Pinole Municipal Code Ch. 12.32 Newsracks

The purpose of these regulations is to acknowledge and achieve the following:

A. There is a substantial government interest in promoting the public health, safety, welfare and convenience by ensuring that persons may reasonably use the public streets, sidewalks, rights-of-way, and other public property without interference with such use.

B. Newsracks placed and maintained on the streets, sidewalks, or other public rights-of-way, absent some reasonable regulation, may unreasonably interfere with the use of such streets, sidewalks, and public rights-of-way, and may present some hazards to persons or property.

C. The streets, sidewalks and public rights-of-way are historically associated with the sale and distribution of newspapers and other publications, and that access to and use of these areas for such purposes is not to be denied except where such use unreasonably interferes with the use of these areas by pedestrians or traffic, or where such use presents a hazard to persons or property.

D. Reasonable accommodation of these competing interests can be achieved by adoption of this chapter, which regulates the placement and maintenance of newsracks.

E. The public health, safety, welfare and convenience require that interference with vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight distance and views of traffic and identifying signs and street-crossing pedestrians be eliminated; damage done to sidewalks or streets be minimized and repaired; the good appearance of the public streets or grounds be maintained; trees and other landscaping be allowed to grow without disturbance; access to emergency and other public facilities be maintained; and ingress and egress from properties adjoining the public rights-of-way be protected and reasonable commercial uses on private property not be impeded or interfered with.

F. The regulation of the sale or free distribution of newspapers and other publications dispensed in vending machines as set forth in this chapter provides the least intrusive and burdensome means for ensuring the purposes stated in this section are carried out while still providing ample opportunities for the distribution of news to the citizens of the city. (Ord. 98-100 § 1(part), 1998).

As used in this chapter:

A. ABANDONED NEWSRACK. Any newsrack which remains empty for thirty business days, except that a newsrack remaining empty due to labor strike or any temporary and extraordinary interruption of distribution or publication by the newspaper or other publication sold or distributed from that newsrack shall not be deemed abandoned.

B. MULTI-UNIT NEWSRACKS. Single newsracks containing separate provisions for two or more different publications, where each kind has separate coin slots or merchandise receptacles or places where the publication is dispensed.

C. NEWSRACK Any self service or coin-operated box, container, storage unit, or other dispenser installed, used or maintained for the display and sale or distribution, without charge, of newspapers or news periodicals.

D. PUBLIC RIGHT-OF-WAY. Those areas dedicated to public use for public street purposes including, but not embodied to, roadways, median strip, alleys and sidewalks.

E. ROADWAY. That portion of a public right-of-way improved, designed and ordinarily used for vehicular traffic including drainage gutters and curbs a minimum of six inches in horizontal width.

F. SIDEWALK. That portion of a public right-of-way provided for the exclusive use of pedestrians, including planting areas or park strips, between the public roadway and adjacent property lines. (Ord. 98-100 § 1(part), 1998).

A. Within one business day of installation of any newsrack on public property or within the public right-of-way, the person responsible for such installation, use, and/or maintenance shall apply for and secure a temporary encroachment permit. Permits shall be issued by the public works department.

B. The temporary encroachment permit application shall state the name, address, telephone number and facsimile number of those responsible for the installation, use and maintenance of the newsrack(s), subject to the permit, and shall describe, with particularity, the location(s) proposed for installation. A temporary encroachment permit shall be issued within ten working days if the type of newsrack and location(s) proposed meet the standards set forth in this chapter.

C. If a temporary encroachment permit application is disapproved, in whole or in part, the public works director shall notify the applicant promptly, explaining the reasons for the denial of the encroachment permit. The applicant shall have ten calendar days within which to appeal the decision to the City Council .

D. The public works director or his/her designee shall not consider content or viewpoint of the material to be distributed through newsracks in administering or enforcing this section, except as may otherwise be authorized in this chapter pursuant to state or federal law. (Ord. 98-100 § 1(part), 1998).

A. Multi-Unit Configurations. Except as provided in subsection B1 of this section, newsracks shall be in multi-unit configurations of a standard type in trade use and of a color approved by the design review board. Multi-unit configurations shall be permanently affixed to the ground in a manner conforming to the standards as established by the public works director.

1. Sidewalk fastening systems shall only be allowed in areas designated by the public works director or his/her designee and shall be installed as follows:

a. The permittee shall only use a drop-in three-quarter inch stainless steel anchor bolt.

b. The required depth of penetration for the anchor bolt is at least four inches.

c. The permittee shall repair any damage to private or public property caused by permittee's operation.

d. If the newsrack or modular newsrack housing pedestal unit is removed permanently, the permittee shall remove the anchors by removing and filling the holes left by the anchor bolts or replacing the square of concrete as deemed necessary by the public works director or his/her designee.

e. Alternate fastening systems may be approved by the public works director, if in the opinion of him/her or his/her designee, equivalent protection is provided to public and private facilities.

B. Temporary Single-Unit Configuration.

1. Single-unit newsrack configurations shall not be permitted with the following exceptions:

a. On a trial basis to determine the suitability of permanent newsrack placement at a particular location;

b. When space is unavailable in existing multi-unit configurations.

2. A single-unit configuration must be of a standard design which is standard in trade use.

3. A temporary single-unit configuration shall not be approved for a period of more than ninety days.

4. Within one business day of placing a temporary newsrack, a completed temporary encroachment permit shall be submitted, including written notice of the location.

C. Permissible Size and Arrangement.

1. The height of any newsrack shall be no greater than five feet, measured from the ground to the top surface of the newsrack, except in locations where a lower height distance is required due to sight distance regulations.

2. The compartments of multi-unit newsracks shall be placed in such a manner as to utilize no more than two horizontal rows of six compartments per row.

3. If the demand for newsracks exceeds twelve at a single location, placement of additional newsracks which comply with all other provisions of this chapter may be approved by the public works director. (Ord. 98-100 § 1(part), 1998).

A. No newsrack shall be installed, used or maintained in any location where such installation, use or maintenance endangers the safety of persons or property or unreasonably

interferes with public utility, public transportation, or other wheelchair or vehicular traffic, access to or from any residence, place of business, or any legally parked or stopped vehicle, or the use or visibility of traffic signs or signals, hydrants, call boxes or mailboxes.

1. The following standards applying to the placement of newsracks shall be considered when determining whether a proposed location meets the preceding criteria:

a. Multi-unit newsracks shall be permanently affixed to the ground. Single-unit newsracks may be permanently affixed to the ground or may be skirted and weighted-in a manner preventing movement of the newsrack into the traveled right-of-way, but may not be chained to other property. Temporary newsracks shall be skirted and weighted down, or with the consent of the property owner, may be chained to other property with a noncorrosive coated chain in a manner preventing movement of the newsrack into the traveled right-of-way. In no event may any newsrack be chained or otherwise attached to a bus shelter, bench, street light, utility pole or sign pole, to any other single or multi-unit newsrack, or to any tree, shrub, or other plant, nor situated upon any landscaped area.

b. Newsracks shall only be placed near a curb or adjacent to the wall of a building, and shall be parallel to such curb or wall. The back of newsracks placed near a curb shall be no less than eighteen inches nor more than twenty-four inches from the edge of the curb. The backs of those placed adjacent to a building wall shall be no more than six inches from the wall.

c. A newsrack shall not be located opposite another newsrack.

d. A newsrack shall not be placed, installed, used or maintained:

i. Within three feet of any marked crosswalk;

ii. Within ten feet of the curb return of any unmarked crosswalk;

iii. Within five feet of any fire hydrant, fire call box, police box, or other emergency facility;

iv. Within three feet of any driveway, building entrance, or sidewalk leading to the entrance of a building;

v. Within three feet ahead of, and five feet to the rear of, any sign marking a designated bus stop;

vi. Within three feet of any bus bench; vii. At any location where the clear space for the passageway of pedestrians is reduced to less than five feet. (Ord. 98-100 § 1(part), 1998).

No person may display or exhibit in a newsrack or other display device any material which is defined by Penal Code Section 313 (a) as harmful to minors except as provided in:

A. Municipal Code Section 9.36.040, for an adults only area in a commercial establishment;

B. Municipal Code Section 9.36.050, for an opaque display revealing only the top two inches of material displayed. (Ord. 98-100 § 1(part), 1998).

A. Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. Newsracks shall be free of chipped, faded, peeling or cracked paint, dirt and grease, rust and corrosion, and shall have no broken structural parts or cracked plastic or glass parts.

B. Newsracks that have been damaged shall be replaced or repaired as soon as is practical.

C. Failure to cause the repair, replacement and/or maintenance of newsrack(s) may result in the abatement thereof and revocation of the temporary encroachment permit for the newsrack. (Ord. 98-100 § 1(part), 1998).

A. Use of a newsrack shall be deemed permanently discontinued when no new publication has been placed in such newsrack for a period of thirty days, except that a newsrack remaining empty due to a labor strike or temporary interruption of distribution or publication shall not be deemed permanently discontinued.

B. When use of a newsrack is permanently discontinued, it shall be removed and the location restored to its previous condition in accordance with standards established by the public works director. (Ord. 98-100 § 1(part), 1998).

No newsrack shall be used for advertising signs or publicity purposes other than one concerned with the display, sale or distribution of the newspaper distributed from it. The name of the newspaper should be affixed to the bottom of the display window. There shall be no graphics on the sides, back or top of any newsracks. (Ord. 98-100 § 1(part), 1998).

Every person maintaining a newsrack under the terms of this chapter shall have his or her name, address, telephone number and facsimile number affixed to it in a place where such information will be readily visible and shall include, with such identification, instructions on how to receive a refund in the event of a refund malfunction. (Ord. 98-100 § 1(part), 1998).

The public works director or his/her designee shall give location priority to publications as follows:

A. First priority shall be given to daily and local weekly publications (inclusive of their Saturday, Sunday and weekend additions whether or not published jointly with another newspaper) that are published at least one day per week. If necessary, within this category priority shall be given to publications based on the frequency or number of daily editions distributed in Pinole (for example, publications with four editions shall receive priority over those with three editions).

B. Second priority shall be given to publications published less than once per week but more titan once per month.

C. Third priority shall be given to monthly or less frequent publications. (Ord. 98-100 § 1(part), 1998).

A. A newsrack in violation of this chapter may be removed by a designated public works employee of the city, if it is impossible to remedy the violation and such violation poses a danger to health and safety, pedestrians and vehicular traffic.

B. Before any newsrack is removed, the owner shall be notified by posting and mailing, where feasible, to the address for such party stated on the newsrack permit and giving ten calendar days to remedy the violation and/or contest removal. If no identification is shown on the newsrack and no newsrack permit has been obtained, posting of the notice on the newsrack alone shall be sufficient. Both forms of notice shall state the place to request a hearing to contest removal of the newsrack.

C. Any person notified under Section 12.32.120B may submit a written request for a hearing before the public works director, which hearing shall not be held less than ten business days after the request was made. The hearing shall be informal, but oral and written evidence may be given by both sides. Any action by the city with respect to the alleged violation

shall be stayed pending the public works director's decision following the hearing, which decision shall be rendered no later than ten business days after the hearing. The public works director may give oral notice of the decision at the close of the hearing, but shall also give written notice of all decisions.

D. The city may remove a newsrack if the person responsible for such newsrack has:

1. Neither requested a hearing before the public works director nor remedied the violation within ten business days following date of notice; or

2. Failed to remedy the violation within ten business days after receiving a copy of the written decision. that the newsrack was installed or maintained in violation of this chapter, following a hearing as conducted pursuant to this section.

E. Notwithstanding the provisions of subsection A of this section, prior notice of removal is not required where the newsrack poses a danger to pedestrians or vehicles, provided notice of the removal and opportunity to contest is given the owner within ten calendar days of the removal.

F. Removed or impounded newsracks shall be retained and may be recovered by their owner within thirty business days of their removal. Newsracks removed or impounded by the city shall be retained at the city's corporation yard. Newsracks which are not claimed within thirty business days shall be deemed permanently abandoned and shall be disposed of.

G. The person responsible for such newsrack shall pay an impound fee covering the actual cost to the city of removal, transporting, storing and disposing of such newsrack, and restoration of site.

H. Abatement hereunder is a cumulative remedy and does not constitute a defense to misdemeanor citation proceedings which may be employed simultaneously pursuant to the general provisions of this code. (Ord. 98-100 § 1(part), 1998).

A. Appeal. Any person who requested a hearing may, within ten days after notice of the decision therein by the public works director or his/her designee, given pursuant to Section 12.32.120, appeal such decision to the City Council pursuant to the appeals procedure contained in Section 12.32.140.

B. Action by City Council . Upon consideration of the appeal, the City Council may affirm, modify or reverse the decision being appealed. (Ord. 98-100 § 1(part), 1998).

A. Filing Requirements. Appeals shall be addressed to the appellate body, on a prescribed form and shall state the basis of the appeal. Appeals shall be filed with the secretary of the appropriate appellate body within ten days following the date of the action from which an appeal is taken.

B. Notice Required. Notice of such appeal shall be given to the public works director or his/her designee whose interpretation is appealed, and the public works director or his/her designee shall submit to the appellate body a report stating the reasons for the action or interpretation, or shall be represented at the appeal hearing.

C. Time Limit. The appellate body shall render its decision within sixty days.

D. Failure of Appellate Body to Act. Failure of the appellate body to act within the specified time shall be deemed concurrence with the previous decision rendered.

E. Conditions and Findings. The appellate body may impose or prescribe conditions in its determinants as are, in its opinion, necessary to serve the objectives of this chapter, and may require such guarantee and evidence of compliance with such conditions. (Ord. 98-100 § 1(part), 1998).

Every newsrack within the city which exists upon the effective date of this chapter and which does not comply with the provisions of this chapter, shall be removed or otherwise brought into conformance within six months of the effective date of this chapter. (Ord. 98-100 § 1(part), 1998).

Every person operating or maintaining a newsrack upon or within the public right-of-way shall agree, prior to the granting of an encroachment permit, to indemnify, defend and hold harmless the city, and its officers, volunteers and employees, from any loss, liability, damage or cost to the extent sustained by any person or property, arising from the installation, maintenance, operation or use of such newsrack. (Ord. 98-100 § 1(part), 1998).

The public works director or his/her designee is authorized to convene a newsrack advisory workshop open for participation from interested parties, including but not limited to newspaper and news periodical representatives, their designated distributors and community members to assist the public works director or his/her designee in the implementation and administration of this chapter. (Ord. 98-100 § 1(part), 1998).