Pomona Municipal Code § 46-421 Definitions

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Commercial distributor means a distributor who owns or operates any newsracks primarily for pecuniary profit.

Distributor means the person or entity who owns or operates any newsracks located in the right-of-way in the city, or located so as to attempt to utilize or take advantage of the right-of-way, or who places, or maintains, or is responsible for, or directs the placing or maintenance of such a newsrack.

Newsrack means any type of self-service device installed, used, or maintained upon any public right-of-way for the display, sale, or free distribution of newspapers, periodicals, or publications.

Public right-of-way means any public street, highway, sidewalk, parkway, or alley.

(Code 1959, § 14.7-2; Ord. No. 2869, § 1 (part); Ord. No. 4055, § 1, 2-13-2006)

Cross reference— Definitions generally, § 1-2.

The purpose of this article is to promote the public health, safety and welfare through the regulation of placement, appearance, servicing and insuring of newsracks on public rights-of-way so as to:

(1) Provide for pedestrian and driving safety and convenience;

(2) Restrict the unreasonable interference with 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.

(3) Provide reasonable access for the use and maintenance of poles, posts, traffic signs or signals, hydrants, mailboxes and access to locations used for public transportation purposes;

(4) Eliminate newsracks which may result in a visual blight on the public rights-of-way or which may unreasonably detract from the aesthetics of store window displays, adjacent landscaping and other improvements;

(5) Maintain and protect the values of surrounding properties;

(6) Reduce unnecessary exposure of the city to personal injury or property damage claims; and

(7) Provide for and maintain the freedom of speech for newspapers or news periodicals using newsracks for distribution purposes.

(Code 1959, § 14.7-1; Ord. No. 2869, § 1 (part))

(a) No person shall place, affix, erect, construct, or maintain a newsrack upon any public right-of-way without first obtaining a permit in accordance with this article.

(b) One permit application shall be required for each distributor per location regardless of the number of newsracks proposed to be installed at the time of application, provided that all newsracks proposed for that location are included in the application. A permit application shall be filed with the director of public works upon printed forms to be prescribed and supplied by the director, along with the permit fee. Should a distributor desire to add additional newsracks at a later date, to a location for which a permit has already been issued, an additional permit application and permit fee shall be required prior to the installation of any additional newsrack(s).

(c) Permit applications shall be signed by the applicant and shall contain the following information:

(1) The name, address and telephone number of the applicant;

(2) 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);

(3) The number of newsracks and the exact proposed location of each newsrack shown on an eight and one-half-inch by 11 inch diagram and identifying all items in the public right-of-way, including but not limited to bus benches, street poles and posts, fire hydrants, fire call boxes, driveways, wheelchair ramps, crosswalks, curb returns, buildings, landscaping, other newsracks, and any other public or private improvements within a 20 feet radius of the proposed location;

(4) The date that said newsrack(s) is proposed to be installed; and

(5) A statement that the applicant agrees, upon expiration or revocation of the permit, or in the event that the newsrack must be removed due to either public or private improvements of the location where the newsrack is located, to immediately restore the public right-of-way to its condition existing prior to the installation of the newsrack(s).

(d) Each applicant shall also execute a document, approved as to form by the city attorney, agreeing to indemnify and hold the city, its officers, employees and agents free and harmless from any claims, demands, liability, damage or judgments in favor of any person, arising out of or in any way connected with the placement, installation, use or maintenance of any newsrack within the city. The sole exception to this duty to indemnify, defend and hold harmless is for those claims caused solely by the negligence or willful misconduct of the city or its agents.

(e) If an application or portion of an application for a permit required under this article is denied by the director of public works, written justification shall be sent to the applicant stating the reasons for the denial, including any applicable factors set forth in section 46-424.

(f) Following a notice denying issuance of a permit from the director of public works, the denial can be appealed within ten days of receipt of the written confirmation of such decision. The following appeal procedure shall apply:

(1) The applicant shall make every effort to resolve any issues with the director of public works.

(2) If the director of public works cannot resolve the conflict, the applicant may submit written justification and other evidence to the city manager.

(3) The city manager or his or her designee shall review the stated reasons for the denial by the director of public works and the written justification for appeal submitted by the applicant. Within 30 days of receipt of the written appeal, the city manager shall affirm, overrule or modify the denial of a permit. The decision of the city manager shall be final.

(g) Approval of a newsrack permit by the director of public works shall not in any event constitute an easement on or an encumbrance against the public right-of-way. No right, title or interest in the public property upon, in or over which the newsrack is located, or any part thereof, shall vest or accrue in the distributor or owner of the newsrack by reason of approval of a newsrack permit by the director of public works.

(h) Upon issuance of a newsrack permit, commercial distributors shall submit a business license application to the city treasurer and pay a business license tax as set forth in section 50-412(9)b. of this Code.

(Code 1959, § 14.7-3; Ord. No. 2869, § 1 (part); Ord. No. 4055, § 2, 2-13-2006)

Subject to the prohibitions set forth in section 46-426, newsracks shall be placed adjacent and parallel to the wall of a building and not less than six inches nor more than 18 inches from the wall, unless the city determines that placement near a building is not suitable, in which case the city may authorize placement near a curb. Newsracks placed near the curb must be placed parallel to and no less than 18 inches nor more than 24 inches from the edge of the curb.

(Code 1959, § 14.7-4; Ord. No. 2869, § 1 (part))

(a) Stands for newsracks shall be single-pedestal, K-Jack Style Mounts Model 100 or equivalent.

(b) Newsracks shall have wood-grain panels, and the mount shall be painted gloss black.

(c) Newsracks shall carry no advertising except the name of the newspaper or periodical being dispensed on the bottom one-third of the hood.

(d) No more than six newsracks shall be mounted on any one modular unit.

(e) Newsracks shall be maintained in good working order at all times, freshly painted and with unbroken hoods.

(f) The name, address and telephone number of a responsible person who may be contacted at any time concerning the newsrack shall be displayed on the hood of the newsrack in such a manner as to be readily visible and readable to a prospective customer thereof.

(g) Mounts shall be bolted in place in accordance with specifications provided by the department of public works. Such specifications shall be designed to securely hold the mounts in place.

(Code 1959, § 14.7-5; Ord. No. 2869, § 1 (part))

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

(1) Within five feet of any marked crosswalk.

(2) Within 15 feet of the curb return of any unmarked crosswalk.

(3) Within five feet of any fire hydrant, fire callbox, police callbox, or other emergency facility.

(4) Within five feet of any driveway.

(5) Within five feet ahead of and 15 feet to the rear of any sign marking a designated bus stop.

(6) Within five feet of any bus bench.

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

(8) On or within three feet of any area improved with lawn, ground cover, flowers, shrubs, or trees.

(9) Within three feet of any display window of any building abutting the sidewalk or parkway or in such a manner as to impede or interfere with the reasonable use of such window display purpose.

(10) Facing another newsrack divided only by the width of a sidewalk or pedestrian walk.

(Code 1959, § 14.7-6; Ord. No. 2869, § 1 (part); Ord. No. 2885, § 1 (part))

(a) Nonconforming newsrack. Any newsrack in violation of any section of this article will have a notice of violation attached by the city reciting the nature of the violation. Any newsrack installed, used, or maintained in violation of any of the sections of this article may be removed after a notice of violation has been securely affixed to the newsrack and after a hearing is held as provided in this subsection. The notice of violation shall provide that the newsrack is in violation of this article in stated particulars, that a hearing shall be held by the director of public works on that date and time and place set forth in the notice of violation, and that the newsrack shall be removed if it is found to be in violation. The director of public works shall determine at the hearing whether the newsrack is in violation of this article, and if he so determines his decision shall be final. The newsrack shall be removed or made to comply within five days after the decision of the director of public works is mailed to the owner of the newsrack, addressed to the name and address which has been affixed to the newsrack as provided in section 46-525(f). If the owner does not appear at the hearing or if his name and address are not affixed to the newsrack, the newsrack shall be removed without the necessity of notice of the determination being given as provided in this subsection. If any newsrack is situated on a public right-of-way in such a manner as to immediately jeopardize the health and safety of motorists or pedestrians, the newsrack can be immediately removed and stored, provided that notice of such action is given thereafter to the owner of the newsrack, if such is known, before disposition thereof.

(b) Abandonment. If any newsrack installed pursuant to this article does not contain the publication specified in the application therefor, within a period of 48 hours after release of the current issue, the director of public works may deem the newsrack abandoned and may thereafter remove the newsrack from the public right-of-way in accordance with the procedure set out in subsection (a) of this section. In addition a newsrack shall be deemed abandoned when no publication is in the newsrack for a period of more than seven consecutive days. If a permittee of a newsrack desires to voluntarily abandon a newsrack location, the permittee shall completely remove the newsrack and mount and restore the public right-of-way to a safe condition, leaving no holes or projections in the pavement.

(Code 1959, § 14.7-7; Ord. No. 2869, § 1 (part))

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 exhibited in a manner which exposes to public view from the street any of the following:

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

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

(3) Any picture or illustration depicting explicit sexual acts where such picture or illustration has as its purpose or effect sexual arousal, gratification, or affront. The term "explicit sexual acts" means depictions of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism, excretory functions in conjunction with sexual activity, masturbation, or lewd exhibition of the genitals, whether any of such 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 genitals, pubic region, pubic hair, perineum, anus or anal region.

(Code 1959, § 14.7-9; Ord. No. 3028, § 1)

Unless the newsrack and its contents are being held as evidence in a criminal prosecution, any newsrack removed and stored pursuant to this article shall be claimed by the owner thereof within 30 days after the date of the hearing set forth in the notice of violation attached to the nonconforming newsrack, as provided in subsection 46-427(a) of this article, upon providing satisfactory proof of ownership and payment of an impound and daily storage fee in an amount equal to the reasonable cost to the city of removing and storing the newsrack, as provided by resolution of the city council. Any newsrack that remains unclaimed after the expiration of 30 days shall be deemed to be unclaimed property in possession of the city and may be disposed of pursuant to the provisions of this Code.

(Ord. No. 4055, § 3, 2-13-2006)

The director of public works may identify locations within the city, typically identified as a block or blocks of a particular street, requiring additional restrictions for newsracks beyond the requirements set forth in the preceding sections of this article, including but not limited to the placing of restrictions on the number of newsracks at any one location, based on but not limited to the purpose of this article to promote the public health, safety and welfare, as provided in section 46-422 of this article, and in order to preserve the unique aesthetic and historical attributes of the particular area.

(Ord. No. 4055, § 4, 2-13-2006)

The provisions of this article shall apply to all newsracks, whether installed and maintained prior to or after the effective date of any of its provisions. Newsracks installed prior to the effective date of any provision enacted hereunder shall be brought into compliance with this article within 90 days of the effective date thereof.

(Ord. No. 4055, § 5, 2-13-2006)