San Marcos Municipal Code Ch. 10.40 Newsrack and News Stand Regulations

The City of San Marcos finds that:

(a)

The uncontrolled placement of newsracks in public rights-of-way causes an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services.

(b)

The uncontrolled placement of newsracks detracts from the appearance of streets, sidewalks, and adjacent businesses; inhibits safe entry and departure of vehicles; impairs the vision and distracts the attention of motorists and pedestrians, particularly small children and may cause injury to the person or property of such person.

(c)

Newsracks located so as to cause an inconvenience or danger to persons using public rights-of-way, and unsightly newsracks located therein, constitute public nuisances.

(d)

The unregulated display of harmful matter (as defined by Section 313 of the California Penal Code) adversely affects the welfare of minors and others.

(e)

The intent of the City Council of the City of San Marcos in adopting this chapter is to establish reasonable time, place and manner regulations of the use and placement of newsracks for the purpose of securing and promoting the public safety and general welfare of persons in the City in their use of public rights-of-way. It is the further intent of the City Council to protect the general welfare by establishing reasonable time, place and manner restrictions on the display of harmful matter in public places and places open to the public.

(f)

By adopting this chapter, the City Council does not intend to authorize the placement of newsracks on property owned by the City, or public, except on public rights-of-way as defined herein.

The following words and phrases when used in this chapter shall for the purpose of this chapter have the meanings respectively ascribed to them in this chapter:

(a)

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 publications.

(b)

Parkway means the part of the public right-of-way between the sidewalk and curb of a roadway, the area between the edge of the travelled roadway and the edge of a public right-of-way when there is no sidewalk and any part of a roadway that is not open to vehicular travel.

(c)

Public Right-of-Way means any place owned and maintained by or dedicated to use of the public for the purpose of pedestrian or vehicular travel, including but not limited to, a street, sidewalk, curb, gutter, parkway, highway, alley, mall or court. Public Right-of-way does not include improved or unimproved pedestrian, equestrian or bicycle trails; pathways, walkways, driveways, or similar areas within parks or other City-owned property; or easements not previously used for the purpose of pedestrian or vehicular travel, and unless otherwise specifically permitted by the City Council newsracks are prohibited in such areas.

(d)

Publication means any form of printed literature offered or available to the public, including but not limited to, hard and soft covered books, magazines, print advertising and calendars.

(e)

Roadway means that part of a public right-of-way that is designed or used primarily for vehicular travel.

A newsrack permit issued in accordance with this chapter is required before the installation of, placement or maintenance of any newsrack which in whole or in part rests upon, in or over any public right-of-way.

Subject to the provisions of this Section and Section 10.36.040 of this chapter, a newsrack permit shall be obtained within 90 days of the effective date of the ordinance adopting this chapter for any newsrack that was installed before such effective date. Newsrack permits issued pursuant to this chapter shall be issued pursuant to the following conditions:

(a)

Application. A written application for a newsrack permit shall be filed with the City Manager, or his or her designee, and shall contain the following information:

(1)

Name, address, and telephone number of the applicant and owner of the newsrack.

(2)

Name, address, and telephone number of a representative or other responsible person whom the City may notify or contact at any time concerning the applicant's newsrack.

(3)

A scaled diagram of the location proposed for the installation of the newsrack(s).

(4)

The number of newsracks at the street address of the proposed location of each as shown on the scaled drawing of the proposed location.

(5)

Names of publications to be contained in each newsrack.

(6)

Type or brand of newsrack, including description of the newsrack and mount.

(b)

Fee. Each application for a newsrack permit shall be accompanied by an application fee as established by resolution of the City Council.

(c)

Issuance and Denial. Upon a finding that the applicant is in compliance with the provisions of this chapter, the City Manager shall issue a newsrack permit at a location approved by the City Engineer. If a permit is denied, the applicant shall be notified in writing of the specific cause of such denial by the City Manager and the right to appeal in accordance with Section 10.36.090 of this chapter.

(d)

Conditions for Approval. An application for a newsrack permit shall be approved unless:

(1)

The proposed newsrack projects onto, into or over any part of the roadway, or which rests, wholly or in part, upon, along or over any portion of the roadway;

(2)

The proposed newsrack is to be installed in whole or in part, in or over any sidewalk or parkway; and:

a)

The newsrack, in its proposed location, would endanger the safety of persons or property; or

b)

The proposed location is used for public utility purposes, public transportation purposes or other public use; or

c)

The proposed newsrack would unreasonably interfere with or impede the flow of pedestrian or vehicular traffic, the ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects present at or near said location.

Any newsrack which, in whole or in part, rests upon, in or over any sidewalk, shall substantially comply with the following:

(a)

Physical Location, Numeric Limits and Installation Methods.

(1)

Newsracks may be located near a curb (or if there is no curb, the edge of the roadway) or to the rear of a sidewalk. Newsracks located near a curb shall be placed not less than 18 inches nor more than 24 inches from the edge of the curb. Newsracks placed adjacent to the rear of the sidewalk shall be placed parallel to the wall and at least six inches from the wall. No newsrack shall be located directly in front of any display window of any commercial building abutting a sidewalk or parkway except near the curb without written permission of the owner of the business.

(2)

Newsrack mounts shall be bolted in place in accordance with specifications provided by the City.

(3)

Newsracks shall not be chained, bolted or otherwise attached to any private property without the consent of the property owner.

(4)

Newsracks may be attached to one another. The City Engineer shall determine the number of newsracks that can be bolted, attached, grouped or placed together on a location by location basis.

(5)

No more than eight newsracks may be placed in any space of 200 feet in any direction within the same block of the same street. No more than 12 newsracks may be placed on any one block. For the purposes of this Section, a block means one side of a street between two consecutive intersecting streets.

The number of newsracks permitted on any public right-of-way within a space of 200 feet in any direction within the same block may be increased to 12 and the number of newsracks permitted on any public right-of-way on any one block may be increased to 16 by a determination of the City Manager or the City Council on appeal, upon a finding that the increase is necessary because of the high demand for publications at the specified location.

(6)

In determining which newsracks shall be permitted to be located in a particular place or, if already in place, to be permitted to remain in the same place, the City Manager shall be guided by the following criteria:

First Priority shall be given to newsracks used for the sale of publications which have been adjudicated to be newspapers of general circulation for San Diego County, pursuant to the procedure set forth in Division 7, Article 2 of the California Government Code.

Second Priority shall be given to newsracks used for the sale of daily publications (those published on five or more days in a calendar week) which have not been adjudicated to be newspapers of general circulation for San Diego County.

Third Priority shall be given to newsracks used for the sale of weekly publications (those published on at least one but less than five days in a calendar week) which have not been adjudicated to be newspapers of general circulation for San Diego County.

(7)

Newsracks shall not be placed, installed, used or maintained:

a)

Within 15 feet of any marked crosswalk;

b)

Within 20 feet of the curb return of any unmarked cross-walk;

c)

Within ten feet of any fire hydrant, fire call box, police call box or other emergency facility;

d)

Within 20 feet of any driveway;

e)

Within three feet ahead, or 15 feet to the rear of any sign marking a designated bus stop;

f)

Within three feet of any bus bench;

g)

At any location whereby the clear space for the passageway of pedestrians is reduced to less than four feet;

h)

Within 100 feet of another newsrack containing the same newspaper or news periodical except where separated by a street or corner, or except where:

A newspaper demonstrates that there is insufficient room in one machine for the newspapers which may be sold in one day; or

Where a newspaper demonstrates that it publishes more than one edition of the newspaper for sale at the same time.

i)

Facing another newsrack, divided only by the width of a public sidewalk or public pedestrian wall;

j)

Within five feet of a curb painted blue, pursuant to the provisions of California Vehicle Code Section 21458;

k)

Within a 25-foot sight triangle created by measuring along the curb beginning at the curb return to form a triangle free of any obstructions in excess of 30 inches in height;

l)

In whole or in part in any roadway.

(8)

Newsracks shall not be located on any street identified in the Circulation Element of the City General plan a local or collector street within any area of the City zoned for single-family residential uses.

(b)

Identification of Responsible Person. 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 a newsrack in such a manner as to be readily visible to and readable by a prospective customer.

(c)

Advertising Concerns. Newsracks shall carry no advertising except:

(1)

The name of the Publication being dispensed in the same newsrack.

(2)

Advertising racks cards contained in card pans which are attached to and located on the front of the newsrack and do not exceed 15 inches in height and 22 inches in length. The rack cards shall be related to the display, sale, use or purchase of the newspaper or periodical being dispensed.

(d)

Maintenance. Newsracks shall be kept clean and maintained in good working order, freshly painted and with unbroken hoods or parts.

(e)

Physical Description of Newsracks. shall not exceed a height of 46 inches, a width of 26 inches or a depth of 20 inches. Each newsrack shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event the person is unable to receive the publication paid for. The coin-return mechanism shall be maintained in good working order at all times.

(f)

Hold Harmless Agreement. Prior to the issuance of a permit pursuant to this chapter, the applicant shall enter into an agreement with the City whereby the owner or permittee shall agree:

The City, its agents, officers and employees, shall not be, nor be held liable for any claims, liabilities, penalties, fines or for any damage to any goods, properties or effects of any personal injuries to or death of any person, whether caused by or resulting from any acts or omission of owner or permittee, or his or her agents, employees or representatives, or for dangerous or defective conditions of the property of owner or permittee or any way caused by newsracks placed or maintained pursuant to the permit; owner or permittee further agrees to indemnify and save free and harmless and defend in any lawsuit the City, its agents, officers, and employees against any of the foregoing liabilities and any of cost and expenses incurred by the City, its agents, officers or employees on account of any claims therefore.

(g)

Insurance Requirement. No person, association, firm or corporation shall place, locate or maintain a newsrack on public rights-of-way unless there is on file with the City Manager, or his or her designee, in full force and effect at all times, a document issued by an insurance company authorized to do business in the State of California evidencing that the permittee or owner is insured under a liability insurance policy providing minimum coverage of $500,000.00 for each person who suffers injury or death arising out of the location, placement or operation of the company's equipment. A separate certificate is not required for each newsrack so long as the certificate evidences coverage for all newsracks placed, located or maintained by the person, association, firm or corporation involved.

Any publication offered for sale in a newsrack placed or maintained on a public sidewalk or public right-of-way shall not be displayed or exhibited in a manner which exposes to public view, from any public place, any of the following:

(a)

Any statement or word describing explicit sexual acts, sexual organs or excrement where such statement or word has as its purpose or effect, sexual arousal, gratification or affront; or

(b)

Any picture or illustration of genitals, pubic hair, perineum, anus or anal region of any person or any picture or illustration of any portion of the breast below the areola thereof of any female person, other than a child under the age of puberty, where such picture or illustration has as its purpose or effect sexual arousal, gratification or affront; or

(c)

Any picture or illustration depicting explicit sexual acts where such picture or illustration has as its purpose or effect, sexual arousal, gratification or affront.

For purposes of this section the term explicit sexual acts means the depiction of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism, or excretory functions in conjunction with sexual activity, lewd exhibition of the genitals or masturbation, whether any of the above 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.

(a)

Definitions. For the purposes of this section, the terms harmful matter, matter, person, distribute, knowingly, exhibit, and minor shall have the meanings specified in Section 3.31 of the California Penal Code. For the purposes of this chapter, the term blinder rack shall mean an opaque material placed in front of, or inside a newsrack which prevents exposure of matter to public view.

(b)

Prohibition. No person shall knowingly exhibit, display, or cause to be exhibited or displayed, harmful matter in any newsrack or any other display rack, case or shelf located on a public right-of-way, in a public place, or in a place open to the public from which minors are not excluded, unless blinder racks have been installed so that the lower two-thirds of the matter is not exposed to public view.

The costs of installation, maintenance, replacement, removal and relocation of newsracks shall be at the sole expense of the permittee or owner of the newsrack. Upon removal of any newsrack, the permittee or owner shall, at his or her sole expense, cause the public right-of-way to be repaired to a condition in conformity to the surrounding area. Upon failure of the permittee or owner to make such repairs, the work may be done by the City and charged to the permittee or owner.

(a)

Commencing 90 days after the adoption date of the ordinance codified in this chapter, any newsrack in violation of any provision of the ordinance codified in this chapter will be deemed nonconforming.

(b)

In the event that the City Manager determines that a newsrack does not comply with the provisions of this chapter, he or she shall provide written notice of such determination to the permittee or owner. The notice shall specify the nature of the violation, the location of the newsrack which is in violation, the intent of the City Manager to remove the nonconforming newsrack in the event a hearing is not requested, and the right of the permittee to request a hearing, before the City Manager, within 15 days from the date of the notice. If the newsrack is one which has not been authorized by the City Manager and ownership is not known, nor apparent after inspection, a notice complying with this section shall be affixed to the newsrack.

(c)

In the event that a hearing is held pursuant to this section, the City Manager shall render a decision, in writing, within ten days from the date of the hearing, and the decision shall advise the permittee or owner of his or her right to appeal to the City Council, pursuant to the provisions of Section 10.36.090 of this chapter. Notice of the decision shall be mailed to the permittee or owner using the permittee or owner's address of record by placing such notice in the U.S. Mail with first class postage prepaid.

(d)

The City Manager may take possession of a newsrack and, upon the expiration of 30 days after taking possession, dispose of the newsrack as required by law, if:

(1)

No hearing is requested by the permittee or owner within 15 days of notice of violation as provided in Section 10.40.080(b); or

(2)

The appeal period specified in Section 10.40.090 has expired; or

(3)

The permittee or owner fails to remove the rack within ten days from the date of the decision of the City Manager, or the City Council on Appeal, that the newsrack is not in compliance with the rules, regulations and standards established by this chapter.

(e)

The City Manager shall inspect any newsrack reinstalled after removal pursuant to this chapter. The permittee of the newsrack shall be charged a fee for this reinspection as established by resolution of the City Council.

(f)

In the event that any newsrack is abandoned, the City Manager may remove it pursuant to the procedures set out in this section. For the purposes of this section, a newsrack is "abandoned" if no publication had been displayed in the newsrack for a period of 15 consecutive days, no prior written notice has been given by the permittee to the City Manager specifying the reason(s) for nonuse, and the condition of the rack and related circumstances indicate it will not be actively used within a reasonable period of time.

The City Council shall have the power to hear and decide appeals based upon enforcement or interpretation of the provisions of this chapter. Any permittee or owner who is aggrieved by any decision of the City Manager may appeal that decision by submitting a written notice of appeal to the City Clerk within 21 days of the date on which notice of the decision was mailed. The City Council may preside over the hearing on appeal or may designate a hearing officer to take evidence and submit a proposed decision together with findings, within 15 days from the date of the hearing. The City Council shall, within 30 days from the date of the hearing, render its decision on the appeal, together with findings. The decision of the City Council shall be final.

If any provision of this chapter as herein enacted or hereafter amended, or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect the other provisions or applications of this chapter (or any section or portion of section hereof) which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are, and are intended to be, severable.

The provisions of this chapter are intended to augment and be in addition to other provisions of the San Marcos Municipal Code. Whenever the provisions of this chapter impose a greater restriction upon persons, premises, or practices that are imposed by other provisions of the San Marcos Municipal Code, the provisions of this chapter shall control.

If any sentence, clause or phrase of this chapter is, for any reason, held to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining provisions of this chapter. The City Council hereby declares that it would have passed the ordinance codified in this chapter, and each sentence, clause, and phrase thereof irrespective of the fact that any one or more sentences, clauses, or phrases be declared unconstitutional or otherwise invalid.

(Ord. No. 92-934, 9-22-92)