San Marino Municipal Code Art. 14 Newsracks

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

A. Provide for pedestrian and driving safety and convenience;

B. Restrict the unreasonable interference with the flow of pedestrian or vehicular traffic, including ingress into or egress from any residence or any place of business or from the street to the sidewalks by persons exiting or entering parked or standing vehicles;

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

D. 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;

E. Maintain and protect the values of surrounding properties;

F. Reduce the unnecessary exposure of the city to personal injury and property damage claims; and

G. Provide for and maintain the freedom of speech for newspapers or news periodicals using newsracks for distribution purposes. (Ord. 0-03-1172, 5-5-2003)

For the purpose of this article, unless otherwise apparent from the context, certain words and phrases used in this article are defined as follows:

BLOCK: One side of a street between two (2) consecutive intersecting streets.

DIRECTOR: The planning and building director or his/her designee.

EXPLICIT SEXUAL ACTS: 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 genitals, whether any of the above conduct is depicted or described as being performed alone or between members of the same or opposite sex or between humans and animals, or any other act of sexual arousal involving any physical contact with a person's genitals, pubic region, pubic hair, perineum, anus, or anal region.

NEWSRACK: Any unattended, self-service or coin or token operated box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of any written, photographic or printed material, including, but not limited to, newspapers or news periodicals.

PUBLIC RIGHT OF WAY: Any place of any nature which is dedicated to use by the public for pedestrian and vehicular travel, and includes, but is not limited to, a street, sidewalk, curb, gutter, intersection, parkway, highway, alley, lane, mall, court, way, avenue, boulevard, road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park, square or any other similar public way. (Ord. 0-03-1172, 5-5-2003)

No person, whether as a principal, agent, or employee, either for itself or any other person, or as an officer of any corporation, or otherwise, shall place, affix, erect, construct, or maintain a newsrack upon any public right of way unless and until a newsrack permit has been obtained pursuant to this article. (Ord. 0-03-1172, 5-5-2003)

A person seeking issuance of a permit pursuant to this article shall file with the director a written application on forms supplied by the city. The application shall contain the following information:

A. The name, address and telephone number of the applicant;

B. 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;

C. The number of newsracks and the exact proposed location of each, including the name of the street and the approximate location of the proposed installation of the newsrack(s); and

D. The names of the newspapers or periodicals to be contained in each newsrack. (Ord. 0-03-1172, 5-5-2003)

A. Permit Application Fee: The applicant shall provide a nonrefundable permit application fee in an amount established by resolution of the city council.

B. Insurance: The applicant shall file with the director an insurance certificate establishing that the applicant has in force public liability and property damage insurance from a carrier admitted to do business in the state of California with a Best's insurance rating of A: VII or better in an amount of one million dollars ($1,000,000.00) per occurrence to indemnify the city against any personal injury, death, loss or damage resulting from the permittee's activities. The city and its officers and employees shall be named as additional insureds. The policy must include a statement by the insurance carrier that thirty (30) days written notice will be given to the city before any cancellation or modification of coverage. The permittee must maintain such insurance for as long as the permittee maintains a newsrack in the public right of way.

C. Hold Harmless/Indemnification Statement: Every applicant for a newsrack permit shall file a written statement satisfactory to the city attorney whereby the applicant agrees to indemnify, defend and hold harmless the city, its elected officials, its officers, and employees with respect to any loss, liability or damage, including attorney fees, expenses and costs, for personal injury and for property damage sustained by any person as a result of the applicant's installation, use or maintenance of a newsrack or newsracks within the city. (Ord. 0-03-1172, 5-5-2003)

The director shall issue a permit within thirty (30) days of submittal of the completed application, insurance certificate and hold harmless and indemnification agreement unless there is a finding that the newsrack fails to comply with the provisions of this article. (Ord. 0-03-1172, 5-5-2003)

If a permit is denied, the applicant shall be notified in writing within ten (10) days of the specific basis of such denial by the director. (Ord. 0-03-1172, 5-5-2003)

A. Any applicant who has been denied a permit pursuant to the provisions of this article may file an appeal to the city council. The applicant shall also have the right to appeal the amount of fees and/or costs imposed pursuant to section 14.14.05 of this article, or a determination by the director that the applicant's insurance policy does not comply with the requirements specified in section 14.14.05 of this article. A notice of appeal shall be filed with the city clerk within ten (10) days of mailing or personal delivery of a notice of a denial or the right to appeal is deemed waived. The notice of appeal shall set forth the grounds for the appeal.

B. The city clerk shall advise the director of the appeal and the director, as soon as is practical, shall transmit a copy of its file, decision and order, if one has been issued, to the city clerk, who shall set the matter for hearing within thirty (30) calendar days.

C. The council shall hear the applicant or a designated representative, receive any relevant information and documents, and act on the appeal at its next regular meeting that is at least one calendar week after the filing of the appeal. Consideration of the appeal may be continued, with the consent of the applicant. The decision of the council shall be final. (Ord. 0-03-1172, 5-5-2003)

A. The specific location of newsracks shall comply with the following requirements:

1. Where placement is next to a building, it shall be placed adjacent and parallel to and within six inches (6") of the wall of the building;

2. Where placement is next to a curb, it shall be situated parallel to and no less than eighteen inches (18") nor more than twenty four inches (24") from the edge of the curb.

3. No more than four (4) newsracks shall be located on any public right of way within a space of two hundred feet (200') in any direction within the same block of the same street. In the event there are more than four (4) newsracks located on the public right of way within a space of two hundred feet (200') in any direction within the same block of the same street on the effective date of this article, all newsracks in such locations shall be permitted to remain provided that the person or organization responsible for those newsracks obtains the permit required by this article and complies with all other requirements of this article. No additional newsracks shall be approved at such locations until such time when there are fewer than four (4) newsracks within a space of two hundred feet (200') in any direction within the same block of the same street at such location.

4. In the event that a location becomes available for the placement of new newsracks, not more than one permit will be issued per location for any single newspaper or periodical; except that, if a newsrack location is available for more than three (3) months, more than one permit may be issued to any newspaper or periodical at that location.

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

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

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

3. Within five feet (5') of any fire hydrant, fire callbox, police callbox, traffic signal controller, streetlight controller, or other emergency facility;

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

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

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

7. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet (6');

8. On or within three feet (3') of any area improved with lawn, ground cover, flowers, shrubs or trees;

9. Within three feet (3') 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 or newsstand divided only by the width of the sidewalk or pedestrian walk;

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

12. Where the newsrack will endanger persons or property;

13. Where the newsrack will unreasonably interfere with or obstruct the flow of pedestrian or vehicular traffic on the public right of way; and

14. Where the newsrack would obstruct the visibility of either pedestrian or vehicular traffic on the public right of way. (Ord. 0-03-1172, 5-5-2003)

Newsrack installation shall comply with the following requirements:

A. Newsracks shall be the "Los Angeles Times" coin operated M-284 or an equivalent model approved by the director. Newsracks that are in place prior to the effective date hereof, and not in compliance with this subsection shall be replaced with conforming newsracks within twelve (12) months.

B. Each individual newsrack shall be placed on a mount which shall be connected to a permanent pedestal permanently affixed to the public right of way. A mount may be used for no more than two (2) newsrack cases with a single permanent pedestal permanently affixed to the public right of way. For the purposes of subsection 14.14.09A3 of this article, two (2) newsrack cases mounted on a single permanent pedestal permanently affixed to the public right of way shall be considered to be two (2) separate newsracks.

C. No vertical stacking of newsracks is permitted.

D. All newsracks shall have a pedestal painted glossy black, and a display case consisting of wood grain panels on each visible side.

E. Newsracks shall carry no advertising, including rack cards, except that the name of the newspaper or periodical being dispensed may be displayed on the bottom one-third (1/3) of the hood on the front access side of the newsrack. Newsracks in place prior to the effective date hereof may carry rack cards which exclusively advertise the newspaper or periodical being dispensed for a period not to exceed one year from the effective date hereof, upon which they shall be removed in compliance with this section.

F. The name, address and telephone number of a responsible person or entity 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 visible and readable to a prospective customer.

G. Newsracks shall at all times be maintained in good working order, and their exterior surface shall be maintained in a clean, untarnished and attractive condition free of defects, physical damage, handbills, extraneous markings and graffiti. (Ord. 0-03-1172, 5-5-2003)

No newsrack shall expose 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; or

B. Any picture or illustration of genitals, pubic hair, perineum, anuses, or anal regions of any person 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. (Ord. 0-03-1172, 5-5-2003)

A. Definitions: For purposes of this section, the terms "harmful matter", "matter", "person", "distribute", "knowingly", "exhibit", and "minor" shall have the meanings specified in section 313 of the California Penal Code, or any successor provisions thereto. For the purposes of this section, the term "blinder rack" shall mean opaque material placed in front of, or inside, the newsrack which prevents exposure of the contents thereof from public view.

B. Prohibition: No person shall knowingly exhibit, display or cause to be exhibited or displayed, harmful matter in any newsrack located in whole or in part, in, over or on any public right of way or public place from which minors are not excluded, unless blinder racks have been installed so that the lower two-thirds (2/3) of the matter is not exposed to public view. (Ord. 0-03-1172, 5-5-2003)

A. In the event any newsrack installed pursuant to this article does not contain the publication specified in the application in the newsrack for a period of more than thirty (30) consecutive days, the director may deem the newsrack abandoned and may remove the newsrack from the public right of way in accordance with the procedures set out in sections 14.14.15 through 14.14.18 of this article.

B. In the event a permittee of a newsrack owned by the permittee desires voluntarily to abandon a newsrack location, such permittee shall completely remove the newsrack and mount and restore the public right of way to a safe condition, leaving no hole or projection in the pavement. (Ord. 0-03-1172, 5-5-2003)

In the event a newspaper or news periodical is distributed in more than one newsrack at a single location, and the newsracks are not substantially utilized, the director may order that newsracks that are not substantially utilized at such location be removed. For purposes of this section, a newsrack is not substantially utilized if more than twenty five percent (25%) of the newspapers or news periodicals in relationship to the total capacity of the newsrack remain in the newsracks at the end of a day for a daily periodical, at the end of a week for a weekly periodical and at the end of the month for a monthly periodical. (Ord. 0-03-1172, 5-5-2003)

A. The director:

1. May immediately remove and impound any newsrack in violation of this article if the violation is creating a dangerous or hazardous condition which cannot be corrected simply, easily, quickly and without expense to the city. Notice of such action and the right to request a hearing in accordance with this article shall be mailed to the permittee, or person, if known, maintaining such newsrack within five (5) working days after such action;

2. May notify the permittee, or person, if known, maintaining a newsrack found in violation of this article, either in person, by telephone or by mail, and/or by affixing a notice to the newsrack, that unless the violation is corrected or a hearing requested within the following times after date of the notice, the newsrack will be impounded: a) two (2) working days if the notice is in person or by telephone, b) five (5) working days if the notice is by mail, or c) seven (7) working days if the notice is made by affixing a notice to the newsrack; and

3. May impound any newsrack in accordance with the decision following a hearing requested pursuant to section 14.14.17 of this article.

B. If a hearing on the impounding of the newsrack is not timely requested or if the newsrack is not returned to the permittee in accordance with the provisions of this section, the director may sell or otherwise dispose of the newsrack, its contents and any monies contained in the newsrack, and deposit the proceeds, if any, in the city treasury. (Ord. 0-03-1172, 5-5-2003)

A. Unless the newsrack and its contents are being held as evidence in a criminal prosecution, the permittee or if there is no known permittee a claimant who provides sufficient proof of ownership of an impounded newsrack may, at any time up to and including the thirtieth day after the impounding, and if a hearing pursuant to this article is held concerning the newsrack, may, at any time including the thirtieth day after the decision of such hearing becomes final, obtain a return of the newsrack and its contents, upon paying an impound fee as established by council resolution plus the reasonable additional cost, if any, of impounding the newsrack in excess of that fee.

B. The director may, after a hearing in accordance with this article, order the newsrack returned without payment of any impound fee; or, if an impound fee has previously been paid, may order return of any such impound fee if no violation of this article is found.

C. A court before whom criminal charges concerning an impounded newsrack are pending, may, upon dismissal of the charges or finding of acquittal, in its discretion order an impounded newsrack returned without payment of an impound fee or the return of the impound fee paid. (Ord. 0-03-1172, 5-5-2003)

A. Request For Hearing: Any permittee or person owning or maintaining a newsrack found in violation of this article may request in writing a hearing before the director according to the time limitations contained in subsection 14.14.15A2 of this article.

B. Stay Pending Decision: A timely request for a hearing made prior to any impounding shall operate to stay the impounding until five (5) working days after a final decision by the director is rendered.

C. Conduct Of Hearing: A hearing shall be held before the director within five (5) working days of the request for a hearing, unless continued by agreement. At the hearing, any person may present evidence or argument as to whether the newsrack was in violation of this article or whether the newsrack should be returned without payment of an impound fee.

D. Decision: A decision shall be rendered within five (5) working days after the close of the hearing. The director shall take any one of the following actions:

1. Determine there was no violation of this article;

2. Determine there was a violation of this article and order that the violation be corrected within a reasonable period of time and if not, order the removal or impound of the newsrack found in violation of this article;

3. Determine there was a violation of this article and order the removal of the newsrack found in violation. If the newsrack which is found in violation of this article is not removed, it shall be impounded.

E. Notice Of Decision: The director may give oral notice of the decision at the close of the hearing and shall send notice of the decision by mail. (Ord. 0-03-1172, 5-5-2003)

A. Appeal: Any person who requested a hearing under section 14.14.17 of this article may, within ten (10) days after notice of the decision therein given pursuant to this article, appeal such decision to the city council pursuant to the appeal procedure contained in section 14.14.08 of this article.

B. Stay Pending Appeal: A timely request for an appeal shall operate to stay the action ordered by the director until five (5) working days after a final decision by the city council is rendered.

C. Action By City Council: Upon consideration of the appeal, the city council may affirm, modify or reverse the decision being appealed from. (Ord. 0-03-1172, 5-5-2003)

Any person, firm or corporation violating any of the provisions of this article shall be subject to an administrative citation pursuant to chapter I, article 06 of this code. (Ord. 0-07-1196, 10-10-2007)

The installation, maintenance, replacement, removal and relocation of newsracks shall be at the sole expense of the permittee or owner. Upon removal of any newsrack, the permittee or owner shall at his or her sole expense cause the public right of way to be returned or repaired to its original condition and in conformity to the surrounding area. If the permittee or owner fails to make such repairs within ten (10) working days of removal of the newsrack, the work may be done by the city and charged to the permittee or owner. (Ord. 0-03-1172, 5-5-2003)

If any section, subsection, subpart or provision of this article, or the application thereof to any persons or circumstances, is held invalid, the remainder of the provisions of this article and the application of such to other persons or other circumstances shall not be affected thereby. (Ord. 0-03-1172, 5-5-2003)