La Puente Municipal Code Ch. 5.54 Newsracks

Sections:

• 5.54.010 Purpose.

• 5.54.020 Definitions.

• 5.54.030 Permit required.

• 5.54.040 Additional information required for application.

• 5.54.050 Insurance.

• 5.54.060 Additional criteria for denial.

• 5.54.070 Denial.

• 5.54.080 Appeal procedure.

• 5.54.090 Newspaper and periodical vending racks.

• 5.54.100 Display of certain matter prohibited.

• 5.54.110 Harmful matter to minors.

• 5.54.120 Impoundment of racks.

• 5.54.130 Return of impounded newsracks.

• 5.54.140 Hearings on impoundment.

• 5.54.150 Appeal after hearing.

• 5.54.160 Violations.

The purpose of this chapter is to establish a comprehensive set of regulations applicable to newsracks on the public streets, sidewalks and other public property. The purpose of this chapter is to advance and improve safety and aesthetics by controlling the number, size, construction, placement and appearance of newsracks without restricting the free dispersal of information guaranteed by the constitutions of the United States and the state of California.

More specifically, 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, including ingress into or egress from any residence or place of business, or from the street to the sidewalk by persons exiting or entering parked or standing vehicles; unreasonably interfering with the use of public property for its intended purpose; unduly restricting access to the use of poles, posts, traffic signs or signals, hydrants, mailboxes or locations used for transportation purposes; unsightly structures inconsistent with the intent and purpose of the city’s design regulations; neglectful servicing of newsracks resulting in visual blight on public rights-of-way and other public property and detracting from the aesthetics of store window displays, adjacent landscaping and other improvements; reduction in value of surrounding property; unnecessary exposure of the city to personal injury or property damage claims or suits; and public display of harmful or offensive matters. The city council finds and determines that the strong and competing interests of the public and of newspapers and other similar materials require a reasonable accommodation which can only be satisfactorily achieved through the means of this chapter which is designed to accommodate such interests by regulating the time, place and manner of using newsracks. It is not the intent of this chapter to in any way discriminate against, regulate or interfere with the publication, circulation, distribution or dissemination of any publications.

(Ord. 789 § 4 (part), 1999)

For the purpose of this chapter, the following words and phrases shall have the meanings as ascribed to them by this section:

“Director” means the director of community development or his or her designee.

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

“Person” means any individual, company, corporation, association, business or other legal entity.

“Sidewalk” means and includes that portion of a street other than a roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel, other than crosswalks.

“Streets,” as used herein, means and includes roads, streets, highways and alleys publicly maintained and open to the use of the public and privately owned and maintained roads and streets generally held open to the public use.

(Ord. 789 § 4 (part), 1999)

No person shall place, affix, erect, construct, or maintain a newsrack on any sidewalk without a permit issued under the provisions of Chapter 5.08 of this title. If any of the provisions of Chapter 5.08 of this title conflict with the provisions of this chapter, the provisions of this chapter shall prevail as to all matters and questions arising out of the subject matter of this chapter.

(Ord. 789 § 4 (part), 1999)

In addition to the information required in Section 5.08.030(a) of this title, an applicant for a newsrack permit shall furnish the following information:

(a) 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(s)

(b) The number of newsracks and the exact proposed location of each; and

(c) The names of the newspapers or periodicals to be contained in each newsrack.

(Ord. 789 § 4 (part), 1999)

(a) Unless a time extension is granted in writing by the director, within five business days of approval of the permit, the permittee must file with the director an insurance certificate establishing that the applicant has in force public liability and property damage insurance in the amount of one million dollars to indemnify the city against any personal injury, death, loss or damage resulting from the permittee’s activities. The city and its officers, employees and agents shall be named as additional insureds. The policy must include a statement by the insurance carrier that thirty days advance written notice will be given to the city before any cancellation or modification of coverage. The permittee must maintain such insurance for as long as the permittee maintains a newsrack on a city sidewalk. The applicant shall also execute a hold harmless agreement as provided by the city prior to the issuance of any permit.

(b) Upon a showing that the insurance requirements are so financially burdensome that they would constitute an unreasonable burden on First Amendment rights by virtue of the financial circumstances of the applicant, the director may waive or decrease that requirement, as necessary.

(Ord. 789 § 4 (part), 1999)

The director shall grant the permit if he or she finds that there is no reason to deny the permit under Section 5.08.060(a) of this title, unless there is a finding that:

(a) The newsrack fails to comply with the provisions of this chapter;

(b) The proposed location of the newsrack creates a substantial obstruction or hazard to vehicular or pedestrian traffic; or

(c) The proposed location of the newsrack is within one hundred eight inches of a location where six newsracks are already in place on a block and approval would violate Section 5.54.090 of this chapter. In such event the applicant, upon request, may be placed on a waiting list. When the proposed location becomes available due to a reduction in the number of newsracks, the applicant will be notified according to its placement on the waiting list and a new application may be submitted at that time.

(Ord. 789 § 4 (part), 1999)

If a permit is denied, the applicant shall be notified in writing of the specific basis of such denial by the director.

(Ord. 789 § 4 (part), 1999)

Any final decision of the director may be appealed to the city manager by the applicant. The appeal shall be made in writing, shall be filed within five business days after mailing or personal delivery of a notice of denial or revocation, and shall set forth the specific grounds for the appeal. The city manager, or the city manager’s designee, shall hear the aggrieved person or designated representative, receive relevant information and documents, and act on the appeal within three business days of receiving the appeal. The city manager’s decision shall be final.

(Ord. 789 § 4 (part), 1999)

No person shall install, use or maintain any newsrack in violation of or contrary to any of the following:

(a) Where said newsrack projects onto, into or any portion of the street, or which rests, wholly or in part, upon, along, or over any portion of such a street;

(b) Where said newsrack in whole or in part rests upon, in, or over any sidewalk publicly owned and maintained by the city, if such installation, use, or maintenance endangers the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes, or other governmental use, or when such newsrack unreasonably interferes with, or impedes the flow of pedestrian or vehicular traffic, the ingress into or the egress from any residence, place of business, or any legally parked or stopped vehicles, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects permitted at or near said location, or when such newsrack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery;

(c) Any newsrack which in whole or in part rests upon, in or over any sidewalk publicly owned or maintained by the city shall comply with the following standards:

(1) No newsrack shall exceed fifty-four inches in height, thirty inches in width, or two feet in depth,

(2) Newsracks shall only be placed near a curb or adjacent to a 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 opposite a newsstand or another newsrack,

(3) Each newsrack shall have a stand or base giving the same stability, and allowing the permanent fixation of said newsrack on the sidewalk, and each such newsrack or combination of newsracks bolted together, as provided in the next subsection, shall be bolted or firmly fastened to the sidewalk in the manner and fashion approved by the director,

(4) Newsracks shall be placed as provided in subdivision (2) of this subsection, and side by side, in even parallel lines with eighteen inches open space being provided between each newsrack; provided, however, that newsracks may be attached one to the other, if no more than three newsracks are joined in this fashion, and a space of not less than eighteen inches separates each group of newsracks so joined together. In addition, no more than six newsracks, whether singly installed or joined together, may be installed and maintained at any one location, unless an open space is maintained between each such grouping of six newsracks equal to one hundred eight inches,

(5) No newsrack shall be chained, bolted or otherwise attached to any property not owned by the owner of the newsrack, except as previously provided;

(d) No newsrack shall weigh in excess of one hundred twenty-five pounds when empty;

(e) No newsrack shall be placed, installed, used or maintained:

(1) Within three feet of any marked crosswalk,

(2) Within fifteen feet of the curb return of any unmarked crosswalk,

(3) Within fifteen feet of any fire hydrant or other emergency facility,

(4) Within three feet of any driveway,

(5) Within three feet ahead of, and fifteen feet to the rear of any sign marking a designated bus stop,

(6) Within three feet of any bus bench,

(7) At any location whereby the clear space for the passage of pedestrians is reduced to less than six feet,

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

(9) At any location where the newsrack causes, creates or constitutes a traffic hazard,

(10) Where the newsrack will endanger persons or property,

(11) Where the newsrack will unreasonably interfere with or obstruct the flow of pedestrian or vehicular traffic on the street,

(12) At any location where the newsrack unreasonably obstructs or interferes with access to, or the use and enjoyment of abutting property;

(f) No such newsrack shall be used for any purpose other than dealing with the display, sale or purchase of the newspaper or periodical therein contained, and no advertising signs, advertising material, or publicity materials or signs shall be placed thereon, with the exception that the face or entrance to the newsrack may state the name of the newspaper or periodical on display or dispensed therefrom;

(g) Such newsrack shall be maintained in a clean and neat condition, and in good repair at all times;

(h) All newsracks placed or maintained on any sidewalk publicly owned and maintained by the city shall be installed and maintained in accordance with the foregoing and pursuant to inspection and approval by the director. Every person who places or maintains a newsrack on said public sidewalks shall have his name, address, telephone number affixed thereto in a place where such information may be easily seen.

(Ord. 789 § 4 (part), 1999)

No publication offered for sale from any newsrack placed or installed in, maintained on or relocated to any public sidewalk or parkway, shall be displayed or exhibit in any manner which exposes to public view from the street any of the following:

(a) Any statements or words describing explicit sexual acts, sexual organs or excrement, where such statement or words have as their purpose or effect, sexual arousal, gratification or affront.

(b) Any picture or illustration of genitals, pubic hair, perineums, anuses, or anal regions of any person, or any picture or illustration which has as its purpose or effect, sexual arousal, gratification or affront.

(c) 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 acts” means depictions of sexual intercourse, oral copulation, bestiality, sadism, masochism or excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the genitals, where any of the above conduct 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 genital, pubic region, pubic hair, perineum, anus or anal region.

(d) For purposes of this section, no publication shall be considered displayed or exhibited if the newsrack in which it is placed is covered on all sides, except for a one inch wide vertical opening for the purpose of indicating the number of remaining publications, by opaque material preventing exposure to public view from the street.

(Ord. 789 § 4 (part), 1999)

No person shall knowingly display, exhibit or cause to be exhibited or displayed, in any newsrack any material which is harmful to minors, as defined in California Penal Code Section 313, unless the display of the materials complies with the provisions of Section 3.60.010 of this code.

(Ord. 789 § 4 (part), 1999)

(a) The director may:

(1) Notwithstanding any other provisions of this chapter, immediately remove and impound any newsrack in violation of this chapter if the violation is creating a dangerous or hazardous condition. Notice of such action and the right to request a hearing in accordance with this chapter shall be mailed to the person, if known, maintaining such newsrack, within five business days after such action;

(2) Notify the person; if known, maintaining a newsrack found in violation of this chapter, either in person, by telephone or by mail, in the director’s discretion, and/or by affixing a notice to the newsrack, that unless the violation is corrected or a hearing requested, within two business days if the notice is in person or by telephone, within five business days if the notice is by mail, or within seven business days if the notice is by affixing a notice to the newsrack, of the date of the notice, the newsrack will be impounded;

(3) Impound any newsrack in accordance with the decision of any hearing requested pursuant to this chapter.

(b) If a hearing on the impounding of the newsrack is not timely requested or if the newsrack is not returned in accordance with the provisions of this chapter, the director may sell or otherwise dispose of the newsrack, and its contents, and deposit the proceeds, if any, from any such sale or other disposition, and any moneys contained in said newsrack, in the city general fund.

(Ord. 789 § 4 (part), 1999)

(a) Unless the newsrack and its contents are being held as evidence in a criminal prosecution, the person maintaining the newsrack, or if there is no such known person, a claimant who provides sufficient proof of ownership of an impounded newsrack may, at any time up to and including the thirtieth day after the impounding, and if a hearing pursuant to this chapter is held concerning the newsrack, may, at any time up to and including the thirtieth day after the decision at such hearing becomes final, obtain a return of the newsrack and its contents, upon paying an impound fee of twenty-five dollars plus the city’s reasonable additional cost, if any, of impounding the newsrack in excess of twenty-five dollars.

(b) The director may, after a hearing in accordance with this chapter, order the newsrack returned without payment of any impound fee; or if an impound fee has previously been paid, may order return of any such impound fee.

(c) A court before whom criminal charges concerning an impounded newsrack are pending, may, upon dismissal of the charges or a finding of acquittal, in its discretion order an impounded newsrack returned without payment of an impound fee or the return of the impound fee paid.

(Ord. 789 § 4 (part), 1999)

(a) Request for Hearing. Any permittee or person maintaining a newsrack found in violation of this chapter may, at any time within thirty days of the alleged violation, request in writing a hearing before the city manager or his or her designee.

(b) Stay Pending Decision. A timely request for a hearing made prior to any impounding shall operate to stay any impounding until five business days after the decision is rendered, unless further stayed pending any appeal therefrom.

(c) Conduct of Hearing. A hearing shall be held, unless continued by agreement, within five business days of the request for a hearing. At the hearing, any person may present evidence or argument as to whether the newsrack was in violation of this chapter or whether the newsrack should be returned without payment of an impound fee.

(d) Decision. A decision shall be rendered within five business days after the close of the hearing.

(e) Notice of Decision. The city manager or his or her designee may give oral notice of the decision at the close of the hearing and shall send notice of the decision by mail.

(Ord. 789 § 4 (part), 1999)

(a) Appeal. Any person who requested a hearing, within five business days after notice of the decision is given pursuant to this chapter, may appeal such decision to the city council.

(b) Contents of Appeal. The appeal shall be in writing, shall state the legal and factual basis upon which the appeal is to be based, and shall be filed with the city clerk, who shall immediately forward the appeal, together with a copy of the decision, to the city council.

(c) Stay Pending Appeal. A timely appeal of the decision shall operate to stay any impounding pending action taken on the appeal by the city council pursuant to this section.

(d) Action by Council. Within thirty business days following receipt of the appeal and decision, and as soon as practical, the city council may take any one of the following actions:

(1) Grant a stay of the decision or any impounding pending further consideration by the city council;

(2) Approve the decision and order;

(3) Refer the matter back to the city manager with or without instructions;

(4) Set the matter for public hearing before itself. Such public hearing shall be held de novo as if no hearing previously had been held.

(e) Stay Pending Action by Council. Action taken by the city council pursuant to subsections (d)(3) or (d)(4) of this section shall operate to stay the decision or any impounding pending final resolution of the issues of whether the newsrack was in violation of this chapter or whether the newsrack should be returned without payment of an impound fee.

(f) Effective Date of Council Action. Action taken by the city council pursuant to subsection (d)(2) of this section shall be effective two business days after said action is taken.

(Ord. 789 § 4 (part), 1999)

A violation of this chapter is a misdemeanor which is punishable as set forth in Section 1.08.040 of this code. The provisions of this chapter shall not limit any other remedy authorized by law.

(Ord. 789 § 4 (part), 1999)