Sonoma Municipal Code Ch. 12.24 Newsracks

A. Findings. The city council of the city of Sonoma finds and declares that:

1. The uncontrolled placement and maintenance of newsracks in the public right-of-way can constitute a threat to public health, safety and welfare by interfering with and obstructing the use of the public rights-of-way and by offending community aesthetic sensibilities and adversely affecting tourism, which is one of the major sources of economic viability of the community.

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

B. Purpose. The purpose of this chapter is to promote the public health, safety and welfare through the regulation of placement, appearance, number, size and servicing of newsracks on the public rights-of-way so as to:

1. Protect the right to distribute information protected by the United States and California Constitutions, through the use of newsracks.

2. Provide for pedestrian and driving safety and convenience.

3. Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic, including but not limited to ingress into or egress from any place of business or residence, from the street to the sidewalk, or from parked vehicles to the sidewalk.

4. Provide reasonable access for the use and maintenance of sidewalks, poles, posts, traffic signs and signals, hydrants, mail boxes, and similar appurtenances, and access to locations used for public transportation purposes.

5. Reduce visual blight on the public rights-of-way, encourage well-designed and aesthetically compatible newsracks and protect the aesthetics and value of surrounding properties.

6. Reduce exposure of the city to personal injury or property damage claims and litigation.

C. Preservation of Constitutional Rights. It is not the intent of this chapter to in any way discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any printed material that is constitutionally protected. (Ord. 01-2012 § 1, 2012).

As used in this chapter, unless the context otherwise clearly indicates, the following words and phrases shall be construed as defined in this section:

“Block” shall mean one side of a street between two consecutive intersections.

“City manager” shall mean the city manager or his or her designee.

“Director of public works” shall mean the director of the public works department or his or her designee.

“Double-slotted newsracks” shall mean single newsracks containing separate provisions for two tabloid-style (vertically formatted) publications, where each side has a separate coin slot, merchandise receptacles, or places where the publications are dispersed. A double-slotted newsrack shall be considered one newsrack, cabinet, or compartment for purposes of this chapter.

“Modular newsracks” shall mean an attached group of two or more newsracks supported by a pedestal.

“Newsrack” shall mean any self-service or coin-operated box, container, storage unit or other dispenser installed, used, or maintained for the display and sale or free distribution of newspapers, news periodicals, commercial handbills, or other publications.

“Newsrack permit” shall mean a permit which was issued under this chapter of the Sonoma Municipal Code.

“Person” shall mean any person or persons, or entity, including but not limited to a corporation, partnership, unincorporated association, or joint venture. (Ord. 01-2012 § 2, 2012).

A. Roadway and Driveway Prohibition. No person shall install, use, or maintain any newsrack which projects onto, into, or over, or which rests, wholly or in part, upon any part of the roadway of any public street, or upon any driveway.

B. Parkway Prohibition. No person shall install, use, or maintain any newsrack on a parkway, planter strip, or similar area designated for landscaping in a public right-of-way.

C. Sidewalk Restrictions. No person shall install, use, or maintain any newsrack which in whole or in part rests upon, in, or over any public sidewalk in any manner inconsistent with or in violation of the provisions of this chapter. (Ord. 01-2012 § 2, 2012).

A. No person shall install, use or maintain any newsrack which in whole or in part rests upon, in, or over any public sidewalk without a newsrack permit from the public works department as required in this chapter.

B. The newsracks which are specifically identified in Exhibit “A” attached to the ordinance codified in this chapter are deemed to have a newsrack permit for a period of three months from the effective date of this chapter, at which time a new newsrack permit must be filed as provided in this chapter.

C. Applications for a new newsrack permit may be filed on or after the effective date of the ordinance codified in this chapter. Applications shall be filed with the director of public works upon a form provided by the public works department for that purpose and shall include the following information:

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

2. The address and telephone number of a responsible person whom the city may notify or contact at any reasonable time concerning the applicant’s newsracks;

3. The number of proposed newsracks and the names and frequency of publications to be contained in each newsrack, including any existing newsracks;

4. Type or brand of newsrack, including a photograph and a description of the newsrack and supporting structure;

5. A site plan showing the exact location of each newsrack and supporting structure, and sufficient information to determine that the location complies with SMC 12.24.050;

6. Such application shall also contain a statement that the applicant will, in consideration of being issued a newsrack permit for the use of space, be responsible for any damage or repairs caused by the installation, maintenance or removal of any newsrack and agree to indemnify and hold harmless the city of Sonoma, its officers and employees from any loss, liability, or damage, including expenses and costs, for bodily or personal injury, and for property damage sustained by any person caused by the installation, use, or maintenance of the applicant’s newsrack within the city of Sonoma;

7. Such application shall also include a copy of the policy or a certificate of the comprehensive general liability insurance policy in the amount prescribed by city council resolution to protect against personal injury and property damages and not more than the amount required for other obstructions on city property. Such insurance shall name on the policy or by endorsement as insured the city of Sonoma, its officers, employees and agents. Insurance coverage must be maintained for the duration of the newsrack placement. Proof of insurance coverage as specified in this subsection must be verified by the city prior to issuance of a newsrack permit.

D. An administrative fee may be imposed where such a fee is imposed merely to defray the expenses of administering constitutional regulation of newsracks and shall be strictly limited to the actual cost of administering such constitutional regulatory scheme. A fee may only be set subsequent to a hearing by the city council to determine said actual cost. Written findings setting forth the basis of the fee shall be sent to all distributors.

E. Existing newsracks which have been determined to meet the criteria for both design and placement provided in the City of Sonoma’s January 1, 1990, Newspaper Rack Policy are so indicated by an asterisk in Exhibit “A.” These newsracks are exempt from the application requirements in subsections (C)(4) (type and brand of newsrack) and (C)(5) (site plan) of this section, and the administrative fee for their application shall be waived. All other application requirements apply. Applications for these newsracks that are complete and consistent with the provisions of this chapter, and are filed within three months of the effective date of this chapter, shall be approved.

F. Except as otherwise provided in subsection (E) of this section, applications for new newsrack permits which are complete, consistent with the provisions of this chapter, and for locations at which space for one or more newsracks is available shall be approved on a first-come, first-served basis.

G. Applications for a new newsrack location may be denied if there is a vacant and available newsrack in an existing modular newsrack on the same block.

H. At the request of the applicant, an application for a new newsrack permit which is complete and consistent with the provisions of this chapter, but for a location at which space for a new newsrack is not available, shall be placed on a waiting list. If the requested location becomes available, the applicant will be notified according to its placement on the waiting list and a newsrack permit shall be issued; provided, that the newsrack complies with the provisions of this chapter. Said applicant shall have 15 days after the mailing of the notification letter to obtain a newsrack permit for the space by notifying the director of public works in writing and by paying the newsrack permit fee. Failure to obtain a newsrack permit within this period shall be deemed a withdrawal of the application.

I. If a newsrack permit is denied, in whole or in part, the director of public works shall notify the applicant in writing within 10 business days of the decision explaining the reasons for the denial.

J. The applicant may appeal the denial of a newsrack permit pursuant to SMC 12.24.120.

K. A newsrack permittee may not assign its permits to another of its publication(s). (Ord. 01-2012 § 2, 2012).

Any newsrack which in whole or in part rests upon, in, or over any public sidewalk shall comply with all of the following standards:

A. Placement and Total Numbers.

1. No newsrack shall be chained, bolted, or otherwise attached to any property not owned by the permittee of the newsrack. For newsracks located in the public right-of-way, the pedestal shall be securely bolted to the sidewalk or a concrete footing under pavers, tiles, or similar surfaces as the case may be; provided, that the permittee of the newsrack restores the sidewalk, pavers, tiles or similar surfaces to their original condition upon removal of the newsrack.

2. Where there are two or more newsracks in one location, newsracks shall be clustered into modular newsracks subject to the following conditions and limitations:

a. Modular newsracks shall be designed in such a manner as to utilize two rows with an equal number of compartments in each row.

b. No modular newsrack shall contain more than eight newsracks.

3. No newsrack may be installed within 200 feet of another single or modular newsrack on the same block except as specifically provided elsewhere in this chapter, including without limitation SMC 12.24.040(B) and subsection (A)(4) of this section.

4. Any person, publication or agency may apply for a variance from the 200-foot separation requirement of subsection (A)(3) of this section. A variance may be granted by the director of public works if the applicant can establish that the variance would not violate (a) SMC 12.24.010, Purpose and intent, or (b) subsection (B) of this section, Location. The applicant can appeal the denial of a variance pursuant to SMC 12.24.120.

B. Location. Other than those existing newsracks identified under SMC 12.24.040(E), no newsrack shall be installed, used, or maintained:

1. When such site or location is used for public utility purposes, public transportation purposes, or other governmental use.

2. When such newsrack unreasonably interferes with or impedes ingress or egress to or from any business, residence or legally parked or stopped vehicle or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects at or near the location.

3. Within 15 feet of the curb ramp of any street intersection, or in any location that interferes with or impairs the vision of operators of vehicles at street intersections.

4. Within five feet of any of the following: fire hydrant, emergency call box or other emergency facility, any marked crosswalk not at an intersection, any driveway or midblock curb ramp, any area designated by curb markings or signage to be handicapped parking, bus stop sign pole, or existing plaza periphery business wayfinding signs.

5. With the back to the roadway along the curb, if located within two feet from any curb where marked parking is parallel to the sidewalk.

6. Within 18 inches from trees and other vegetation installed in permanent planters in the public right-of-way, tree wells, supporting posts for covered walkways or canopies, or other similar elements at or near the location.

7. So as to obstruct, shield, or block a window of any business or residence where such newsrack is located within six feet from the face of the building on which the window is located.

8. At any location which creates less than a four-foot-wide path of travel as required by Title 24 of the California Code of Regulations and the Americans with Disabilities Act.

9. At any location in front of a state park of California, Sonoma City Hall or on the sidewalks on either the interior perimeter or crossing within the Sonoma Plaza.

C. Dimensions and Design.

1. Each newsrack shall be pedestal-mounted and stackable, of metal construction, and of a style that is either the KJ-50 as manufactured by K-Jack, or the Traditional 49-16 as manufactured by Sho-Rack, or substantially similar thereto.

2. The color of any newsrack shall be brown; identified as “brown” or “federal brown” (as manufactured by Sho-Rack). An alternative color may be allowed by the director of public works; provided, that the alternative color is complementary to the surroundings.

3. No single or modular newsrack shall exceed 58 inches in height measured from the surface of the sidewalk or ground to the top surface of the newsrack, or 20 inches in depth.

4. Use of double-slotted newsracks is encouraged for smaller, vertically formatted publications.

5. All units in modular racks shall open in the same direction.

D. Maintenance. Every newsrack shall be maintained by the permittee in a clean and neat condition free from dents, cracks, corrosion, rust, graffiti, dirt, or grease; chipped, discolored or peeling paint; information flyers or stickers that are not the property of the newsrack permittee; broken, cracked, or misshapen parts; and similar conditions that detract from the aesthetic quality of the commercial area. The newsrack shall be in working order at all times or locked in a closed position. Upon removal of a newsrack, the right-of-way shall be restored to its original condition prior to installation of the newsrack.

E. Advertising. Newsracks shall carry no advertising or public notices, other than a logo or similar information identifying the newspaper or publication, covering no more than 50 percent of the back and/or sides of the newsrack. No logos or similar information identifying the newspaper shall be allowed on the tops of the newsracks.

F. Identification. The address and telephone number of a responsible person who may be contacted at any time concerning the newsrack shall be displayed on the front of the newsrack in such manner as to be readily visible and readable to a prospective customer. The size of the identifying information shall not exceed 12 square inches. (Ord. 01-2012 § 2, 2012).

In addition to any enforcement remedies available to the city as set forth in this code, any newsrack and the publications therein installed or maintained in violation of this chapter may be removed by the city subject to the notice and appeal procedures set forth in this section.

A. Notice of Violation. If at any time it is determined by the director of public works that any newsrack is in violation of the requirements of this chapter, a written notice of violation shall be mailed to the permittee of the newsrack, and posted on the newsrack, or if no identification is displayed on the newsrack, merely posted on the newsrack. The notice shall state the violation or violations which constitute the basis of the notice, the city’s intent to revoke the newsrack permit and to remove the newsrack if the violation is not corrected or a hearing has not been requested within 15 days of the date of the mailing or posting of the notice of violation.

B. Hearing. A timely request for a hearing shall stay any removal of the newsrack. The request for a hearing shall be in writing, shall state the basis thereof, and shall be filed with the city clerk. The hearing shall take place before the city manager within 15 calendar days of the request. The hearing shall be informal, but oral and written evidence may be given the director of public works and the permittee. The city manager shall issue a written decision within 10 calendar days of the hearing. If the city manager finds that the newsrack is in violation of this chapter and the violation is not corrected within 10 calendar days after the written decision is mailed to the permittee, the newsrack permit may be revoked and the newsrack and any publications therein, if not a modular newsrack, may be summarily removed. The newsrack permittee may appeal the city manager’s determination pursuant to SMC 12.24.120. A timely appeal to the city council shall stay the summary removal of the newsrack.

C. Removal. Any newsrack which is not brought into compliance with this chapter within 15 days after notice of violation has been posted on the newsrack if no hearing or appeal is requested pursuant to subsection (B) of this section or SMC 12.24.120 shall be removed by the director of public works and stored in a convenient place. The cost of removal and storage shall be borne by the permittee.

D. Notification of Removal. The director of public works shall notify the permittee of the removal by mailing a notice of removal to the last known address of the permittee, if any, or to the address displayed on the newsrack. Such notice shall be mailed within five business days after removal of the newsrack and shall state: (1) the date the newsrack was removed; (2) the reasons for the removal; and (3) the locations of and procedure for claiming the newsrack.

E. Release. Any newsrack removed and stored pursuant to these provisions shall be released thereof within six months after the mailing of the written notice of removal upon satisfactory proof of authority to claim the newsrack and payment of an impoundment fee in an amount equal to the reasonable cost to the city of removing and storing the newsrack. If such newsrack remains unclaimed after this six-month period, it shall be deemed to be unclaimed property and may be disposed of by the city.

F. Removal in Exigent Circumstances. In the case of any newsrack which, in violation of the provisions of this chapter, creates an immediate danger to the health, safety or welfare of the public, such newsrack may be summarily removed and stored in a convenient location so as to eliminate the danger to the health, safety and welfare of the public. The director of public works shall notify the permittee of the removal by mailing a notice of removal to the last known address of the permittee. Such notice shall be mailed within five business days after the removal of the newsrack and shall contain the same information as set forth in subsection (D) of this section. The permittee of the newsrack may request a hearing pursuant to the procedures of subsection (B) of this section for a determination of whether the newsrack was legally placed and, therefore, improperly seized. If the city manager determines that the seizure was improper, the city manager shall order the newsrack released and reinstalled by the city with no charge to the permittee. (Ord. 01-2012 § 2, 2012).

Unless otherwise stated, notices required pursuant to the provision of this chapter shall be given in writing by United States certified mail, return receipt requested, addressed to the person to be notified at his or her last known address. The giving of notice under this chapter shall be deemed to have occurred as of the date of deposit in the United States mail. (Ord. 01-2012 § 2, 2012).

The provisions of this chapter shall apply to all newsracks within public rights-of-way, whether installed and maintained prior to or after the effective date of any of the provisions herein. (Ord. 01-2012 § 2, 2012).

A newsrack shall be deemed abandoned when no printed material of the type listed on the permit is contained therein for a period of more than 30 consecutive days, or it contains only outdated issues for more than 30 consecutive days. If the director of public works determines that no printed material of the type listed on the permit is contained in a newsrack for a period of more than 30 consecutive days, or it contains only outdated issues for more than 30 consecutive days, the director of public works shall mail to the newsrack permittee and post on the newsrack a notice stating his or her finding that the newsrack has been abandoned. If the newsrack permittee does not respond in writing to the director of public works with a statement of intention not to abandon the newsrack within 10 days of the mailing and posting of said notice, the newsrack permit shall be deemed revoked and the director of public works may summarily impound such newsrack, and shall mail a notice of removal as set forth in SMC 12.24.060(D). If the newsrack permittee timely provides a statement of intention not to abandon the newsrack, and there is not printed material contained in the newsrack for more than 30 consecutive days thereafter, or it contains only outdated issues for 30 consecutive days, the newsrack permit shall be deemed revoked, and the director of public works (A) may, without first mailing or posting notice of abandonment, summarily impound such newsrack, (B) shall mail a notice of removal as set forth in SMC 12.24.060(D), and (C) shall determine whether a newsrack permit should be issued to an applicant on the waiting list, if one exists for the site, in accordance with SMC 12.24.040(F). (Ord. 01-2012 § 2, 2012).

Each phrase, clause, sentence, section, and provision of this chapter is hereby declared to be severable. Therefore, if any phrase, clause, sentence, section, or provision of this chapter or application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other phrase, clause, sentence, section, provision, or application of this chapter. (Ord. 01-2012 § 2, 2012).

Except as specifically provided herein, the provisions of this chapter shall be enforced by the city manager or his or her designee. (Ord. 01-2012 § 2, 2012).

Unless otherwise provided herein, any person who is aggrieved by a determination made pursuant to SMC 12.24.040(G), 12.24.050(A)(4), or 12.24.060 shall have 10 calendar days within which to appeal the decision to the city council in accordance with the appeals provisions of this code. Any appeal of a newsrack permit or variance denial under this chapter shall be set for a public hearing before the city council. (Ord. 01-2012 § 2, 2012).