Fullerton Municipal Code Ch. 7.38 Newsracks

The City Council finds and declares that:

(A) Coin vending machines placed on public property in a location which unreasonably interferes with, or impedes, the flow of pedestrian or vehicular traffic, creates a nuisance which jeopardizes the safety of the citizens of the city by preventing safe passage to and from public sidewalks, public streets, roadways or parkways;

(B) The public display of pictorial material depicting nudity and sexual conduct (“harmful matter”) in publications contained in newsracks located on public rights-of-way or public places is patently offensive and harmful to passersby when readily visible to them, and is detrimental to a healthy moral environment to which persons of the city are entitled;

(C) Such public displays of harmful matter are thrust indiscriminately on children and unwilling adults and constitute assaults upon individual privacy;

(D) Every person is entitled to use the public rights-of-way in the city without being subjected to such public displays of harmful matter;

(E) Such public displays of harmful matter constitute a public nuisance; and

(F) The purpose of this chapter is to promote the public health, safety and general welfare of persons in the city, and to reduce liability exposure of the city to personal injury or property damage claims and litigation through the regulation of placement, appearance, number, size and servicing of newsracks on public rights-of-way.

(Ord. 2919, passed - -1997)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ALLEY. A public thoroughfare or way having a width not more than 30 feet which affords only a secondary means of abutting property.

DISTRIBUTOR. A person who has the responsibility of placing, servicing or maintaining a newsrack by depositing and/or removing material from said newsrack and/or by collecting moneys from said newsrack.

HARMFUL MATTER. Any matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently, offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political or scientific value.

HEARING OFFICER. The City Manager, who shall preside at the administrative hearings authorized by this chapter.

MATTER. Any book, magazine, newspaper, periodical, record or other printed or written material or any picture, drawing, photograph, motion picture or other pictorial representation or any mechanical, chemical or electrical reproduction or any other articles, equipment, machines or material.

MINOR. Any natural person under 18 years of age.

NEWSRACK. Any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of any written or printed matter, including, but not limited to, newspapers, news periodicals, magazines, books, pictures, photographs and records.

OWNER. Any and all natural persons or entity who owns, controls, manages and/or leases a newsrack for the display, sale or distribution of any written or printed matter.

PARKWAY. The area between the sidewalks and the curb of any street, and where there is no sidewalk, the area between the edge of the roadway and the property line adjacent thereto. PARKWAYS shall also include any area within a roadway which is not open to vehicular travel.

PUBLIC PLACE. Any area that is used or held out for the use of the public, whether owned or operated by public or private interests, but not including indoor areas.

PUBLIC RIGHT-OF-WAY. 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. The portion of a street improved, designed or ordinarily used for vehicular travel.

SIDEWALK. A thoroughfare which affords a primary means of access to abutting property, other than an alley, but including an avenue, boulevard, drive, highway, lane, place or road.

STREET. All that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks.

(Ord. 2919, passed - -1997)

(A) An annual newsrack permit issued in accordance with this chapter shall be required for each newsrack location, prior to installation, placement or maintenance of any newsrack which in whole or in part rests upon, in or over any public right-of-way. In addition to the newsrack fee, each application for a newsrack permit shall be accompanied by a nonrefundable application fee established by resolution of the City Council.

(B) Applications for permits required hereunder shall be filed with the Development Services Department upon forms provided by the city. The application shall be signed by the applicant and shall contain all information requested by the Development Services Director, or his or her designee, for review and consideration of the application, including, but not limited to, specific details regarding the location of the newsrack, name of publication to be contained in the newsrack, type or brand of newsrack and number of newsracks at the proposed location, and the name, address and telephone number of the owner of the newsrack, and the name, address and telephone number of the distributor, if different than the owner.

(C) Every applicant shall be required to sign a hold harmless statement for the benefit of the city whereby the applicant agrees to indemnify, defend and hold harmless the city, its elected officials, officers and employees, with respect to any loss or liability or damage, including attorneys’ fees, expenses and costs, for personal injury and for property damage sustained by any person as a result of the applicant’s installation, use or maintenance of a newsrack or newsracks within the city.

(D) Every applicant for a newsrack permit shall provide proof of liability insurance in an amount satisfactory to the City Attorney and naming the city as an additional insured.

(Ord. 2919, passed - -1997)

The term of the permit, unless sooner suspended or revoked, shall be for a period of one year. Upon the expiration of such term, the permittee may renew the permit for an additional one-year term by submitting a new application in conformance with § 7.38.030 herein together with such permit renewal fees as may be established by resolution of the City Council.

(Ord. 2919, passed - -1997)

(A) The Development Services Director, or his or her designee, shall cause the permit to be issued if all of the following requirements have been met:

(1) The applicant has paid the required fees for the permit, as required by this chapter, and has obtained any other license or permit that may be required under any other chapter of this code; and

(2) The application conforms in all respects to the provisions of this chapter;

(3) The applicant has not made a material misrepresentation of fact in the application; and

(4) The applicant does not have any outstanding debt owed to the city.

(B) No permit issued pursuant to this chapter shall be transferred or assigned to, or used by, a person or entity not named on the permit.

(Ord. 2919, passed - -1997)

If the Development Services Director, or his or her designee, finds that all of the requirements set forth in § 7.38.030 have not been met, he or she shall deny the application for the newsrack permit. Any applicant whose application for a permit has been denied by the Development Services Director, or his or her designee, may file a request for an administrative hearing as set forth in § 7.38.170. If the application has been denied for failure to provide the required information, and the applicant provides the additional information within the ten days time for appeal, the applicant shall not be required to pay additional fees. Once the additional information is received, the permit will be issued or notice of denial on other grounds will be served.

(Ord. 2919, passed - -1997)

(A) Any newsrack permit may be suspended or revoked by the Development Services Director, or his or her designee, for any of the following reasons:

(1) Falsehood of any information supplied by the permittee upon which issuance of the permit was based;

(2) Failure of the permittee or any employee to comply with the regulations set forth in this chapter;

(3) Failure of the permittee to notify the Development Services Department within two weeks of any change or modification of the information provided by the permittee upon which issuance of the permit was based occurring subsequent to the issuance of the permit, including, but not limited to, the sale or transfer of ownership of the newsrack; and

(4) Conviction of any violation by the permittee or distributor of any of the provisions of this chapter.

(B) The determination that a permit shall be suspended or revoked may be appealed by a permittee pursuant to the same procedures applicable to administrative hearing and appeal hereunder. No such revocation or suspension shall become effective until the permit holder has been notified in writing of the right to appeal such suspension or revocation. If a timely request for administrative hearing is filed pursuant to § 7.38.170, the suspension or revocation shall be stayed pending the decision of the Hearing Officer and if an appeal is filed, pending the final decision of the Planning Commission. Otherwise, the revocation shall become effective immediately upon expiration of the appeal period.

(C) No person, whose permit is revoked, shall be eligible to apply for a new permit for a period of one year following such revocation.

(Ord. 2919, passed - -1997)

(A) No person shall knowingly install, place or maintain, or cause to be installed, placed or maintained, in any newsrack, which rests in whole or in part, upon, in or on any portion of a public right-of-way, or public place, other than a public place from which minors are excluded, or which projects onto, into or over any part of a public right-of-way, any publication or material which, while in said newsrack, exposes to public view any harmful matter, as defined by Cal. Penal Code § 313.

(B) No person shall install, use or maintain, or cause to be installed, used or maintained any newsrack or other structure which projects onto, into or over any part of the roadway of any public street, or which rests, wholly or in part, upon, along or over any portion of the roadway of any public street.

(C) No person shall install, use or maintain, or cause to be installed, used or maintained, any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway, without a permit.

(Ord. 2919, passed - -1997)

Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway, shall comply with the following standards.

(A) No newsrack shall exceed four feet in height, or two feet in thickness.

(B) Newsracks shall only be placed near a curb or adjacent to the wall of a building. Newsracks placed near the curb shall be placed no less than 18 inches nor more than 24 inches from the edge of the curb. Newsracks 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 newsrack shall be placed or maintained on the sidewalk or parkway opposite a newsstand or another newsrack.

(C) Newsracks may be chained or otherwise attached to one another; however, no more than three newsracks may be joined together in this manner, provided that no group of newsracks shall extend more than eight lineal feet along a curb or wall and a space of no less than 18 inches shall separate each group of three newsracks so attached.

(D) No newsrack shall be chained, bolted or otherwise attached to any property not owned by the owner of the newsrack, or to any permanently fixed object.

(E) No newsrack or group of attached newsracks allowed under division (C) above shall weigh, in the aggregate, in excess of 125 pounds when empty.

(F) Notwithstanding the provisions of this section, no newsrack shall be placed, installed, used or maintained:

(1) Within five feet of any marked crosswalk;

(2) Within 15 feet of the curb return of any unmarked crosswalk;

(3) Within five feet of any fire hydrant, fire call box, police call box or other emergency facility;

(4) Within five feet of any driveway;

(5) Within five feet ahead of, or 25 feet to the rear of any sign marking a designated bus stop;

(6) Within five feet of any bus bench;

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

(8) Within three feet of any area improved with lawns, flowers, shrubs or trees or within three feet of any display window of any building abutting the sidewalk or parkway or in such manner as to impede or interfere with the reasonable use of such window for display purposes; or

(9) Within 100 feet of any other such newsrack on the same side of the street within the same block containing the same edition of the same publication.

(G) (1) Notwithstanding the provisions of this section, if the Development Services Director, or his or her designee, finds that the location of a newsrack, in accordance with the standards set forth herein, will create or allow a condition prohibited by this section, or will otherwise endanger the public peace, health, safety or welfare, or be contrary to the purposes and intent of this chapter, he or she may prohibit the location of such newsrack in accordance with such standards and/or may allow the location of such a newsrack in a manner deviating from, or at variance with the standards provided herein, subject to such terms, conditions and regulations as he or she deems necessary to protect the public peace, health, safety or welfare, and to carry out the purposes and intent of this chapter.

(2) Such finding may be made by the Development Services Director, or his or her designee, at any time. If such finding is made prior to the issuance of a permit, the finding of the Development Services Director, or his or her designee, shall be made a part of the permit at the time of issuance. If the finding is made subsequent to the issuance of a permit, written notice of the finding of the Development Services Director, or his or her designee, shall be given to the owner of said newsrack with the direction that there shall be compliance with the finding of the Development Services Director, or his or her designee, within ten days from the date of mailing the notice. Failure of the owner to comply with said notice in the time specified shall result in removal of the newsrack pursuant to § 7.38.130.

(Ord. 2919, passed - -1997)

No more than six newsracks shall be located on any public right-of-way within a space of 200 feet in any direction within the same block of the same street. The Development Services Director, or his or her designee, shall use the following criteria in determining which newsracks shall be permitted to remain in their current location which, because of the number of newsracks, is in violation of the provisions of this chapter.

(A) 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 county, pursuant to the procedures set forth in Cal. Gov’t Code Title 1, Division 7, Chapter 1, Article 2 (commencing with § 6000).

(B) Second 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 county.

(C) Third 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 be newspapers of general circulation for the county.

(Ord. 2919, passed - -1997)

Every owner who places or maintains, or causes to be placed or maintained, a newsrack which requires a permit pursuant to this chapter, on the streets of the city, shall have the owner’s name, address and telephone number affixed thereto in a place where such information may be easily seen. Upon acceptance of a newsrack permit, each permittee shall be deemed to have consented to receive any notices given pursuant to this chapter by mail at the address affixed to such permitted newsrack.

(Ord. 2919, passed - -1997)

(A) Whenever any newsrack is found to be in violation of this chapter, the Development Services Director, or his or her designee, shall cause to be attached to such newsrack, a notice of violation, specifying the date and nature of the violation, that the newsrack shall be impounded if corrections are not timely made, and that a hearing may be requested within ten working days of the posting or mailing date of such notice. A copy of said notice of violation shall be mailed to the person whose name and address appears on the newsrack as provided in § 7.38.110 on the same date the notice is affixed to the newsrack. The owner shall, within ten working days of the date on which the notice of violation was mailed, either cause the violation to be corrected or request a hearing in writing pursuant to § 7.38.170.

(B) In the case of violation of this chapter relative to restrictions upon attachments of newsracks to property other than that owned by the owner of the newsrack, to fixed objects or each other, and upon location of newsracks, any public body or office may, as an alternative to removal under division (A) above, remove such attachment and/or move such rack or racks in order to restore them to a legal condition.

(Ord. 2919, passed - -1997)

(A) Any harmful matter displayed or exhibited in violation of § 7.38.080(A) may be summarily removed and stored in any convenient place by any officer of the city. Such officer shall take reasonable steps to notify the owner of said newsrack of the fact that the harmful matter has been removed pursuant to this section. Upon failure of the owner to claim such harmful matter and pay the expenses of removal and storage within 30 days after such removal, said harmful matter shall be deemed to be unclaimed property in possession of the Police Department and may be disposed of pursuant to applicable provisions of the law regulating thereto.

(B) In the event any newsrack which is installed pursuant to this chapter does not have the owner’s name, address and telephone number affixed, or where a newsrack has been determined to be abandoned, the city may impound it pursuant to the procedures set forth in this chapter. For the purpose of this section, the term ABANDONED shall include, but not be limited to, circumstances where no publication is in the newsrack for a period of over seven days or is not serviced with the publication it is designed to disseminate for a period of over seven days.

(C) Failure to properly correct a violation or offending condition within ten days, unless a hearing is requested pursuant to § 7.38.170, shall result in the offending newsrack being impounded and processed as unclaimed property under applicable provisions of law relating thereto.

(D) In the event that any newsrack is found in a damaged condition, or in a location, either of which creates an immediate threat to the public health, safety or welfare, the city may immediately impound it pending a hearing pursuant to § 7.38.170, provided such hearing is requested by the owner within ten working days of the date of mailing of a written notice of impoundment to the owner, if known.

(E) Whenever any newsrack is to be impounded pursuant to this section, the owner may, within ten working days of the date the notice of violation is posted on the newsrack or mailed, request a hearing in writing as provided in § 7.38.170.

(Ord. 2919, passed - -1997)

(A) Provided the owner’s identity is known, any newsrack, together with its contents which have been impounded, shall be returned to the owner as follows:

(1) Upon receipt of an impound fee, in an amount set by resolution of the City Council, within 30 days of the date of impoundment or an order affirming an impoundment; or

(2) Upon a determination after a hearing by the Hearing Officer or Planning Commission where a timely appeal has been filed, that the newsrack should not have been impounded or should otherwise be returned to the owner.

(B) In the event a hearing has not been requested within the time permitted, an impound fee, the amount of which has been set by resolution of the City Council, shall be imposed upon the owner.

(Ord. 2919, passed - -1997)

The Development Services Director, or his or her designee, may sell or otherwise dispose of any newsrack, together with its contents, and retain the proceeds, including any moneys, on behalf of the city, provided that either:

(A) Thirty days have elapsed since impoundment or the date of any order affirming an impoundment, and the owner has failed to pay all impound fees assessed and has not filed a timely appeal; or

(B) An appeal has been timely filed and has resulted in a final determination that the newsrack was properly impounded and fees assessed have not been received within 30 days from the date of such final determination.

(Ord. 2919, passed - -1997)

Any notice of denial, suspension or revocation of a permit, notice of violation, impound, summary abatement of a newsrack or the matter therein, or any other adverse determination hereunder (hereinafter, collectively referred to as the “notice”), shall be delivered pursuant to the following requirements:

(A) The notice shall state the factual reasons for the action so noticed and that the recipient has a right to appeal the matter as set forth in § 7.38.170 through § 7.38.180 of this chapter.

(B) Delivery shall be deemed complete upon:

(1) Personal service to the recipient;

(2) Deposit in the U.S. mail, postage pre-paid for first class delivery; or

(3) Facsimile service with confirmation of receipt.

(C) The address for notice shall be the address affixed to such newsrack pursuant to § 7.38.110.

(Ord. 2919, passed - -1997)

(A) Any person receiving a notice, or any person who is subject to any adverse determination made pursuant to this chapter, may appeal the matter by requesting an administrative hearing as set forth below. Notwithstanding the foregoing, these administrative appeal procedures shall not apply to criminal proceedings initiated to enforce this chapter.

(B) Any person appealing a notice or an adverse determination shall, within ten days of receipt thereof, file a written request for an administrative hearing with the office of the City Clerk, accompanied by an administrative hearing fee as established by separate resolution. A copy of the request for administrative hearing shall also be mailed on the date of filing to the Hearing Officer. Thereafter, a hearing on the matter shall also be held before the Hearing Officer within 30 business days of the date of filing of the written request unless, in the reasonable discretion of the Hearing Officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.

(C) The Hearing Officer shall receive all relevant information and evidence pertaining to the violation(s), or noncompliance with any of the provisions of this chapter. The hearing need not be conducted according to technical rules relating to evidence and witnesses. The decision of the Hearing Officer shall be issued within ten business days of the conclusion of the hearing and shall be delivered by first-class mail, postage prepaid, to the appealing party. The decision of the Hearing Officer may include an order to the owner to remove the newsrack within ten working days of the mailing date of the decision, if the Hearing Officer determines there is a violation of this chapter. If a notice of appeal is not filed within ten days from the date of delivery, the Hearing Officer, or his or her designee, may thereafter impound such newsrack without further notice to the owner.

(D) Notwithstanding divisions (A) through (C) above, the decision of the Hearing Officer in any proceeding determining the validity of a summary abatement shall be mailed within five business days following the conclusion of the hearing. However, all other provisions in this chapter regarding appeal procedures shall apply to summary abatements.

(Ord. 2919, passed - -1997)

(A) A person may appeal the decision of the Hearing Officer by filing a written notice of appeal with the Development Services Department within ten business days from the date of mailing of the Hearing Officer’s decision. The appeal shall be scheduled for Planning Commission action in accordance with customary filing deadlines for projects submitted to the Planning Commission. The notice of appeal shall state in detail the factual basis for the appeal. The Planning Commission shall consider the appeal at a public meeting not less than ten, nor more than 45 days following the filing of the appeal. The Planning Commission may continue the hearing date where necessary. At the time and place set for such an appeal hearing, the Planning Commission shall hold a de novo hearing. If the Planning Commission finds from the relevant evidence at the hearing that the action taken was in conformance with the provisions of this chapter, it shall require compliance with the Hearing Officer’s decision. A copy of the Planning Commission’s decision shall be mailed to the appellant within five working days after adopted thereof.

(B) The decision of the Planning Commission shall be final. The decision must include notice that any legal challenge to the final decision shall be made pursuant to provisions of Cal. Code of Civil Procedure §§ 1094.5 and 1094.6 and shall be commenced within 90 days following issuance of the final decision. The administrative hearing fee paid by a prevailing party in an appeal shall be refunded.

(Ord. 2919, passed - -1997)

The installation, maintenance, replacement, removal and relocation of newsracks, shall be at the sole expense of the permittee or owner. Upon removal of any newsrack, the permittee or owner shall, at his or her sole expense, cause the public right-of-way to be repaired to its original condition and in conformity to the surrounding area. If the permittee or owner fails to make such repairs within ten working days from removal, the work may be done by the city and charged to the permittee or owner.

(Ord. 2919, passed - -1997)

(A) Any violation of the provisions of this chapter shall be deemed to be an infraction, and punishable as such, notwithstanding the fact that, at the discretion of the city, the violation of any section of this chapter may be filed as a misdemeanor. The complaint charging such violation shall specify whether the violation is a misdemeanor or an infraction. Each day a violation of any provision of this chapter shall continue shall be a new and separate violation.

(B) A violation of any of the provisions of this chapter shall constitute a nuisance and may be abated by the city through civil process by means of a restraining order, preliminary or permanent injunc- tion, or in any other manner provided by law for the abatement of such nuisances.

(Ord. 2919, passed - -1997)

Except as otherwise provided herein, owners of newsracks shall comply with the requirements of this chapter within 30 calendar days from the effective date of the ordinance codified in this chapter.

(Ord. 2919, passed - -1997)

(A) If any section, division, clause or phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of all other provisions of this chapter.

(B) The City Council hereby declares that it would have passed the ordinance codified in this chapter, and each section, division, sentence, clause or phrase or portion thereof, irrespective of the fact that any one or more of the sections, divisions, sentences, clauses or phrases or portions thereof is declared invalid or unconstitutional.

(Ord. 2919, passed - -1997)