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CITY COUNCIL AGENDA ITEM NO. 12

Meeting Date: July 11, 2000

Subject/Title: Regulation of Newsracks in Public Right of Way—Second Reading

Submitted by: Dennis Beougher, City Attorney

Approved by: Jon Elam, City Manager

RECOMMENDATION

After conducting public hearings on June 13 and June 27, the City Council made one recommended change to the ordinance to exempt existing newsracks in their present location for a period of five years, subject to their compliance with certain insurance and permitting regulations. As there was only one minor change to the original ordinance, staff recommends the second reading of the ordinance concerning the regulation of newsracks in public right of way and to authorize the second reading, as per the attached ordinance.

PREVIOUS ACTION

The City of Brentwood previously reviewed the draft regulations of newsracks in the public right of way. Council requested one additional change concerning the length of time to grandfather existing newsracks in their present locations for five years. The recommended change is highlighted in Exhibit A.

BACKGROUND

As the original draft ordinance was amended by only one minor change, the ordinance is being presented for its second reading at this time.

Attachments:

Exhibit A, Highlighted Revision to draft Ordinance

Ordinance

Exhibit "A"

(E) "Newspaper" 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.

(F) "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.

(G) "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.

(H) "Non-Newspaper Publication" means any publication which is not a newspaper as defined herein.

(I) "Permanent Newsrack" means any newsrack maintained in the public right-of-way for more than ninety (90) days.

(J) "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.

(L) "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.

12.30.020 Encroachment permit required

No 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. An existing newsrack placed in the public right of way prior to the effective date of this ordinance shall be permitted to remain in that same location for a period of five years from the effective date of this ordinance provided that the applicant shall comply with sections 12.30.030, 12.30.040, 12.30.050, and 12.30.100. After the expiration of this five year period, all newsracks shall comply with this chapter's provisions.

Exhibit "B"

ORDINANCE NO. ________

AN 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

THE CITY COUNCIL OF THE CITY OF BRENTWOOD DOES HEREBY ORDAIN AS FOLLOWS:

Section 1. TITLE 12 (STREETS, SIDEWALKS AND PUBLIC PLACES), CHAPTER 12.30 IS HEREBY ADDED TO READ AS FOLLOWS:

Chapter 12.30 Newsracks In Public Right-of-Way

12.30.010 Purpose and Findings

The 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.

Brentwood 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.

12.30.20 Definitions

In this chapter unless the context otherwise requires:

(A) "City" is the City of Brentwood.

(B) "Engineer" is the City Engineer or his/her designated agent.

(C) "Downtown area" is the area of the City shown on the downtown insert of the General Plan map.

(D) "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.

(E) "Newspaper" 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.

(F) "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.

(G) "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.

(H) "Non-Newspaper Publication" means any publication which is not a newspaper as defined herein.

(I) "Permanent Newsrack" means any newsrack maintained in the public right-of-way for more than ninety (90) days.

(J) "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.

(L) "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.

12.30.020 Encroachment permit required

No 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. An existing newsrack placed in the public right of way prior to the effective date of this ordinance shall be permitted to remain in that same location for a period of five years from the effective date of this ordinance provided that the applicant shall comply with sections 12.30.030, 12.30.040, 12.30.050, and 12.30.100. After the expiration of this five year period, all newsracks shall comply with this chapter's provisions.

12.30.030 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

Before 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.

12.30.050 Indemnification Required

Every 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.

12.30.060 Issuance of permit

The 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.

12.30.070 Newsrack identification

The 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.

12.30.080 Permissible types of newsracks

Except as otherwise provided in subsection (E) newsracks shall conform to the standards contained in this section as follows:

(A) 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.

(B) 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.

(C) 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. Each multi-unit newsrack shall be arranged in such a manner as to utilize no more than two horizontal rows of four compartments per row, except that at the two locations specified in section 12.30.090, subsection (D), a maximum of two horizontal rows of eight compartments per row shall be allowed. Installation shall be in accordance with section 12.30.090

(D) 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.

(F) Every newsrack shall have a fully functional automatic coin return if it dispenses newpapers for sale.

12.30.090 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:

(A) 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:

(1) There is a need for additional newspaper or non-newspaper publications within the downtown area;

(2) There are no available spaces in an existing newsrack encasement;

(3) No additional newsrack encasements are expected to be constructed within three months of the date of the application for a newsrack location;

(4) The request is for a temporary newsrack in order to determine if there is a need for a permanent newsrack;

(B) 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.

12.30.100 Display 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:

(A) 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.

(B) 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.

12.30. 110 Unlawful obstruction

No person may place, install or maintain a newsrack:

(A) Within a portion of a roadway , alley, or projecting into a portion of a roadway or alley.

(B) Within four feet of any marked crosswalk.

(C) Within 15 feet of the curb return of an unmarked crosswalk.

(D) Within four feet of a fire hydrant, fire call box, police call box or other emergency facility

(E) Within four feet of a driveway, building entrance, or sidewalk leading to the entrance of the building.

(F) Within four feet ahead of, and 15 feet to the rear of a sign or pavement markings designating a bus stop.

(G) Within four feet of a bench, seat or chair placed for public use within a public right-of-way.

(H) Within four feet of an above ground utility cover or street furniture.

(I) At any location where the clear space for the passageway of pedestrians is reduced to less than four feet

(J) Attached to any parking meter, traffic signal, street light, fire hydrant, power pole, sign post, refuse .

container, or tree.

(K) In violation of local and state handicapped accessibility regulations.

(L) 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.

Notwithstanding 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.

12.30.120 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.

12.30.130 Newsrack Maintenance

(A) 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 basis.

(B) 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 of 12.30.190.

(C) 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 thereof.

(D) 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.

12.30.140 Nonconforming newsracks

The 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.

12.30.150 Removal by city

The 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.

12.30.160 Notice before removal

(A) 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.

The 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.

(B) 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.

12.30.170 Hearing procedure

A 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.

12.30.180 Appeal

A 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 final.

12.30.190 Disposition of abandoned newsracks

(A) 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 abandoned.

(B) 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.

[C] 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.

12.30.200 Costs of removal

The 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 _____, 2000.

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 vote:

City Administration
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