HomeMy WebLinkAboutORD FOR INTRODUCTION 05-07-90AGENDA
DATE: April 13, 1990
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: CITY ATTORNEY
SUBJECT: NEWSRACRS REGULATION
ORDINI FOR INTRODUCTION NO. 1
5/7/90
Inter - Com
Enclosed is an ordinance submitted for Council consideration.
This proposed ordinance goes as far in regulating the sale of
newspapers in the public right of way as is legally permissible
under current statutes and decisions.
JAME G . R E k
City Attorney
JGR:kbg:R:4/13/90(a\11)
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ORDINANCE NO. 1046
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA
AMENDING THE TUSTIN CITY CODE REGARDING THE
REGULATION OF NEWSRACRS
The City Council of the City of Tustin does hereby ordain as
follows:
Section 7212 of Chapter 2, Part 1 of the Tustin City Code is
hereby amended to read as follows:
7212 Regulation Of Newsracks
A. Purpose. The purpose of this chapter is to establish a
comprehensive set of regulations applicable to newsracks on the
public streets, sidewalks and other public property. The purpose
of this chapter is to advance and improve safety and aesthetics by
controlling the number, size, construction, placement and
appearance of newsracks without restricting the free dispersal of
information guaranteed by the Constitutions of the United States
and the State of California.
More specifically, the purpose of this chapter is to promote
the public peace, morals, health, safety and general welfare by
regulating the placement, appearance, servicing and insuring of
newsracks so as to protect against the dangers of impairing or
distracting the vision of motorists and pedestrians; the hazards
of unreasonably interfering with or impeding the flow of pedestrian
or vehicular traffic, including ingress into or egress from any
residence or place of business, or from the street to the sidewalk
by persons exiting or entering parked or standing vehicles;
unreasonably interfering with the use of public property for its
intended purpose; unduly restricting access to the use of poles,
posts, traffic signs or signals, hydrants, mailboxes or locations
used for transportation purposes; unsightly structures inconsistent
with the intent and purpose of the city's design regulations;
neglectful servicing of newsracks resulting in visual blight on
public rights-of-way and other public property and detracting from
the aesthetics of store window displays, adjacent landscaping and
other improvements; reduction in value of surrounding property;
unnecessary exposure of the city to personal injury and property
damage claims and lawsuits; and public displays of harmful or
offensive matters.
The City Council finds and determines that the strong and
competing interests of the public and of newspapers require a
reasonable accommodation which can only be satisfactorily achieved
through the means of this Section which is designed to accommodate
such interests by regulating the time, place and manner of using
newsracks. 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 newspapers.
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B. Definitions.
For the purpose of this part, the words set out in this
Section shall have the following meanings:
(1) "Newsrack" means 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.
(2) "Parkway" means that area between the sidewalk and the 1
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 also includes any area within a roadway which is
not open to vehicular travel.
(3) "Person" means any individual, company, corporation,
association, business or other legal entity.
(4) "Public property" means parks, square, plazas and any and
all other real property owned by the city.
(5) "Right-of-way" means land which by deed, conveyance,
agreement, easement, dedication, usage or process of law is
reserved for and dedicated to the general public for street,
highway, alley, pedestrian walkway, storm drainage, bicycle path
or other purposes.
(6) "Roadway" means that portion of a street improved,
designed or ordinarily used for vehicular travel.
(7) "Sidewalk" means any surface provided for the exclusive
use of pedestrians.
(8) "Street" means all that area dedicated to public use for
public street purposes and includes, but is not limited to,
roadways, parkways, alleys and sidewalks.
C. Permits.
(1) No person shall install or maintain any newsrack which in
whole or in part rests upon, in or over any public right-of-way or
other public property without first obtaining a permit therefor
from the License and Permit Board. An amendment to application for
said permit shall first be filed with the License and Permit Board
in the event that additional newsracks are installed in the city
or removed from the city by the applicant subsequent to the
issuance of the original permit by the city.
(2) Applications for permits required by this chapter shall
be filed with the License and Permit Board upon printed forms to
be prescribed and supplied by it. The application shall be signed
by the applicant and shall state the following:
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(a) The name and address of the applicant;
(b) The location(s) of the proposed installation or
maintenance of the newsrack(s);
(c) The time that said newsrack(s) is (are) proposed to
be installed or maintained;
(d) The nature, type and model of the news rack(s)
proposed to be installed or maintained;
(e) That the applicant agrees, upon expiration or
revocation of the permit, to immediately restore the
public right-of-way or other public property to its
condition prior to the installation or maintenance
of the newsrack(s);
(f) Any additional information which the License and
Permit Board may deem necessary for the proper
disposition of the application.
(3) Not more than one permit shall be required for each
applicant regardless of the number of newsracks proposed to be
installed or maintained.
(4) Prior to the issuance of a permit, the applicant shall
pay all fees provided by resolution of the City Council.
(5) In addition to the permit application, each applicant
shall also 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 upon, in or over a public right-of-way or other public
property and deposit with the city clerk a certificate of insurance
evidencing that a liability insurance policy in minimum amounts set
by the City Council has been issued, naming the city as an
additional named insured, and containing a provision that the
policy cannot be cancelled, coverage materially modified, or limits
of liability reduced or changed at any time during the time the
newsrack is installed or maintained on public property. If such
insurance is cancelled or modified in anyway inconsistent with the
foregoing requirements, the said news rack shall be removed in
accordance with the provisions of this Section.
(6) Each permit shall be valid for a period of five years,
and may be renewed in the same manner set forth in this Section for
original applications, provided however, that the License and
Permit Board may prescribe a simplified application form and
procedure for renewals.
(7 ) Each permit shall be issued only to the person making the
application and may not be assigned to another person by the
permittee without first providing written notice to City of the
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proposed assignment on forms prescribed by the License and Permit
Board. If any permittee assigns his permit to another, without
compliance with the aforesaid notice requirement, the permit will
be deemed revoked as of the time of the attempted assignment.
(8) Upon a finding the applicant is in compliance with the
provisions of this Section, the License and Permit Board shall
issue a newsrack permit at locations approved by the License and
Permit Board. If a permit is denied, the applicant shall be
notified in writing of the specific cause of such denial by the
License and Permit Board and the right to appeal in accordance with
subsection F of this Section.
D. Regulations.
(1) No person shall install, use or maintain any newsrack
which projects onto, into or over any part of the roadway of any
public street, or which rests, wholly or in part, upon, along or
over any portion of a roadway.
(2) No person shall install, use or maintain any newsrack
which in whole or in part rests upon, in or over any sidewalk or
parkway, when such installation, use or maintenance endangers the
safety of persons or property, or when such site or location is
used for public utility purposes, public transportation purposes
or other government use, or when such newsrack unreasonably
interferes with or impedes the flow of pedestrian or vehicular
traffic, 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
newsrack interferes with the cleaning of any sidewalk.
(3) Any newsrack which in whole or in part rests upon, in or
over any sidewalk or parkway shall comply with the following
standards:
(a) Newsracks shall not exceed five feet in height,
thirty inches in width, or two feet in depth.
(b) Newsracks shall only be placed near a curb or
adjacent to the wall of a building. Newsracks placed near the
curb shall be placed no less than eighteen inches nor more
than twenty-four inches from the edge of the curb. Newsracks
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 newsrack shall be placed or maintained on a sidewalk
or parkway opposite a news stand or another newsrack.
(c) No newsracks shall be chained, bolted or otherwise
attached to any property not owned by the owner of the
newsrack or to any permanently fixed object.
(d) Newsracks may be chained or otherwise attached to
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one another; however, no more than six newsracks may be joined
together in this manner, and a space of no less than eighteen
inches shall separate each group of two to six newsracks
allowed under this paragraph (d).
(e) No newsrack, or group of attached newsracks allowed
under paragraph (d) hereof, shall weigh, in the aggregate, in
excess of 125 pounds when empty.
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(f) No newsrack shall be placed, installed, used or
maintained: i
(1) Within three feet of any marked crosswalk.
(2) Within fifteen feet of the curb return of any
unmarked crosswalk.
(3) Within three feet of any fire hydrant, fire
call box, police call box or other emergency
facility.
(4) Within three feet of any driveway.
(5) Within three feet ahead of or fifteen feet to
the rear of any sign marking a designated bus
stop.
(6) Within three feet of any bus bench.
(7 ) At any location whereby the clear space for the
passageway of pedestrians is reduced to less
than six feet.
(8) 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 parkway or in such
manner as to impede or interfere with the
reasonable use of such window for display
purposes.
(g) No newsrack shall be used for advertising signs
or publicity purposes other than that dealing with the
display, sale or purchase of the newspaper or news
periodical sold therein.
(h) Each newsrack shall be maintained in a clean
and neat condition and in good repair at all times.
(4) Every person who places or maintains a newsrack on the
streets of the City of Tustin shall have his, her or its name,
address, telephone number affixed thereto in a place where such
information may be easily seen.
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(a) No person shall knowingly exhibit, display, or cause
to be exhibited or displayed, Harmful Matter as such term is
defined in Section 313, Chapter 7.6, Title 9, Part 1, of the
Penal Code of California, in any newsrack located on a public
sidewalk or public place from which minors are not excluded,
unless blinder racks have been installed so that the lower
two-thirds of the matter is not exposed to public view. For
the purposes of this secition, the term "blinder rack" shall
mean opaque material placed in front of, or inside, the
newsrack and which prevents exposure to public view.
(b) Any publication offered for sale in a newsrack
placed or maintained on a public sidewalk or public
right-of-way shall not be displayed or exhibited in a manner
which exposes to public view, from any public place, any of
the following:
(1) Any statement or word 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
(2) Any picture or illustration of genitals, pubic
hair, perineums, anuses or anal regions of any person
where such picture or illustration has as its purpose or
effect sexual arousal, gratification or affront; or
(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.
For the purpose of this sub -section (j) the term "explicit
sexual acts" means the depiction of sexual intercourse, oral
copulation, anal intercourse, oral -anal copulations, bestiality,
sadism, masochism, or excretory functions in conjunction with
sexual activity, masturbation or lewd exhibition of the genitals,
whether any of the above is depicted or described as being
performed alone or between members of the same or opposite sex, or
between humans and animals, or other act of sexual arousal
involving any physical contact with a person's genitals, pubic
region, pubic hair, perineum, anus or anal region.
E. Removal.
(1) Commencing ninety ( 90 ) days after the adoption date of
the ordinance codified in this Section, any newsrack in violation
of any provision of the ordinance codified in this Section will be
deemed nonconforming.
(2 ) In the event that the Director of Public Works determines
that a newsrack does not comply with the provisions of this
Section, he or she shall provide written notice of such
determination to the permittee or owner. The notice shall specify
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the nature of the violation, the location of the newsrack which is
in violation, the intent of the Director of Public Works to remove
the nonconforming newsrack in the event a hearing is not requested,
and the right of the permittee to request a hearing before the
License and Permit Board within fifteen (15) days from the date of
the notice. If the newsrack is one which has not been authorized
by the License and Permit Board and ownership is not known, nor
apparent after inspection, a notice complying with this Section
shall be affixed to the newsrack.
(3) In the event that a hearing is held pursuant to this
Section, the License and Permit Board shall render a decision, in
writing, within ten (10) days from the date of the hearing, and the
decision shall advise the permittee or owner of his or her right
to appeal to the City Council, pursuant to the provisions of
sub -section F. Notice of the decision shall be mailed to the
permittee or owner and shall be considered effective on the date
mailed provided that the notice is properly addressed and placed
in the U.S. Mail with first class postage prepaid.
(4) The Director of Public Works may take possession of a
newsrack and, upon the expiration of thirty (30) days, dispose of
the newsrack as required by law, if:
(a) No hearing is requested by the permittee or owner
within fifteen (15) days as provided in Section E(2); or
(b) The appeal period specified in Section F has
expired; or
( c ) In the event that an owner or permittee fails to
remove the rack within ten (10) days from the date of the
decision of the City Council, that the newsrack is not in j
compliance with the rules, regulations and standards
established by this Section.
(5) The Director of Public Works shall inspect any newsrack
reinstalled after removal pursuant to this Section. The permittee
of the newsrack shall be charged a fee for this reinspection as
established by resolution -of the City Council.
(6 ) In the event that any newsrack is abandoned, the Director
of Public Works may remove it pursuant to the procedures set out
in this Section. For the purposes of this Section, the term
"abandonment" shall mean no publication has been displayed in the
newsrack for a period of fifteen (15) consecutive days, no prior
written notice has been given by the permittee to the Director of
Public Works specifying the reason(s) for non-use, and the
condition of the rack and related circumstances indicate it will
not be actively used within a reasonable period of time.
F. Appeals
The City Council shall have the power to hear and decide
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appeals based upon the enforcement or interpretation of the
provisions of this Section. Any permittee or owner who is
aggrieved by any decision of the License and Permit Board. may
appeal that decision by submitting a written notice of appeal to
the City Clerk within twenty-one (21) days of the date on which
notice of the decision was mailed. The City Council may preside
over the hearing on appeal or may designate a hearing officer to
take evidence and submit a proposed decision together with
findings, within fifteen (15) days from the date of the hearing.
The City Council shall, within thirty (30) days from the date of
the hearing, render its decision on the appeal, together with
findings. The decision of the City Council shall be final.
G. Severability
If any provision of this Section as herein enacted or
hereafter amended, or the application thereof to any person or
circumstances, is held invalid, such invalidity shall not affect
the other provisions or applications of this Section (or any
sub -section or portion of sub -section hereof) which can be given
effect without the invalid provision or application, and to this
end the provisions of this Section are, and are intended to be,
severable.
The provisions of this Section are intended to augment and be
in addition to other provisions of the Tustin City Code. Whenever
the provisions of this Section impose a greater restriction upon
persons, premises, or practices than is imposed by other provisions
of the Tustin City Code, the provisions of this Section shall
control.
If any sentence, clause or phrase of this Section is, for any
reason, held to be unconstitutional or otherwise invalid, such
decision shall not effect the validity of the remaining provisions
of this Section. The City Council hereby declares that it would
have passed the ordinance codified in this Section, and each
sentence, clause, and phrase thereof irrespective of the fact that
any one or more sentences, clauses or phrases be declared
unconstitutional or otherwise invalid.
PASSED AND ADOPTED by the City Council of the City of Tustin,
at a regular meeting on the day of , 1990.
ATTEST:
Mary Wynn, City Clerk
JGR:kbg:R:4/13/90(a\11)
W7
Dick Edgar,
Mayor