San Clemente Municipal Code Ch. 5.36 Publication Vending Machines

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

"Custodian" means a person who has the responsibility of placing, servicing or maintaining a publication vending machine by depositing and/or removing material from said machine and/or by collecting monies from said machine.

"Parkway" means that area between the sidewalks and the curb of any street and where there is no sidewalk, that area between the edge of the roadway and the property line adjacent thereto. Parkway also shall include any area within a roadway which is not a sidewalk and is not open to vehicular traffic.

"Publication vending machine" means any self-service or coin-operated box, container storage unit or other dispenser installed, used or maintained for the display or sale of any written or printed material, including but not limited to newspapers, news periodicals, magazines, books, pictures, photographs and records.

"Sidewalk" means any surface provided for the exclusive use of pedestrians.

"Street" means all that area dedicated to public use for public street purposes and shall include but not be limited to roadways, parkways, alleys and sidewalks.

(Prior code § 13-1)

No person or custodian, whether as a principal or agent, clerk or employee, either for themself or any other person, or as an officer of any corporation, or otherwise, shall place or permit the placement of any publication in a vending machine within the City, or place any publication vending machine on any street within the City unless either the publisher or distributor of the material placed within the publication vending machine has a valid business license within the City and the person placing the publication vending machine upon the street has a valid business license within the City.

(Prior code § 13-2)

All persons installing and maintaining publication vending machines shall obtain a business license in accordance with the provisions of Chapters 5.04 and 5.08 of this title and the business license shall be maintained in full force and effect at all times that vending machines are maintained on public rights-of-way. Before the issuance of a business license, the director of public works shall insure that there is on file the following:

A. A written statement satisfactory to the City Attorney whereby the person who will place or maintain such machine on a public street agrees to indemnify and hold harmless the City, its officers, agents or employees from any loss or liability or damages including expenses and costs for bodily or personal injury and for property damage sustained by any person as a result of the installation, use or maintenance of such a machine within the City.

B. A certificate of insurance establishing that there is in force and effect an insurance policy which will remain in force during the time that such machine is allowed to remain on public property, which such policy shall be of public liability insurance against liability for death, or for injuries to persons, or damage to property arising out of accidents attributable to the newspaper or magazine racks or stands, or publication vending machines on City property in the amounts determined by the City with limits of at least one hundred thousand dollars ($100,000.00) for injury or death to any person, and three hundred thousand dollars ($300,000.00) for injury or death arising from any one (1) accident or occurrence and twenty-five thousand dollars ($25,000.00) for property damage. The policy of insurance so provided shall contain a contractual liability endorsement covering the liability assumed by the permittee by the terms of his or her permit and shall contain a provision that such policy may not be cancelled except after thirty (30) days' notice in writing given to the Director of Public Works. Copies of these policies or certificates evidencing the same shall be filed with the City.

(Prior code § 13-3)

No person shall install, use or maintain any publication vending machine which projects onto, into or over any part of the roadway of any public street or which rests, wholly or in part, upon, along or over any portion of the roadway of any public street.

(Prior code § 13-4)

No person shall install, use or maintain any publication vending machine which in whole or in part rests upon, in or over any public sidewalk or parkway, when such installation, use or maintenance endangers the safety of persons on property, or when such area or location is used for public utility purposes, public transportation purposes or governmental use, or when such publication vending machines unreasonably interfere with or impede the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes or other objects permitted at or near said location.

(Prior code § 13-5)

Any publication vending machine which rests in whole or in part upon, in or over any public sidewalk or parkway shall comply with the following standards:

A. No publication vending machine shall exceed five (5) feet in height, thirty (30) inches in width, or two (2) feet in thickness.

B. Publication vending machines shall only be placed near a curb, the rear of a sidewalk, or adjacent to a wall or a building. Such machines placed near the curb shall be parallel thereto and shall be no less than twenty-four (24) inches from the face of the curb. Machines placed adjacent to the wall of a building or the rear of a sidewalk shall be placed parallel to such wall or sidewalk and shall be not more than six (6) inches from the wall or sidewalk edge. No such machine shall be placed or maintained on the sidewalk or parkway opposite another publication vending machine or group of such machines nor in such a manner that prevents pedestrians from passing freely and without obstruction along any sidewalk or through any marked or unmarked crosswalk.

C. No publication vending machine shall be chained, bolted or otherwise attached to property not owned by the owner of said machine or to any permanently fixed object, unless the custodian of such machine shall have first obtained the written permission of the owner of the object to which the machine is affixed.

D. Publication vending machines may be placed next to each other, provided that no group of said machines shall extend more than eight (8) lineal feet along a curb or wall and a space of no less than three (3) feet shall separate each such group of machines.

E. Such machines may be chained or otherwise attached to one another provided no more than three (3) such machines may be joined together in this manner and a space of no less than three (3) feet of clear space shall separate each group of three (3) or less such machines so attached.

F. No such machine or group of such machines permitted under subsection E of this section, shall weigh in the aggregate, in excess of one hundred twenty-five (125) pounds when empty.

G. Notwithstanding any other provision of this chapter, no publication vending machine shall be placed, installed, used or maintained:

1. Within five (5) feet of any marked crosswalk;

2. Within fifteen (15) 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 any other emergency facility;

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

5. Within five (5) feet ahead of or twenty-five (25) feet to the rear of any sign marking a designated bus stop;

6. Within six (6) feet of any bus bench;

7. In any location whereby the cross space or the passageway of pedestrians is reduced to less than four (4) feet;

8. Within three (3) feet of any area improved with lawn, flowers, shrubs or trees, or within three (3) feet of any display window or any building abutting the sidewalk or parkway, or in such manner as to impede or interfere with the reasonable use of such window for display purposes;

9. Within one hundred (100) feet of any other such machine on the same side of the street within the same block containing the same edition of the same publication.

H. No such machine shall be used for advertising signs or publicity purposes other than dealing with the display, sale or purchase of the publications sold therein.

I. Each such machine shall be maintained in a clean, neat and attractive condition and in good repair at all times, and no issue or edition of any publication shall be allowed to remain in any such machine for a period in excess of seven (7) days from the date of initial issuance or publication, whichever is sooner.

J. Notwithstanding the provisions of this section, if the Director of Public Works finds that the location of a publication vending machine, in accordance with the standards set forth herein, will create or allow a condition prohibited by Section 5.36.050, or will otherwise endanger the public peace, health, safety or welfare or be contrary to the purposes and intent of this part, he or she may prohibit the location of such machine in accordance with such standards and/or may allow the location of such a machine in a manner deviating from, or at variance with the standards provided herein, subject to such terms, conditions and regulations as he or she may deem necessary to protect the public peace, health, safety or welfare and to carry out the purposes and intent of this part.

Such finding may be made by the Director of Public Works at any time.

If such finding is made prior to the issuance of a permit, the finding of the Director of Public Works shall be made a part of the permit at the time of issuance.

If the finding is made subsequent to the issuance of a permit, written notice of the finding of the Director of Public Works shall be given to the owner or custodian of said machine with the direction that there shall be compliance with the finding of the Director of Public Works within ten (10) days from the date of mailing notice.

(Prior code § 13-6)

A. Purpose. .....The City has undertaken a program of revitalization of El Camino Real, a Corridor within the Architectural Overlay District. The Architectural Overlay District requires that structures be characterized by the City's traditional Spanish Colonial Revival architectural style. In order to ensure this style is promoted throughout the many elements that make up the streetscape, the City will provide, at convenient locations within the Architectural Overlay District, decorative structures and receptacles designed to contain one or more publication vending machines. The design of the decorative structures and receptacles (sometimes referred to in this chapter as "newsrack holders") will be in accordance with those included in the Final Plans for the El Camino Real Enhancement Project and approved by the City Council, following the review and recommendation of the Architectural Review Subcommittee and the Planning Commission. It is the purpose of the City Council to strictly regulate the location of newsrack holders in the Architectural Overlay District so as to fairly and equitably distribute the available publication vending machine spaces among the distributors of publication vending machine materials regularly distributed in the City. It is also the intent of the City Council to own and install the newsrack holders in the Architectural Overlay District in order to protect and enhance the aesthetics of this heavily tourist-oriented area of the City.

B. Prohibition. .....Only City-owned and City-constructed newsrack holders shall be permitted in the Architectural Overlay District.

C. Allocation of Enclosures. .....The Public Works Director shall allocate the newsrack holder space available in the Architectural Overlay District to the distributors of the public vending machine materials regularly distributed in the City. Each distributor of publication vending machine material shall be assigned a number of spaces in the Architectural Overlay District which, as a percentage of all Architectural Overlay District publication vending machine spaces, corresponds to that distributor's percentage of all publication vending machine materials located within the corporate limits of the City as of a date certain as determined by the Director of Public Works. Upon construction of newsrack holders in the Architectural Overlay District, the Director of Public Works shall undertake a like allocation process.

D. Assignment of Specific Locations. .....The Public Works Director shall make assignments of newsrack holder space for specific locations pursuant to the allocation or spaces provided for in Subsection C, above, giving due consideration to the location preferences of the newsrack material distributors. If an assigned space remains vacant for two weeks following the making of such an assignment, the Public Works Director shall consider that space to be available for reallocation and reassignment.

(Ord. 1258 § 1 (part), 2002)

No more than eight (8) publication vending machines shall be located on any public right-of-way within a space of two hundred (200) feet in any direction within the same block of the same street. In determining which publication vending machines shall be permitted to remain, the Director of Public Works shall. be guided solely by the following criteria:

A. First priority shall be given to publication vending machines used for the sale of publications which have been adjudicated to be newspapers of general circulation for Orange County, pursuant to the procedure set forth in Title 1, Division 7, Chapter 1, Article 2 of the State Government Code.

B. Second priority shall be given to publication vending machines used for the sale of daily publications (those published on five (5) or more days in a calendar week) which have not been adjudicated to be newspapers of general circulation for Orange County.

C. Third priority shall be given to publication vending machines used for the sale of weekly publications (those published on at least one (1) but less than five (5) days in a calendar week) which have not been adjudicated to be newspapers of general circulation for Orange County.

(Ord. 1258 § 1 (part), 2002: Prior code § 13-7)

A. .....No publication may be offered for sale to the public on any public right-of-way by means of such publication vending machine in such manner as to expose to the public view any photograph or drawing contained within such publication displaying any of the following with the purpose or effect of sexual arousal, gratification or affront:

1. The genitals, pubic hair, buttocks, natal cleft, perineum, anal region or pubic hair region of any person other than a child under the age of puberty;

2. Any portion of the breast, at or below the areola, of any female person, other than a child under the age of puberty.

B. .....No person shall cause, permit, procure, counsel or assist in an offer of sale of any such publication in violation of this section.

C. .....Any publication offered for sale in violation of this section constitutes a public nuisance.

(Ord. 1258 § 1 (part), 2002: Prior code § 13-8)

A. .....Every person or custodian who places or maintains a publication vending machine on a public sidewalk or parkway within the City shall have his or her or its name, address and telephone number affixed thereto in a place where such information may be easily seen and shall comply fully with the provisions of Section 17570 of the Business and Professions Code of the State of California as it exists on the date of adoption of the ordinance from which this chapter is derived or as may be hereafter amended.

B. .....Every person or custodian who places or maintains a publication vending machine on a public sidewalk or parkway within the City shall first obtain a valid permit therefor, from the Director of Public Works.

(Ord. 1258 § 1 (part), 2002: Prior code § 13-9)

Upon determination by the Director of Public Works that a publication vending machine 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 owner or custodian of said machine. Such order shall be telephoned to the owner or custodian and confirmed by mailing a copy of said order by certified mail, return receipt requested. The order shall specifically describe the offending condition and suggest actions necessary to correct it, and shall specify a date and time, not less than five (5) days after the mailing of the order, at which the owner or custodian may appear in the office of the Director of Public Works to present evidence relating to the stated violation. Failure to properly correct the offending condition within five (5) days after the hearing date specified in the order, unless an appeal is requested pursuant to Section 5.36.120, shall result in the offending machine being summarily removed and processed as unclaimed property under applicable provisions of law relating thereto. If the offending machine is not properly identified as to the owner under the provisions of this chapter it shall be removed immediately and processed as unclaimed property under applicable provisions of law. The Director of Public Works shall cause inspection to be made of the corrected condition or of the machine reinstalled after removal under this section. The owner or custodian of said machine shall be charged a ten dollar ($10.00) inspection fee for each such machine so inspected, which charge shall be in addition to all other fees and charges required by law.

(Ord. 1258 § 1 (part), 2002: Prior code § 1 3-10)

Any person or entity aggrieved by finding, notice or action taken under the provisions of this chapter may appeal, and shall be apprised of his or her right to appeal to such hearing officer or body as is designated by the City Council to hear such appeals. An appeal must be perfected within three (3) days after receipt of notice of any protested decision or action by filing with the office of the Director of Public Works a letter of appeal briefly stating therein the basis for such appeal. The hearing shall be held on a date not more than ten (10) days after the receipt of the letter of appeal. The appellant shall be given at least five (5) days notice of the time and place of the hearing. The hearing officer or body designated to hear the appeal 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 Director of Public Works should not be upheld. In all such cases, the burden of proof shall be upon the appellant to show that there was no substantial evidence to support the action taken by the Director of Public Works. At the conclusion of the hearing, the hearing officer or body designated to hear the appeal shall make a final and conclusive determination.

(Ord. 1258 § 1 (part), 2002: Prior code § 13-1 1).

In the case of violations of this chapter relative to restrictions upon attachments of said machines to property other than that owned by the owner of the machines, to fixed objects or each other, and upon locations of said machines, any City employee authorized by the Director of Public Works may, as an alternative to removal under the provisions of this chapter, remove such attachment and/or move such machines in order to restore them to a legal condition.

(Ord. 1258 § 1 (part), 2002: Prior code § 13-12)