5-33.01    Title

5-33.02    Findings

5-33.03    Purpose

5-33.04    Definitions

5-33.05    Newsrack Permit Required

5-33.06    Permissible Types of Racks

5-33.07    No Danger to Public Safety

5-33.08    Standards of Placement

5-33.09    Blinder Racks Required

5-33.10    Maintenance

5-33.11    Abatement of Violation

5-33.12    Revocation

5-33.13    Administrative Regulations

5-33.14    Amortization Requirements

5-33.15    Liability Insurance

5-33.16    Indemnification

5-33.01 Title.

This chapter shall be known as the Emeryville Newsrack Ordinance.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.02 Findings.

The City Council finds that the proliferation of news and advertising publications intended for public distribution and the corresponding increase in the number of individual newsrack dispensers placed upon the public rights-of-way has contributed to the following:

(a)    Obstruction of traffic views;

(b)    Damage to light standards, poles, trees and sidewalks from improper placement;

(c)    Detracting from the appearance of the public streets and grounds;

(d)    Blocking access to public facilities;

(e)    Blocking access to properties adjoining public rights-of-way; and

(f)    Blocking the path of travel along public sidewalks.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.03 Purpose.

This chapter seeks to provide a means to control the unregulated placement of individual newsrack dispensers in the City of Emeryville. The purpose of these regulations is to acknowledge and achieve the following:

(a)    There is a substantial government interest in promoting the public health, safety, welfare and convenience by ensuring that persons may reasonably use the public streets, sidewalks, rights-of-way, and other public property without interference with such use.

(b)    Newsracks placed and maintained on the streets, sidewalks, or other public rights-of-way, absent some reasonable regulation, may unreasonably interfere with the use of such streets, sidewalks, or other public rights-of-way, and may present hazards to persons or property.

(c)    The streets, sidewalks, or other public rights-of-way are historically associated with the sale and distribution of newspapers and other publications, and access to and use of these areas for such persons is not to be denied except where such use unreasonably interferes with the use of the areas by pedestrians or traffic, or where such use presents a hazard to persons or property.

(d)    Reasonable accommodation of these competing interests can be achieved by adoption of this chapter which regulates the placement and maintenance of newsracks.

(e)    The public health, safety, welfare, and convenience require that:

(1)    Interference with vehicular, bicycle, assistive mobility devices or pedestrian traffic be avoided within the public rights-of-way and on commercial properties;

(2)    Obstruction of sight distance and views of traffic signs and street-crossing pedestrians be eliminated;

(3)    Damage done to sidewalks or streets be minimized and repaired;

(4)    The good appearance of the public streets and grounds be maintained;

(5)    Trees and other landscaping be allowed to grow without disturbance;

(6)    Access to emergency and other public facilities be maintained; and

(7)    Ingress and egress from properties adjoining the public rights-of-way be protected.

(f)    The regulation of the sale or free distribution of newspapers and other publications dispensed in vending machines as set forth in this chapter provides the least intrusive and burdensome means for ensuring that the purposes stated in this section are carried out while still providing ample opportunities for the distribution of news to the citizens of the City of Emeryville.

(g)    These regulations shall serve as guidelines for the installation and maintenance of newsracks on private property.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.04 Definitions.

As used in this chapter:

(a)    “Bus stop” means the horizontal length of red curb area marked for use by AC Transit or Emery Go Round.

(b)    “City” means the City of Emeryville.

(c)    “Director” means the Director of the Department of Public Works or the Director’s designee.

(d)    “Newsrack” is any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display and sale, or distribution without charge, of newspapers, periodicals, or other publications.

(e)    “Modular newsrack” means an industry standard structure composed of a group of individual newspaper dispensing cabinets for two (2) or more different publications, where each kind has separate coin slots or merchandise receptacles or places where the publication is dispensed, where such cabinets are mounted in a double row of two (2) or more cabinets on a rack base supported by one or more pedestals.

(f)    “Abandoned newsrack” is any newsrack which remains empty for ten (10) business days, except that a newsrack remaining empty due to a labor strike or any temporary and extraordinary interruption of distribution or publication by the newspaper or other publication sold or distributed from that newsrack shall not be deemed abandoned.

(g)    “Owner” means the owner of a newsrack, or such other person, as defined in this section, who has control and responsibility therefor.

(h)    “Person” means and includes a natural person, firm, partnership, co-partnership, association, organization, company, or corporation.

(i)    “Pedestrian” means and includes persons in wheelchairs.

(j)    “Public right-of-way” means and includes the area and those areas dedicated to public use for public street purposes including but not limited to roadways, parkways, alleys and sidewalks.

(k)    “Roadway” is that portion of a public right-of-way improved, designed and ordinarily used for vehicular traffic, including drainage gutters and curbs a minimum of six inches (6") in horizontal width.

(l)    “Sidewalk” is that portion of a public right-of-way provided for the exclusive use of pedestrians, including planting areas or parking strips, between the public roadway and adjacent property lines.

(m)    “Single-unit newsrack” means a freestanding single newsrack of the style and type typically used by newspaper publishers instead of, or as an alternative to, multi-unit or modular configurations.

(n)    “Vehicular traffic” means and includes bicycles.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.05 Newsrack Permit Required.

(a)    The provisions of this chapter shall be the exclusive requirements for newsrack encroachments onto public property in the City of Emeryville and preempt any other provisions in this Code. This chapter shall apply to those areas of the City designated by the City Council by resolution.

(b)    Prior to placement of any newsrack on, partially in, or projecting into any public right-of-way or on public property, a newsrack permit must be obtained from the Director or his or her designee on the forms provided by the Director.

(c)    The newsrack permit application form shall state the name, address and telephone number of those responsible for installation, use, and maintenance of the newsracks, and shall describe, with particularity, the type of rack and location(s) proposed for installation. Any newsrack permit shall be issued within ten (10) working days if the type of newsrack and location(s) proposed meet the standards set forth in this chapter. Unless otherwise provided for in this chapter, the permit(s) shall expire if not renewed within one (1) year of issuance.

(d)    A newsrack permit shall not be transferable between or among persons.

(e)    If a newsrack permit is disapproved, in whole or in part, the Director shall notify the applicant promptly in writing, explaining the reasons for denial of a newsrack permit. The applicant shall have ten (10) calendar days after service of the notification of denial within which to appeal the decision to the City Council in accordance with the appeals provisions of this code. The appeal shall be governed by Section 1-4.01 et seq. of this Code.

(f)    A person securing a newsrack permit may install and maintain additional newsracks by an amendment to the permit originally granted to that person. The rules and provisions of this section shall also apply to the review and approval of any such amendment.

(g)    All persons who obtain a newsrack permit shall also obtain and display an identification/permit marker provided by the City of Emeryville. Such marker shall be affixed to the newsrack in plain view.

(h)    Any permit issued under this section shall be canceled and revoked if the permittee fails to install the newsrack(s) within sixty (60) days after the date of the issuance of the permit.

(i)    Newsracks on private property do not require a newsrack permit but do require design review approval if they do not conform to the design standards herein.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.06 Permissible Types of Racks.

(a)    Modular Newsracks. Except as provided in subsection (b) of this section, newsracks within the City shall be of a modular configuration standard in trade use.

(b)    Temporary Single-Unit Newsracks. Single-unit newsracks shall not be permitted within the City except as follows:

(1)    Trial Basis. Any single-unit newsrack which meets the requirement of this chapter may be permitted in any single location to determine the suitability of long-term newsrack locations.

(2)    Space Restrictions. Temporarily when space is unavailable in existing modular newsracks and only after submission for a single-unit newsrack permit has been approved and issued by the Director.

(c)    Temporary Single-Unit Newsracks: Time Limits. A temporary single-unit newsrack shall not be approved for a period of more than forty-five (45) days. Prior to installing a temporary single-unit newsrack, a complete temporary newsrack application shall be submitted, including written notice of the particular location and date upon which the temporary period will begin. With ten (10) business days after expiration of the temporary period, the person maintaining the newsrack shall either cause it to be removed or submit a written request to the Director for a permit to obtain the next available space in an existing modular newsrack at or near the temporary location, or to obtain space in a modular newsrack to be newly installed at or near the temporary location. A person may be allowed to maintain the temporary newsrack at the permitted site for up to an additional forty-five (45) days upon timely submission of a written application therefor if no suitable permanent newsrack space is available. All single-unit newsracks shall be of a design common in trade use.

(d)    Permissible Height and Width. The height, arrangement, and configuration of any newsrack placed within the public right-of-way shall comply with standards included in guidelines promulgated by the Director. Such standards shall be consistent with the findings and purpose of this chapter.

(e)    Public Safety. The design of a newsrack shall not create a danger to the persons using the newsrack in a reasonably foreseeable manner.

(f)    Placement in Relation to Other Newsracks. Newsracks may be placed next to each other. However, no group of newsracks placed along a curb shall extend for a distance of more than sixteen feet (16'), and shall be no closer than four feet (4') to another group of newsracks along a curb. If sufficient space does not exist to accommodate all newsracks sought to be placed at one location, without violating the standards set forth in this chapter, the Director shall give priority, on a historical first-come, first-served basis, to permit applicants as follows:

(1)    First priority, on a first-come, first-served basis, shall be given to daily publications (inclusive of their Saturday, Sunday, or weekend editions, whether or not published jointly with another newspaper) published at least five (5) times per week;

(2)    Second priority, on a first-come, first-served basis, shall be given to weekly publications;

(3)    Third priority, on a first-come, first-served basis, shall be given to publications published more than once but less than five (5) days a week;

(4)    Fourth priority, on a first-come, first-served basis, shall be given to biweekly publications (published less than once per week but more than once per month);

(5)    Fifth priority, on a first-come, first-served basis, shall be given to monthly or less frequent publications.

(g)    Minimum/Maximum Operational Height. The highest operable part of the coin slot, if provided for the newsrack, and all controls, dispensers and other operable components of newsracks shall not be greater than forty-eight inches (48") above the level of the adjacent pavement or sidewalk, nor lower than fifteen inches (15") above the level of the adjacent pavement or sidewalk.

(h)    ADA Compliance. It is intended that the provisions of this chapter shall be consistent with accessibility standards of the Americans with Disabilities Act of 1990, Public Law, 101-336 and further amendments affecting the general safety and welfare of all City residents and visitors, and that it is the responsibility of the owner of each newsrack to comply with all such provisions.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.07 No Danger to Public Safety.

(a)    No person shall install, stock, use, or maintain any newsrack which projects onto, into, or over any part of the roadway of any public right-of-way or street, or which rests, wholly or in part, upon, along, or over any portion of a roadway.

(b)    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, including handicapped access, the ingress into or egress from any residence, place of business, or the use of poles, posts, traffic signs, or signals, hydrants, postal service collection boxes or other objects permitted at or near said location.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.08 Standards of Placement.

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

(a)    Relation to Buildings and Curbs. Newsracks shall only be placed near a curb, adjacent to the wall of a building, or at the rear of a sidewalk. The back of newsracks placed near the curb shall be placed no less than eighteen inches (18") nor more than twenty-four inches (24") from the edges of the curb. The back of newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches (6") from the wall. No newsrack shall be placed or maintained on a sidewalk or parkway opposite another newsrack or kiosk which distributes newspapers, periodicals, or other publications only.

(b)    Clear Space for Pedestrian/Bicycle Passage. Clear space for pedestrian and or bicycle passage shall be maintained as follows:

(1)    Sidewalks of more than eight feet (8') in width, at least six feet (6') clear space;

(2)    Sidewalks of less than eight feet (8') in width, at least three feet (3') clear space;

(3)    Bicycle-pedestrian paths, at least eight feet (8') clear space.

(c)    Attachment by Pedestal. All modular newsracks shall be pedestal mounted and shall be permanently affixed to the ground except as permitted under this chapter. Newsracks shall not be chained, bolted, or otherwise attached to a bus shelter, bench, street light, utility pole, or sign pole, to any other single or modular newsrack, or to any tree, shrub, or other plant, or situated upon any landscaped area, or attached to any property not owned by the newsrack owner without the consent of the property owner.

(d)    Single-Unit Newsracks. Single-unit newsracks shall be skirted and weighted down. Single-unit newsracks shall not be chained, bolted or otherwise attached to a bus shelter, bench, street light, utility pole, or sign pole, to any other single or modular newsrack, or to any tree, shrub, or other plant; nor shall a single-unit newsrack be attached to any property not owned by the newsrack owner without the consent of the property owner, nor situated upon any landscaped area.

(e)    Placement Limitations. No newsrack shall be placed, installed, used or maintained:

(1)    Within fifteen feet (15') of any marked or unmarked crosswalk as measured from the curb return;

(2)    Within five feet (5') of any fire hydrant, fire call box, police call box, or other emergency facility;

(3)    Within five feet (5') of any driveway, entrance to a building, or sidewalk leading to the entrance of a building;

(4)    Within five feet (5') of any bus bench or shelter;

(5)    Within five feet (5') of any red curb or a bus stop zone;

(6)    At any location where the clear space for the passage of pedestrians is reduced to less than forty-eight inches (48");

(7)    In such a manner as to impede or interfere with the reasonable use of any commercial window display;

(8)    Within fifteen feet (15') of the curb return of any wheelchair curb ramp not in a marked crosswalk;

(9)    Within one hundred feet (100') 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.

(f)    Modification of Placement Standards. The Director may waive or modify the standards for newsrack placement contained in this chapter upon a showing of good cause and upon the Director’s determination that placing a newsrack at the location requiring the modification would not endanger the public health or safety. Notice of any modification approved by the Director shall be given to the City Council who may choose to review and modify the Director’s decision. No modification or waiver shall be effective until one day following the City Council meeting after which notice of the modification or waiver has been made. Should the City Council wish to review the matter, no modification or waiver shall be effective until the City Council has acted.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.09 Blinder Racks Required.

Any person, corporation, or business entity who displays, sells, or offers to sell any material that is harmful to minors, as defined by Chapter 7.6 of the California Penal Code, or which depicts, describes, or displays specified sexual activities or specified anatomical areas in a public place, other than a public place from which minors are excluded, shall place devices commonly known as blinder racks in front of the material, so that the lower two-thirds (2/3) of the material is not exposed to view. The definitions of Penal Code Chapter 7.6 are incorporated herein including the definition of “harmful matter” which includes the display of photographs or pictorial representations of acts of sodomy, oral copulation, sexual intercourse, masturbation, bestiality, or representation of an exposed penis in an erect and turgid state. The definitions of Chapter 4 of Title 9 of the Emeryville Municipal Code relating to “specified sexual activities” and “specified anatomical areas” are incorporated herein.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.10 Maintenance.

(a)    Cleaning and Repair. Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. The newsrack shall be reasonably free of dirt and grease, be reasonably free of chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, have no broken or cracked plastic or glass parts, and have no broken structural parts. No signs, advertising, stickers or adhesive labels, other than City-issued identification/approval labels, unrelated to publications in the newsracks shall be displayed on newsracks. Maintenance of newsracks shall be the responsibility of the newsrack permit holder. In the case of a modular newsrack, the permit holder shall be responsible for the individual box.

(b)    Abandonment. Abandoned newsracks may be removed by a designated City employee and may be disposed of if not claimed by the owner within thirty (30) days after the City has notified the owner in writing. Such notice shall state the Code section violated, the length of time within which the violation must be cured and the forum within which the owner may request a hearing.

(c)    Coin Return. Each newsrack which requires the deposit of money to obtain the publication shall be equipped with a coin return mechanism to permit persons using the machine to secure a refund in the event they are unable to receive the publication paid for. The coin return mechanism shall be maintained in good working order.

(d)    Identification. Every person maintaining a newsrack under the terms of this chapter shall have that person’s name, current address, and telephone number, updated within ten (10) days of any changes, affixed to it in a place where such information will be readily visible and shall include, with such identification, instructions on how to receive a refund in the event of coin return malfunctions.

(e)    Removal upon Discontinuance. Upon the removal of a newsrack, the public right-of-way shall be returned to its original condition including but not limited to the refilling of holes and refitting of unit pavers removed for purposes of installing newsracks.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.11 Abatement of Violation.

(a)    Removal Sanctioned. A newsrack in violation of this chapter may be removed by a designated employee of the City of Emeryville if it is impossible to remedy the violation and said violation poses a danger to health and safety, pedestrians, and vehicular traffic.

(b)    Notice Prior to Removal. Before any newsrack is removed, the owner shall be notified by posting the notice on the newsrack and mailing the notice to the address for such party stated on the newsrack permit or indicated on the newsrack. If the mailing address of the newsrack owner is not available, posting alone shall be sufficient. Both forms of notice shall give the owner ten (10) business days to remedy the violation and/or contest removal, and shall state the place to request a hearing to contest removal of the newsrack.

(c)    Hearing. Any person notified under subsection (b) of this section may submit a written request for a hearing before the Director, which hearing shall be held not less than ten (10) business days after the request was made. The hearing shall be informal, but oral and written evidence may be given by both sides. Any action by the City with respect to the alleged violation shall be stayed pending the Director’s decision following the hearing. The Director’s decision shall be rendered no later than ten (10) business days after the hearing and all parties shall be served with written notice of the decision. The Director shall issue his or her decision by mail to the person requesting the hearing at the address stated in the request for a hearing.

(d)    Appeal to City Council. Any person referred to in subsection (c) of this section may appeal the decision of the Director to the City Council. The appeal shall be governed by Section 1-4.01 et seq. of the Emeryville Municipal Code.

(e)    Removal/Impoundment/Recovery. The City may remove a newsrack if the person responsible for such newsrack has (1) neither requested a hearing before the Director nor remediated the violation within ten (10) business days following date of notice of violation; or (2) failed to remedy the violation within fifteen (15) business days after the Director serves his or her written decision that the newsrack was installed or maintained in violation of this chapter, following a hearing as conducted pursuant to this section. Such person shall be notified of the removal by mail, or by posting on the newsrack if the mailing address of the newsrack owner is not available. Removed newsracks shall be retained by the City and may be recovered by the responsible party for a period of up to thirty (30) business days following removal.

(f)    Seizure without Notice if Imminent Danger. Notwithstanding the provisions of subsection (a) of this section, prior notice of removal is not required where the newsrack poses a danger to pedestrians or vehicles, provided notice of the removal and opportunity to contest is given the owner within ten (10) days of the removal.

(g)    Removal of Abandoned Newsracks. Removed or impounded newsracks shall be retained and may be recovered by their owner within thirty (30) days of their removal. Newsracks removed or impounded by the City of Emeryville shall be retained by the City. Newsracks which are not claimed within thirty (30) days shall be deemed permanently abandoned and shall be disposed of.

(h)    Impound Fee. The person responsible for such newsrack shall pay an impound fee covering the actual cost to the City of removal, transport, and storage of such newsrack.

(i)    Cumulative Remedy. Abatement hereunder is in addition to and does not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein are cumulative and not exclusive.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.12 Revocation.

A permit issued pursuant to this chapter shall be subject to suspension, revocation, or modification for the violation of any provisions of this Code or for any grounds which would warrant the denial of the issuance of such original permit. The Director may issue a notice of violation for any failure to comply with any requirement of this chapter or any condition of the permit. Such notice shall set forth the action necessary to come into compliance and a time frame for compliance. If the noncompliance is not abated, corrected, or rectified within the time specified by the Director in said notice, the Director may revoke, suspend, or modify the permit, upon thirty (30) days’ notice.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.13 Administrative Regulations.

The City Manager, or his/her designee, shall adopt administrative regulations that are consistent with and further the terms and requirements set forth within this chapter. All such administrative regulations must be in writing.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.14 Amortization Requirements.

Every newsrack on public property or on the public right-of-way which does not comply with the provisions of this chapter shall be removed or otherwise brought into conformance within six (6) months of the effective date of this chapter. Existing newsracks on private property shall constitute a nonconforming use.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.15 Liability Insurance.

Each person, prior to the granting of a newsrack permit under this chapter, shall furnish to the City a certificate showing that such person has then in force public liability and property damage insurance, naming the City of Emeryville as an additional insured, in an amount not less than two hundred fifty thousand dollars ($250,000.00) minimum liability combined single limit (bodily injury and property damage) per person and per occurrence. The permit holder shall provide and keep in force that policy of public liability insurance during such time as it continues to locate any newsrack under the terms of this chapter. The evidence 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 any cancellation.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)

5-33.16 Indemnification.

Every person operating or maintaining a newsrack upon or within the public property, public rights-of-way, or public easement adjacent to streets of the City shall agree, prior to the granting of a newsrack permit, to indemnify and hold harmless the City, its officers and employees, from any loss, liability, damage, or cost sustained by any person or property, arising from the installation, operation, or use of such newsrack; 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 or property of another.

(Sec. 2 (part), Ord. 08-010, eff. Jan. 1, 2009)