Chapter 12.08 — NEWSRACKS

For the purpose of this chapter, certain words and phrases shall be defined as set forth in this section, unless it is apparent from the context that a different meaning is intended:

A.

"Newsrack" means any self-service coin-operated box, container, storage unit or other dispenser, installed, used or maintained for the display or sale of any written or printed material, including but not limited to, newspapers, news periodicals, magazines, books, pictures, photographs and records.

B.

"Parkway" means that portion of any public street other than the area included within the roadway.

C.

"Permit" means a permit issued to a person allowing the placement of a newsrack within a specifically designated portion of a parkway.

D.

"Public property" means any real property which is owned by the city in fee, or as to which the city has the right to possession by reason of a leasehold estate, or by an easement.

E.

"Roadway" means that portion of a public street improved, designed and/or customarily used for vehicular travel.

F.

"Street" means all that area dedicated to public use for public street purposes and includes but is not limited to, roadways, parkways and sidewalks.

G.

"Public place" means any area that is used or held out for use of the public whether owned or operated by public or private interests, but not including indoor areas; and does not include areas excluded to minors.

H.

"Blinder rack" is defined as an apparatus containing any publication or printed material for purposes of sale to the public, constructed or modified so that the bottom two-thirds is obscured from view.

I.

"Matter" means any book, magazine, newspaper, video recording or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials, as defined in the Penal Code Section 313(b).

J.

"Exhibit" means to show, as defined by the Penal Code Section 313(f).

(Ord. 2683 § 1(part), 1996; prior code § 4510)

A.

No person shall install, place or maintain a newsrack in any parkway without first obtaining a permit therefor pursuant to the provisions of this chapter. Any person desiring to obtain such a permit shall file a written application therefor with the city manager, and contemporaneously shall pay a filing and processing fee, in an amount set by the city council. The city manager shall cause an investigation to be conducted to determine whether the permit, if granted, allowing installation and maintenance of a newsrack at the requested location, will conform to all provisions of this chapter. All applications for permits shall be acted upon within five working days of receival of an application.

B.

The city manager may impose, as conditions of approval upon the issuance of a permit, such conditions as he/she deems reasonably necessary to insure compliance with this chapter. Each permit issued pursuant to this chapter shall be deemed to have imposed, as express conditions of approval, the following:

That the permittee shall forthwith execute a document, approved as to form by the city attorney, agreeing to hold the city, its officers, employees and agents free and harmless from any claim, demand or judgment in favor of any person arising out of the location of any newsrack located in any public parkway; and

That prior to the effective date of the permit issued, the permittee deposit with the city manager a certificate of insurance evidencing that a liability insurance policy in minimum amounts set by the city manager, has been issued, naming the city as co-assured, and containing a provision that the policy cannot be canceled except upon thirty days' prior written notice to the city of the fact of the cancellation; and

That if the insurance is canceled at any time during the term of the permit, it shall be grounds for revocation of the permit.

C.

The city manager shall decline to issue any permit if he/she finds that the issuance would be contrary to the provisions of this chapter, in violation of any other applicable law, or would, by reason of its location, constitute an unreasonable interference with the free use of a parkway. A person who feels that his/her permit was issued in error may request a hearing with the city manager or his/her representative at a scheduled day and time, at which time the applicant may have the opportunity to appeal the decision of the city manager. The city manager, after hearing the appeal, may maintain his/her decision to not issue the permit or may rescind his/her previous decision and issue the permit. The determination of the city manager shall be final and conclusive.

(Ord. 2684 § 1, 1996; prior code § 4512)

(Ord. No. 3112, § 2, 2-25-20)

No permit shall be issued for the placement of a newsrack unless all of the following conditions are met:

A.

That the location for the placement is within a portion of the public parkway; and

B.

That the specific location will not endanger the safety of persons or property; and

C.

That the placement will not unreasonably:

Interfere with or impede the flow of pedestrian or vehicular traffic, nor

Interfere with or impede ingress or egress from any residence or place of business located adjacent to the parkway, nor

Interfere with any public utility facility located within the parkway or in close proximity thereto.

(Prior code § 4513)

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

A.

No newsrack shall exceed five feet in height, thirty inches in width, or two feet in thickness.

B.

Newsracks shall only be placed near a curb or adjacent to a wall of a building. Newsracks placed near a curb shall be placed no less than eighteen inches nor more than twenty-four inches from the edge of the curb. Newsracks placed parallel to a wall or building shall be placed not more than six inches from the wall or building. No newsrack shall be placed or maintained in a parkway opposite one or more newsracks.

C.

Newsracks may be placed next to each other; provided, that no group of newsracks shall extend more than ten feet along a curb or wall and a space of no less than three feet shall separate each such group of newsracks from another group of newsracks.

D.

Notwithstanding any other provision of this chapter, no newsrack shall be placed, installed, used or maintained:

Within five feet of any marked crosswalk;

Within fifteen feet of the curb return of any unmarked crosswalk;

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

Within five feet of any driveway;

Within five feet ahead of or twenty-five feet to the rear of any sign marking a designated bus stop;

Within six feet of any bus bench;

In any location whereby the cross space or the passageway of pedestrians is reduced to less than six feet;

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

Within one hundred feet of any other newsrack on the same side of the street within the same block containing the same edition of the same publication;

Within any area of a street, except a parkway;

At any location creating a vision obstruction as determined by the city traffic engineer.

E.

No newsrack shall be used for advertising material other than that dealing with the display, sale or purchase of the publication sold therein.

F.

Each newsrack shall be maintained in a clean, neat and attractive condition and in good repair at all times, and no issue or edition of any publication shall be allowed to remain in any such newsrack for a period in excess of seven days after the date of the initial issuance or publication.

G.

Every newsrack permitted by the issuance of a permit under this chapter shall be securely anchored to the ground. Each such newsrack shall be constructed, installed and maintained as provided elsewhere in this section.

H.

Newsracks which exhibit harmful matter on their covers which fall under the definitions of "harmful matter" as that term is defined in Section 313(a) of the Penal Code of the state of California, and which are located in a public place other than a public place from which minors are excluded, shall have devices which are commonly known as "blinder racks" in front of the material, so that the lower two-thirds of the matter is not exposed to view.

(Ord. 2683 § 1(part), 1996; prior code § 4514)

A.

Whenever the city manager is advised that a newsrack is being maintained contrary to the provisions of this chapter, he/she shall notify the permitholder of the purported violation. The notice shall state therein the nature of the violation and give the permittee a reasonable period of time, not to exceed seven consecutive calendar days, to remedy the violation. If the violation is not cured within the period of time allotted, the city manager shall deliver to the permittee an order to show cause which shall state therein the time and place of an informal hearing to be conducted by the city manager to determine whether or not the permit should be revoked or, to allow the permittee to show cause why the revocation should not take place. If the evidence presented at the time of the hearing shows that the newsrack is being maintained contrary to the provisions of this chapter, the city manager shall revoke the permit and shall promptly give written notice of the revocation to the permittee and shall give the permittee a period of not less than seventy-two hours, after the giving of the notice, to remove the newsrack which was the subject of the revoked permit. If the owner of the newsrack fails within the time permitted to remove the machine after the permit has been revoked, the city manager shall take the steps necessary to cause the newsrack to be removed and impounded.

B.

The owner, or other person entitled to possession of an impounded newsrack who fails, within thirty days of the giving of notice by the city manager of the fact of the impounding, to make application to the city manager and to pay the costs and fees required pursuant to this section, shall be deemed, conclusively, to have abandoned the machine, and it shall be disposed of in the manner prescribed by the law for the disposal of abandoned personal property.

C.

Any person who is aggrieved by a determination made by the city manager pursuant to the provisions of this section may file with the city clerk a written appeal, appealing the decision of the city manager to the city council. Such an appeal shall be deemed timely filed if it is filed with the city clerk not later than the tenth consecutive day from and after the day of giving notice of the decision which is the subject of the appeal. Upon receipt of such a timely filed appeal, the city clerk shall set the matter for hearing at the next most convenient meeting of the city council. The appealing party and any other interested person shall be given a reasonable opportunity to be heard in conjunction with the appeal. The city council shall determine whether the action taken by the city manager was within the scope of the provisions of this chapter.

(Prior code § 4515)

(Ord. No. 3112, § 2, 2-25-20)

Notices required pursuant to the provisions of this chapter shall be given by personal services, or by United States Postal Service, postage prepaid, addressed to the person to be notified at his/her last known address, and deposited in the course of transmission of the United States Postal Service. The giving of notice under this section shall be deemed to have occurred as of the date of personal service, or as of the date of deposit of the written notice in the course of transmission of the United States Postal Service.

(Prior code § 4518)

(Ord. No. 3112, § 2, 2-25-20)

A.

Immediately prior to the effective date of the ordinance codified in this chapter, the city manager shall take such steps as may be reasonably necessary to ascertain the name and address of the owner of each newsrack located on any public property within the city, which do not have thereon the name, address and telephone number of the owner. He/she shall advise the persons, as he/she is able to identify, of the requirement of Section 17570 of the Business and Professions code and of this chapter, and of the result of the failure to comply with the Business and Professions Code or this chapter.

B.

Where the city manager finds that a newsrack located on any public property does not have the name, address and telephone number of the owner thereof placed upon the newsrack, in compliance with Business and Professions Code, Division 7, Part 3, Chapter 1, Article 5 (Business and Professions Code Section 17570 et seq.) the city manager shall make every reasonable effort to ascertain the owner thereof; if the city manager is unable to determine ownership, the city manager shall impound the newsrack and hold it for disposal as abandoned and unclaimed property.

(Prior code § 4517)

(Ord. No. 3112, § 2, 2-25-20; Ord. No. 3120, § 27, 7-28-20)

Editor's note— Ord. No. 3112, § 1, adopted Feb. 25, 2020, repealed § 12.08.080, which pertained to existing newsracks and derived from prior code, § 4519.

The owner of any newsrack which is impounded by the city manager pursuant to this chapter, who fails to recover the machine in the time permitted pursuant to the provisions of this chapter, shall be deemed to have abandoned it and the newsrack shall be disposed of in the time and manner prescribed by law for abandoned personal property.

(Prior code § 4520)

No newsrack which has been impounded shall be restored to the owner thereof or other person entitled to possession unless and until the owner or person entitled to possession has paid to the city a fee in an amount equal to the cost of removal, and the cost of storage of the newsrack, all as determined by the city manager. The determination of the city manager as to the fee shall be final and conclusive.

(Prior code § 4516)

No person shall place or locate a newsrack in or upon any public property except as provided in Section 12.08.020.

(Prior code § 4511)