Chapter 5.70


5.70.010    Intent and Purpose.

5.70.015    Definitions.

5.70.020    Newsrack Permits.

5.70.025    Requirements and Duties.

5.70.030    Special Requirements for Newsracks Along Marine Avenue on Balboa Island.

5.70.035    Display of Certain Matter Prohibited.

5.70.040    Display of Harmful Matter.

5.70.045    Costs.

5.70.050    Removal of Newsracks.

5.70.055    Appeals and Calls for Review.

*    Prior ordinance history: 1684, 83-14, 86-18 and 86-29.

5.70.010 Intent and Purpose.

The City Council of the City of Newport Beach hereby finds that newsracks, stands, containers and similar newspaper and vending devices have proliferated and increased in certain areas of the City of Newport Beach to the extent that in some instances they constitute a threat to public health, safety and welfare by impeding pedestrian traffic and interfering with ingress and egress to and from buildings, vehicles and public modes of transportation.

The City of Newport Beach finds Marine Avenue, on Balboa Island, to be an extremely popular tourist destination with unusually high pedestrian and vehicular traffic volumes in the summer months and holidays. There is a proliferation of newsracks along Marine Avenue on Balboa Island resulting in undue interference with pedestrian and traffic circulation and increased safety hazard. Due to unique problems along Marine Avenue on Balboa Island, it is necessary to specifically limit the number of locations and spaces for newsracks.

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 public rights-of-way so as to:

A.    Provide for pedestrian and driving safety and convenience;

B.    Insure no unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into, or egress from, any residence or place of business, or from the street to the sidewalk, by persons exiting or entering parked or standing vehicles;

C.    Provide reasonable access for the use and maintenance of sidewalks, poles, posts, traffic signs or signals, hydrants, mailboxes, and access to locations used for public transportation services;

D.    Reduce visual blight on the public rights-of-way, and protect the aesthetics of store window displays, public landscaping and other improvements;

E.    Maintain and protect the value of surrounding properties;

F.    Reduce exposure to the City to personal injury or property damage claims and litigation;

G.    Protect the right to distribute information protected by State and Federal constitution through the use of newsracks.

It is not the intent of this chapter to in any way discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any newspapers. (Ord. 88-20 § 1 (part), 1988)

5.70.015 Definitions.

A.    Newsracks. “Newsracks” shall mean any type of self-service or coin-operated box, container, storage unit or other dispenser placed upon any public rights-of-way for the vending or free distribution of newspapers, periodicals or other printed material.

B.    Public Right-of-Way. “Public right-of-way” shall mean any public property, such as public streets, highways, roadways, sidewalks, parkways or alleys, used or intended for use, by the travelling public, whether vehicular or pedestrian, located within the City of Newport Beach. (Ord. 2023-22 § 333, 2023; Ord. 88-20 § 1 (part), 1988)

5.70.020 Newsrack Permits.

A.    Permit Required. A newsrack permit issued in accordance with this chapter shall be required prior to the installation, placement or maintenance of any newsrack which in whole or in part rests upon, in or over any public right-of-way.

A new newsrack permit shall not be required for any newsrack that complies with the provisions of this chapter and has a valid permit in effect on the adoption date of the ordinance codified in this chapter.

B.    Application. A written application for a newsrack permit shall be filed with the City Manager and shall contain the following information:

1.    The name, address, and telephone number of the applicant and owner of the newsrack.

2.    The name, address, and telephone number of a representative or other responsible person whom the City may notify or contact at any time concerning the applicant’s newsrack.

3.    The number of newsracks at the street address of the proposed location of each as shown on a scaled drawing of the proposed location.

4.    A diagram of the location proposed for the installation of the newsrack(s).

5.    Names of newspapers or periodicals to be contained in each newsrack.

6.    Type or brand of newsrack, including description of the newsrack and mount, if other than K-Jack Style Mount Model 100.

C.    Fee. Each application for a newsrack permit shall be accompanied by an application fee as established by resolution of the City Council.

D.    Issuance and Denial. Upon a finding the applicant is in compliance with the provisions of this chapter, the City Manager shall issue a newsrack permit at a location approved by the Traffic Engineer. If a permit is denied, the applicant shall be notified in writing of the specific cause of such denial by the City Manager and the right to appeal in accordance with Section 5.70.055 of this chapter.

E.    Conditions for Approval. An application for a newsrack permit shall be approved unless:

1.    The proposed newsrack projects onto, into or over any part of the roadway or public street, or which rests, wholly or in part, upon, along or over any portion of the roadway or public street;

2.    The proposed newsrack is to be installed in whole or in part, in or over any sidewalk or parkway; and

a.    The newsrack, in its proposed location, would endanger the safety or persons or property; or

b.    The proposed location is used for public utility purposes, public transportation purposes or other public use; or

c.    The proposed newsrack would unreasonably interfere with or impede the flow of pedestrian or vehicular traffic, the ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects present at or near said location; or

d.    The proposed newsrack would interfere with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery. (Ord. 2023-22 § 334, 2023; Ord. 88-20 § 1 (part), 1988)

5.70.025 Requirements and Duties.

A.    Any newsrack which, in whole or in part, rests upon, in or over any sidewalk, shall substantially comply with the following:

1.    Newsracks located near a curb shall be placed not less than eighteen (18) inches nor more than twenty-four (24) inches from the edge of the curb. Newsracks placed adjacent to the rear of the sidewalk shall be placed parallel to the wall and at least six inches from the wall.

2.    Newsracks shall not be chained, bolted or otherwise attached to any private property without the consent of the property owner.

3.    Newsracks may be attached to one another. Each group of attached newsracks shall be separated by eighteen (18) inches or more. The Traffic Engineer shall determine the number of newsracks that can be bolted, attached or grouped on a location by location basis.

4.    Newsracks shall not be placed, installed, used or maintained:

a.    Within fifteen (15) feet of any marked crosswalk;

b.    Within twenty (20) feet of the curb return of any unmarked crosswalk;

c.    Within ten feet of any fire hydrant, fire call box, police call box or other emergency facility;

d.    Within ten feet of any driveway;

e.    Within ten feet ahead, and forty (40) feet to the rear of any sign marking a designated bus stop;

f.    Within ten feet of any bus bench;

g.    At any location whereby the clear space for the passageway of pedestrians is reduced to less than four feet;

h.    Within one hundred (100) feet of another newsrack containing the same newspaper or news periodical except where separated by a street or corner, or except where one a newspaper demonstrates that there is insufficient room in one machine for the newspapers which may be sold in one day, or two where a newspaper demonstrates that it publishes more than one edition of the newspaper for sale at the same time;

i.    Facing another newsrack, divided only by the width of a public sidewalk or public pedestrian wall.

B.    The name, address, and telephone number of a responsible person who may be contacted at any time concerning the newsrack shall be displayed on the hood of a newsrack in such manner as to be readily visible to and readable by a prospective customer.

C.    Newsracks shall carry no advertising except:

1.    The name of the newspaper or periodical being dispensed on the bottom one-third of the plastic hood; and

2.    Advertising rack cards contained in card pans which are attached to and located on the front of the newsrack and do not exceed fifteen (15) inches in height and twenty-two (22) inches in length. The rack cards shall be limited to the display, sale or purchase of the newspaper or periodical being dispensed.

D.    Newsracks shall be kept clean and maintained in good working order at all times, freshly painted and with unbroken hoods.

E.    Frames and racks for newsracks shall be K-Jack Style Mounts Model 100 or approved equal with a height not to exceed forty (40) inches. Mounts shall be bolted in place in accordance with specifications provided by the City.

F.    Newsracks shall have woodgrain panels or be painted brown on all sides and the mount shall be painted gloss black.

G.    No person, association, firm or corporation shall place, locate or maintain a newsrack on the public right-of-way unless there is on file with the Risk Manager proof of insurance, which types and amounts shall be determined by the Risk Manager.

H.    Every permittee of a newsrack located upon the public right-of-way must comply with the provisions of Title 5, Business Licenses and Regulations, Section 5.04.020. (Ord. 2023-22 § 335, 2023; Ord. 88-20 § 1 (part), 1988)

5.70.030 Special Requirements for Newsracks Along Marine Avenue on Balboa Island.

In addition to all other applicable provisions of this chapter, the following rules shall apply to newsracks along Marine Avenue on Balboa Island;

A.    Newsracks shall be permitted at only four locations: 201 Marine Avenue (Location One); 206 Marine Avenue (Location Two); 300 Marine Avenue (Location Three); and northern twenty-five (25) percent of 301 Marine Avenue and 305 Marine Avenue (Location Four).

B.    Each location shall accommodate up to a maximum of eight newsrack spaces. The eight newsrack spaces shall be divided into two groups with a maximum of four newsrack spaces in each group. Each group shall be separated by forty-eight (48) inches or more. Newsrack space is defined as that surface area in the public right-of-way sufficient to accommodate a newspaper rack.

C.    Newsracks proposed to be placed at any one location that violate the provisions of Section 5.70.020(E) or subsection (A) or (B) of this section shall be given priority on a first-come, first-served basis. (Ord. 2023-22 § 336, 2023; Ord. 88-20 § 1 (part), 1988)

5.70.035 Display of Certain Matter Prohibited.

Any publication offered for sale in a newsrack placed or maintained on a public sidewalk or public right-of-way shall not be displayed or exhibited in a manner which exposes to public view, from any public place, any of the following:

A.    Any statement or word describing explicit sexual acts, sexual organs or excrement where such statements or words have as their purpose or effect, sexual arousal, gratification or affront; or

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 of effect sexual arousal, gratification or affront; or

C.    Any picture or illustration depicting explicit sexual acts where such picture or illustration has as its purpose or effect, sexual arousal, gratification or affront.

For the purpose of this section the term “explicit sexual acts” means the depiction of sexual intercourse, oral copulation, anal intercourse, oral-anal copulations, bestiality, sadism, masochism, or excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the genitals, whether any of the above is depicted or described as being performed alone or between members of the same or opposite sex, or between humans and animals, or other act of sexual arousal involving any physical contact with a person’s genitals, pubic region, pubic hair, perineum, anus or anal region. (Ord. 88-20 § 1 (part), 1988)

5.70.040 Display of Harmful Matter.

A.    Definitions. For the purposes of this section, the terms “harmful matter,” “matter,” “person,” “distribute,” “knowingly,” “exhibit,” and “minor” shall have the meanings specified in California Penal Code Section 313. For the purposes of this chapter, the term “blinder rack” shall mean opaque material placed in front of, or inside, the newsrack and which prevents exposure to public view.

B.    Prohibition. No person shall knowingly exhibit, display, or cause to be exhibited or displayed, harmful matter in any newsrack located on a public sidewalk or public place from which minors are not excluded, unless blinder racks have been installed so that the lower two-thirds of the matter is not exposed to public view. (Ord. 2023-22 § 337, 2023; Ord. 88-20 § 1 (part), 1988)

5.70.045 Costs.

The costs of installation, maintenance, replacement, removal, and relocation of newsracks shall be at the sole expense of the permittee or owner. Upon removal of any newsrack, the permittee or owner shall, at his or her sole expense, cause the public right-of-way to be repaired to a condition in conformity to the surrounding area. Upon failure of the permittee or owner to make such repairs, the work may be done by the City and charged to the permittee or owner. (Ord. 88-20 § 1 (part), 1988)

5.70.050 Removal of Newsracks.

A.    If the City Manager determines that a newsrack does not comply with the provisions of this chapter or is abandoned, the City Manager shall serve written notice of such determination to the permittee or owner in the manner provided in Section 1.08.080. The notice shall specify the nature of the violation and the location of the newsrack which is in violation, the intent of the City Manager to remove the newsrack in the event a hearing is not requested, and the right of the permittee to request a hearing, before the City Manager, within fifteen (15) days from the date of service of the notice. If the newsrack is one which has not been authorized by the City Manager and ownership is not known, nor apparent after inspection, a notice complying with this section shall be affixed to the newsrack.

B.    In the event that a hearing is held pursuant to this section, the City Manager shall render a decision, in writing, within ten (10) days from the date of the hearing, and the decision shall advise the permittee or owner of his or her right to appeal to the City Council, pursuant to the provisions of Section 5.70.055. Notice of the decision shall be served on permittee or owner in the manner provided in Section 1.08.080.

C.    The City Manager may take possession of a newsrack and, upon the expiration of thirty (30) days, dispose of the newsrack as required by law, if:

1.    No hearing is requested by the permittee or owner within fifteen (15) days as provided in Section subsection (A) of this section; or

2.    The appeal period specified in Section 5.70.055 has expired; or

3.    In the event that an owner or permittee fails to remove the rack within ten (10) days from the date of the decision of the City Council, that the newsrack is not in compliance with the rules, regulations and standards established by this chapter.

D.    The City Manager shall inspect any newsrack reinstalled after removal pursuant to this chapter. The permittee of the newsrack shall be charged a fee for this reinspection as established by resolution of City Council.

E.    If any newsrack is abandoned, the City Manager may remove it pursuant to the procedures set out in this section. For the purposes of this section, the term “abandonment” shall mean no publication has been displayed in the newsrack for a period of fifteen (15) consecutive days, no prior written notice has been given by the permittee to the City Manager specifying the reason(s) for nonuse, and the condition of the rack and related circumstances indicate it will not be actively used within a reasonable period of time. (Ord. 2023-22 § 338, 2023; Ord. 88-20 § 1 (part), 1988)

5.70.055 Appeals and Calls for Review.

The City Council shall have the power to hear and decide appeals based upon the enforcement or interpretation of the provisions of this chapter. Any permittee or owner who is aggrieved by any decision of the City Manager may appeal that decision by submitting a written notice of appeal to the City Clerk within twenty-one (21) days of the date on which notice of the decision was served in the manner provided in Section 1.08.080. A member of the City Council, in their official capacity, may call for review any action of the City Manager under this chapter for the purpose of bringing the matter in front of the entire body for review. A call for review shall be filed with the City Clerk, on a form provided by the Clerk, within twenty-one (21) days of the date on which the notice of the decision was served in the manner provided in Section 1.08.080. The City Council may preside over the hearing on appeal or may designate a Hearing Officer to take evidence and submit a proposed decision together with findings, within fifteen (15) days from the date of the hearing. The City Council shall preside over the hearing for a call for review. The City Council shall, within thirty (30) days from the date of the hearing, render its decision on the appeal or call for review, together with findings. The decision of the City Council shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5. (Ord. 2023-22 § 339, 2023; Ord. 2015-9 § 9, 2015: Ord. 88-20 § 1 (part), 1988)