Chapter 5-6 — NEWSRACK REGULATIONS.

Article 1 General Provisions(Legislative History: Ordinance No. 2005-004, 6/6/05 (Sections 5-6-100—5-6-110))

(a) The City has a substantial governmental interest in promoting the public health, safety, welfare and convenience by ensuring use of the public rights-of-way without unreasonable interference.

(b) The public health, safety, welfare and convenience require that:

(1) Unreasonable interference with vehicular or pedestrian traffic is avoided;

(2) Obstruction of views of traffic, traffic signs and pedestrians is eliminated;

(3) Damage to sidewalks and streets is minimized and repaired;

(4) The good appearance of the public streets, sidewalks and grounds is maintained;

(5) Trees and other landscaping are allowed to grow undisturbed;

(6) Access to emergency and other public facilities is maintained; and

(7) Ingress and egress from properties adjoining public rights-of-way are maintained.

(c) The unregulated placement of newsracks in public rights-of-way may unreasonably
interfere with use of the public rights-of-way, and may present hazards to persons or
property.

(d) The City has a substantial governmental interest in preserving the aesthetic character of the
Special Newsrack Districts.

(e) The purpose of the regulations set forth in this Chapter is to ensure that the placement and
appearance of newsracks in the public rights-of-way do not unreasonably interfere with the
public health, public safety and convenience, and to preserve the aesthetic character of the
Special Newsrack Districts, in particular.

(f) It is intended that the provisions of this Chapter, and compliance with such provisions, shall
be consistent with all laws protecting access to services for persons with disabilities,
including but not limited to, the Americans with Disabilities Act.

(g) The regulation of newsracks 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, opinion and information to the
public.

(h) This Chapter is not intended to regulate the placement of newsracks on private property or
property under the jurisdiction of any public agency other than the City.

Whenever the following words or phrases are used in this Chapter, they shall have the meaning ascribed to them by this section:

Deposit. "Deposit" means the refundable deposit in the amount established by the Director, which must accompany a permit application as provided in Section 5-6-205 of this Chapter, and which may be used by the City as provided in Article 6 of this Chapter. The deposit shall be refunded to the newsrack operator within 30 days of expiration, nonrenewal or revocation of the permit.

Director. "Director" means the San Leandro Engineering and Transportation Director or designee. The responsibilities of the Director include, but are not limited to the following:

(1) Establishing the amount of the deposit that must accompany a permit application as provided in Section 5-6-205 of this Chapter;

(2) Designating certain areas within the City as Special Newsrack Districts, with the advice of the Office of Business Development, and with the consent and approval of the City Council, as provided in Article 3 of this Chapter;

(3) Receiving applications for newsrack permits as provided in Section 5-6-205 of this Chapter;

(4) Determining procedures for the allocation of newsrack spaces citywide and in Special Newsrack Districts as provided in Sections 5-6-210 and 5-6-310 of this Chapter;

(5) Designating the required color of newsracks as provided in Section 5-6-400 herein, with the advice of the Community Development Department;

(6) Declaring additional newsrack placement standards if necessary, as provided in Section 5-6-410 of this Chapter; and

(7) Holding hearings upon the request of newsrack operators regarding the removal, repair or maintenance of newsracks in violation of this Chapter, as provided in Section 5-6-615 of this Chapter.

Special Newsrack Districts. "Special Newsrack Districts" means those areas designated as Special Newsrack Districts by the Director, with the consent and approval of the City Council.

Modular Newsrack. "Modular newsrack" means an industry standard structure with multiple compartments designed to contain newsrack inserts.

Newsrack. "Newsrack" means any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of newspapers, periodicals or other publications.

Newsrack Insert. "Newsrack insert" means an individual newsrack designed to fit within a modular newsrack.

Newsrack Operator. "Newsrack operator" means a person or entity responsible for placing, installing and maintaining a newsrack in a public right-of-way.

Opaque Displays. "Opaque displays" shall have the meaning specified in Section 4-29-210 of this Code, as may be amended from time to time.

Public Right-of-Way. "Public right-of-way" means any area used or intended for use by the public for pedestrian or vehicular travel within the City, including, but not limited to, public streets, highways, roadways, sidewalks, median strips, plazas, alleys, parks, trails, and bridges.

Harmful Matter—Person—Minor. For the purposes of this Chapter, the terms "harmful matter," "person," and "minor," shall have the meanings specified in Section 4-29-100 of this Code, as may be amended from time to time.

Distribute—Knowingly—Exhibit. For the purposes of this Chapter, the terms "distribute," "knowingly," and "exhibit" shall have the meanings specified in Section313 of the California Penal Code, as may be amended from time to time.

WAY.

No newsrack operator shall place, install, use or maintain any newsrack within, or encroaching upon, public property or a public right-of-way within the City except in compliance with the provisions of this Chapter. The provisions of this Chapter constitute the exclusive requirements for newsracks located on public property or in public rights-of-way within the City.

Article 2

Permits Required(Legislative History: Ordinance No. 2005-004, 6/6/05 (Sections 5-6-200—5-6-220))

Each newsrack operator shall obtain a newsrack permit from the City as required by this Chapter prior to placing, installing or maintaining a newsrack on public property or within a public right- of-way.

Application for a newsrack permit shall be made to the Director or his/her designee on the form provided by the City. Each newsrack permit application shall include and be accompanied by the following:

(a) The name, address and telephone number of the applicant and the person(s) responsible for
placement, installation, and maintenance of the newsrack(s);

(b) The number of newsracks to be placed or installed;

(c) A description of the proposed location for placement or installation of each newsrack,
sufficiently detailed to demonstrate conformity with the requirements of this Chapter;

(d) The type or brand of newsrack, including a description sufficiently detailed to demonstrate
conformity with the requirements of this Chapter;

(e) A nonrefundable fee, in the amount established by resolution or ordinance of the City
Council;

(f) Evidence of insurance in an amount and form acceptable to the City's Risk Manager;

(g) An indemnification agreement pursuant to Section 5-6-710 of this Chapter;

(h) Identification of the size of each newsrack insert, if the proposed location of the newsrack
is within the Special Newsrack Districts; and

(i) The deposit, which shall be in the form of cash, certified or cashier's check payable to the
City. The deposit shall be refunded to the newsrack operator within 30 days of expiration,
nonrenewal or revocation of the permit.

Applications will be processed in the order received. The content or viewpoint of the material to be distributed from a newsrack shall not be considered in reviewing and acting on the application. Upon receipt of a complete application, a newsrack permit shall be issued within 15 business days if the type of newsrack and location proposed meet the standards set forth in this Chapter, except as otherwise provided in Article 3 of this Chapter. If newsrack spaces applied for exceed newsrack spaces available, the Director shall determine procedures for the allocation of newsrack spaces by lottery or other method of random, content-neutral selection, and shall issue permits accordingly. If an application for a newsrack permit is denied, the applicant shall be notified in writing of the reason for denial within 15 business days of receipt of the application, and of the right to appeal in accordance with Section 5-6-715 of this Chapter.

Newsrack permits are valid for one year from the date of issuance. Thirty days prior to the anniversary of the date of issuance, each permit holder must submit evidence of insurance in an amount and form acceptable to the City's Risk Manager. If such evidence is submitted, the holder's permit shall be automatically renewed for one year.

Permit holders are responsible for notifying the City of any changes to the name, address or telephone number of the person(s) responsible for placement, installation and maintenance of each permitted newsrack.

Article 3

Newsracks in the Special Newsrack Districts(Legislative History: Ordinance No. 2005-004, 6/6/05 (Sections 5-6-300—5-6-310))

The provisions of this Article apply solely to newsracks placed, installed or maintained on public property or within a public right-of-way located within the Special Newsrack Districts.

In order to preserve the aesthetic character of the Special Newsrack Districts, no newsrack may be placed, installed, used or maintained on public property or in a public right-of-way within the Special Newsrack Districts other than the modular newsrack design chosen by the City in accordance with a plan established by the Director.

Application for a newsrack permit for newsracks to be placed or installed on public property or in a public right-of-way within the Special Newsrack Districts shall be made in accordance with Article 2 of this Chapter, except that if newsrack spaces applied for exceed newsrack spaces available within a modular newsrack, the Director shall determine procedures for the allocation of newsrack spaces by lottery or other method of random, content-neutral selection, and shall issue permits accordingly.

Article 4

Newsrack Requirements(Legislative History: Ordinance No. 2005-004, 6/6/05 (Sections 5-6-400—5-6-410))

Any newsrack which rests, in whole or in part, upon or within public property or a public right- of-way, or which projects onto, into or over public property or a public right-of-way shall comply with the requirements of this Article, or as subsequently modified by the Director, and with the following standards:

(a) Newsracks shall not exceed 60 inches in height, including pedestal, measured from the
ground to the top of the surface of the newsrack, not more than two feet deep and not more
than 30 inches wide.

(b) Newsracks shall be painted the color or manufactured in the color specifically designated
by the Director, samples of which shall be provided to all permit applicants.

(c) No advertising signs or material shall be displayed on the exterior of a newsrack other than
those associated with the name of the publication contained therein.

(d) A notice shall be affixed to each newsrack providing the name and address of the newsrack
operator, including a current telephone number for reporting a malfunction and for
obtaining a refund in the event of a malfunction of a coin-return mechanism.

(e) Additional standards specifically defining size and appearance requirements may be
declared by the Director, and such standards must be consistent with the findings, intent
and purpose of this Chapter. Notice must be given to all permitted newsrack operators
within a reasonable time before any changes to the standards in this Section 5-6-400 take
effect.

Any newsrack which rests, in whole or in part, upon or within public property or a public right- of-way, or which projects onto, into or over public property or a public right-of-way shall comply with the requirements set forth in this Article and with the following standards:

(a) Each newsrack shall be maintained in a neat and clean condition and in good repair at all times; for example, without limitation, the newsrack shall be reasonably free of dirt and grease; be reasonably free of chipped, faded, peeling or cracked paint; be reasonably free of rust and corrosion; have no broken or cracked plastic or glass parts; and have no broken structural parts.

(b) The area in the immediate vicinity of each newsrack shall be maintained in a neat and clean condition and clear of debris and discarded material, to the extent possible. Repeated violations of this section may warrant removal of the newsrack, in the reasonable discretion of the Director.

(c) No newsrack may be chained, locked or tied to any other newsrack, street tree, or any other public or privately owned fixture.

(d) Each coin-operated newsrack not in the Special Newsrack Districts shall be equipped with a coinreturn mechanism, which shall be maintained in good working order.

(e) Upon the removal of any newsrack not in the Special Newsrack Districts, the public right- of-way shall be returned to its original condition at the expense of the newsrack operator, including, but not limited to, the repair of any damage that may have been caused by the installation or use of the newsrack.

(f) The Director may declare additional standards specifically defining maintenance requirements, and such standards must be consistent with the findings, intent and purpose of this Chapter.

Any newsrack which rests, in whole or in part, upon or within public property or a public right- of-way, or which projects onto, into or over public property or a public right-of-way shall comply with the requirements set forth in this Article and with the following standards:

(a) No newsrack may be placed, installed, or maintained so that it projects onto, into or over any part of a roadway or street, or which rests, wholly or in part, upon, along or over any portion of a roadway or street.

(b) No newsrack may be placed, installed, or maintained so that it rests, in whole or in part, upon, in or over any public sidewalk or right-of-way, when such placement, installation, or maintenance endangers the safety of persons or property or when such site is used for public utilities, public transportation or other governmental use, or when such placement, installation or maintenance unreasonably interferes with or impedes the flow of pedestrian or vehicle traffic, including access for the disabled, bicycle access, the ingress into or egress from any residence, place of business or the use of poles, posts, traffic signs or signals, hydrants, postal service collection boxes or other objects permitted at or near such locations.

(c) No newsrack shall be placed, installed, used or maintained:

(1) Within any neighborhood that is zoned as a Residential District, as defined in Part II, Article 5 of the City of San Leandro Zoning Code;

(2) Within five feet of any marked crosswalk, or within 15 feet of any unmarked crosswalk as measured from the curb return, or within five feet of any wheelchair curb ramp not in a marked crosswalk;

(3) Within 15 feet of any fire hydrant;

(4) Within five feet of any fire call box, police call box or other emergency facility;

(5) Within five feet of any driveway;

(6) Within five feet of any bus bench or shelter;

(7) Within 15 feet ahead of, and five feet to the rear of, any sign marking a designated bus stop, relative to the direction of bus travel. Newsracks placed seven feet from the curb, measured perpendicular to the roadway, are exempt from this limitation;

(8) At any location where the clear space or sidewalk space for the passage of pedestrians is reduced to less than four feet;

(9) In such a manner as to impede or interfere with the reasonable use of any building, the activity of any business or residence or the use of any commercial window display or sidewalk cafe.

(d) Additional standards specifically defining the placement requirements may be declared by the Director, and such standards must be consistent with the findings, intent and purpose of this Chapter.

Article 5

Display of Harmful Matter(Legislative History: Ordinance No. 2005-004, 6/6/05 (Section 5-6-500))

No newsrack shall exhibit or display harmful matter in a public place from which minors are not excluded, unless opaque displays have been installed so that the lower two-thirds of the matter are not exposed to public view. No person shall knowingly exhibit, display, or cause to be exhibited or displayed, harmful matter in any newsrack located in a public place from which minors are not excluded, unless opaque displays have been installed so that the lower two-thirds of the matter is not exposed to public view.

Article 6

Abatement of Violations(Legislative History: Ordinance No. 2005-004, 6/6/05 (Sections 5-6-600—5-6-635))

A newsrack in violation of this Chapter may be removed, repaired or maintained by the City at the direction of the Director in accordance with the provisions of this Article. A violation of this Chapter, including any continuing violation as set forth in Section 1-12-140 of this Code, is hereby declared to be a public nuisance. In addition to the remedies for nuisance abatement provided in Chapter 1-12 of this Code, the City expressly reserves the right to utilize other enforcement remedies found within specific chapters of this Code, remedies available under any applicable state or federal statute or pursuant to any other lawful power the City may possess. All such remedies shall be alternative to or in conjunction with, and not exclusive of, one another. The election of remedies provided by this Chapter shall be at the sole discretion of the City and its officials.

Except as otherwise provided in this Article, before the City takes action to remove, repair or maintain a newsrack, the City shall notify the newsrack operator by written notice sent to the newsrack operator's last known address and posted on the newsrack, providing 10 days to remedy the violation and/or to contest removal. Both forms of notice shall provide information necessary to request a hearing to contest repair, maintenance or removal of the newsrack. If no identification is shown on the newsrack and no newsrack permit has been issued, posting of the notice on the newsrack alone shall be sufficient.

A newsrack may be removed or relocated immediately and without prior notice required by Section 5-6-605 of this Article if the violation poses a danger to pedestrians or vehicles. The City will make a good faith effort to promptly notify the newsrack operator of such removal or relocation.

To contest removal, repair or maintenance, a newsrack operator in receipt of a Notice of Violation pursuant to Section 5-6-605 of this Article may submit a written request for a hearing before the Director (or designee), which hearing shall be held within 10 days after the request is received. The hearing shall be informal, but oral and written evidence may be offered by either side. Action to remove the newsrack shall be stayed pending the decision of the Director (or designee) following the hearing. The newsrack operator will be sent written notice of the decision of the Director (or designee) within 10 days of the conclusion of the hearing. Such decision may be appealed in accordance with the procedures set forth in Section 5-6-715 of this Chapter, and an action to remove a newsrack shall be stayed while such appeal, if timely filed, is pending.

The City may repair, maintain or remove a newsrack from public property or the public right-of- way pursuant to Sections 5-6-610 or 5-6-630 of this Article, or if:

(a) The newsrack operator responsible for such newsrack has neither requested a hearing pursuant to Section 5-6-615 of this Article nor remedied the violation within 10 days following the date of notice; or

(b) Following a hearing pursuant to Section 5-6-615 of this Article in which the Director (or designee) finds the newsrack in violation of this Chapter and orders its removal, repair or maintenance, the newsrack operator responsible for such newsrack fails to remedy the violation or to appeal the decision within 10 days after receiving notice of such decision.

If the City repairs, maintains or removes a newsrack pursuant to this Article 6, the City may use the deposit in order to pay for such repairs, maintenance, or removal of the newsrack, including the cleaning of any debris or discarded material in the immediate vicinity of the newsrack and which the Director determines, in his/her reasonable discretion, is attributable to that newsrack. If the City uses the deposit or any portion thereof for the above purposes, the newsrack operator shall be required to replenish the deposit to the full amount within 30 days upon written notice thereof from the City. Failure to replenish the deposit as required by this section will constitute a violation of this Chapter, and may result in nonrenewal or revocation of the newsrack operator's permit, and/or removal of the newsrack.

Any newsrack which has been left empty for a period of 30 days shall be deemed abandoned, except a newsrack remaining empty due to a labor strike or other extraordinary interruption of distribution of the publication distributed from that newsrack. If the abandoned newsrack is in the Special Newsrack Districts, the City may remove any remaining materials from the newsrack, following 30 days after the City has sent written notice to the newsrack operator's last known address and posted notice on the newsrack that the newsrack has been deemed abandoned and the permit is subject to cancellation pursuant to this section. If the abandoned newsrack is outside of the Special Newsrack Districts, the City may remove the abandoned newsrack from public property or a public right-of-way following 30 days after the City has sent written notice to the newsrack operator's last known address and posted notice on the newsrack that the newsrack has been deemed abandoned and is subject to removal pursuant to this section.

Newsracks removed by the City shall be retained by the City for 30 days, subject to recovery by the newsrack operator. Newsracks which are not claimed by the newsrack operator within 30 days following removal shall be deemed permanently abandoned and may be disposed of by the City.

Article 7

Miscellaneous(Legislative History: Ordinance No. 2005-004, 6/6/05 (Sections 5-6-700—5-6-715))

Except as otherwise provided in this Article, a newsrack lawfully in existence on the effective date of the ordinance codified in this Chapter will not be required to come into compliance with this Chapter for the earlier of: (a) 30 days after receiving written notice from the City requiring compliance; or (b) 90 days following the effective date of the ordinance codified in this Chapter, provided that within 30 days following the effective date, the newsrack's operator provides the Director with a written report identifying the location of such newsrack.

A newsrack lawfully in existence within a Special Newsrack District after the Director has made a final determination as to the boundaries of such district ("boundary determination"), shall be allowed to remain at the same location for 60 days following installation and written notice of availability of modular newsracks within the Special Newsrack District, provided that within 30 days following the boundary determination, the newsrack operator provides the Director with a written report identifying the number and location of each such newsrack within the Special Newsrack Districts.

Each newsrack operator installing, operating or maintaining a newsrack upon public property or within the public right-of-way in the City shall agree, prior to issuance of a newsrack permit, to indemnify, defend and hold harmless the City, its officers, officials, employees, agents and volunteers from any loss, liability, damage, claims, expenses or cost (collectively "liability") sustained by any person or property, arising from the installation, operation, maintenance or use of such newsrack, except such liability caused by the sole negligence or wilful misconduct of the City.

Any applicant or newsrack operator may appeal any action, decision or determination made pursuant to the provisions of this Chapter to the City Manager or designee. Such appeal shall be made in writing and filed with the City Manager's office within 10 days following date of the action, decision or determination. The matter shall be scheduled to be heard by the City Manager (or designee) within 10 days following receipt of the appeal, or on a date mutually agreeable to the parties. The hearing shall be informal, but both sides may give oral and written evidence. At the conclusion of the hearing on the appeal, the City Manager (or designee) shall affirm, modify, or vacate the action, decision or determination being appealed. The appellant shall be informed that the decision of the City Manager (or designee) is final and subject to immediate judicial review.