Article VIII — REGULATION OF NEWSRACKS AND NEWS STANDS

The city council of the City of Oceanside finds and declares as follows:

(1)

The city has a substantial interest in protecting the health, safety and welfare of minors and others.

(2)

The city has a substantial interest in assuring that its streets, sidewalks and other public ways and areas are kept open and available for their principle public use.

(3)

The city has a substantial interest in promoting aesthetic qualities within the community.

(4)

If left uncontrolled, placement of newsracks and other vending machines, structures and devices in public rights-of-way will result in inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons in wheelchairs, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services.

(5)

Unless the placement and maintenance of newsracks is regulated, the appearance of streets, sidewalks, and adjacent businesses may be diminished and the safe use of streets and sidewalks may be impeded. However, placement of newsrack on public streets and sidewalks can be regulated such that adverse impacts are minimized.

(6)

Newsracks located so as to cause an inconvenience or danger to persons using public rights-of-way and unsightly newsracks located therein constitute public nuisances.

(7)

The unregulated display and distribution of harmful matter (as defined by Section 313 of the California Penal Code) adversely affects the welfare of minors and others.

(8)

The intent of the city council in adopting this article is to establish reasonable, "time place and manner" regulations of the use and placement of newsracks for the purpose of securing and promoting the public safety and general welfare of persons in the city in their use of public rights-of-way. It is the further intent of the city council to protect the general welfare by establishing reasonable time, place and manner restrictions on the display of harmful matter in public places and places open to the public.

(9)

By adopting this article, the city council intends to regulate and authorize the placement of newsracks on the public streets and street rights-of-way only. Placement of newsracks on other property owned or possessed and controlled by the city, or held by the city in trust for the public, such as the City Hall property, city parks and beaches, the pier, city police or fire stations, or other property, is prohibited unless a specific permit or property use agreement has been approved by the city council.

(Ord. No. 96-07, § 1, 6-5-96)

The following words and phrases when used in this article shall for the purpose of this article have the meanings respectively ascribed to them in this article.

(1)

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

(2)

Parkway means the part of the public right-of-way between an established curb and sidewalk, or between an established curb and the private property line, or between the edge of the travelled roadway whether improved or unimproved and the edge of the public right-of-way as appropriate under the circumstances.

(3)

Public right-of-way means any place owned and maintained by or dedicated to use of the public for the purpose of pedestrian or vehicular travel, including but not limited to a street, sidewalk, curb, gutter, parkway, highway, alley, mall or court. Public right-of-way does not include improved or unimproved pedestrian, equestrian or bicycle trails; pathways, walkways, driveways, or similar areas within parks or other city owned property; or easements not previously used for the purpose of pedestrian or vehicular travel; newsracks are prohibited in such areas unless otherwise specifically permitted by the city council on a case-by-case basis.

(4)

Publication means any form of printed literature offered or available to the public including but not limited to hard and soft covered books, magazines, print advertising and calendars.

(5)

Roadway means that part of a public right-of-way that is designed or used primarily for vehicular travel.

(6)

For the purposes of section 7.80.5 of this article, the terms "harmful matter," "matter," "person," "distribute," "knowingly," "exhibit," and "minor" shall have the meanings specified in Section 313.1 of the California Penal Code.

(7)

For the purposes of section 7.80.5 of this article, the term "blinder rack" shall mean an opaque material placed in front of, or inside a newsrack or on a news stand which prevents exposure of matter to public view.

(Ord. No. 96-07, § 1, 6-5-96)

(a)

Newsracks are prohibited on property owned or possessed and controlled by the city or by the public unless a specific permit or property use agreement therefor has been approved by the city council, except that newsracks may be installed, placed and maintained on a public right-of-way subject to the issuance of a permit pursuant to this article. A newsrack permit issued in accordance with this article is required before the installation, placement or maintenance of any newsrack which in whole or in part rests upon, in or over any public right-of-way. No other encroachment permit or other permit under any other provision of this Code shall be required.

(b)

A permit for a newsrack shall not be issued except in full compliance with the provisions of this section and

(c)

The application, processing and issuance procedures and requirements for newsrack permits are as follows:

(1)

Application filing. A written application for a newsrack permit shall be filed with the city. A single application may be submitted jointly by one or more publishers or vendors for placement of newsracks at a particular location or locations. An application may request a permit for a newsrack at one or more locations so long as the information required for each location is submitted with the application.

(2)

Application contents. Each application shall contain the following information:

a.

Name, address, and telephone number of the applicant(s) and owner(s) of the newsrack(s).

b.

Name, address, and telephone number of a representative or other responsible person whom the city may notify or contact at any time concerning the applicant's newsrack.

c.

A diagram of the location proposed for the installation of each newsrack for which the applicant seeks a permit showing the proposed placement of the rack in relationship to the right-of-way boundaries, buildings, light poles, street signs, existing encroachments and other items along with a statement of dimensions and distances sufficient to allow the issuing authority to determine from a review of the diagram whether the proposed location complies with the provisions of this article. A scale drawing or precise engineering plan is not required.

d.

The number of other existing newsracks, if any, at the proposed location. The location of each existing newsrack shall be shown on the diagram required by paragraph c.

e.

Names of publications to be contained in each newsrack.

f.

A physical description of the newsrack and mount.

(3)

Application fee. Each application for initial issuance of a newsrack permit shall be accompanied by an application fee as established by resolution of the city council. The amount of the fee may be determined according to the number of locations for which permits are sought by the application. In addition, if the permit is approved the applicant shall pay a fee for the annual permit sticker. The fee for the annual permit sticker shall not exceed the actual cost of printing and providing the sticker.

(4)

Issuance and denial. An application for a newsrack permit may be approved, conditionally approved or denied in accordance with the provisions of this section and section 7.80.4, provided. If a permit is denied, the applicant shall be notified in writing of the specific reason for such denial and of the right to appeal the denial pursuant to section 7.80.9 of this article. A complete application for a newsrack permit properly submitted under this section, for a newsrack or newsracks to be placed in compliance with section 7.80.4, shall be approved or conditionally approved unless:

a.

The proposed newsrack projects onto, into or over any part of the roadway, or which rests, wholly or in part, upon, along or over any portion of the roadway;

b.

The proposed newsrack is to be installed in whole or in part, in or over any sidewalk or parkway, and

The newsrack or the use of the newsrack by patrons, at the proposed location, would endanger the safety of persons or property lawfully using the public right-of-way; or

The newsrack, at its proposed location, would interfere with existing public utility purposes, public transportation purposes or other public use; or

The newsrack, at its proposed location, would unreasonably interfere with or impede the flow of pedestrian, or vehicular traffic, the ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects present at or near said location; or

The newsrack, at its proposed location, would result in a violation of federal, state or local standards relating to access for disabled persons.

(5)

Term and annual permit sticker.

a.

A newsrack permit shall be valid for the calendar year in which it was first issued and may be renewed from year to year by obtaining an annual permit sticker from the city. Upon the initial issuance of a newsrack permit the applicant shall be given a permit sticker for each permitted newsrack. The permittee shall place the permit sticker on the front of the newsrack in such a manner that it is permanently affixed to the newsrack. On and after January 1, 1997 any newsrack requiring a permit that does not have a permit sticker affixed to it shall be presumed to be located or installed in violation of this article.

b.

The annual permit sticker shall be valid for the calendar year stated on the sticker. Before January 31 of the year following the year stated on a sticker, the permittee shall obtain a new annual permit sticker for each permitted newsrack. An annual permit sticker shall be issued upon verification by the permittee that the newsrack continues to be installed and located in compliance with the permit and payment of the annual permit sticker fee. Notwithstanding the provisions of this section to the contrary, an annual permit first issued in 1996 shall expire in January 1998.

(6)

Replacement or change-out of newsracks. Once a newsrack permit is issued for placement of a newsrack at a particular location, the newsrack may be replaced or changed-out as deemed necessary by the permittee because of wear and tear, or to upgrade the rack, without the need for a new permit. The permittee, by writing, shall notify the city of the replacement or change-out. Upon receipt of the written notification and verification of the replacement or changeout and destruction of the previously issued sticker, the permittee shall be provided with an annual permit sticker for the replacement rack.

(7)

City manager to designate the department or departments responsible for permit issuance and enforcement. The city manager shall determine and designate the department or departments responsible for permit issuance and enforcement.

(8)

Appeals from decisions to deny or conditionally approve a permit. Appeals from decisions to deny or conditionally approve a permit shall be brought pursuant to the provisions of section 7.80.8 within fifteen (15) days from the date of the decision.

(Ord. No. 96-07, § 1, 6-5-96)

Any newsrack which, in whole or in part, rests upon, in or over any sidewalk or parkway, shall substantially comply with the following:

(1)

Physical location, numeric limits and installation methods.

a.

Subject to the provisions of subparagraph f., below, newsracks may be located near a curb (or if there is no curb, the edge of the roadway) or to the rear of a sidewalk. Newsracks located near a curb shall be placed not closer than eighteen (18) inches nor more than twenty-four (24) inches from the front edge of the curb. Newsracks placed adjacent to the rear of the sidewalk shall be placed parallel to the rear edge of the sidewalk and at least six (6) inches from the rear edge. No newsrack shall be located directly in front of any display window of any commercial building abutting a sidewalk or parkway without written permission of the owner of the business.

b.

Newsrack mounts shall be bolted in place or otherwise secured to the ground in accordance with specifications provided by the city.

c.

Newsracks shall not be placed, chained, bolted or otherwise attached to any private property without the consent of the property owner.

d.

Newsracks may be attached to one another in a tray-mount cluster, provided that the tray-mount is properly secured to the sidewalk or ground.

e.

No more than eight (8) newsracks may be placed in any space of two hundred (200) feet on one side of a street between its intersections with any other streets. The number of newsracks permitted on any public right-of-way within a space of two hundred (200) feet on one side of a street may be increased to twelve (12) upon a determination by the city that the increase in the number of newsracks is necessary because of the high demand for publications at the specified location.

f.

Newsracks shall not be placed, installed, used or maintained:

Within three (3) feet of the curb return of any crosswalk.

Within ten (10) feet of any fire hydrant, fire call box, police call box or other emergency facility.

Within twenty (20) feet of any driveway, except driveways providing ingress only.

Within three (3) feet in front of or fifteen (15) feet to the rear of any sign marking a designated bus stop.

Within three (3) feet of any bus bench.

At any location whereby the clear space for the passageway of pedestrians is reduced to less than four (4) feet.

Within one hundred (100) feet of another newsrack containing the same newspaper or news periodical except where separated by a street or corner, or except where the permit applicant or permittee:

i.

Demonstrates that there is insufficient room in one machine for the newspapers which may be sold in one day, or;

ii.

Demonstrates that more than one edition of the newspaper is published for sale at the same time.

If more than one publication desires a permit for a particular location, the provisions of this paragraph shall apply without application of the exception.

Facing another newsrack and divided only by the width of a public sidewalk or pedestrian walk;

Within five (5) feet of a curb painted blue, pursuant to the provisions of California Vehicle Code section 21458;

So as to constitute a corner sight distance obstruction at any street intersection as determined by the City of Oceanside Engineering Department in accordance with the standards published in the City of Oceanside Engineering Design and Processing Manual. Newsracks thirty (30) inches or less in height are presumed not to constitute such an obstruction.

In whole or in part in any roadway;

Adjacent to any curb where stopping, standing or parking is prohibited;

In the median of any divided street or highway.

g.

Newsracks shall not be located on any street identified in the circulation element of the city general plan as a local or collector street within any area of the city zoned for single-family residential uses.

h.

In determining which newsracks shall be permitted to be located in a particular place, the following criteria shall apply:

Priority shall be determined according to the date the application for each permit at the location is filed on a first-come-first serve basis.

A permittee who fails to renew a permit or otherwise violates the provisions of this article shall be deemed to have forfeited any priority rights to a particular location.

(2)

Identification of responsible person. The name, address and telephone number of the permittee or of agent of the permittee who may be contacted at any time concerning the newsrack shall be displayed on the hood of a newsrack in such a manner as to be readily readable by a prospective customer.

(3)

Advertising. Advertising on newsracks shall be limited to the following:

a.

The name and price of the publication being dispensed in the same newsrack.

b.

Advertising racks cards contained in card pans which are attached to and located on the front of the newsrack and do not exceed seventeen (17) inches in height and twenty-two (22) inches in length. The rack cards shall be related to the display, sale, use or purchase of the newspaper or periodical being dispensed. Non-commercial messages may also be placed. The advertising card shall not increase the overall height of the newsrack. A newsrack shall not be used as an off-premises advertising structure.

(4)

Maintenance. Newsracks shall be kept clean and maintained in good working order, freshly painted, clean from graffiti and with unbroken hoods or parts.

(5)

Physical description of newsracks. Newsracks shall not exceed a height of forty-eight (48) inches (not including the coin box), a width of twenty-seven (27) inches or a depth of twenty (20) inches. 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 the person is unable to receive the publication paid for. The coin-return mechanism shall be maintained in good working order at all times. Within the redevelopment project area or other areas of the city for which special design standards for streetscapes and street furniture are established, the city may establish special design standards for the physical appearance of newsracks. If such special design standards are established, all newly placed newsracks shall comply with the special design standards upon placement and all other newsracks shall conform to the special design standards within one year from the establishment of the requirements.

(6)

Hold harmless and indemnification requirement. Each permit issued pursuant to this article shall be subject to a requirement that the permittee shall defend, indemnify and hold harmless the city and its officers and employees from and against any claim, damage, or liability arising or resulting from the permit or from the placement or location of the newsrack. By acceptance of the permit the permittee agrees,

The city, its agents, officers and employees, shall not be nor be held liable for any claims, liabilities, penalties, or fines, or for any damage to any goods, properties or effects of any person, or for injuries to or death of any person, whether caused by or resulting from any acts or omission of owner or permittee, or his or her agents, employees or representatives, or by a dangerous or defective condition of the property of owner or permittee, or by a dangerous condition of public property in any way caused or contributed to by a newsrack(s) placed or maintained pursuant to the permit; owner or permittee further agrees to indemnify and save free and harmless and defend in any action, suit or proceeding the city, its agents, officers, and employees against any of the foregoing liabilities and any of cost and expenses incurred by the city, its agents, officers or employees on account of any claims therefore.

(7)

Insurance requirement. No person, association, firm or corporation shall place, locate or maintain a newsrack on public rights-of-way unless there is on file with the city, in full force and effect at all times, a document issued by an insurance company authorized to do business in the State of California evidencing that the permittee or owner is insured under a liability insurance policy providing minimum coverage of five hundred thousand dollars ($500,000.00) for each person who suffers injury or death arising out of the location, placement or operation of the company's equipment. A separate certificate is not required for each newsrack so long as the certificate evidences coverage for all of the company's equipment or newsracks placed, located or maintained within the city by the person, association, firm or corporation involved.

(Ord. No. 96-07, § 1, 6-5-96; Ord. No. 98-13, §§ 1, 2, 4-8-98)

This section is adopted pursuant to Penal Code section 313.1(d). Nothing in this section shall be construed to authorize any sale, rental, distribution, sending, or exhibition of harmful matter, or other act with respect to harmful matter, made unlawful by Penal Code section 313.1. No person shall exhibit, display, or cause to be exhibited or displayed, harmful matter in any newsrack or any other display rack, case or shelf located on a public right-of-way, in a public place, or in a place open to the public from which minors are not excluded, unless blinder racks have been installed so that the lower two-thirds (⅔) of the matter is not exposed to public view.

(Ord. No. 96-07, § 1, 6-5-96)

The costs of installation, maintenance, replacement, removal and relocation of newsracks shall be at the sole expense of the permittee or owner of the newsrack. 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 a condition in conformity to the surrounding area as required by the city's engineering manual. Upon failure of the permittee or owner to make such repairs, the work may be done by the city and charged to the permittee or owner.

(Ord. No. 96-07, § 1, 6-5-96)

(a)

Commencing January 1, 1997 any newsrack for which a permit has not been obtained shall be deemed nonconforming. Any preexisting newsrack for which a permit application was submitted and is subsequently denied shall be deemed nonconforming as of the date of denial of the permit application.

(b)

In the event that a department or employee or employee of a department designated pursuant to section 7.80.3(7) determines that a newsrack does not comply with the provisions of this article, the department shall provide by first class mail written notice of such determination to the permittee and to the publisher of the publication vended in the newsrack. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the city to remove the nonconforming newsrack in the event a hearing is not requested, and the right of the permittee to request a hearing, before the head of the designated department, within fifteen (15) days from the date the notice is deposited in the mail. If the newsrack is one for which the permittee or publication vended from the newsrack is not known and is not apparent after inspection, a notice complying with this section shall be affixed to the newsrack instead of being sent by mail.

(c)

In the event that a hearing is held pursuant to this section, the hearing officer shall render a decision, in writing, within ten (10) days from the date of the hearing, and the decision shall advise the permittee of the permittee's right to appeal to the city manager, pursuant to the provisions of section 7.80.8. Notice of the decision shall be mailed to the permittee using the permittee's address of record by placing such notice in the U.S. Mail with first class postage prepaid.

(d)

The city may take possession of a newsrack and, upon the expiration of thirty (30) days after taking possession, dispose of the newsrack as required by law, if:

(1)

No hearing is requested by the permittee or owner within fifteen (15) days of notice of violation as provided in this section; or

(2)

The appeal period specified in section 7.80.8 has expired; or

(3)

The permittee fails to remove the newsrack within ten (10) days from the date of the decision of the hearing officer on appeal.

(e)

Any newsrack reinstalled after removal pursuant to this section shall be reinspected for compliance with the provisions of this article. The permittee of the newsrack shall be charged a fee for this reinspection as established by resolution of the city council.

(f)

In the event that any newsrack is abandoned, the city may remove it pursuant to the procedures set out in this section. For the purposes of this section, a newsrack is "abandoned" if no publication had been displayed in the newsrack for a period of thirty (30) consecutive days, no prior written notice has been given by the permittee to the business license inspector specifying the reason(s) for nonuse, and the condition of the rack and related circumstances indicate it will not be actively used within a reasonable period of time.

(Ord. No. 96-07, § 1, 6-5-96)

The city manager or a designee of the city manager shall have the power to hear and decide appeals from decisions when an appeal is authorized by section 7.80.3 or section 7.80.7. Any permittee or owner who is aggrieved by any decision of the department or departments responsible for the administration and enforcement of this article may appeal that decision by submitting a written notice of appeal to the city clerk within fifteen (15) days of the date on which notice of the decision was mailed. The city manager may preside over the hearing on appeal or may designate a hearing officer other than the person whose decision is the subject of the appeal to take evidence and submit a proposed decision together with findings, within fifteen (15) days from the date of the hearing. The city manager or designated hearing officer shall render a decision on the appeal, together with findings, within thirty (30) days from the date of the hearing. The decision of the city manager or designated hearing officer is final subject only to review by a court of competent jurisdiction.

(Ord. No. 96-07, § 1, 6-5-96)

The violation of any provision of this article is a misdemeanor punishable by a fine not exceeding one thousand dollars ($1,000.00), or imprisonment for a term not exceeding six (6) months, or by both such fine and imprisonment. In addition, the violation of any provision of this article shall be deemed a public nuisance subject to the additional remedies specified in section 1.7(e) of the Oceanside City Code. Each day, or part thereof, that a violation exists is a separate offense.

(Ord. No. 96-07, § 1, 6-5-96)

If any provision of this article as herein enacted or hereafter amended or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect the other provisions or applications of this article (or any section or portion of section hereof) which can be given effect without the invalid provision or application, and to this end the provisions of this article are, and are intended to be, severable. The provisions of this article are intended to augment and be in addition to other provisions of the

Oceanside City Code. Whenever the provisions of this article impose a greater restriction upon persons, premises, or practices that are imposed by other provisions of the Oceanside City Code, the provisions of this article shall control.

If any sentence, clause or phrase of this article is, for any reason, held to be unconstitutional or otherwise invalid, such decision shall not effect the validity of the remaining provisions of this article. The city council hereby declares that it would have passed the ordinance adopting this article, and each sentence, clause, and phrase thereof irrespective of the fact that any one or more sentences, clauses, or phrases be declared unconstitutional or otherwise invalid.

(Ord. No. 96-07, § 1, 6-5-96)