Chapter 12.38


12.38.010    Purpose and intent.

12.38.020    Definitions.

12.38.030    Prohibitions.

12.38.040    Permit required.

12.38.050    Permit – Applications.

12.38.060    Filing fee.

12.38.070    Issuance of permit.

12.38.080    Permit nontransferable.

12.38.090    Insurance.

12.38.100    Hold harmless agreement.

12.38.110    Standards.

12.38.120    Location.

12.38.130    Maintenance and repair.

12.38.140    Abandonment.

12.38.150    Inspection.

12.38.160    Enforcement.

12.38.170    Hearing.

12.38.180    Revocation or modification of permits.

12.38.190    Hearing for revocation or modification.

12.38.200    Termination.

12.38.010 Purpose and intent.

A. The City Council finds and declares that the unregulated placement of newsracks affecting the public right-of-way presents an inconvenience and danger to the health, safety and welfare of the inhabitants of the City in that, unless regulated, newsracks may:

1. Interfere with the safe flow of pedestrian and vehicular traffic;

2. Impair the vision and distract the attention of motorists and pedestrians, particularly small children, and cause injury to the person or property of such persons;

3. Inhibit safe entry and departure from vehicles or buildings;

4. Detract from the appearance of streets, sidewalks and adjacent businesses;

5. Cause loss of funds to patrons in the event of a malfunction.

B. Newsracks presenting any of the characteristics enumerated in subsection A of this section constitute a public nuisance, which the provisions of this chapter are enacted to prevent. (Ord. 251 § 1, 1988)

12.38.020 Definitions.

Whenever the following words and phrases are used in this chapter, they shall have the following meanings:

A. “Newsrack” means any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, distribution or sale of publications.

B. “Public right-of-way” means any place owned by or dedicated to use of the public for pedestrian or vehicular travel, including but not limited to a street, sidewalk, curb, gutter, parkway, highway, alley, mall, court, park or square.

C. “Roadway” means that part of a public right-of-way that is designed or used primarily for vehicular travel. (Ord. 251 § 1, 1988)

12.38.030 Prohibitions.

No person shall place or maintain a newsrack so as to endanger safety of person(s) or property or unreasonably interfere with or impede the flow of pedestrian or vehicular traffic on a roadway or public right-of-way. In addition, no person shall place or maintain upon or over a public right-of-way a newsrack, unless in conformance with all provisions of this chapter. (Ord. 251 § 1, 1988)

12.38.040 Permit required.

No person shall place or cause to be placed or maintained or cause to be maintained any newsrack, or other device used or maintained for the display, distribution or sale of publications, hereinafter referred to in this chapter as “newsrack,” in or upon any roadway, public right-of-way or City-owned property in the City, or permit any newsrack to remain upon any roadway, public right-of-way or City-owned property without first obtaining a written permit for the City. This chapter shall not apply to an owner or occupant of property who places or maintains a newsrack on private property, in such manner that the newsrack will not interfere with the movement of pedestrians or vehicular traffic. (Ord. 251 § 1, 1988)

12.38.050 Permit – Applications.

A person desiring a permit for the placement of one or more newsracks as required by this chapter, shall file with the Public Services Department an application for such permit. Each application shall be accompanied by a detailed plan giving a full description of the proposed location of each newsrack, the type and design of the newsrack to be used, and such other information regarding the appearance and placement as may be required by the Director of Public Services. (Ord. 251 § 1, 1988)

12.38.060 Filing fee.

A filing fee shall be paid to the City upon the filing of each application for a permit as provided in this chapter for the purpose of defraying the expense of processing the application. The amount of the filing fee shall be established by City Council resolution from time to time. (Ord. 683 § 53, 2008; Ord. 251 § 1, 1988)

12.38.070 Issuance of permit.

The Director of Public Services shall issue the permit applied for if the application meets all the requirements of this chapter. (Ord. 251 § 1, 1988)

12.38.080 Permit nontransferable.

The permit shall not be transferable from one person to another. (Ord. 251 § 1, 1988)

12.38.090 Insurance.

Prior to the issuance of a permit pursuant to this chapter, the applicant shall file with the Director of Public Services, a policy of insurance, or certificate thereof, issued by a company authorized to do business in the State; said policy shall name the City as a named insured, and shall indemnify the City for any loss, damage or liability suffered by the City by reason of the existence of such newsrack in or upon the City right-of-way and/or the operation and maintenance of such newsracks. Said policy of insurance shall indemnify the City in the sum of $1,000,000 or more against loss or liability arising from the injury or death of one person, and shall indemnify the City in the sum of $1,000,000 or more against loss or liability arising from the injury or death of two or more persons in any one accident, and the sum of $300,000 or more with respect to any property damage aforesaid. Such indemnity, public liability and property damage insurance shall be maintained in full force and effect during the entire term of the permit granted pursuant to this chapter. (Ord. 251 § 1, 1988)

12.38.100 Hold harmless agreement.

Prior to the issuance of a permit pursuant to this chapter, the applicant shall enter into an agreement with the City whereby the permittee shall agree as follows: The City, its agents, officers and employees, shall not be, nor be held liable for any claims, liabilities, penalties, fines or for any damage to any goods, properties or effects of any person whatsoever, or for personal injuries to or deaths of any person, whether caused by or resulting from any acts or omission of permittee, or his agents, employees or representatives, or for dangerous or defective conditions of the property of permittee or any way caused by newsracks placed or maintained pursuant to the permit; permittee further agrees to indemnify and save free and harmless and defend in any lawsuit the City and its authorized agents, officers, and employees against any of the foregoing liabilities and any cost and expenses incurred by the City, its agents, officers or employees on account of any claims therefore. (Ord. 251 § 1, 1988)

12.38.110 Standards.

A. No newsrack shall exceed 40 inches in height, 20 inches in width or 20 inches in depth.

B. Each newsrack shall be constructed entirely of opaque, shatterproof materials, and shall be dark brown in color in order to coordinate with the color of street signs, bus benches, and other facilities in the public right-of-way.

C. No photographs, drawings, advertising signs, or material other than the printed name of the publication contained within the newsrack, and the notice described in subsection D of this section, shall be displayed on the outside of any newsrack.

D. Each newsrack shall have affixed to it in a readily visible place, a notice not larger than three inches high and six inches long, setting forth the name and address of the person responsible for maintaining the newsrack and a working telephone number to call to report a malfunction, or to obtain a refund in the event a person using the newsrack is unable to receive the publication paid for. The name, address and telephone number given shall be those desired for receipt of all notices provided by this chapter.

E. Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. (Ord. 251 § 1, 1988)

12.38.120 Location.

A. No newsrack shall be located, maintained or placed at or within:

1. Twenty-five feet of the intersection of two or more roadways;

2. Five feet of any crosswalk, bus bench, fire hydrant or other emergency facility;

3. Forty-five feet ahead or 45 feet to the rear of a bus stop as measured along the street curb;

4. Ten feet of any driveway;

5. Five hundred feet of any other three newsracks, whether or not containing the same edition of the publication.

B. Newsracks upon sidewalks or other pedestrian ways shall be located only at the edge thereof farthest from the roadway. If a roadway adjoins such sidewalk or pedestrian way, newsracks shall only be located at the edge away from the roadway, and if the wall of a building adjoins the edge away from the roadway, then newsracks must be parallel to and within six inches of such wall, but neither directly in front of any display window nor within three feet of any entrance to such building.

C. No newsrack shall be chained, bolted or otherwise attached to the ground or to any fixture. (Ord. 251 § 1, 1988)

12.38.130 Maintenance and repair.

The permittee shall at all times keep and maintain each of the newsracks in a good state of repair and in a neat, clean condition to the satisfaction of the Director of Public Services. Said maintenance shall include: painting at such intervals as may be specified from time to time by the Director of Public Services to ensure that the newsracks have a neat appearance; repairing of any damage within 72 hours after written notification of damage given by the Director of Public Services. (Ord. 251 § 1, 1988)

12.38.140 Abandonment.

No newsrack shall remain empty for a period of 30 continuous days. (Ord. 251 § 1, 1988)

12.38.150 Inspection.

The Director of Public Services or his designee shall be responsible for the enforcement of this chapter and shall make necessary inspections of newsrack locations to effectuate the purposes of this chapter. (Ord. 251 § 1, 1988)

12.38.160 Enforcement.

Upon determining that a newsrack exists in violation of any provision of this chapter, the City Manager shall:

A. If the newsrack is in violation of PMC 12.38.110(D), and the City Manager is unable to otherwise ascertain the name and address of its owner, cause it to be removed and processed as unclaimed property under applicable provisions of law.

B. If the newsrack is in compliance with PMC 12.38.110(D), cause an order to be issued to the person named in the notice required by PMC 12.38.110(D) to correct the offending condition. The order shall be telephoned to the distributor and confirmed by mailing a copy of the order by certified mail, return receipt requested, to the person at the address shown on the notice required by PMC 12.38.110(D). The order shall specifically describe the offending condition and suggest actions necessary to correct it. If the distributor fails to correct properly within five days’ (excluding Saturdays, Sundays and legal holidays) receipt of the order, and no request for a hearing is filed, the City Manager shall cause the offending newsrack to be seized. The person named in the notice required by PMC 12.38.110(D) shall be notified of the seizure by certified mail in 30 days. If no response is made, the City Manager shall cause the newsrack to be processed as unclaimed property under applicable law.

C. Whether or not a newsrack is in compliance with PMC 12.38.040(D), if the newsrack poses an immediate danger to pedestrians or vehicles, cause it to be seized and processed as under the provisions of subsection B of this section.

D. In the case of minor violations of this chapter that can be corrected at the site, any City employee, as an alternative to removal of the newsrack, is authorized to correct the violation summarily.

E. Any newsrack existing in violation of any provision of this chapter shall constitute a public nuisance, and may be abated in accordance with applicable provisions of law. (Ord. 251 § 1, 1988)

12.38.170 Hearing.

Within five days after receipt of the order of the City Manager, pursuant to the provisions of PMC 12.38.160(B), any party affected by the order may file with the City Manager a written request for a hearing before the City Manager. The City Manager shall set a time and place for the hearing and shall notify the party thereof at least five days before the hearing date. The hearing shall be held within 30 days after the request is filed. At any hearing held pursuant to this section or PMC 12.38.190, the permittee shall have the right to be heard and to present witnesses and documentary evidence on its behalf. The decision of the City Manager shall be final. (Ord. 251 § 1, 1988)

12.38.180 Revocation or modification of permits.

After a hearing as provided in this chapter or without a hearing if no hearing is requested, the City Manager may revoke or modify any permit which has been granted pursuant to this chapter on any one or more of the following grounds:

A. That such permit was obtained by fraud;

B. That the use for which such permit was granted is not being exercised;

C. That the use for which such permit was granted has ceased or has been suspended for one month or more;

D. That any person making use of or relying upon the permit has violated any conditions of such permit, or that the use for which permit was granted, is being, or recently has been exercised contrary to the terms or conditions of the permit, or in violation of any statute, ordinance, law or regulation or such person has failed to comply with any order of the Director of Public Services authorized by this chapter;

E. That the use for which the permit was granted is so exercised as to be detrimental to the public health, safety or welfare or so as to be a nuisance. (Ord. 251 § 1, 1988)

12.38.190 Hearing for revocation or modification.

A. The City Manager upon the filing of a complaint by the Director of Public Services shall hold a hearing of the modification or revocation of any permit provided for in this chapter. Such hearing shall be held within 40 days after the filing of a written complaint with the City Clerk which sets forth the grounds of revocation or modification in clear and concise language. At least 10 days before the hearing, a copy of said complaint shall be mailed to the permittee together with a notice of the time and place of the hearing. The permittee may file an answer to the grounds set forth in the complaint at or before the hearing. After the hearing, the City Manager may:

1. Revoke or modify the permit as requested in the complaint; or

2. Deny the revocation and modifications requested in the complaint in whole or in part.

B. The decision of the City Manager shall be final and conclusive. (Ord. 251 § 1, 1988)

12.38.200 Termination.

A. Each permit issued pursuant to this chapter shall terminate at the expiration of one year from the date of issuance by the Public Services Department unless the permit is issued for a shorter period, in which event it shall terminate at the end of such shorter period. In the event no use in reliance on a permit issued pursuant to this chapter is commenced within a period of 30 days from the date of issuance, or within an extension of said time as granted by the City Manager, then the permit shall terminate and expire.

B. Upon the termination or revocation of any permit issued pursuant to this chapter, the person to whom the permit was issued shall remove all newsracks placed or maintained upon any City right-of-way or City-owned property pursuant to such permit. In the event such person fails to remove such newsracks within 10 days after notice by the Director of Public Services to do so, the City may elect to treat such newsracks as having been abandoned and may remove and dispose of such newsracks at the expense of such person. (Ord. 251 § 1, 1988)