Seal Beach Municipal Code Ch. 9.10 News Racks

The purposes of this chapter are to protect pedestrian safety; preserve the aesthetics of the city's sidewalk areas; facilitate distribution of publications through news racks on public property; and to mitigate the traffic hazards and visual blight that can result from the unregulated placement of news racks on public rights-of-way.

(Ord. 1515)

For the purposes of this chapter, the words and phrases set forth in this section shall mean:

Abandoned:

news rack wherein no publication or the same publication has been displayed for a period of at least 30 consecutive days.

Block:

public right-of-way abutting on one side of a street and lying between the two nearest intersecting streets or between the nearest intersecting street and the termination of such public right-of-way.

City-Approved News Rack Model and Pedestal:

model series M100, M50, or a model that the director deems equivalent in size and appearance to the M100 or M50, painted a color equivalent to wood grain brown, mounted on a 16 ½-inch standard pedestal placed on a 10-inch X 10-inch pad. The director has the discretion to allow different colors outside the Main Street specific plan area.

Curb:

raised edge adjacent to a roadway between the sidewalk and the roadway.

Director:

director of public works or the designee thereof.

Driveway Approach:

portion of a public right-of-way, including curb returns or depressed curbs, providing vehicular access to a private roadway, building or other facility.

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.

Main Street Specific Plan Area:

described in the Main Street Specific Plan.

News Rack:

self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of a publication.

News Rack Area:

designated by the city for the placement of news racks within the Main Street Specific Plan Area.

Owner:

person to whom a news rack permit is issued. For purposes of this chapter, "owner" is synonymous with permittee.

Parkway:

area between the sidewalk and the curb of a street. Where there is no sidewalk, area between the edge of the roadway and the property line adjacent thereto. "Parkway" includes any roadway area that is not open to vehicular travel.

Pre-existing Publications:

publications that on December 1, 2003 were located in news racks that complied with the news rack location and placement standards set forth in the Code of the City of Seal Beach as such standards existed immediately prior to the effective date of the ordinance codified in this chapter; and which were placed in such location pursuant to a validly issued news rack permit and city business license.

Public Right-of-Way:

place of any nature that is dedicated to use by the public for pedestrian or vehicular travel, including without limitation: 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 similar public way.

Roadway:

portion of a street improved, designed or ordinarily used for vehicular travel.

Sidewalk:

surface improved, designed or ordinarily used for pedestrian travel.

Street:

as defined in Vehicle Code Section 590.

(Ord. 1515)

A. Requirement. No person shall place a news rack on any public right-of-way without first obtaining a news rack permit for such news rack.

B. Application. Applications for news rack permits shall be filed with the director upon a city-provided form. The application shall be signed by the applicant and shall contain the following information:

1. Name, address and telephone number of the applicant.

2. A precise diagram showing the proposed location for the news rack and the location and number of all other news racks existing on the same block.

3. Brand name of the news rack and a description of how it will be installed.

4. The name of the publication to be contained in the news rack.

5. A city attorney-approved written agreement obligating the applicant to indemnify, defend, and hold harmless the city and its officers, employees and agents against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies that the city shall incur or suffer as a result of the applicant's news racks. Such obligation shall include payment of interest, penalties and reasonable attorney's fees.

6. A certificate of endorsement evidencing that a comprehensive liability insurance policy has been issued for the period of the requested news rack permit by an insurance company that both is admitted and licensed to do business in the State of California; and is rated A or better according to the most recent A.M. Best Co. Rating Guide. The policy limits of such insurance shall not be less than $1,000,000 combined single limit or equivalent. Such policy shall name the city as an additional insured; shall specify that it acts as primary insurance and that no insurance held or owned by the designated additional insureds shall be called upon to cover a loss; and shall contain a provision that no termination, cancellation or change of coverage of insured or additional insureds shall be effective until after 30 days notice thereof has been given in writing to the director.

7. Business License. Every applicant for a news rack permit shall present proof of receipt of a business license or proof of application for such license.

C. Fee. Each news rack permit application shall be accompanied by a nonrefundable application fee. This fee shall be established by city council resolution and shall not exceed the actual cost of processing a news rack permit application.

D. Approval or Denial. The director shall, within 10 city business days of the filing of an application, approve and issue a news rack permit if there are no grounds for denial; otherwise the permit shall be denied. Notice of the approval or denial of the permit shall be given to the applicant in writing. If the application is denied, the director shall attach to the notice a statement of the reasons for the denial. The times set forth in this section shall not be extended except upon written consent of the applicant.

E. Grounds for Denial. The director may deny an application for a news rack permit for any of the following causes:

1. The following grounds for denial shall apply to all applications:

a. Failure to complete the application.

b. Knowing submission of a fraudulent statement of material fact.

c. Failure to comply with the provisions of this chapter.

2. In addition to the grounds specified in paragraph 1 of this subsection, the director may deny an application for placement of a news rack within the Main Street specific plan area if the proposed location of the news rack is a location at which no news rack space is available due to the issuance of news rack permits to other persons pursuant to Section 9.10.025.

F. Term. Each news rack permit shall be valid for 3 years from the date of issuance unless revoked. A news rack owner shall submit an application for renewal at least 15 days prior to the expiration of the owner's news rack permit.

G. Appeals. Any interested person may request an administrative hearing regarding the issuance, denial of issuance, renewal or denial of renewal of a news rack permit. Notwithstanding the preceding, no administrative hearing shall be held regarding the denial of a news rack permit for a news rack space within the Main Street specific plan area if the denial was based on the lottery. A request for an administrative hearing must be filed in writing with the city clerk within 10 days after the decision of the director.

(Ord. 1515)

News racks located on public right-of-way shall comply with the following placement standards:

A. News racks shall not be placed:

1. Within 20 feet of any marked crosswalk.

2. Within 20 feet of the curb return of any unmarked crosswalk.

3. Within 15 feet of any driveway approach.

4. Within 10 feet of any fire hydrant, fire call box, police call box or other emergency facility.

5. Within 5 feet ahead of and 25 feet to the rear of any sign marking a designated bus stop.

6. Within 10 feet of any bus bench or bus shelter.

7. Within 10 feet of any mailbox, utility pole, telephone pedestal or any other permanent fixture located in the public right-of-way.

8. Within 3 feet of any area improved with lawn, flowers, shrubs or trees.

9. Within 3 feet 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 for display purposes.

10. At any location whereby the clear space for the passageway of pedestrians is reduced to less than 4 feet.

11. At any location whereby the clear space for the passageway of pedestrians is reduced to less than 5 feet for a length of more than 30 feet.

12. Adjacent to or on the curb abutting any fire access lane.

13. Within the limits of any portion of curb painted yellow or white.

B. News racks shall be placed between 6 inches and 24 inches from the curb at the sole discretion of the director.

C. No news rack shall unreasonably interfere with or impede the flow of pedestrian or vehicular traffic.

D. No news rack shall interfere with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.

E. No news rack shall project into a roadway.

F. No news rack shall unreasonably interfere with or impede ingress into or egress from any residence or place of business.

(Ord. 1515)

A. Concentration. The director shall determine the locations within the Main Street specific plan area of news racks on the public right-of-way and shall mark such locations on a map that is available to the public on request. In determining such locations, the director shall adhere to the following concentration standards:

1. No more than 24 news racks shall be located on any block of Main Street between Pacific Coast Highway and Ocean Avenue. The maximum grouping of news racks at each location shall be 8. There shall be a minimum 100-foot separation between each grouping.

2. No more than 4 news racks shall be located on any block of the northerly side of Ocean, each side of Central Avenue, each side of Electric Avenue, and the southerly side of Pacific Coast Highway, between Main Street and the adjoining alleys.

B. No person shall place or maintain a news rack in the Main Street specific plan area except in one of the city-designated areas.

C. Permit Process.

1. Except as provided in paragraph 2 of this subsection, the director shall approve applications on a first-come, first-served basis.

2. Where 2 or more publications seek the same location for a news rack and there is insufficient space at the location to accommodate all such publications, the director shall allocate news rack permits in accordance with the following process. No publication shall be eligible for more than one news rack permit per news rack grouping where demand exceeds supply.

a. Priority shall be given to pre-existing publications. In the event demand by pre-existing publications exceeds supply at any particular location, the director shall adhere to the following criteria:

(1) Pre-existing publications previously located at that location have priority. Where demand by publications seeking to stay in the same location exceeds supply at that location, the director shall assign the desired location:

(a) First to daily publications published at least 5 days a week ("daily publications").

(b) Second to weekly publications published between one and 4 days per calendar week ("weekly publications").

(c) Third to monthly publications published between one and 3 days per calendar month ("monthly publications").

(2) Pre-existing publications not previously located at the desired location will be given priority based upon the criteria in subparagraphs (1)(a) through (c) of this paragraph C.2. In the event 2 or more pre-existing publications seeking to relocate to the same location have the same level of priority, the director shall assign the desired location to the publication that was located in closest proximity to the desired location.

b. All Other Publications. As between publications that are not pre-existing publications, the director shall adhere to the following criteria:

(1) First priority shall be given to daily publications.

(2) Second priority shall be given to weekly publications.

(3) Third priority shall be given to monthly publications.

c. Location and Space Assignment by Lottery. The director shall approve news racks by lottery in the event that 2 or more publications having the same level of priority seek the same location or space for a news rack; and either there is insufficient space at the location to accommodate all such publications, or 2 publications are seeking the same space in a particular designated area. The lottery shall be conducted by placing into a container the names of all of the applicants having the same level of priority and drawing names from the container one at a time until the number of available news rack spaces at the location reaches zero. The director shall give advance written notice to the applicants of the time and place of the lottery, and shall allow members of the public to witness the lottery. The initial lottery shall be held on a date 30 days after the effective date of the ordinance codified in this chapter.

3. Space Request. The applicant shall indicate on the application its preference for a particular space in the designated area.

D. Permit Renewal. If a news rack in the Main Street specific plan area is abandoned during the permit term, or if the news rack permit for that space is not renewed at the expiration of the term, then the news rack permit for that news rack space shall be re-allocated pursuant to subparagraph 2.c of subsection C of this section. The permittee who abandoned the news rack or failed to renew the news rack permit shall not be eligible to participate in the re-allocation process.

E. Authority of Director. The director may promulgate policies necessary or convenient for the administration of this section.

(Ord. 1515)

News racks located on public right-of-way shall comply with the following operation standards:

A. Each news rack shall be the city-approved news rack model and pedestal.

B. Each news rack shall have conspicuously affixed thereto the name, address and telephone number of the owner thereof.

C. Each news rack shall have conspicuously affixed thereto the annual permit tag issued by the department.

D. No news rack shall be abandoned.

E. The liability insurance required by this chapter shall not be reduced or cancelled.

F. No news rack shall contain an advertising sign. Notwithstanding the preceding, the name and logo of the publication distributed in a news rack may be stenciled upon the front and back of such news rack.

G. No news rack shall be chained, bolted or otherwise attached to any property without the express written permission of the owner of such property. Notwithstanding the preceding, each news rack shall be bolted to the sidewalk upon which it is maintained unless it is vertically stacked upon another news rack pursuant to this chapter.

H. Each news rack shall be maintained in a clean and neat condition and in good repair at all times. The owners of vertically stacked news racks shall be jointly responsible for maintenance of the shared components of such news racks. Occurrence of any of the following conditions on a news rack shall constitute evidence that the news rack is not being maintained in a clean and neat condition or in good repair:

1. Graffiti.

2. Broken or unreasonably misshapen structural components.

3. Cracks, dents or discoloration of the display window.

4. Substantial accumulation of dirt, grease, rust or corrosion.

5. Substantial amount of chipped, faded, peeling, or cracked paint.

6. Substantial amount of tearing, peeling or fading of any paper or cardboard parts or inserts of the news rack.

I. Publications offered for sale or distribution in the news rack shall not be displayed or exhibited in a manner that exposes to public view from any public right-of-way any of the following:

1. 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.

2. Any picture or illustration of genitals, pubic hair, perineum, anus or anal region of any person where such picture or illustration has as its purpose or effect sexual arousal, gratification or affront.

3. 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. 1515)

The director may summarily impound any news rack that poses an imminent danger to pedestrians or vehicles. On the day of such impoundment, the department shall send the owner identified on the news rack written notice of the seizure and the opportunity for an administrative hearing. If the owner files a written hearing request with the city clerk within 10 days of such notice, then the city manager shall conduct an administrative hearing regarding the propriety of the summary impoundment.

(Ord. 1515)

Whenever any news rack is found to be in violation of this chapter, but the violation does not present an imminent danger to pedestrians or vehicles, the department shall affix a notice of violation tag upon such news rack and shall send a written notice of violation to the owner identified on the news rack. The notice shall state the nature of the violation and shall indicate that failure to correct the violation or to file a written hearing request with the city clerk within 10 days may result in impoundment of the news rack. The director may impound such news rack if the owner has not corrected the violation or filed a written hearing request within the allotted period. If the owner files a timely written hearing request with the city clerk, then the city manager shall conduct an administrative hearing regarding the existence of the violation. The director may impound such news rack 2 days after the city manager's administrative hearing decision if the decision confirms the existence of the violation and the owner has not corrected the violation.

(Ord. 1515)

A. The city manager shall be responsible for conducting administrative hearings related to the implementation of this chapter. This responsibility may not be delegated.

B. The city manager shall conduct an administrative hearing and take the matter under submission for decision no later than 15 city business days following the timely filing of the request for hearing, unless the requestor and owner (if different than the requestor) consent in writing to an extension. At least 10 days prior to such hearing, written notice thereof shall be mailed to the requestor and owner (if different than the requestor).

C. Administrative hearings shall be conducted in accordance with procedures established by the city manager. All parties involved shall have a right to: offer testimonial, documentary and tangible evidence bearing on the issues; be represented by counsel; and confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this subsection may be continued for a reasonable time for the convenience of a party or a witness.

D. The city manager shall, within 10 city business days from the conclusion of the administrative hearing, render a written decision supported by findings. The time period set forth in this section shall not be extended except upon written consent of the requestor and the owner (if different than the requestor). The decision of the city manager shall be final. Notice of the decision and a copy thereof shall be mailed to the requestor and the owner (if different than the requestor). Such notice shall contain the substance of the following statement: "You are hereby notified that the time within which judicial review of this decision may be sought is governed by California Code of Civil Procedure Section 1094.8."

(Ord. 1515)

A. News racks that have been summarily impounded shall be returned to the owner without charge if a timely hearing request was filed and the city manager determined that the seizure was improper. Otherwise such news racks shall be returned upon payment of the impound fee and filing of a written request therefor within 30 days of the date of the seizure or, if applicable, the date of the city manager's administrative hearing decision upholding the seizure.

B. News racks that have been non-summarily impounded shall be returned to the owner upon payment of the impound fee and filing of a written request therefor within 30 days of the date of the seizure.

C. The amount of the impound fee shall be set by city council resolution.

(Ord. 1515)

The department may sell or otherwise dispose of any news rack provided that both 30 days have elapsed since the impoundment or city manager decision affirming the impoundment; and the owner of the news rack has failed to pay the impound fee. The proceeds of such disposal shall be deposited in the city's general fund.

(Ord. 1515)