Chapter 12.34
NEWSRACKS
Sections:
12.34.050 Standards for the installation, maintenance and operation of newsracks.
12.34.060 Removal and hearing.
12.34.090 Abandoned newsracks.
12.34.110 Enforcement authority.
12.34.120 Appeals and judicial review.
12.34.010 Purpose and intent.
A. Purpose. The purpose of this chapter is to promote the public health, safety, and welfare through the regulation of placement, appearance, number, size, and servicing of newsracks on the public rights-of-way so as to:
1. Protect the right to distribute information, protected by the United States and California Constitutions, through the use of newsracks.
2. Provide for pedestrian and driving safety and convenience.
3. Ensure no unreasonable 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.
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 the public rights-of-way, encourage well-designed and aesthetically compatible newsracks and protect the aesthetics and value of surrounding properties.
6. Reduce exposure of the City to personal injury or property damage claims and litigation.
B. Preservation of Constitutional Rights. 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 printed material that is constitutionally protected. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.020 Definitions.
As used in this chapter, unless the context otherwise clearly indicates, the following words and phrases shall be construed as defined in this section:
“Block” shall mean one side of a street between two consecutive intersections.
“City Manager” shall mean the City Manager or his or her designee.
“Director of Planning” shall mean the Director of the Planning and Building Department or his or her designee.
“Double-slotted newsracks” shall mean single newsracks containing separate provisions for two tabloid-style (vertically formatted) publications, where each side has a separate coin slot, merchandise receptacles, or places where the publications are dispersed. A double-slotted newsrack shall be considered one newsrack, cabinet, or compartment for purposes of this chapter.
“Modular newsracks” shall mean an attached group of two or more newsracks supported by a pedestal.
“Newsrack” shall mean any self-service or coin-operated box, container, storage unit or other dispenser installed, used, or maintained for the display and sale or free distribution of newspapers, news periodicals, commercial handbills, or other publications.
“Newsrack permit” shall mean a permit which was issued under this chapter of the Calistoga Municipal Code.
“Person” shall mean any person or persons, or entity including but not limited to a corporation, partnership, unincorporated association, or joint venture. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.030 General provisions.
A. Roadway and Driveway Prohibition. No person shall install, use, or maintain any newsrack which projects onto, into, or over, or which rests, wholly or in part, upon any part of the roadway of any public street or upon any driveway.
B. Sidewalk Restrictions. No person shall install, use, or maintain any newsrack which in whole or in part rests upon, in, or over any public sidewalk or parkway in any manner inconsistent with or in violation of the provisions of this chapter. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.040 Permit required.
A. No person shall install, use or maintain any newsrack which in whole or in part rests upon, in, or over any public sidewalk or parkway without a newsrack permit from the City Manager as required in this chapter.
B. The newsrack permits previously issued or renewed which are specifically identified in Exhibit A* attached to the ordinance codified in this chapter are deemed reissued.
C. Applications for a new newsrack permit may be filed on or after the effective date of the ordinance codified in this chapter. Applications shall be filed with the Director of Planning upon a form provided by the Planning and Building Department for that purpose and shall include the following information:
1. The name, address, and telephone number of the applicant;
2. The address and telephone number of a responsible person whom the City may notify or contact at any reasonable time concerning the applicant’s newsracks;
3. The number of proposed newsracks and the names and frequency of publications to be contained in each newsrack, including any existing newsracks;
4. Type or brand of newsrack, including description of the newsrack and supporting or enclosing structure;
5. A site plan showing the exact location of each newsrack and supporting or enclosing structure, and sufficient information to determine that the location complies with CMC 12.34.050;
6. Such application shall also contain a statement that the applicant will, in consideration of being issued a newsrack permit for the use of space, be responsible for any damage or repairs caused by the removal or installation of any newsrack and agree to indemnify and hold harmless the City of Calistoga, its officers and employees from any loss, liability, or damage, including expenses and costs, for bodily or personal injury, and for property damage sustained by any person as a result of the installation, use, or maintenance of the applicant’s newsrack within the City of Calistoga.
D. Applications for new newsrack permits which are complete, consistent with the provisions of this chapter, and for locations at which space for one or more newsracks is available shall be approved on a first-come, first-served basis.
E. At the request of the applicant, an application for a new newsrack permit which is complete and consistent with the provisions of this chapter, but for a location at which space for a new newsrack is not available, shall be placed on a waiting list. If the requested location becomes available, the applicant will be notified according to its placement on the waiting list and a newsrack permit shall be issued; provided, that the newsrack complies with the provisions of this chapter.
F. If a newsrack permit is disapproved, in whole or in part, the Director of Planning shall notify the applicant in writing within 10 business days of the decision explaining the reasons for denial.
G. The applicant may appeal the denial of a newsrack permit pursuant to CMC 12.34.120.
H. A newsrack permittee may assign its permit to another of its publication(s). (Ord. 605 § 2, 2004; Ord. 591 §§ 2, 3, 2003; Ord. 570 § 2, 2001).
*Code reviser’s note: Exhibit A to Ordinance 605 may be found on file in the City Clerk’s office.
12.34.050 Standards for the installation, maintenance and operation of newsracks.
Any newsrack which in whole or in part rests upon, in, or over any public sidewalk or parkway shall comply with all of the following standards:
A. Placement and Total Numbers.
1. No newsrack shall be chained, bolted, or otherwise attached to any property not owned by the owner of the newsrack, or to any permanently fixed object. However, newsracks may be bolted to the sidewalk or a concrete footing under pavers, tiles, or similar surfaces as the case may be; provided, that the owner of the newsrack restores the sidewalk, pavers, tiles or similar surfaces to their original condition upon removal of the newsrack.
2. Where there are two or more newsracks in one location, newsracks shall be clustered into modular newsracks subject to the following conditions and limitations:
a. Modular newsracks shall be designed in such a manner as to utilize two rows with an equal number of compartments in each row.
b. No modular newsrack shall contain more than eight newsracks.
3. No single newsrack may be installed within 200 feet of another single newsrack or modular newsrack on the same block.
4. No modular newsrack may be installed within 200 feet of another single or modular newsrack in the same block, except as set forth below:
a. On the sidewalk adjacent to the United States Post Office at 1013 Washington Street, where two newsrack modulars, which are separated by at least three feet and each of which may contain up to eight newsracks;
b. When separated by at least three feet and by a supporting post of the sidewalk canopy over the public right-of-way. At such a location, the modulars may not collectively contain more than eight newsracks; or
c. As specifically provided elsewhere in this chapter, including without limitation CMC 12.34.040(B) and subsection (A)(5) of this section.
5. Any person, publication or agency may apply for a variance from the 200-foot separation requirement of subsections (A)(3) and (A)(4) of this section. A variance may be granted by the Director of Planning if the applicant can establish that the variance would not violate (a) CMC 12.34.010, Purpose and intent, or (b) subsection (B) of this section, Location. The applicant can appeal the denial of a variance pursuant to CMC 12.34.120.
B. Location. No newsrack shall be installed, used, or maintained:
1. When such installation, use, or maintenance endangers the safety of persons or property.
2. When such site or location is used for public utility purposes, public transportation purposes, or other governmental use.
3. When such newsrack unreasonably interferes with or impedes ingress or egress to or from any business, residence or legally parked or stopped vehicle, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects at or near the location.
4. When such newsrack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery.
5. Within five feet of any marked crosswalk not at an intersection.
6. Within 15 feet of the curb return of any intersection.
7. Within five feet of any fire hydrant, fire call box, police call box or other emergency facility.
8. Within five feet of any driveway.
9. With the back to the roadway along the curb if located within five feet of any curb area designated by markings or signage to be a bus stop.
10. With the back to the roadway along the curb, if located within two feet from any curb where parking is parallel to the sidewalk.
11. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet on Lincoln Avenue between Cedar Street and Fair Way and less than four feet elsewhere in the City.
12. Within any area designated by curb markings or signage to be handicapped parking.
13. So as to interfere with or impair the vision of operators of vehicles at street intersections.
14. Within 18 inches from trees and other vegetation installed in permanent planters in the public right-of-way, tree wells, street furniture, including benches at bus stops and their enclosures, trash receptacles, supporting posts for covered walkways or canopies, or other similar elements at or near the location.
15. So as to obstruct, shield, or block a window of any business or residence where such newsrack is located within six feet from the face of the building on which the window is located.
16. At any location which creates less than a four-foot wide path of travel as required by Title 24 of the California Code of Regulations and the Americans with Disabilities Act.
C. Dimensions and Design.
1. Each newsrack shall be a pedestal style, either the KJ-50 as manufactured by K-Jack or the TR-4916, as manufactured by Sho-Rack, or substantially similar thereto.
2. The color of any newsrack shall be green; identified as “green” (as manufactured by “Sho-Rack”). An alternative color may be allowed by the Director of Planning; provided, that the alternative color is complementary to the surroundings.
3. No modular newsrack shall exceed 58 inches in height measured from the surface of the sidewalk or ground to the top surface of the newsrack, 25 inches in width, or 20 inches in depth.
D. Maintenance. Every newsrack shall be maintained in a clean and neat condition free from dents, rust, graffiti, dirt, grease, chipped, faded or peeling paint, information flyers not for distribution by the newsrack permittee, and similar conditions that detract from the aesthetic quality of the commercial area. The newsrack shall be in working order at all times. Upon removal of a newsrack, the right-of-way shall be restored to its original condition prior to installation of the newsrack.
E. Advertising. Newsracks shall carry no advertising or public notices, other than a logo or similar information identifying the newspaper, and limited to a height of five inches on the bottom one-third of the front and back sides. No logos or similar information identifying the newspaper shall be allowed on the sides of the newsracks.
F. Identification. The address and telephone number of a responsible person who may be contacted at any time concerning the newsrack shall be displayed on the front of the newsrack in such manner as to be readily visible and readable to a prospective customer. The size of the identifying information shall not exceed 12 square inches. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.060 Removal and hearing.
In addition to any enforcement remedies available to the City as set forth in this code, any newsrack placed, installed, or maintained in violation of this chapter may be removed by the City subject to the notice and appeal procedures set forth in this section.
A. Notice of Violation. If at any time it is determined by the Director of Planning that any newsrack is in violation of the requirements of this chapter, a “notice of violation” shall be issued in writing to the owner of the newsrack, and posted on the newsrack, or if no identification is displayed on the newsrack, merely posted on the newsrack. The notice shall state the violation or violations which constitute the basis of the notice, the City’s intent to revoke the newsrack permit and to remove the newsrack if the violation is not corrected or a hearing has not been requested within 15 days.
B. Hearing. A timely request for a hearing shall stay any removal of the newsrack. The request for a hearing shall be in writing, shall state the basis thereof, and shall be filed with the City Clerk. The hearing shall take place before the City Manager within 15 calendar days of the request. The hearing shall be informal, but oral and written evidence may be given by both sides. The City Manager shall issue a written decision within 10 calendar days of the hearing. If the City Manager finds that the newsrack is in violation of this chapter and the violation is not corrected within 10 calendar days after the written decision is mailed, the newsrack permit may be revoked and the newsrack, if not a modular newsrack, may be summarily removed. The newsrack owner may appeal the City Manager’s determination pursuant to CMC 12.34.120. A timely appeal to the City Council shall stay the summary removal of the newsrack.
C. Removal. Any newsrack which is not brought into compliance with this chapter within 15 days after notice of violation has been posted on the newsrack if no hearing or appeal is requested pursuant to subsection (B) of this section or 12.34.120 shall be removed by the Director of Planning and stored in a convenient place. The cost of removal shall be borne by the permittee.
D. Notification of Removal. The Director of Planning shall notify the owner or his or her designee of the removal by mailing a “notice of removal” to the last known address of the owner/designee. Such notice shall be mailed within five business days after removal of the newsrack and shall state: (1) the date the newsrack was removed; (2) the reasons for the removal; and (3) the locations of and procedure for claiming the newsrack.
E. Release. Any newsrack removed and stored pursuant to these provisions shall be released to the owner thereof within six months after the mailing of the written “notice of removal” upon satisfactory proof of ownership and payment of an impoundment fee in an amount equal to the reasonable cost to the City of removing and storing the newsrack. If such newsrack remains unclaimed after this six-month period, it shall be deemed to be unclaimed property and may be disposed of by the City.
F. Removal in Exigent Circumstances. In the case of any newsrack which, in violation of the provisions of this chapter, creates an immediate danger to the health or safety of the public, such newsrack may be summarily removed and stored in a convenient location so as to eliminate the danger to the health, safety and welfare of the public. The Director of Planning shall notify the owner of the removal by mailing a “notice of removal” to the last known address of the owner. Such notice shall be mailed within five business days after the removal of the newsrack and shall contain the same information as set forth in subsection (D) of this section. The owner of the newsrack may request a hearing pursuant to the procedures of subsection (B) of this section for a determination of whether the newsrack was legally placed, and, therefore, improperly seized. If the City Manager determines that the seizure was improper, the City Manager shall order the newsrack released and reinstalled by the City with no charge to the owner. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.070 Notices.
Unless otherwise stated, notices required pursuant to the provisions of this chapter shall be given in writing by United States certified mail, return receipt requested, addressed to the person to be notified at his or her last known address. The giving of notice under this chapter shall be deemed to have occurred as of the date of deposit in the United States mail. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.080 Applicability.
The provisions of this chapter shall apply to all newsracks within public rights-of-way, whether installed and maintained prior to or after the effective date of any of the provisions herein. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.090 Abandoned newsracks.
A newsrack shall be deemed abandoned when no printed material is contained therein for a period of more than 15 consecutive days. If the Director of Planning determines that no printed material is contained in a newsrack for a period of more than 15 consecutive days, the Director of Planning shall mail to the newsrack owner and post on the newsrack a notice stating his or her finding that the newsrack has been abandoned. If the newsrack owner does not respond in writing to the Director of Planning with a statement of intention not to abandon the newsrack within 10 days of the mailing and posting of said notice, the newsrack permit shall be deemed revoked and the Director of Planning may summarily impound such newsrack, and shall mail a notice of removal as set forth in CMC 12.34.060(D). If the newsrack owner timely provides a statement of intention not to abandon the newsrack, and there is no printed material contained in the newsrack for more than 15 consecutive days thereafter, the newsrack permit shall be deemed revoked, and the Director of Planning (1) may, without first mailing or posting notice of abandonment, summarily impound such newsrack, (2) shall mail a notice of removal as set forth in CMC 12.34.060(D), and (3) shall determine whether a newsrack permit should be issued to an applicant on the waiting list, if one exists for the site, in accordance with CMC 12.34.040(E). (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.100 Severability.
Each phrase, clause, sentence, section, and provision of this chapter is hereby declared to be severable. Therefore, if any phrase, clause, sentence, section, or provision of this chapter or application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other phrase, clause, sentence, section, provision, or application of this chapter. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.110 Enforcement authority.
Except as specifically provided herein, the provisions of this chapter shall be enforced by the City Manager or his or her designee. (Ord. 605 § 2, 2004; Ord. 570 § 2, 2001).
12.34.120 Appeals and judicial review.
A. Unless otherwise provided herein, any person who is aggrieved by a determination made by the City Manager pursuant to CMC 12.34.040(F), 12.34.050(C), or 12.34.060 shall have 10 calendar days within which to appeal the decision to the City Council in accordance with the appeals provisions of this code. Any appeal of a newsrack permit or variance denial under this chapter shall be set for a public hearing before the City Council no later than 30 calendar days following the notice of appeal to City Council.
B. Any person aggrieved by a final decision made by the City pursuant to this chapter may seek judicial review of the decision in the Superior Court of California, Napa County. Pursuant to Section 1094.8(c) of the Code of Civil Procedure, the City hereby designates the denial of a newsrack permit and the revocation of a newsrack permit as eligible for expedited judicial review pursuant to the procedure set forth in Code of Civil Procedure Section 1094.8, or any successor statute or regulation. (Ord. 605 § 2, 2004).