Chapter 12.24 — NEWSRACKS

A. The City Council finds that the uncontrolled placement and maintenance of easily movable, individual, freestanding newsracks upon public rights-of-way poses hazards to the traveling public, interferes with the property rights of adjacent owners and with other legitimate users of the right-of-way, causes visual blight and detracts from the aesthetics of adjacent uses and results in an unnecessary degree of exposure of the city to liability claims. B. The need for specific standards for placement of newsracks on public rights-of-way is the greatest in the downtown area due to the frequency of pedestrian and vehicular traffic and the number of newsracks located in this area. In addition, in the crossroads the city has adopted a beautification plan which includes, among other things, the placement of newsracks within enclosures approved by the city. C. The purpose of this chapter is to regulate the use of newsracks in the downtown area and elsewhere within the city and to regulate the sale or free distribution of newspaper and non-newspaper publications throughout the city. The regulation of the sale or free distribution of newspapers and non-newspaper publications dispensed in newsracks provides the least intrusive and burdensome means for ensuring that the purposes stated in this section are carried out while still providing ample opportunities for the distribution of newspapers to the citizens of the city. (Prior code § 8-501)

In this chapter unless the context otherwise requires: "Director" is the Director of the Public Works Department of the city of Orinda. "Downtown area" is the area of the city shown on the downtown insert of the General Plan map. "Newspaper" means any publication which qualifies for second class newspaper mailing status under federal law, pursuant to 39 U.S.C. Section 4352(c). As of the enactment of this chapter, a publication fails to qualify for second class mailing status if it has more than seventy-five (75) percent advertising in more than one-half of its issues during any twelve (12) month period. "Newsrack" means any self-service or coin operated box, container, storage unit or other dispenser used for the display and sale or other distribution of a newspaper or non-newspaper publication. "Newsrack encasement" means a city owned and maintained, permanently installed, modular receptacle inside which a privately owned newsrack is placed. The newsrack encasement shall be large enough to accommodate a newsrack which complies with the standards of this chapter, be permanently affixed to the ground or the side of a wall or other structure and be of a design which is architecturally compatible with the surrounding area. "Non-newspaper publication" means any publication which is not a newspaper as defined herein.

"Permanent newsrack" means any newsrack maintained in the public right-of-way for more than ninety (90) days. "Planter strip" means the area, whether planted or not, between the sidewalk and the curb of a street. Where the sidewalk is adjacent to the curb it means the area between the sidewalk and the property line. Where there is no sidewalk it means the area between the edge of the roadway and the property line adjacent to it, whether planted or not. "Public right-of-way" means land which by deed, conveyance, agreement, easement, dedication, usage or process of law, is reserved and dedicated to the general public for street, highway, alley, public utility or pedestrian walkway purposes, whether or not the land has been improved or accepted for maintenance by the city. Public right-of-way includes but is not limited to street, roadway, planter strip and sidewalk. "Temporary newsrack" means any newsrack maintained in the public right-of-way for a trial period of up to ninety (90) days. (Prior code § 8-502)

No person may place, install or maintain a newsrack either within a newsrack receptacle or upon or projecting into a public right-of-way without first obtaining an encroachment permit from the city Public Works Department. (Prior code § 8-503)

A. The application for an encroachment permit for a newsrack shall be made to the Director or his or her designee on a form provided by the city. The application shall include or be accompanied by the following: 1. The name, street address and telephone number of the applicant; 2. The name, street address and telephone number of a distributor or other responsible person whom the city may notify or contact at any time concerning the applicant's newsrack; 3. The number of newsracks and the exact proposed location of each (one permit may include all newsracks of the applicant); 4. Whether the newsrack is to be placed within the downtown area;

If the newsrack is of a multi-unit configuration, a description of its dimensions and the number of publication spaces it will contain; 6. The name, address and policy number of the applicant's public liability and property damage insurance, as required by Section 12.24.050. B. No fee or bond shall be required in connection with issuance of a permit. (Prior code § 8-504)

Before the city may grant an encroachment permit, an applicant shall furnish to the city a certificate showing that the applicant has then in force public liability and property damage insurance naming the city as an additional insured in an amount not less than one million dollars ($1,000,000.00) per person and per occurrence, combined single limit. The permittee shall keep the insurance in force during all times it continues to maintain a newsrack under the terms of the permit. The certificate of insurance filed with the city shall include a statement by the insurance carrier that thirty (30) days notice will be given to the city before cancellation. (Prior code § 8-505)

Every person operating or maintaining a newsrack upon or within the public right-of-way shall indemnify and hold harmless the city, its officers and employees from any loss, liability, damage or cost sustained by any person or property, to the extent any such loss, liability, damage or cost arises from the installation, operation or use of such newsrack; provided, however, that such obligation to indemnify and hold harmless the city, its officers, and employees shall not extend to any loss, liability, damage or cost resulting from the acts, failure to act, or property of another. (Prior code § 8-506)

The Director shall issue a permit as soon as possible after the receipt of a complete application but in no event more than thirty (30) days after he or she finds that the application and the applicant have met the requirements of this chapter. A permit issued under this chapter is non-transferable. It shall be considered to incorporate as a condition to the placement, installation, maintenance and use of a newsrack or newsracks, the requirement that the permittee comply with this chapter. (Prior code § 8-507)

The permittee shall permanently display the permittee's name, street address, telephone number and instructions on how to receive a refund in the event of coin return malfunction upon each newsrack. (Prior code § 8-508)

Except as otherwise provided in subsection E of this section all newsracks shall conform to the standards contained in this section. A. Dimensions. No newsrack unit may exceed fifty-two (52) inches in height including the stand, two feet in depth or thirty (30) inches in each compartment width. Every newsrack shall have an individual case with a display window, and shall be skirted in a manner preventing accidents involving persons with sight disabilities, which result from unskirted newsracks. B. Standard, Stand-Alone, Permanent Newsracks. Every news-rack located at a place where there are less than four other newsracks located within one hundred fifty (150) feet on the same side of the street shall be Model Sho-Rack TK 80 or similar rack of standard type and size in trade use. C. Modular Newsracks. Every newsrack other than a standard, stand-alone, permanent newsrack, or a temporary newsrack, shall be of a multi-unit configuration, except at a location where there are less than four permanent newsracks and no other newsrack is located within one hundred fifty (150) feet on the same side of the street. Each multi-unit newsrack shall have affixed to its top panel or coin box, an angled cap to prevent the placement of items thereon. Each multi-unit newsrack shall be arranged in such a manner as to utilize no more than two horizontal rows of four compartments per row, except that at the two locations specified in Section 12.24.100(D), a maximum of two horizontal rows of eight compartments per row shall be allowed. Installation shall be in accordance with Section 12.24.100. D. Temporary Newsracks. Any single unit newsrack of standard design commonly in trade use may be permitted in any single location for a period of ninety (90) days in order to determine the suitability of long term newsrack locations, provided that the placement of such newsrack conforms with the standards set forth in this chapter. Temporary newsracks shall not be required to be replaced by a modular newsrack, as required in subsection C of this section, unless six or more temporary newsracks are placed at the same location. At least fifteen (15) business days prior to locating a temporary newsrack, a completed encroachment permit application shall be submitted, including written notice of the particular location and date upon which the ninety (90) day trial period will begin. Within ten business days after expiration of the ninety (90) day trial period, the person maintaining the newsrack shall either cause it to be removed or submit a written request to the Director for an encroachment permit for a permanent newsrack location. An applicant shall be limited to a total of three temporary newsrack locations during each calendar year.

E. Newsrack Encasements. In order to maintain the appearance of the downtown area and to conform to established architectural guidelines the city may establish newsrack encasements in the downtown area. The city will consult with and consider the comments of newspaper vendors and distributors regarding the location and size of newsrack encasements located in the downtown area. Newsracks in the downtown area shall be placed in a newsrack encasement in accordance with the priority system established in Section 12.24.100. Newsracks in the downtown area shall conform to the requirements of this chapter pending the construction and availability of one or more newsrack encasements. F. Coin Return. Every newsrack shall have an automatic coin return if it dispenses newspapers for sale. (Prior code § 8-509)

A newsrack which rests in whole or in part upon, in or over a public right-of-way or sidewalk, shall comply with the following standards: A. Within the downtown area newsracks shall be placed within a newsrack encasement when an encasement has been constructed. Within ten days of the construction of a newsrack encasement the Director shall survey the existing, permitted newsracks within a radius of one hundred fifty (150) feet of the newsrack encasement and notify the permittee that it may apply for placement in the newsrack encasement in accordance with the priority system established in this section. Within fifteen (15) days of the mailing of the notice by the Director an application must be submitted to the Director. Within forty-five (45) days of the completion of the newsrack enclosure all newsracks within one hundred fifty (150) feet of the newsrack encasement shall be removed. Newsracks may be permitted in a downtown area outside of a newsrack encasement upon receipt of an application meeting the requirements of Section 12.24.040 and provided the Director makes the following findings: 1. There is a need for additional newspaper or non-newspaper publications within the downtown area; 2. There are no available spaces in an existing newsrack encasement; 3. No additional newsrack encasements are expected to be constructed within three months of the date of the application for a newsrack location; 4. The request is for a temporary newsrack in order to determine if there is a need for a permanent newsrack.

B. A newsrack may be placed only near a curb or adjacent to the wall of a building. A newsrack placed near a curb shall be placed not less than twelve (12) inches nor more than twenty-four (24) inches from the edge of the curb. A newsrack placed adjacent to a wall of a building shall be placed parallel to the wall and not more than six inches from the wall. In no event may a newsrack be located upon a landscaped area. C. A newsrack may be chained, bolted or attached to private property if the owner of the property has filed written consent with the city. A newsrack may not be chained, bolted or otherwise attached to a permanently fixed object within the public right-of-way. A newsrack may be bolted or otherwise attached to the public sidewalk only if specific approval is set forth in the permit. D. No more than ten newsracks are allowed on any one block, except that on the west side of Orinda Way approximately six hundred (600) feet south of the intersection with Camino Sobrante and on the west side of Moraga Way, approximately one hundred (100) feet south of the intersection with Brookwood Road no more than sixteen (16) newsracks are allowed. If sufficient space does not exist to accommodate all newsracks sought to be placed at one location without violating the standards set forth in this chapter, the Director shall give priority to permit applicants as follows: 1. First priority, on a first-come first-served basis, shall be given to newsracks used for the sale of publications which have been adjudicated to be newspapers of general circulation for Contra Costa County under Government Code Sections 6020 through 6027; 2. Second priority, on a first-come first-served basis, shall be given to newsracks used for the sale of newspapers (inclusive of their Saturday, Sunday or weekend editions [whether or not published jointly with another newspaper]) published at least five times per week; 3. Third priority, on a first-come, first-served basis, shall be given to newspapers published at least one time per week; 4. Fourth priority, on a first-come, first-served basis, shall be given to all other newspapers; and 5. Fifth priority, on a first-come, first-served basis, shall be given to non-newspaper publications. (Prior code § 8-510)

No person may display or exhibit in a public newsrack or other display device any material which is defined by Penal Code Section 313 as harmful to minors unless such material is displayed in an area from which minors are excluded or is covered by a device commonly known as a blinder rack, so that the lower two- thirds of the material is not exposed to view. (Prior code § 8-511)

No person may place, install or maintain a newsrack: A. Within a portion of a roadway or projecting into a portion of a roadway; B. Within three feet of any marked crosswalk; C. Within fifteen (15) feet of the curb return of an unmarked crosswalk; D. Within three feet of a fire hydrant, fire call box, police call box or other emergency facility; E. Within three feet of a driveway, building entrance, or sidewalk leading to the entrance of the building; F. Within three feet ahead of, and fifteen (15) feet to the rear of a sign or pavement markings designating a bus stop; G. Within three feet of a bench, seat or chair placed for public use within a public right-of-way; H. At any location where the clear space for the passageway of pedestrians is reduced to less than six feet; I. In such a place or manner as to create a traffic hazard. The Director may require a newsrack owner to move a newsrack if the Director determines that the placement of the newsrack does not meet the criteria of this section.

(Prior code § 8-512)

The Director may waive or modify the standards for newsrack placement contained in this chapter upon a showing of good cause and upon his or her determination that placing a newsrack at the location requiring the modification would not endanger the public health or safety or unreasonably interfere with use of the public right-of-way. (Prior code § 8-513)

A. Each newsrack shall be maintained in a neat, graffiti-free, clean condition and in good repair at all times and shall be painted on a regular basis. B. A newsrack that is damaged or defective shall be replaced or repaired as soon as is practical or upon notice from the Director. If the owner wishes to abandon the location, the owner shall promptly remove the newsrack. The owner shall repair all damage to sidewalks, newsrack enclosure or modular newsrack resulting from placement and removal of a newsrack. When use of a newsrack is abandoned, it shall be removed and the location restored to its previous condition, normal wear and tear excepted. A newsrack shall be considered abandoned when it meets criteria of Section 12.24.200(A). C. No newsrack abandoned or removed for violation of this chapter and impounded shall be restored to the owner thereof, or to another person entitled to possession, unless and until the city's reasonable cost of removal and storage of the newsrack, has been paid to the city; provided, however, that if after hearing before the Director, it is determined that the newsrack was improperly removed by the city, there shall be no charge for restoration of such newsrack to the person entitled to possession thereof. D. No newsrack shall be used for advertising signs or publicity purposes other than the one concerned with display, sale or distribution of the newspaper or non-newspaper publication distributed from it. (Prior code § 8-514)

A. The owner of a newsrack which does not conform to this chapter but which lawfully existed and was maintained before November 7, 1991 shall remove it or conform it to this chapter within thirty (30) days of that date (December 7, 1991).

B. A newsrack not brought into compliance as provided in subsection A of this section is in violation of this section. (Prior code § 8-515)

The city may remove and retain a newsrack installed, maintained or abandoned in violation of this chapter in accordance with Sections 12.24.170 and 12.24.180. Where practical, the violation may be remedied by moving the newsrack to another point on the sidewalk or public right-of-way. (Prior code § 8-516)

A. Before the city may remove a newsrack, it shall give the permittee notice to remedy the violation or request a hearing before the Director. Written notice shall be sent to the address stated on the newsrack permit or on the newsrack. The city may attach an additional copy of the notice to the newsrack. Notice attached to the newsrack is sufficient when no identification is shown on the newsrack and no permit has been issued. The notice shall give the permittee ten days from the date of mailing or the date of attachment to remedy the violation or request a hearing before the Director. B. Notwithstanding subsection A of this section, prior notice of removal is not required where the newsrack poses an immediate danger to pedestrians or vehicles. However, the city shall mail notice of the removal and an opportunity to request a hearing to contest the removal to the permittee within five days after the removal. (Prior code § 8-517)

A person notified under Section 12.24.170 may request a hearing before the Director by making a written request within ten days after notice was mailed. The hearing shall be informal, but oral and written evidence may be given by both sides. Action by the city with respect to the alleged violation shall be stayed pending the Director's decision following the hearing. The Director shall give written notice of the decision within five business days of the conclusion of the hearing. (Prior code § 8-518)

A permittee or applicant for an encroachment permit aggrieved by a decision of the Director may appeal that decision to the City Council by filing written notice within seven days of such decision. On appeal, the

Council may reverse, affirm, or modify the Director's decision. The written decision of the Council shall be rendered within ten working days of the conclusion of the appeal hearing and its decision shall be final. (Prior code § 8-519)

A. A newsrack remaining empty for thirty (30) consecutive days or not claimed within thirty (30) days of seizure is considered abandoned. A newsrack remaining empty due to labor strike or a temporary interruption of distribution or publication by the newspaper sold from the newsrack is not considered abandoned. B. An abandoned newsrack may be removed and disposed of if the responsible party does not, within thirty (30) days, claim the newsrack and pay a fee established by the City Council for the cost of removal. C. The city shall hold money it finds in a newsrack destroyed or otherwise disposed of under this section for a period of one year and then dispose of it under the law governing found or abandoned property. (Prior code § 8-520)

The cost to the city for removal of a newsrack is a debt to the city and is the obligation of the permittee and the owner of the newsrack. The amount due accrues interest at the rate of ten percent annually from the date the city incurs the cost. (Prior code § 8-521)