Murrieta Municipal Code Ch. 9.10 Newspaper Rack Regulations

For the purpose of this chapter, the following words, terms and phrases shall have the meaning attributed:

“Blinder Rack” shall mean an opaque device, which serves to completely obscure harmful matter, placed in such a fashion so that the lower 2/3 of the harmful matter is not exposed to public view.

“Distributor” shall mean any person responsible for placing and maintaining a newsrack in a public right-of-way.

“Explicit Sexual Act” shall mean depictions of sexual intercourse, oral copulation, anal intercourse, or oral-anal copulation, bestiality, sadism, masochism, or lewd exhibition of genitals, whether any of the above conduct is depicted or described as being performed above or between members of the same or opposite sex or between humans and animals, or other act of sexual arousal involving any physical contact with a person's genital, pubic region, pubic hair, peritoneum, anus or anal region.

“Harmful Matter” shall mean matter, taken as whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and when, taken as whole, depicts or describes in a patently offensive way sexual conduct and when, taken as whole, lacks serious literary, artistic, political, or scientific value for circulation, distribution or dissemination of any newspapers.

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

“Public right-of-way” shall mean any place of any nature, which is dedicated to use by the public for pedestrian travel, and includes, but is not limited to, a sidewalk, curb, parkway, lane, mall, court, park, square, and any other similar public way.

“Roadway” shall mean that part of the public right-of way that is designated and used primarily for vehicular traffic.

(Ord. 307 § 2 (part), 2004)

A. The purpose of this chapter is to establish a comprehensive set of regulations applicable to newsracks on public rights-of-way. 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 Constitution of the United States and the State of California.

B. More specifically, the purpose of this chapter is to promote the public health, safety and general welfare by regulating the placement, appearance, servicing and insuring 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, ports, traffic signs or signs, hydrants, mailboxes and purpose of the city's design regulations; neglectful servicing of newsracks resulting in the aesthetics or store window displays, adjacent landscaping and other improvements; reductions in value or surrounding property; and unnecessary exposure of the city to personal injury or property damage claims or suits.

C. The city council finds and determines that the strong and competing interests of the public and of newspapers 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 newspapers.

(Ord. 307 § 2 (part), 2004)

It should be unlawful for any person to erect, place, maintain or operate a newsrack which rests in whole or in part upon, in, or on any portion of a public right-of-way or which projects onto, into, or over any part of a public right-of-way in the city without first having obtained a permit from the city license official specifying the exact location of such newsrack. One (1) permit may be issued to include any number of newsracks.

(Ord. 307 § 2 (part), 2004)

Application for such permit shall be made in writing to the city license official and to the city engineer (Permit for Encroachment) upon such form as shall be provided by him or her, and shall contain the name, address and telephone number of all the responsible parties and of the applicant, the proposed specific location of each newsrack and shall be signed by the applicant.

(Ord. 307 § 2 (part), 2004)

A. As an express condition of the acceptance of such permit, the permittee thereby agrees to defend, indemnify and save harmless the city, its officers, directors and employees against any loss or liability or damage, including expenses and costs for bodily or personal injury, and for property damage sustained by any person as the result of the installation, use, or maintenance of a newsrack within the city.

B. Permits shall be issued for the installation of a newsrack or newsracks without prior inspection of the location, but such newsrack or newsracks and the installation, use or maintenance thereof shall be conditioned upon observance of the provisions of this chapter. Permits shall be issued within twenty four (24) hours (excluding Saturdays, Sundays and legal holidays) after the application has been filed. A permit fee of ten dollars ($10.00) per newsrack, up to a maximum of one hundred dollars ($100.00) per permit is required.

C. Such permits shall be valid for two (2) years and shall be renewable pursuant to the procedure for original applications referred to in Section 9.10.040 and upon payment of the ten dollars ($10.00) per newsrack renewal fee, up to a maximum of one hundred dollars ($100.00) per permit. Such fees shall be deposited into the Code Enforcement Fund.

D. Stickers showing the permit number shall be issued with the permit and must be displayed on the front of each newsrack at all times.

(Ord. 307 § 2 (part), 2004)

Any newsrack, which in whole or in part rests upon, in or over any public right-of-way, shall comply with the following standards:

A. No newsrack shall exceed four (4) feet in height, thirty (30) inches in width, and two (2) feet in depth.

B. Each newsrack shall be equipped with a coin return mechanism to permit a person using the machine to secure an immediate refund in the event he or she is unable to receive the publication paid for. The coin-return mechanisms shall be maintained in good working order.

C. Each newsrack shall have affixed to it, in a readily visible place, so as to be seen by anyone using the newsrack, a notice setting forth the name and address of the distributor and owner, and the telephone number of a working telephone service to report a malfunction, or to secure a refund in the event of a malfunction of the coin-return mechanism, or to give the notices provided for in this chapter.

(Ord. 307 § 2 (part), 2004)

Any newsrack which rests in whole or in part or on any portion of a public right-of-way, or which projects onto, into, or over any part of a public right-of- way, shall be located in accordance with the provisions of this section.

A. No newsrack shall be used or maintained which projects onto, into, or over any part of a roadway, or which rests, wholly or in part, upon, along, or over any portion of a roadway.

B. No newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks.

C. Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than eight (8) feet along a curb, and a space of not less than three (3) feet shall separate each group of newsracks.

D. No newsrack shall be placed, installed, used or maintained:

1. Within three (3) feet of any marked crosswalk;

2. Within twelve (12) feet of the curb return of any unmarked crosswalk;

3. Within five (5) feet of any fire hydrant, fire call box, police call box or other emergency facility;

4. Within five (5) feet of any driveway;

5. Within three (3) feet of the outer end of any bus bench;

6. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six (6) feet;

7. On any handicap access ramp;

8. Within five hundred (500) feet of a school site.

(Ord. 307 § 2 (part), 2004)

Publications offered for sale from newsracks placed or maintained on a public right-of-way shall not be displayed or exhibited in a manner which exposes to public view from the public right-of-way or roadway any of the following:

A. Any statements or words describing explicit sexual acts, sexual organs, or excrement where such statements or words have their purpose or effect of sexual arousal, gratification or affront;

B. Any picture or illustration of genitals, pubic hair, peritoneum, anuses or anal regions of any person where such picture or illustration has as its purpose or effect sexual arousal, gratification or affront; and

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

(Ord. 307 § 2 (part), 2004)

No person shall knowingly display or cause to be displayed, on a public right-of-way or in any other place open to the public where minors are not excluded, any harmful matter as defined in Cal. Penal Code § 313 unless such matter is displayed in newsracks equipped with devices commonly known as “blinder racks” affixed in such a manner that the lower two-thirds of the matter is not exposed to view.

(Ord. 307 § 2 (part), 2004)

A. Upon determination by the City Manager, Chief of Police, Code Enforcement Officer or their designee, that a newsrack has been installed, used or maintained in violation of the provisions of this chapter, an order to correct the offending condition will be issued to the distributor of the newsrack. Such order may be faxed and/or telephoned to the distributor and a copy of the order shall be mailed to the distributor, by certified mail, return receipt requested. The order shall specifically describe the offending condition, suggest actions necessary to correct the condition, and inform the newsrack distributor of the right to appeal. Failure to properly correct the offending condition within ten (10) days after the mailing date of the order, shall result in the offending newsrack being removed and deemed unclaimed property in possession of the Police Department. If the offending newsrack is not properly identified as to distributor under the provision of Section 9.10.060 hereof; it may be removed without prior notice and deemed property in possession of the Police Department. An impound fee, which shall be measured by the city's cost and expense of impounding, shall be assessed against each newsrack removed. The City Code Enforcement Official shall cause inspection to be made of the corrected condition or of a newsrack reinstalled after removal under this section. The distributor of the newsrack shall be charged a ten dollar ($10.00) inspection fee for each newsrack so inspected. This charge shall be in addition to all other fees and charges required under this chapter and placed in the Code Enforcement Fund.

B. Notwithstanding the provisions of subsection A. above, prior notice of seizure is not required where the newsrack poses an immediate danger to pedestrians or vehicles; provided, written notice of the seizure is mailed to the distributor of the newsrack by certified mail, return receipt requested, within five (5) days after the seizure. The notice shall specifically describe the offending condition, and inform the newsrack distributor of the right to appeal. The written notice shall be prepared by the Code Enforcement Officer identifying newsrack for removal.

C. Notwithstanding the provisions of subsections A. and B., the Code Enforcement Official may utilize the Administrative Citation Process - as provided in Chapter 1.26 of the Municipal Code prior to seizure of any newsrack to provide for an alternative form of enforcement; and, in addition to other provisions of this chapter.

(Ord. 307 § 2 (part), 2004)

Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this chapter may appeal and shall be apprised of his, her or its right to appeal the City Manager or Chief of Police. An appeal must be perfected within ten (10) days after mailing of notice of any protested decision or action by filing with the Office of the City Clerk a letter of appeal briefly stating therein the basis for such appeal. A hearing shall be held on a date no more than twenty (20) days after receipt of the letter of appeal. Appellant shall be given at least five (5) days notice of the time and place of the hearing. The City Clerk 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 City Code Enforcement Officer should not be upheld. Within five (5) days of the hearing, the City Manager or Chief of Police shall make a final decision. This decision may be appealed to the City Council by filing a written notice of appeal with the City Clerk with in ten (10) calendar days of the date of the decision of the City Manager or Chief of Police. The city's Standardized Fee Ordinance shall set fees for such a hearing.

(Ord. 307 § 2 (part), 2004)

In the event a newsrack remains empty for a period of thirty (30) continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided for in Section 9.10.100 hereof for newsracks in violation of the provision of this chapter.

(Ord. 307 § 2 (part), 2004)

No newsrack installed prior to the effective date of this chapter shall fail to comply with the provisions of this chapter as of ninety (90) days after the effective date of this chapter except any such newsrack shall not, as of the effective date of this chapter, exceed four (4) feet in height, thirty (30) inches in width, and two (2) feet in depth.

(Ord. 307 § 2 (part), 2004)

Any newsrack, or any publication offered for sale or distribution, in violation of this chapter shall constitute a public nuisance, and may be abated in accordance with applicable provisions under Chapter 8.20.030 of this Code.

(Ord. 307 § 2 (part), 2004)

In case of minor violations of this chapter that can be corrected immediately, any city employee, as an alternative to removal of the newsrack, is authorized to correct the violation summarily.

(Ord. 307 § 2 (part), 2004)