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COUNCIL AGENDA ITEM NO. 17
Meeting Date: June
of Newsracks in Public Right of Way—Introduction & First Reading
Beougher, City Attorney
Elam, City Manager
conducting a public hearing on June 13, the City Council made one recommended
change to the ordinance. After
the public hearing, a representative of the Contra Costa Times submitted
one additional change to the ordinance.
Staff recommends the introduction of the ordinance concerning the
regulation of newsracks in public right of way and authorize the first
reading of the proposed newsrack ordinance as attached hereto.
City of Brentwood previously reviewed the draft regulations of newsracks
in the public right of way. One
additional recommended change from the Contra Costa Times’ representative
was received and the two proposed changes are noted in Section 12.30.080[C]
and Section 12.30.190(A). The
two recommended changes are highlighted in Exhibit A.
As the original draft ordinance was amended, the ordinance is being introduced and requested first reading at this time.
A, Highlighted Revisions to draft Ordinance
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING TITLE
12 (STREETS, SIDEWALKS AND PUBLIC PLACES) BY ADDING A NEW CHAPTER 12.30
RELATING TO THE REGULATION OF NEWSRACKS IN THE PUBLIC RIGHT OF WAY
CITY COUNCIL OF THE CITY OF BRENTWOOD DOES HEREBY ORDAIN AS FOLLOWS:
1. TITLE 12 (STREETS,
SIDEWALKS AND PUBLIC PLACES), CHAPTER 12.30
IS HEREBY ADDED TO READ AS FOLLOWS:
12.30 Newsracks In Public
Purpose and Findings
Brentwood City Council finds that the uncontrolled placement and maintenance
of newsracks on the public right of way can cause an obstruction of the
free use of public property so as to interfere with the comfortable enjoyment
of its right of way, interferes with property rights of adjacent owners
and tenants, causes visual blight, and detracts from the aesthetics of
adjacent uses, and exposes the city to undue claims liability.
The Brentwood City Council also finds that the use of its public
right of way is so historically associated with the sale and distribution
of newspaper and publications that access to these areas for such purposes
should not be absolutely denied.
The council finds that these strong but competing interests require
a reasonable accommodation which can be achieved through the means of
this chapter designed to accommodate such competing interests by regulating
the time, place, and manner of newsracks, including the using and placement
of such newsracks, but provides the least intrusive and burdensome means
to implement the purpose of this chapter while still providing ample opportunities
for newspaper and publication distribution.
City Council further finds that and declares that the uncontrolled placement
and maintenance of newsracks on the public right of way and the proliferation
of such devices to display words and pictorial material describing and
depicting explicit sexual conduct and nudity, which is thrust indiscriminately
on children and unwilling adults, unreasonably interferes with and obstructs
the public’s use of the public right of way, constitutes an unwarranted
invasion of individual privacy, is injurious to health, interferes with
adjacent property owners rights, causes visual blight,
and such obstructs the free use of public right of way so as to
interfere with the comfortable enjoyment of life and property by the public,
and is indecent and offensive.
this chapter unless the context otherwise requires:
“City” is the City of Brentwood.
“Engineer” is the City Engineer or his/her designated agent.
“Downtown area” is the area of the City shown on the downtown insert
of the General Plan map.
“Explicit Sexual Acts” as used in this chapter, means 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 among
or between members of the same or opposite sex or between humans and animals,
or other acts of sexual arousal involving any physical contact with a
person’s genitals, pubic region, pubic hair, perineum, anus, or anal region.
means any publication which qualifies for second class newspaper mailing
status under federal law, pursuant to 39 U.S.C. Section 4352[C] .
As of the enactment of this chapter, a publication fails to qualify
for second class mailing if it has more than 75 percent advertising in
more than one-half of its issues during any 12-month period.
“Newsrack” means any self-service or coin operated box, container,
storage unit or other dispenser used for the display and sale or other
distribution of a newspaper or non-newspaper publication.
“Newsrack Encasement” means a city owned and maintained, permanently
installed, modular receptacle inside which a privately owned newsrack
is placed. The newsrack encasement
shall be large enough to accommodate a newsrack which complies with the
standards of this chapter, be permanently affixed to the ground or the
side of a wall or other structure and be of a design which is architecturally
compatible with the surrounding area.
“Non-Newspaper Publication” means any publication which is not
a newspaper as defined herein.
“Permanent Newsrack” means any newsrack maintained in the public
right-of-way for more than ninety (90) days.
“Temporary Newsrack” means any newsrack maintained in the public
right-of-way for a trial period of up to ninety (90) days.
(K) “Planter Strip” means the area, whether planted or not, between the sidewalk and the curb of a street. Where the sidewalk is adjacent to the curb it means the area between the sidewalk and the property line. Where there is no sidewalk it means the area between the edge of the roadway and the property line adjacent to it, whether planted or not.
“Public Right-of-way” means land which by deed, conveyance, agreement,
easement, dedication, usage, or process of law, is reserved and dedicated
to the general public for street, highway, alley, public utility, or pedestrian
walkway purposes, whether or not the land has been improved or accepted
for maintenance by the city.
Public right-of-way includes but is not limited to street, roadway,
planter strip and sidewalk.
Encroachment permit required
person may place, install, or maintain a newsrack either within a newsrack
receptacle, projecting into, or place within a public right of way without
first obtaining an encroachment permit from the Engineer.
Application for encroachment permit
The application for an encroachment permit for a newsrack shall be made to the Engineer or his designee on a form provided by the city.
12.30.040 Liability Insurance Required
the city may grant an encroachment permit, an applicant shall furnish
to the city a certificate showing that the applicant has then in force
naming the City as an additional insured and in an amount not less than
one million dollars ($1,000,000.00) per person and per occurrence, combined
single limit. The permittee
shall keep the insurance in force during all times it continues to maintain
a newsrack under the terms of the permit. The certificate of insurance filed with the city shall include
a statement by the insurance carrier that thirty (30) days’ notice will
be given to the city before cancellation.
person operating or maintaining a newsrack upon or within the public right
of way shall indemnify and hold harmless the city, its officers and employees
from any loss, liability, damage or cost sustained by any person or property,
to the extent any such loss, liability, damage or cost provided, however,
that such obligation to indemnify and hold harmless the city, its officers,
and employees shall not extend to any loss, liability, damage or cost
resulting from the acts, failure to act, or property of another, or from
the sole or active negligence of the city.
Issuance of permit
Engineer shall issue a permit as soon as possible after the receipt of
a complete application but in no event more than 30 days after he finds
that the application and the applicant have met the requirements of this
chapter. A permit issued
under this chapter is non-transferable.
It shall be considered to incorporate as a condition to the placement,
installation, maintenance, and use of a newsrack or newsracks, the requirement
that the permittee comply with this chapter.
If an application is rejected, the Engineer shall send a notice
within 5 days of the rejection to the applicant and the rejection notice
shall also contain the reasons for the rejection.
permittee shall permanently display the permittee’s name, street address,
telephone number and instructions on how to receive a refund in the event
of coin return malfunction upon each newsrack.
Permissible types of newsracks
Except as otherwise provided in subsection (E) newsracks shall conform to the standards contained in this section as follows:
No newsrack unit may exceed 60 inches in height including the stand,
24 inches in depth or 30 inches in each compartment width.
Every newsrack shall have an individual case with a display window
and shall be designed in
a manner to prevent accidents involving persons with sight disabilities,
which result from unskirted newsracks.
It is intended that the provisions of this chapter shall be consistent
with accessibility standards of the Americans with Disabilities Act of
1990, P.L. 101-336, as amended.
Every newsrack located at a place where there are less than five
other newsracks located within 150 feet on the same side of the street
shall be a similar rack of standard type and size in trade use.
Every newsrack other than a standard, stand-alone, permanent newsrack,
or a temporary newsrack, shall be of a multi-unit configurations, except
at a location where there are less than five permanent newsracks and not
other newsrack is located within 150 feet on the same side of the street.
Any single unit newsrack of standard design commonly in trade use
may be permitted in any single locations for a period of ninety (90) days
in order to determine the suitability of long term newsrack locations,
provided that the placement of such newsrack conforms with the standards
set forth in this chapter. Temporary
newsracks shall not be required to be replaced by a modular newsrack,
as required in [C] above, unless six or more temporary newsracks are placed
at the same location. At least fifteen (15) business days prior to locating a temporary
newsrack, a completed encroachment permit application shall be submitted,
including written notice of the particular location and date upon which
the ninety (90) day trial period will begin.
Within ten (10) business days after expiration of the ninety (90)
day trail period, the person maintaining the newsrack shall either cause
it to be removed or submit a written request to the Engineer for an encroachment
permit for a newsrack for a permanent newsrack location. An applicant shall be limited to a total of five temporary
newsrack locations during each calendar year.
(E) In order to maintain the appearance of the downtown area, the city may establish newsrack encasements in the downtown area. The city will consult with and consider the comments of newspaper vendors and distributors regarding the location and size of the newsrack encasements located in the downtown area. Newsracks in the downtown area shall conform to the requirements of this chapter pending the construction and availability of one or more newsrack encasements.
Every newsrack shall have a fully functional automatic coin return
if it dispenses newpapers for sale.
Newsrack placement standards
A newsrack which rests in whole or in part upon, in or over a public right-of-way or sidewalk, shall comply with the following standards:
Within the downtown area newsracks shall be placed within a newsrack
encasement in an encasement with design approval by the Planning Commission
when such an encasement has been constructed.
Within 10 days of the construction of a newsrack encasement the
Engineer shall survey the existing, permitted newsracks within a radius
of 150 feet of the newsrack encasement.
Within 15 days of the completion of the newsrack enclosure all
newsracks within 150 feet of the newsrack encasement shall be removed.
Newsracks may be permitted in a downtown area outside of a newsrack
encasement upon receipt of an application meeting the requirements of
12.30.030 and provide the Engineer makes the following findings:
There is a need for additional newspaper or non-newspaper publications
within the downtown area;
There are no available spaces in an existing newsrack encasement;
No additional newsrack encasements are expected to be constructed
within three months of the date of the application for a newsrack location;
The request is for a temporary newsrack in order to determine if
there is a need for a permanent newsrack;
A newsrack may be placed only near a curb or adjacent to the wall
of a building. A newsrack
placed near a curb shall be placed not less that 12 inches nor more than
24 inches from the edge of the curb. A newsrack placed adjacent to a wall of a building shall be
placed parallel to the wall and not more than six inches from the wall.
In no event may a newsrack be located upon a landscaped area or
planter strip. A newsrack
may be chained, bolted or attached to private property if the owner of
the property has filed written consent with the city. A newsrack may not be chained, bolted or otherwise attached
to a permanently fixed object within the public right-of-way.
A newsrack may be bolted or otherwise attached to the public sidewalk
only if specific approval is set forth in the permit.
of material harmful to minors unlawful
No person may display or exhibit in a public newsrack or other display device any material which is defined by Penal Code Section 313 as harmful to minors unless such material is displayed in an area from which minors are excluded or is completely covered. Publications offered for sale from newsracks placed or maintained on or in the public right of way shall not be displayed or exhibited in a manner which exposes to the public view any of the following:
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.
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.
person may place, install or maintain a newsrack:
Within a portion of a roadway , alley, or projecting into a portion
of a roadway or alley.
Within four feet of any marked crosswalk.
Within 15 feet of the curb return of an unmarked crosswalk.
Within four feet of a fire hydrant, fire call box, police call
box or other emergency facility
Within four feet of a driveway, building entrance, or sidewalk
leading to the entrance of the building.
Within four feet ahead of, and 15 feet to the rear of a sign or
pavement markings designating a bus stop.
Within four feet of a bench, seat or chair placed for public use
within a public right-of-way.
Within four feet of an above ground utility cover or street furniture.
At any location where the clear space for the passageway of pedestrians
is reduced to less than four feet
Attached to any parking meter, traffic signal, street light, fire
hydrant, power pole, sign post, refuse
container, or tree.
In violation of local and state handicapped accessibility
Within 150 feet of any other newsrack which is located on the same
side of the street in the same block
and which contains the same issue or edition of the same publication.
any of the above obstruction requirements, the Engineer may require a
newsrack owner to move a newsrack if the Engineer determines that the
placement of the newsrack does not meet the criteria of this section and
in such a place or manner as to create a traffic hazard.
Modification of Placement Standards
The Engineer may waive or modify the standards for newsrack placement contained in this chapter upon a showing of good use and upon his determination that placing a newsrack at the location requiring the modification would not endanger the public health or safety or unreasonably interfere with use of the public right-of-way.
Each newsrack shall be maintained in a neat, graffiti free, clean
condition and in good repair at all times and shall be painted on a regular
A newsrack that is damaged or defective shall be replaced or repaired
as soon as is practical or upon notice from the Engineer.
If the owner wishes to abandon the location, the owner shall promptly
remove the newsrack. The
owner shall repair all damage to sidewalks, newsrack enclosure or modular
newsrack resulting from placement and removal of a newsrack.
When use of a newsrack is abandoned, it shall be removed and the
location restored to its previous condition, normal wear and tear excepted. A newsrack shall be considered abandoned when it meets criteria
No newsrack abandoned or removed for violation of this chapter
and impounded shall be restored to the owner thereof, or to another person
entitled to possession, unless and until the city’s reasonable cost of
removal and storage of the newsrack, has been paid to the city; provided,
however, that if after hearing before the Engineer, it is determined that
the newsrack was improperly removed by the city, there shall be no charge
for restoration of such newsrack to the person entitled to possession
No newsrack shall be used for advertising signs or publicity purposes
other than the one concerned with display, sale or distribution of the
newspaper or non-newspaper publication distributed from it.
owner of a newsrack which does not conform to this chapter but which lawfully
existed and was maintained before the effective date of this chapter,
shall remove it or conform it to this chapter by October 1, 2000.
A newsrack not brought into compliance as provided in this subsection
is in violation of this chapter.
Removal by city
city may remove and retain a newsrack installed, maintained or abandoned
in violation of this chapter in accordance with 12.30.160 through 12.30.170.
Notice before removal
Before the city may remove a newsrack, it shall give the permittee
notice to remedy the violation or request a hearing before the Engineer.
Written notice shall be sent to the address stated on the newsrack
permit or on the newsrack. The
city may attach an additional copy of the notice to the newsrack.
Notice attached to the newsrack is sufficient when no identification
is shown on the newsrack and no permit has been issued.
notice shall give the permittee ten (10) days from the date of mailing
or the date of attachment to remedy the violation or request a hearing
before the Engineer.
Notwithstanding subsection (A), prior notice of removal is not
required where the newsrack poses an immediate danger to pedestrians or
vehicles. However, the city
shall mail notice of the removal and an opportunity to request a hearing
to contest the removal to the permittee within five days after the removal.
person notified under subsection 12.30.160 may request a hearing before
the Engineer by making a written request within ten days after notice
was mailed. The hearing shall
be informal, but oral and written evidence may be given by both sides.
Action by the city with respect to the alleged violation shall
be stayed pending the Engineer’s decision following the hearing.
The Engineer shall give written notice of the decision within five
business days of the conclusion of the hearing.
permittee or applicant for an encroachment permit aggrieved by a decision
of the Engineer may appeal that decision to the city manager by filing
written notice within seven days of such decision.
On appeal, the City Manager may reverse, affirm, or modify the
Engineer’s decision. The
written decision of the city manager shall be rendered within ten working
days of the conclusion of the appeal hearing and its decision shall be
Disposition of abandoned newsracks
A newsrack remaining empty for 30 consecutive days or retains
daily newspapers over 30 days old or 60 days from publication date of
monthly newspapers or not claimed within 30 days of seizure is considered
abandoned. A newsrack remaining
empty due to labor strike or a temporary interruption of distribution
or publication by the newspaper sold from the newsrack is not considered
An abandoned newsrack may be removed and disposed of if the responsible
party does not, within 30 days, claim the newsrack and pay a fee established
by the city council for the cost of removal.
The city shall hold money it finds in a newsrack destroyed or otherwise
disposed of under this section for a period of one year and then dispose
of it under the law governing found or abandoned property.
Costs of removal
cost to the city for removal of a newsrack is a debt to the city and is
the obligation of the permittee and the owner of the newsrack.
The amount due accrues interest at the rate of 10% annually from
the date the city incurs the cost.
Section 2. SEVERABILITY CLAUSE
If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not
affect the validity of the remaining portions of the ordinance.
The council hereby declares that it would have adopted the ordinance,
and each section, subsection, sentence, clause, or phrase thereof, irrespective
of the fact that one or more sections, subsections, sentences, clauses
or phrases be declared invalid.
Section 3. EFFECTIVE DATE
This ordinance shall take effect thirty (30) days after passage
and shall within fifteen (15) days after passing, be posted in accordance
with section 36933 of the Government Code of the State of California with
the names of those City Councilmembers voting for or against it.
The foregoing ordinance was introduced at a regular meeting of
the City Council of the City of Brentwood, held on the ______ day of
Adopted and ordered posted at a meeting of the City Council of
the City of Brentwood held on the ___day of ________, 2000 by the following
Karen Diaz, CMC, City Clerk
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441