c) Encroachment permits issued pursuant to this part shall be obtained from the City of Downey Department of Public Works and will require the following supplemental information:

  • (1) The publication title and the name, address, phone number and email address of the machine custodian, which must be kept current for the duration of the permit;

  • (2) A City of Downey vending machine location form, printed on 8½ by 11 inch paper, diagramming any and all bus stop signs, benches, and shelters, poles, posts, driveways and driveway approaches, disability access ramps, existing publication vending machines, fire hydrants, crosswalks, curb returns, buildings, landscaping, trash containers, mailboxes, and utility pull boxes within a 20-foot radius of the proposed publication vending machine location;

  • (3) Digital photographs of each proposed placement, showing the area in front, behind, and on each side of the proposed location, and existing publications at the location.

• (d) If a permittee is in compliance with this part, a permit may be renewed for each successive calendar year by timely payment of the renewal and permit fee established by ordinance or resolution of the City Council and approval by the Public Works Director.

• (e) Liability Insurance and Indemnification.

  • (1) As a condition of approval of the permit, the custodian must file with the Director of Public Works a certificate of liability insurance establishing that the applicant has in force public liability and property damage insurance in an amount satisfactory to the City. The City, each of its officials, employees, agents and representatives, shall be named as additional insured. The custodian must maintain such insurance for as long as a publication vending machine remains in the public right-of-way or municipal property. The policy cannot be cancelled or materially changed except after 30 days' notice by the insurer to the City by certified mail. Insurance must be current and effective for the duration of publication vending machine encroachment.

• (2) Every custodian operating or maintaining such a machine within the public, right-ofway or public property shall agree, prior to the granting of an encroachment permit, to indemnify and hold harmless the City of Downey, its officials, officers, employees, agents and representatives from any loss, liability, damage, or cost sustained by any person or property, arising from the installation, operation, or use of such machine: provided, however, that such obligation to indemnify and hold harmless the City, its officials, officers, employees, agents and representatives shall not extend to any loss, liability, damage or cost resulting from the acts or property of another.

• (f) Following review, the Director of Public Works may approve an encroachment permit either in whole or in part when more than one location is proposed by the applicant.

• (g) Once an application has been approved by the Department of Public Works, each publication vending machine shall be permitted to remain at its approved location as long as each machine is in compliance with the standards set forth in this part, as may be amended from time to time. In the event that the custodian wishes to relocate the publication vending machine to another location, the custodian must submit a new application for the proposed location. The custodian shall notify the Department of Public Works of the removal of any permitted publication vending machine from an approved location and repair the location to a satisfactory condition. Failure to notify the Department of Public Works in advance of the removal of a publication vending machine would constitute abandonment of the site.

(Added by Ord. 1253, adopted 10-27-09)

The City Council may adopt a publication vending machine permit fee schedule, setting forth encroachment permit (application or issuance) fees, inspection fees, annual permit renewal fees, impoundment fees, and any other fees necessary for the implementation of this part. (Added by Ord. 1253, adopted 10-27-09)

The following standards are applicable to any publication vending machine located in the public easement, public right-of-way or municipal property.

• (a) All publication vending machines in the City of Downey must be constructed primarily of metal and pedestal mounted. They are to be:

  • (1) Less than or equal to 42½ inches high, 26 inches wide and eighteen inches (18″) deep;

  • (2) A pedestal-style base in the Sho-Rack color "Green," Tiger Coatings RAL 6200, or equivalent as approved by the Director of Public Works.

• (b) Publication vending machines installed after the adoption of the ordinance codified in this part must be Sho-Rack TR-49-16 or a TK-97 stacked on a TR-49-16, with the coin mechanism within the machine frame and below the horizontal top.

• (c) Where practicable, more than one publication vending machine unit at a location may be grouped as a modular publication vending machine sharing a common tray and pedestal or pedestals. The number of pedestals shall be minimized to reduce clutter while providing the appropriate structural support to the publication vending machines.

(Added by Ord. 1253, adopted 10-27-09)

• (a) Dangerous Conditions or Obstructions. No custodian shall install, use or maintain any publication vending machine which in whole or in part rests upon, in or over any public right-of-way, public easement, or municipal property when such installation, use or maintenance endangers the safety of persons or property, or when such site or location is used for lawfully permitted sidewalk dining, or when such site or location is used for public utility purposes, public transportation purposes, or when such machine unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, or restricts the use of poles, posts, traffic signs or signals, utility access vaults, manholes, hydrants, mailboxes or other objects permitted near such location, or when such publication vending machine interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.

• (b) Publication vending machines shall be placed adjacent to a curb or adjacent to a wall or building. Machines placed near the curb shall be parallel thereto and shall be no less than 12 inches nor more than 18 inches from the streetside edge of the curb. Publication vending machines placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. No publication vending machine shall be placed on the same sidewalk or parkway opposite an existing permitted publication vending machine.

• (c) No publication vending machine shall be chained, cabled, or otherwise attached to objects including, but not limited to, streetlights poles, traffic signs, traffic poles, bricks, rocks, cinder blocks, pipes, stationary concrete or metal support bases, encasements, other publication vending machines or other such objects.

• (d) All publication vending machines on each block must be located in groups as follows:

  • (1) Publication vending machines shall be grouped together and placed no more than six inches apart unless otherwise directed by the Director of Public Works for safety considerations as detailed in subsection (e).

  • (2) A group of publication vending machines may consist of no more than eight such machines and must be not less than 270 feet from an existing group, except when the proposed placement would result in the publication vending machines being on different blocks.

  • (3) In the event that a custodian wants to place a publication vending machine at a location were there exists eight machines, and two or more machines contain the same publication, the duplicated publication shall remove its choice of one of the duplicated machines.

• (e) Notwithstanding the provisions of this section, no publication vending machine shall be placed, installed, used or maintained:

  • (1) So that it projects onto, into, or over any part of the roadway of any public street or so that it rests, wholly or in part, upon, along, or over any portion of the roadway of any public street;

• (2) Within five feet of any marked crosswalk;

• (3) Within 10 feet of the curb return of any unmarked crosswalk;

• (4) Within five feet of any fire hydrant, or other emergency structure;

• (5) Within five feet of any driveway or driveway approach;

• (6) Within five feet ahead of, or 25 feet to the rear of any sign marking a designated bus stop, unless located within a bus shelter designated by the City and designed to accommodate publication vending machines;

• (7) Within six feet of any bus bench, unless located within a bus shelter designated by the City and designed to accommodate publication vending machines;

• (8) At any location whereby the clear space for the passageway of pedestrians is reduced to less than four feet;

• (9) Within three feet of any area improved with lawn, flowers, shrubs or trees;

• (10) Directly in front of any display window, door, or utility panel of any building abutting the right-of-way;

• (11) So that it obstructs or interferes with any utility vault, pull box, traffic signal, pole, or similar installation;

• (12) At any location whereby the publication vending machine would obstruct the view of motorists of any regulatory or advisory traffic and parking signs or at any other location whereby the publication vending machine obstructs motorists' view of pedestrians or traffic.

(f) Publication vending machines shall not be allowed on blocks in R-1 zones. (Added by Ord. 1253, adopted 10-27-09)

• (a) Each publication vending machine shall be maintained in good repair at all times, and be free of graffiti, graffiti-related decals, extraneous markings, grime and rust, and faded, chipping or peeling paint. Notwithstanding the use of a blinder rack, Plexiglas view windows shall be clear, not yellowed, scratched, damaged or cracked.

• (b) No publication vending machine shall be used for advertising signs or publicity purposes other than a logo or similar information identifying the publication. This information shall be limited to a height of no more than 12 inches on the lower one-third of the door side of the machine. No ads, logos, publication name, or other information, shall be allowed anywhere else on the machine. Signs placed atop the machine are prohibited.

• (c) No publication vending machine shall display or contain publications not listed on the permit for that publication vending machine.

• (Added by Ord. 1253, adopted 10-27-09)

• (a) Any matter which is displayed or exhibited in any publication vending machine in a public place shall comply with Section 313 of the California Penal Code as currently in effect and as may be amended.

• (b) No matter offered for sale from any publication vending machine placed or installed in, maintained on any public right-of-way or municipal property, shall be displayed or exhibited in any manner that exposes harmful matter to public view.

• (c) The display of harmful matter in a public place immediately supervised by an adult, other than a public place from which minors are excluded, shall have blinder racks in front of the materials to prevent exposure to public view.

• (Added by Ord. 1253, adopted 10-27-09)

• (a) No publication vending machine shall be allowed to become a public nuisance (as defined in Chapter 9 of the Downey Municipal Code) or to contribute to the creation of a public nuisance.

• (b) A permitted publication vending machine which has contributed to the creation of a public nuisance shall be moved by the custodian, within 10 calendar days following notice by the City to the last known email address of the custodian. Failure of the custodian to relocate the machine, or relocation of the machine to an unapproved location, shall be deemed a public nuisance and the condition corrected as identified in Section 6598.11.

• (Added by Ord. 1253, adopted 10-27-09)

The Director of Public Works is hereby authorized to waive minor defects and variances to the requirements contained in this part which are not inconsistent with the purposes of this part. (Added by Ord. 1253, adopted 10-27-09)

• (a) Any publication vending machine in violation of the provisions of this part, which violation creates an immediate danger to the health, safety, or welfare of the public, shall be summarily removed and stored in a secured location so as to eliminate the danger to the health, safety or welfare of the public. The Director of Public Works shall notify the custodian thereof by emailing and mailing a notice of removal to the last known address of the custodian. Such notice shall contain the date the publication vending machine was removed, the reasons therefor, and the location and procedure for claiming the publication vending machine. Any such publication vending machine removed and stored pursuant to this subsection shall be released to the custodian if claimed within 30 days after the mailing of the written notice of removal and upon payment of impoundment and storage fees. A custodian may appeal the removal of such publication vending machine directly to the City Manager within 30 days of the mailing of the written notice of removal. Upon failure of the custodian to either claim such machine and pay the reasonable charges within 30 days of the mailing of written notice or to appeal to the City Manager, such publication vending machine shall be deemed to be unclaimed property and processed under applicable provisions of the law.

• (b) Should a publication vending machine be in violation of the provisions of this part, where the violation does not create an immediate danger to the health, safety, or welfare of the public, the custodian shall be emailed a "notice of violation" stating the violation, date of notification, and notice of intention to remove the machine if the violation is not corrected within 10 calendar days.

• (c) Should a publication vending machine remain in violation of the provisions stated in the email to the custodian past the 10 day correction period, the Director of Public Works shall impound the machine to a secured location. Any such publication vending machine removed and stored pursuant to these provisions shall be released to the custodian thereof if claimed within 30 days after such removal and upon the payment of any impoundment fees. Upon failure of the custodian to claim such machine and pay the reasonable charges within 30 days after the mailing of written notice of removal, such machine shall be deemed to be unclaimed property and processed under applicable provisions of the law. A custodian may appeal the notice of violation or/and the removal of a machine directly to the City Manager.

• (d) In the event that the curb, sidewalk, or any other improvements in place within the public right-of-way, public easement, or municipal property is damaged due to the installation, placement, maintenance or use of a publication vending machine, the Director of Public Works shall notify the custodian in writing of the damage and the nature and extent of repairs that will be required. If the required repairs are not made to the satisfaction of the Director of Public Works within 30 calendar days, the Director may order the repairs made and bill the custodian of the publication vending machine for the cost thereof. If the bill is not paid within a period of 60 days, or arrangements made satisfactory to the Director of Public Works, the cost of the repairs, plus the cost of collection, may be recovered by civil action in the courts and any other permitted locations held by the custodian may be revoked.

• (e) Any custodian aggrieved by any finding, notice or action taken pursuant to the provisions of this part may appeal, and shall be apprised of his or her right to appeal, to the City Manager. An appeal shall be perfected within three days after the receipt of notice of any protested decision by filing with the Department of Public Works a letter of appeal briefly stating therein the basis for such appeal. The appeal shall be heard by the City Manager. The City Manager shall give the appellant, and any other interested party, a reasonable opportunity to be heard in order to show cause why the determination of the Director of Public Works should not be upheld. In all such cases, the burden of proof shall be upon the appellant to show that there was no substantial evidence to support the action taken by the Director of Public Works. At the conclusion of the hearing, the City Manager shall make a final and conclusive determination.

(Added by Ord. 1253, adopted 10-27-09)

Notwithstanding any administrative, civil, criminal, or other remedy available at law or equity, or any combination thereof, to address violations herein, whenever in this part, any act is prohibited or declared unlawful or the doing of any act is required, or the failure to do any act is declared to be unlawful, such violation may be punished as set for in Chapter 4 of Article I of this Code.

(Added by Ord. 1253, adopted 10-27-09)