La Habra Municipal Code Ch. 5.16 Newsracks

The council of the city of La Habra finds and declares that:

A. Newsracks and coin vending machines placed upon 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 purpose of this chapter is to promote the public peace, morals, health, safety and general welfare by regulating the placement, appearance, servicing and insuring of newsracks so as to protect against the dangers of impairing or distracting the vision of motorists and pedestrians; the hazards of unreasonably interfering with or impeding the flow of pedestrian or vehicular traffic; and unreasonably interfering with the use of public property for its intended purpose.

C. 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.

D. Such public displays of harmful matter are thrust indiscriminately on children and unwilling adults and constitute assaults upon individual privacy.

E. Every person is entitled to use the public rights-of-way in the city without being subjected to such public displays of harmful matter. Such public displays of harmful matter constitute a public nuisance.

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. 1563 § 1B, 1999)

For the purpose of the provisions of this chapter concerning newsracks on public rights-of-ways hereinafter set forth, the following words and phrases shall be construed to have the meanings herein set forth, unless it is apparent from the context that a different meaning is intended:

"Distributor"

means a person who has the responsibility of placing, servicing or maintaining a newsrack by depositing and/or removing material from such newsrack and/or by collecting monies from such newsrack.

"Harmful matter"

means any matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prudent 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 and shall include, but not be limited to the following:

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;

Any picture or illustration of genitals, pubic hair, perineums, anuses, anal regions of any person or any portion of the breast below the areola of any female person, where such picture or illustration has as their purpose or effect sexual arousal, gratification or affront;

Any picture or illustration depicting explicit sexual acts where such picture or illustration has as its purpose or effect sexual arousal, gratification or affront. "Explicit sexual act," as used in this chapter, means depictions of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism, or excretory function in conjunction with sexual activity, masturbation, or lewd exhibition of the genitals, whether any of the above conduct is depicted or described as being performed alone or between members of the same or opposite sex or between human beings and animals or other acts of sexual arousal involving any physical contact with a person's genital, pubic region, pubic hair, perineum, anus or anal region.

"Hearing officer"

means the director of public works, who shall preside at the administrative hearings authorized by this chapter.

"Matter"

means 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"

means any natural person under eighteen years of age.

"Newsrack"

means 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"

means 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"

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

"Public place"

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

"Public right-of-way"

means 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"

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

"Sidewalk"

means any surface provided for the exclusive use of pedestrians.

"Street"

means 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. 1563 § 1B, 1999)

A. A newsrack permit issued in accordance with this chapter shall be required 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. Each application for a newsrack permit shall be accompanied by a nonrefundable application fee established by resolution of the city council. Such fee shall be based upon the total number of newsracks identified in the application.

The owner of a newsrack or newsracks or currently located in the city at the time of the effective date of this chapter shall be required to obtain a permit pursuant to the provisions hereunder upon expiration of the owner's current business license.

Applications for new permits required hereunder shall be filed with the department of public works upon forms provided by the city. The application shall be signed by the applicant and shall contain the following information:

1. Name of the street and approximate location(s) of the newsrack(s) to be installed or maintained;

2. 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;

3. The name of the newspaper, periodical or other publication to be contained in each newsrack;

4. The type or brand of newsrack, including a physical description of the newsrack and how it will be mounted;

5. A precise diagram showing the applicant's proposed location for the newsrack and the location and number of all other newsracks existing within one hundred feet thereof;

6. The total number of newsracks currently present at the proposed location;

7. 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.

8. 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. The evidence of insurance submitted with the application and kept on file with the risk manager shall include a statement by the insurance carrier that thirty days notice will be given to the city before any cancellation of coverage.

B. The director of public works, or his designee shall approve the location designated in the application based on the standards and criteria set forth in Sections 5.16.090 and 5.16.100. Such application may be granted either in whole or in part when more than one location or newsrack is proposed by an applicant. If an application is denied based solely as to a proposed location, or number of newsracks, the applicant shall be allowed, without prejudice, to amend such application to designate a different location or locations.

(Ord. 1563 § 1B, 1999)

The director of public works, or his designee, shall cause the permit to be issued if all of the following requirements have been met:

A. 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

B. The application conforms in all respects to the provisions of this chapter; and

C. The applicant has not made a material misrepresentation of fact in the application; and

D. The applicant does not have any outstanding debt owing to the city.

(Ord. 1563 § 1B, 1999)

A. If the director of public works, or his designee, finds that all of the requirements set forth in Section 5.16.030 have not been met, he or she shall deny the application for the newsrack permit. In the event an application for a permit is denied by the director of public works or his designee, written notice of such denial shall be given to the applicant specifying the ground or grounds of such denial. Notice of denial of the permit shall be deemed to have been served upon the applicant on the date it is personally served on the applicant or when deposited in the United States mail with postage prepaid and addressed to the applicant at his or her residence as set forth in the application for the permit.

B. Any applicant whose application for a permit has been denied by the director of public works or his designee, may file an appeal of the denial to the city manager as set forth in Section 5.16.170. If the application has been denied for the failure to provide 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 for an appeal. Once the additional information is received, the permit will be issued or notice of denial on other grounds will be served.

(Ord. 1563 § 1B, 1999)

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. 1563 § 1B, 1999)

A. Any newsrack permit may be revoked or suspended by the director of public works, or his 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 department of public works 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;

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

B. The permittee shall be notified of the decision of the director of public works by mailed, written notice.

C. 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 Section 5.16.170, 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.

D. 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. 1563 § 1B, 1999)

A. No owner 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 such newsrack, exposes to public view any harmful matter, as defined by Section 313 of the Penal Code of the state of California.

B. No owner 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, when such installation, use or maintenance:

1. Endangers the safety of persons or property; or

2. Unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including any legally parked or stopped vehicle; or

3. Unreasonably interferes with or impedes the ingress into or egress from any residence or place of business, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes or other objects permitted at or near the location; or

4. Interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.

D. No newsrack shall be used for advertising signs or publicity purposes other than dealing with the display, sale or purchase of the publication sold therein.

(Ord. 1563 § 1B, 1999)

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, as measured from the ground up, or two feet in depth, or thirty inches in width.

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 eighteen inches nor more than twenty-four 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 thirty-six 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 subsection C of this section shall weigh, in the aggregate, in excess of one hundred twenty-five 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 fifteen 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 twenty-five feet to the rear of any sign marking a designated bus stop;

6. Within fifteen 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 five 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;

9. Within one hundred 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 except where separated by a street or corner.

G. Notwithstanding the provisions of this section, if the director of public works, or his designee, finds that the location of a newsrack, in accordance with the standards set forth herein, will create or allow a condition prohibited by Section 5.16.080, 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 deems necessary to protect the public peace, health, safety or welfare and to carry out the purposes and intent of this chapter.

1. The director of public works, or his designee may make such finding at any time.

2. If such finding is made prior to the issuance of a permit, the finding of the director of public works, or his designee, shall be made a part of the permit at the time of issuance.

3. If the finding is made subsequent to the issuance of a permit, written notice of the finding of the director of public works, or his designee, shall be given to the owner of said newsrack with the direction that there shall be compliance with the finding of the director of public works, or his designee, within ten working days from the date of mailing notice. Failure of the owner to comply with said notice in the time specified shall result in removal of the newsrack pursuant to Section 5.16.130.

H. Each newsrack shall be maintained by owner at all times in a good, safe and clean operating condition. Maintenance shall include, but not be limited to, removal of graffiti, repair or replacement of any cracked, broken or unclear glass or plastic casing or coverings. Newsracks shall be painted or covered with a protective coating to keep the newsrack free from rust and general deterioration. The director of public works, or his designee, shall provide the owner of any newsrack not in compliance with this provision written notice of the specific violation(s) with the direction that there shall be compliance with the findings of the director of public works, or his designee, within ten working days from the date of mailing notice. Failure of the owner to comply with such notice in the time specified shall result in removal of the newsrack pursuant to Section 5.16.130.

(Ord. 1563 § 1B, 1999)

No more than six newsracks shall be located on any public right-of-way within a space of two hundred feet in any direction within the same block of the same street; provided, however, that no more than twelve newsracks shall be allowed on any one block. As used herein, "block" shall mean one side of a street between the two consecutive intersecting streets. The director of public works, or his designee, shall use the following criteria in determining which newsracks shall be permitted to remain in its 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 Orange County, pursuant to the procedure set forth in Title 1, Division 7, Chapter 1, Article 2 of the Government Code of the state of California.

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 Orange 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 Orange County.

(Ord. 1563 § 1B, 1999)

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. 1563 § 1B, 1999)

A. Whenever any newsrack is found to be in violation of this chapter, the director of public works, or his 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 the notice of violation shall be mailed to the person whose name and address appears on the permit application or on the newsrack as provided in Section 5.16.110 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 Section 5.16.170.

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 designated public employee may, as an alternative to removal under subsection A of this section, remove such attachment and/or move such rack or racks in order to restore them to a legal condition.

(Ord. 1563 § 1B, 1999)

A. Any harmful matter displayed or exhibited in violation of Section 5.16.080(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 the 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 thirty calendar days after such removal, such harmful matter shall be deemed to be unclaimed property in possession of the police department and may be disposed of pursuant to the provisions of this code.

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 purposes of this section, the term "abandoned" shall include, but is not limited to, circumstances where no publication is in the newsrack for a period of over seven working days or is not serviced with the publication it is designed to disseminate for a period of over seven working days.

C. Failure to properly correct a violation or offending condition within ten working days, unless a hearing is requested pursuant to Section 5.16.170, 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 location or in damaged condition, creating an immediate threat to the public health, safety or welfare, the city may immediately impound it pending a hearing pursuant to Section 5.16.170; 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 Section 5.16.170.

(Ord. 1563 § 1B, 1999)

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 thirty calendar days of the date of impoundment or an order affirming an impoundment; or

2. Upon a determination after hearing by the director of public works that the newsrack should not have been impounded or should otherwise be returned to the owner; or

3. Where an appeal is timely filed, upon a decision by the city manager that the newsrack should not have been impounded or should otherwise be returned.

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. 1563 § 1B, 1999)

The director of public works, or his designee, may sell or otherwise dispose of any newsrack, together with its contents, and retain the proceeds including any monies, on behalf of the city; provided that, either:

A. Thirty calendar days have elapsed since impoundment or the date of an order affirming an impoundment, and the owner has failed to pay all impound fees assessed; or

B. A hearing, if requested, and/or an appeal, if filed, have resulted in a final determination that the newsrack was properly impounded and fees assessed have not been received within thirty calendar days from the date of such final determination.

(Ord. 1563 § 1B, 1999)

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 Section 5.16.170 through Section 5.16.180 of this chapter.

B. Delivery shall be deemed complete upon: (1) personal service to the recipient; (2) deposit in the U.S. mail, postage prepaid 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 Section 5.16.110.

(Ord. 1563 § 1B, 1999)

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.

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 of the city council. 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 be held before the hearing officer within thirty 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 designee, may thereafter impound such newsrack without further notice to the owner.

D. Notwithstanding subsections A through C of this section, 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. 1563 § 1B, 1999)

A person may appeal the decision of the hearing officer by filing a written notice of appeal with the public works 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 forty-five 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 appeal 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 adoption thereof.

(Ord. 1563 § 1B, 1999)

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 all costs for such removal shall be charged to the permittee or owner.

(Ord. 1563 § 1B, 1999)

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 or district attorney, 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 restraining order, preliminary or permanent injunction or in any other manner provided by law for the abatement of such nuisances.

(Ord. 1563 § 1B, 1999)

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

(Ord. 1563 § 1B, 1999)

A. If any section, subsection, 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 declares that it would have passed the ordinance codified in this chapter, and each section, subsection, sentence, clause and phrase or portion thereof, irrespective of the fact that any one or more of the sections, subsections, sentences, clauses or phrases or portions thereof be declared invalid or unconstitutional.

(Ord. 1563 § 1B, 1999)