Ventura Municipal Code Ch. 18.200 News Racks 4

4 Editor’s note(s): Section 2 of Ord. No. 2010-004, adopted April 12, 2010, amended Chapter 18.200 in its entirety to read as herein set out. Former Chapter 18.200 pertained to the same subject matter, consisted of Sections 18.200.010 through 18.200.160, and derived from Sections 2291 through 2299.7 of the 1971 Code.

A. Purpose and Intent. The purpose of this chapter is to promote the public health, safety, and welfare by establishing objective standards for locating news racks through the regulation of location, appearance, size, and maintenance of news racks on city rights-of-way in order to:

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

2. Provide for pedestrian and vehicular safety and convenience.

3. Minimize 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, by establishing objective standards for locating news racks.

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

5. Reduce visual blight on city streets, promote tourism, encourage well-designed and aesthetically compatible news racks, and protect the aesthetics and value of surrounding properties.

B. Legislative Findings. The city council finds that, with the exception of those regulations governing the display of harmful matter, the time, place and manner restrictions established by this chapter are content-neutral, narrowly tailored to serve significant government interests, and leave open ample alternative channels of communication in that:

1. The news rack location, appearance, size, and maintenance regulations established in this chapter apply regardless of the content of the publication.

2. The news rack location, appearance, size, and maintenance regulations established in this chapter serve a substantial government interest by protecting the aesthetic appearance of the city, avoiding visual clutter, assuring safe and convenient pedestrian circulation, helping to promote tourism and economic vitality, and preventing dangerous installations of news racks.

3. The news rack location, appearance, size, and maintenance regulations established in this chapter, and in particular the downtown high density zone regulations, leave open ample alternative channels of communication in that only a small fraction of the downtown is subject to the required use of modular news rack cabinets, and hundreds, if not thousands, of locations remain available in the city for the installation of news racks.

4. With respect to the display of harmful matter, the city council finds that there is a compelling government interest in protecting the welfare of minors by preventing access to materials deemed obscene as to minors, and that the use of blinder racks is a narrowly tailored solution to serve this interest.

5. The city council finds that the downtown high density zone has become very congested, with street furniture and other sidewalk encroachments, automobiles, and other means of travel competing with pedestrians for the public space; and that special standards for the design and location of news racks, in conjunction with a program for the furnishing and installation of uniform street furniture, and the enforcement of existing regulations for other encroachments in the downtown commercial area, will help to create a sense of order out of chaos and provide a friendly environment for those who come to the area. The downtown high density zone is both crucial and unique for the city because it is the congregating point for most tourism and establishes the basic character of the city. The city may expand the downtown high density zone in the future as funding for additional modular news rack cabinets becomes available. (Ord. No. 2010-004, § 2, 4-12-10)

This chapter establishes the sole regulations governing the placement and maintenance of news racks within the city. This chapter establishes application requirements and location, appearance, size, and maintenance standards for all news racks in the city. In addition, this chapter establishes special time, place and manner regulations for the downtown high density zone in which modular news rack cabinets will be installed. In the downtown high density zone, freestanding news racks are not permitted. This chapter also establishes regulations governing the display of harmful matter in news racks. Finally, this chapter establishes definitions of the significant terms it uses. (Ord. No. 2010-004, § 2, 4-12-10)

No person shall, and it is unlawful for any person to, install, place or maintain a news rack on or projecting onto public property, roadways, streets or sidewalks unless and until a news rack permit has been obtained from the community development director. No other city permit shall be required. (Ord. No. 2010-004, § 2, 4-12-10)

A. Applications for news rack permits shall be made to the community development director on forms established by the city. An application shall be approved and permit granted if the application proposes installation and maintenance of a news rack or news racks in conformance with all requirements of this chapter. An application that proposes installation and maintenance of a news rack or news racks not in conformance with all requirements of this chapter shall be denied.

B. A permit shall be granted or denied or granted within 20 business days after a completed application is filed. If a permit is denied, the city shall, within 10 days, mail to the owner a notice of denial that identifies the reasons for denial.

C. With respect to permits for news racks to be located in modular cabinets in the downtown high density zone, an initial implementation program shall take place starting the effective date of the ordinance codified in this chapter and ending 60 calendar days thereafter. All applications received during the initial implementation program shall be deemed filed as of the last day of the initial implementation program, so that there will be no priority given for location based upon the time the application was submitted, but action shall be taken within 20 business days after the conclusion of the initial implementation program.

D. Upon approval of a news rack permit application the city shall issue a registration sticker or stickers to each owner, which the owner shall affix to the front of the door of, or the unobstructed top face of, each news rack that is the subject of the permit. The stickers will not be location specific.

E. The permit application shall include all of the following with respect to each proposed news rack:

1. The name, street and mailing address, email address for the purposes of receiving copies of notices of violations and other official communications, and telephone number of the applicant, which shall be the duly authorized representative of both the publisher and, if applicable, any independent distributor authorized to service the publisher’s news rack for which the permit is sought;

2. The name, street and mailing address and telephone number of the distributor or other responsible person whom the city may notify or contact at any time concerning the applicant’s news rack(s);

3. The number of proposed news racks and a description of the exact proposed location, including a map or site plan, drawn to scale, with adequate location information to verify conformance with this chapter;

4. A description of each proposed news rack, including its dimensions, brand and model type, the number of publication spaces it will contain, and whether it contains a coin-operated mechanism;

5. The name and frequency of publication of each publication to be contained in each news rack;

6. A statement signed by the applicant that the applicant agrees to indemnify, defend and hold harmless the city and its representatives from all claims, demands, loss, fines or liability to the extent arising out of or in connection with the installation, location, use or maintenance of any news rack on public property by or on behalf of any such person, except such injury or harm as may be caused solely and exclusively by the negligence of the city or its authorized representatives;

7. A statement signed by the applicant that the applicant agrees, upon removal of a news rack, to repair any damage to the public property caused by the news rack or its removal;

8. An acknowledgement that prior to the effective date of the permit issued the permittee shall deposit with the community development director or their designated representative a certificate of insurance evidencing that a liability insurance policy in minimum amounts set by the city risk manager has been issued, naming the city as an additional insured under the same terms and conditions as the primary insured, and containing a provision that the policy cannot be canceled except upon 10 days’ advance written notice to the city of the fact of such cancellation; and that if such insurance is canceled at any time during the terms of such permit, same shall be grounds for revocation of the said permit;

9. Agreement to conform to the requirements of this chapter;

10. An application and processing fee, as established by resolution of the city council; and

11. A copy of the business license tax receipt required to conduct business within the city. (Ord. No. 2010-004, § 2, 4-12-10)

A. Each news rack shall conform to the following general standards. No permit application shall be approved unless it is demonstrated that the proposed news rack or news racks will conform to each of the following general standards. It is unlawful for any person to install, place or maintain a news rack in violation of any of the provisions of this section.

1. No news rack shall project onto, or rest upon, along or over, any part of the roadway of any public street.

2. No news rack shall, in whole or in part, rest upon, in or over any sidewalk or parkway when such site or location is used for public utility purposes, public transportation purposes, or other government use, or 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 permitted at or near said location, or when such news rack interferes with the cleaning of any sidewalk or street by the use of mechanical sidewalk cleaning machinery.

3. Any news rack which in whole or in part rests upon, in or over any sidewalk or parkway shall comply with the following conditions:

a. No news rack shall exceed five feet in height, 30 inches in width, or two feet in depth.

b. News racks shall only be placed near a curb or adjacent to the wall of a building. News racks placed near the curb shall be placed such that the back of the news rack shall be no fewer than 18 inches nor greater than 24 inches from the face of the curb. News racks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. No news rack shall be placed or maintained on a sidewalk or parkway opposite a news stand or another news rack.

c. News racks may be placed next to each other; provided, that no more than three news racks, whether placed on a single pedestal or multiple pedestal mounts, shall be placed next to each other and a space of no fewer than three feet shall separate each such group of three news racks.

d. Each news rack installed on the public sidewalk shall be bolted to the city sidewalk in accordance with city standards and specifications. Upon removal of the rack, the sidewalk shall be restored to the satisfaction of the city engineer.

e. News racks may not be chained or otherwise attached to one another; nor to any street sign, street light pole, traffic signal equipment, power pole, bike rack, public bench, bus shelter, or other public street furniture.

f. No news rack shall weigh in excess of 250 pounds when empty.

g. No news rack shall be placed, installed, used or maintained:

i. Within 10 feet of any marked or unmarked crosswalk;

ii. Within five feet of any fire hydrant, fire call box, police call box, traffic signal controller, or traffic signal;

iii. Within three feet of any utility meter, maintenance hole, service box, parking meter, street light pole or other public works facility;

iv. Within 10 feet of any driveway or alley approach;

v. Within five feet of a bike rack;

vi. Within four feet of any bus boarding and alighting area consisting of the bench and/or shelter, sign and clear zones for boarding and alighting of buses as required by the Americans with Disabilities Act;

vii. Within three feet of any bus bench or public bench;

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

ix. Within three feet of any area improved with lawn, flowers, shrubs or trees or within three feet of any display window of any building abutting the sidewalk or highway or in such manner as to impede or interfere with the reasonable use of such window for display purposes;

x. Within four feet of any permitted sidewalk dining area;

xi. Within the boundary of a marked valet parking area or loading zone, or as otherwise restricted by the Americans with Disabilities Act.

4. Each news rack shall be maintained in a clean and neat condition and in good repair at all times. Without limiting this general obligation, the following maintenance criteria shall apply:

a. Each news rack shall be routinely maintained and serviced so that it is reasonably free of:

i. Dirt and grease;

ii. Chipped, faded, peeling, and cracked paint or graffiti on any visible painted areas;

iii. Rust and corrosion on any visible unpainted metal areas;

iv. Cracks, dents, blemishes, and discoloration in the clear plastic and glass parts, if any, through which publications are viewed;

v. Tears, peeling, or fading in the paper or cardboard parts and inserts;

vi. Broken and misshapen structural parts; and

vii. Unauthorized stickers on any surface of the rack.

b. Each news rack, including any coin-return mechanism, shall be mechanically operable at all times.

c. News racks shall contain current editions of the publication for which the permit was issued and new editions placed in the news rack at no less than the frequency for which any priority was given for a permit in that location.

d. No news rack shall be used for advertising signs other than that directly related to the display, sale or purchase of the publication sold therein.

e. No news rack shall remain empty for a period of 15 consecutive days or longer.

f. No news rack may contain a publication other than the one for which the permit was issued.

g. Each news rack shall have the name, address and telephone number of the person who owns the news rack as well as the city permit number affixed thereto in a place where it may be seen by anyone viewing the news rack as required by Business and Professions Code Section 17570.

h. When use of a news rack is permanently discontinued, it shall be removed and the location restored to its previous condition, including, but not limited to, repair of any portion of the sidewalk or parkway damaged by the news rack or its removal and according to specifications provided by the director. (Ord. No. 2010-004, § 2, 4-12-10)

A. The city council hereby finds that special circumstances require special design, placement and other standards for news racks located in the downtown high density zone which is defined as follows: both sides of Main Street from the east side of Figueroa Street to the west side of Fir Street; both sides of Santa Clara Street from the east side of Oak Street to the west side of Fir Street; and both sides of California Street from the north side of Poli Street to the south side of Thompson Boulevard.

B. Notwithstanding any contrary provisions in this chapter, the following special standards shall apply to news racks and the placement of publications in news racks within the downtown high density zone:

1. No news rack shall be located in the downtown high density zone except within a special modular news rack cabinet provided by the city. Existing news racks in the downtown high density zone shall be removed, after the initial implementation program described below, upon no less than 45 days’ written notice by the city to the owner. All news racks in a special modular news rack cabinet shall be provided by the applicant at its sole expense and shall meet the following specifications:

a. Every news rack shall be a modular design KJ50 or KJ50f (as manufactured by K-Jack) or the equivalent, as determined by the community development director, in a color specified by the community development director.

2. Initial Placement of News Racks in the Downtown High Density Zone.

a. No news rack shall be located in a special modular news rack cabinet in the downtown high density zone unless a permit has been obtained.

b. With respect to permits for news racks to be located in modular containers in the special downtown high density zone, an initial implementation program shall take place beginning on the effective date of this chapter and ending 60 calendar days thereafter. All applications received during the initial implementation program shall be deemed filed as of the last day of the initial implementation program, so that there will be no priority given for location based upon the time the application was submitted, but action shall be taken as provided in this subsection within 20 business days after the conclusion of the initial implementation program. No application shall be considered that is filed later than the initial implementation program cut-off date. The community development director shall give notice of the cut-off date by publication once in a newspaper of general circulation in the city. The community development director shall also endeavor to mail notice of the cut-off date to the owners and/or distributors of news racks existing as of the effective date of this chapter; provided, however, that failure to provide mailed notice to any person shall not invalidate any action taken pursuant to this section or this chapter.

c. The process for obtaining a permit shall be in accordance with Section 18.200.040; provided, that where the number of news racks for which application has been made exceeds the number of special modular news rack cabinets available in the downtown high density zone, or in a particular location within the downtown high density zone, the community development director shall issue news rack permits in the priority and manner described in Section 18.200.070.

3. Waiting List for Subsequent Placement of News Racks in the Downtown High Density Zone. After the initial placement of news racks within the downtown high density zone, application may be made for placement of a news rack in a location within the downtown high density zone for which no empty special news rack container is available. Such applications shall be placed on a waiting list. In the event a special news rack container becomes available due to a voluntary vacancy, nonrenewal or expiration of the existing permit, the community development director shall issue a permit for that location to the applicant for the location, if there is only one applicant. In the case of multiple applicants for a single location, the community development director shall determine which applicant shall receive the permit in the priority and manner described in Section 18.200.070. (Ord. No. 2010-004, § 2, 4-12-10)

A. Where Permit Applications Are Fewer Than the Number of Potential Locations on a Block. If a permit application for a specific geographic location on a block is received and the geographic location complies with the requirements of this chapter, the application shall be approved on a first come, first served basis, except that all applications accepted during the initial implementation program, described in Section 18.200.040(C), shall be deemed pending as of the same date and time. If there is more than one application for a specific geographic location pending, then the priority for granting the applications shall be set forth in subsection B of this section. The priorities for granting applications shall not displace any previously permitted news racks with current permits which shall be given first priority in their current location.

B. Where Permit Applications Are Greater Than the Number of Potential News Rack Locations on a Block. If permit applications in excess of the number of potential locations that are then available on a block are pending, then the priority for granting applications shall be as set forth in this subsection. No applicant may be granted priority for another news rack location for a publication on a block for which that specific publication has already been granted a permit. Priority shall be given to daily publications (those published five or more times per week), and, among daily publications, priority will be granted to the publication that has historically been located closest to the location where the special news rack container will be placed. Among other publications, priority shall next be given based on frequency of publication, with the higher priority given to publications for which new editions or issues were published most frequently in the full calendar month preceding the date of application and among such publications, priority will be granted to the publication that has historically been located closest to the location where the special news rack container will be placed. Within groups of applicants with the same priority and within groups of applicants not entitled to priority, permits shall be granted to the maximum allowable in a block by the drawing of lots in a process established by the director. It shall be a condition of any permit granted according to a priority set forth in this section to maintain editions in the news rack according to the frequency for which the priority was given. (Ord. No. 2010-004, § 2, 4-12-10)

A news rack permit shall be valid for a period of two years and may be renewed for each successive period by timely payment of a renewal fee established by resolution of the city council and filing of a complete city renewal application in a form and time frame established by the community development director. (Ord. No. 2010-004, § 2, 4-12-10)

No material which is harmful to minors, as defined in Section 313 of the Penal Code of the state, shall be displayed in a public place, other than a public place from which minors are excluded, unless blinder racks are placed in front of the material so that the lower two-thirds of the material is not exposed to view. (Ord. No. 2010-004, § 2, 4-12-10)

A. Removal. Any news rack placed, installed or maintained in violation of this chapter may be removed by the city, subject to the notice and hearing procedures set forth in this section.

B. Notice of Violation. Before removal of any news rack, the city shall notify the owner or distributor of the violation. Written notification by first class mail to the address or addresses shown on the offending news rack shall constitute adequate notice. The city may, but need not, affix an additional notice tag onto the offending news rack. If no identification is shown on the news rack, posting of the notice on the news rack alone shall be sufficient. The notice shall state the nature of the violation, shall specify actions necessary to correct the violation, and shall give the owner or distributor 10 business days from the date appearing on the notice to either remedy the violation or to request a meeting before the community development director or designee, who shall not be the official who issued the notice of violation. The date on the notice shall be no earlier than the date on which the notice is mailed or affixed to the news rack, as the case may be.

C. Meeting and Decision. Any owner or distributor notified under subsection B of this section may request a meeting with the community development director or designee by making a written request within 10 business days from the date appearing on the notice. The meeting shall be informal, but oral and written evidence may be given by both sides. The community development director or designee shall give their decision within 10 business days after the date of the meeting. Any action by the city to remove the news rack shall be stayed pending the written decision of the community development director or designee following the meeting.

D. Removal and Impoundment. The city may remove and impound a news rack or news racks in accordance with this section following the written decision of the community development director or designee upholding the determination of a violation, or if the owner or distributor has neither requested a meeting nor remedied the violation within 10 business days from the date on the notice. An impounded news rack shall be retained by the city for a period of at least 30 calendar days following the removal, and may be recovered by the permittee upon payment of a fee as may be established by resolution of the city council. An impounded news rack and its contents may be disposed of by the city after 30 calendar days.

E. Summary Abatement. Notwithstanding the provisions of subsections B and C of this section, prior notice and an opportunity to be heard shall not be required before removal of any news rack that is installed or maintained in such a place or manner as to pose an immediate or clear and present danger to persons, vehicles or property or any news rack that is placed in any location without a permit. In such case, the city shall proceed in the following manner:

1. Within one working day following removal, the city shall notify by telephone the permittee or, in the case of an unpermitted news rack, the owner of the news rack or a person whose name is shown on the required identification. Within three business days, the community development director or designee shall send written confirmation of the telephoned notice. The written confirmation shall contain the reasons for the removal and information supporting the removal, and shall inform the recipient of the right to request, in writing or in person, a post-removal meeting within four business days of the date of such written notice.

2. Upon timely request, the community development director or designee shall provide a meeting within 48 hours of the request, unless the requesting party agrees to a later date. The proceeding shall be informal, but oral and written evidence may be given by both sides. The community development director or designee shall give their decision in writing to the requesting party within 48 hours after such meeting. If the community development director or designee finds that the removal was proper, they shall notify the requesting party to pay any applicable penalties and costs and recover the news rack. If the community development director or designee finds that the removal was improper and that placement of the news rack was lawful, the community development director or designee shall order that the news rack be released and reinstalled without charge.

3. If the owner of an unpermitted rack cannot be determined and the rack does not contain the required identification, no notice of the removal shall be required. (Ord. No. 2010-004, § 2, 4-12-10)

An abandoned news rack may be removed by the city and impounded, pursuant to the notice and hearing procedures set forth in Section 18.200.100. The city may dispose of the news rack if the permittee does not claim the news rack and pay any required fees within 30 days of its removal. (Ord. No. 2010-004, § 2, 4-12-10)

The operation or maintenance of any news rack contrary to the provisions of this chapter shall be and the same is hereby declared to be a public nuisance, which, in addition to or in lieu of criminal proceedings, may be abated, removed or enjoined by appropriate legal action brought by the city attorney. (Ord. No. 2010-004, § 2, 4-12-10)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

“Block” shall mean each side of each street between the two nearest adjacent intersections.

“News rack” shall mean any self-service or coin-operated box, container, storage unit or other dispenser installed, used, or maintained for the display and sale of newspapers or news periodicals.

“Parkway” shall mean that area between the sidewalks and the curb of any street, and where there is no sidewalk that area between the edge of the roadway and the property line adjacent thereto. Parkway shall also include any area within a roadway that is not open to vehicular travel.

“Person” shall mean an individual, corporation, business entity, or association, and their principals, officers, agents or employees.

“Roadway” shall mean that portion of a public street improved, designed and ordinarily used for vehicular travel.

“Sidewalk” shall mean any public surface provided for the use of pedestrians.

“Street” shall mean that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys, and sidewalks. (Ord. No. 2010-004, § 2, 4-12-10)

If any section, sentence, clause, phrase or provision of this chapter, or the application thereof to any person or circumstances, is for any reason held to be invalid, such invalidity shall not affect the validity of the remaining portions or provisions of this chapter or their applicability to distinguishable situations or circumstances. In enacting this chapter, it is the desire of the city council to regulate validly to the full measure of its legal authority in the public interest, and, to that end, the city council would have adopted this chapter and each section, sentence, clause, phrase, and portion thereof irrespective of the fact that any one or more sections, sentences, clauses, phrases, or portions thereof might be invalid, in whole or in part, as applied to any particular situation or circumstance, and, to this end, the provisions of this chapter are intended to be severable. (Ord. No. 2010-004, § 2, 4-12-10)