Chapter 13.18

REGULATION OF NEWSRACKS

Sections:

13.18.010 Purpose and intent.

13.18.020 Newsrack identification.

• 13.18.030 Prohibition of newsracks where vehicles permitted.

• 13.18.040 Unlawful obstructions.

• 13.18.045 Specifications, standards, placement.

• 13.18.050 Display of certain matter prohibited.

13.18.060 Definition of explicit sexual acts.

• 13.18.070 Impounding.

13.18.080 Return of impounded newsracks.

• 13.18.090 Hearings.

13.18.100 Appeal procedure.

The San José city council finds and declares that the uncontrolled placement and maintenance of newsracks on the public right-of-way and the proliferation of such devices to display words and pictorial material describing and depicting explicit sexual conduct and nudity, which is thrust indiscriminately on children and unwilling adults, unreasonably interferes with and obstructs the public's use of the public rights-of-way, constitutes unwarranted invasions of individual privacy, is injurious to health, is indecent and offensive to senses, and such an obstruction of the free use of property so as to interfere with the comfortable enjoyment of life

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and property by the entire community. The San José city council also finds, however, that the use of such rights-of-way is so historically associated with the sale and distribution of newspapers and publications that access to these areas for such purposes should not be absolutely denied. The council further finds that these strong and competing interests require a reasonable accommodation which can only be satisfactorily achieved through the means of this chapter designed to accommodate such interests by regulating the time, place and manner of using such newsracks.

(Ord. 20892.)

Every person who owns a newsrack shall have his or her name, address, and business telephone number clearly and Permanently affixed thereto in a place where it may be seen by anyone using the newsrack.

(Ords. 20892, 22240.)

No person shall Place or maintain any newsracks on any portion of,, or projecting onto, into or over any portion of the roadway on which vehicles are lawfully Permitted.

(Ord. 20892.)

No newsrack shall be placed, installed, used, or maintained in the public right-of-way:

• A. Within five feet of any marked crosswalk;

• B. Within fifteen feet of the curb return of any unmarked crosswalk;

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

• D. Within five feet of any driveway;

• E. As measured parallel to the flow of traffic, within five feet ahead of, and twenty.

five feet to the rear of any sign or pavement marking which marks a designated bus stop;

• F. Within six feet of any bus bench;

• G. At any location where the newsrack causes, creates, or constitutes a traffic hazard;

• H. At any location where the newsrack unreasonably obstructs or interferes with access to, or the use and enjoyment of abutting property;

• I. At any location where the newsrack will endanger persons or property;

• J. At any location where the newsrack will unreasonably interfere with or obstruct the flow of pedestrian or vehicular traffic on the highway;

• K. At any location where the clear space for the passage of pedestrians would be reduced to less than six feet;

• L. Within five feet of any area improved with lawns, flowers, shrubs, or trees; within five feet of any display window or any building abutting the sidewalk; or in such a manner as to interfere with the reasonable use of such a window for display purposes;

• M. Within five feet of any bicycle rack;

• N. Attached to any parking meter, traffic signal, street light, fire hydrant, power pole, sign post, refuse container, or tree;

• O. Within one hundred feet of any other newsrack which is located on the same side of the street in the same block, and which contains the same issue or edition of the same publication; and

• P. In violation of local and state handicapped accessibility regulations.

• (Ords. 20892, 22240.)

• A. Each newsrack shall at all times be maintained in a neat and clean condition, and in good

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repair. Without limitation, each newsrack shall be so maintained and serviced that it is reasonably free of:

1. General dirt and grease;

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2. Chipped, faded, peeling, and cracked paint on all visible painted areas;

3. Rust and corrosion on all visible unpainted metal areas;

4. Cracks, dents, blemishes, and discolorations in the clear plastic and glass parts, if any, through which the publications therein are viewed;

5. Tears, peeling, or fading in the paper or cardboard parts and inserts; and

6. Broken or misshapen structural parts.

• B. No newsrack shall exceed:

  1. Sixty inches in height;

public right-of-way shall not be displayed or exhibited in a manner which exposes to public view any of the following:

     - A. 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. 

  - B. 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. 

  - (Ord. 20892.) 

2. Thirty inches in width;

3. Twenty-four inches in depth; and

4. A weight when empty of one hundred twenty-five pounds.

• C. Each newsrack shall only be placed either near a curb or adjacent to a wall or building.

  1. A newsrack placed near the curb shall be placed no less than eighteen inches and no more than thirty inches from the curb.

  2. A newsrack placed adjacent to a wall, or to a wall of a building shall be placed parallel to such wall, and not more than six inches from such wall.

  3. No newsrack shall be placed on the sidewalk opposite another newsrack or newsstand.

• D. Newsracks may be placed or joined together so long as the group combined does not extend for a distance of more than eight feet. A space of no less than three feet separating each newsrack group is required.

• E. No newsrack shall be used for display of advertising material other than that dealing with the name, sale, or purchase price of the publication sold therein.

(Ord. 22240.)

Publications offered for sale from newsracks placed or maintained on or projecting over or in the

"Explicit sexual acts," as used in this chapter, means depictions of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism or excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the genitals, whether any of the above conduct is depicted or described as being performed among 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. (Ord. 20892.)

The director of neighborhood preservation or the director's designee:

• A. May immediately correct any violation of Section 13.18.040, and shall do so without impounding if such correction can be accomplished simply, easily, quickly, and without expense;

• B. May, when a newsrack is in violation this chapter, affix a notice to that effect to the newsrack, and then notify by mail the person whose name appears on the newsrack identification (as required by Section 13.18.020) that unless the violation is corrected or a hearing pursuant to

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Section 13.18.080 is requested within three working days, the newsrack will be impounded;

• C. May impound any newsrack:

  1. When a notice has been affixed to a newsrack and a letter has been sent pursuant to subsection B of this section, and the person whose name appears on the newsrack identification has within the time permitted neither caused the violation specified on such notice to be corrected, nor requested a hearing pursuant to Section 13.18.080;

  2. In accordance with the decision finding facts sufficient to constitute a violation of any section of this chapter following any hearing requested pursuant to this chapter; or

  3. When such is in violation of any subsection of Section 13.18.040, except L or O, or is otherwise in such a state so as to constitute a dangerous condition or health hazard to the public, and which cannot be corrected under subsection A above; and

• D. May sell or otherwise dispose of the newsrack and its contents, and deposit the proceeds, if any, from any such sale or other disposition, and any moneys contained in said newsrack, in the city treasury if a hearing on the impounding of the newsrack is not timely requested, or if the newsrack is not claimed by the person whose name appears on the newsrack identification in accordance with the provisions of Section 13.18.080.

• (Ords. 20892, 22240.)

• A. Except as otherwise provided in this section, an impounded newsrack and its contents may only be returned:

  1. To the person whose name appears on the newsrack identification, or, if such

person is unknown, a claimant who provides sufficient proof of ownership of an impounded newsrack; and

2. If the request for return is made to the director of neighborhood preservation and the sum in subsection B is paid within thirty days of:

   • a. The date of impounding if no hearing is held pursuant to this chapter; and

   • b. The date the decision reached at the hearing becomes final if a hearing is held pursuant to this chapter.

• B. The sum referred to in this section shall be the total of the impounded fee established by resolution of council and the reasonable additional cost in excess of the impound fee, if any, of impounding the newsrack and its contents.

• C. An impounded newsrack and its contents shall not be returned pursuant to subsection A. during any period of time that it is being held as evidence in a criminal prosecution.

• D. If after a hearing is held in accordance with this chapter, it is determined that there exists no violation of this chapter, the director of neighborhood preservation shall:

  1. Order the newsrack returned without payment of any impound fee; or

  2. Order return of any such impound fee, less the cost of notifying the person referred to in subsection A., if an impound fee has previously been paid.

• E. If a criminal prosecution concerning an impounded newsrack and its contents results in a dismissal of or acquittal on all charges, the court hearing the matter may, in its discretion, order:

  1. The return of the impounded newsrack and its contents without payment of the sum in subsection B.; or

  2. The return of the sum in subsection B. if that sum has already been paid.

• (Ords. 20892, 21291, 22240.)

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§ 13.20.010

• A. Any person who maintains a newsrack and is charged with violating this chapter may, within the time set forth in the notice of the alleged violation, request in writing a hearing before the director of neighborhood preservation. Said request shall include, without limitation, the mailing address of the person requesting the hearing.

• B. A timely request for a hearing made prior to any impounding shall operate to stay any impounding until five working days after the decision is rendered, unless further stayed pending any appeal therefrom.

• C. A hearing shall be held, unless continued by mutual agreement of the person requesting a hearing and the director of neighborhood preservation within ten working days of the request for a hearing. At the hearing, any person may present evidence or argument as to whether the newsrack was or was not in violation of this chapter, or as to whether or not the newsrack should be returned without payment of an impound fee.

• D. A decision shall be rendered, and written notice thereof shall be mailed to the person requesting the hearing at the address stated in the request for a hearing within ten working days after the close of the hearing.

• (Ords. 20892, 22240.)

• A. Any person referred to in subsection 13.18.090.A. may appeal the decision of the director of neighborhood preservation to the code enforcement appeals commission.

• B. The appeal shall be governed by Section 6.02.190 of this Code.

• (Ords. 20892, 22240.)