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Item 6.2 MuniCode Newsracks
OF DUB 19`01=1~~2 ``7/1 1~/ ~~irFOR~ STAFF REPORT CITY CLERK DUBLIN CITY COUNCIL File # ^®®^0 -®© DATE: December 15, 2009 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager SUBJEC Introduction of Ordinance Repealing Current Chapter 5.104 and Adding New Chapter 5.104 to the Dublin Municipal Code Related to Newsracks, Addressing the Installation of City-Owned Newsracks Prepared By: Jennifer Faught, Associate Attorney, Erica Fraser, Senior Planner, and Ananthan Kanagasundaram, Assistant Civil Engineer EXECUTIVE SUMMARY: The City Council will consider an Ordinance repealing current Chapter 5.104, Newsracks, and adding Chapter 5.104, Newsracks, of the Dublin Municipal Code to address the City's plan to move to a system of City-owned newsracks. In the first phase of the program, privately-owned newsracks on Dublin Boulevard will be replaced by newsracks purchased by the City with grant funds. The City will take responsibility for repairing and maintaining the City-owned newsracks. In future phases, the City will replace all remaining privately-owned newsracks located in public rights of ways with City-owned and maintained newsracks. FINANCIAL IMPACT: Costs associated with the purchase and installation of the newsracks is included in the streetscape enhancements which are part of City Contract No. 08-18, East and West Dublin BART Corridor Enhancements. The maintenance and administration of the City owned newsracks will be funded from the general fund. An encroachment permit fee will be collected every two years in the amount of $180 per location from each publication which is projected to offset these costs. The revenues from fees for 33 spaces over atwo-year period are expected to be $5,940. RECOMMENDATION: Staff recommends that the City Council: 1) receive Staff presentation; 2) open public hearing; 3) receive public testimony; 4) close the public hearing and deliberate; 5) waive reading and INTRODUCE the Ordinance repealing current Chapter 5.104, Newsracks, and adding Chapter 5.104, Newsracks, of the Dublin Municipal Code; and 6) Adopt Resolution amending Resolution 49-06 to revise the adopted fee schedule to include a Permit Fee related to the rental of one space within aCity-owned newsrack. ubmitted By Revie ed y Public Works Director Assistant City Manager Page 1 of 5 ITEM NO. ~D• ~- n DESCRIPTION: Background The City's existing Newsrack Ordinance (Chapter 5.104 of the Municipal Code) was adopted in 1990 and has not been amended since then. The Ordinance regulates the location and placement of newsracks within the City and also contains the requirements for newsrack registration, maintenance and repair. Chapter 5.104 was originally scheduled to be updated as part of the City's comprehensive Municipal Code Update in 2007. In 2007, 2008, and 2009 the Public Works and Community Development Departments surveyed all newsracks in the City to assess their condition. The 2009 survey, including photographs, is included as Attachment 1. A summary of Staff's observations of the existing newsracks can be found below. • Many of the newsracks have been improperly located (as required by the existing Ordinance); • Many newsracks are dirty and require cleaning (including dirt on the outside and inside of the racks as well as trash and other debris located inside the racks); • Many of the racks have graffiti on them; • Several newsracks have been abandoned or are broken; and • Several newsracks have been improperly located and impede the required path of travel required by the Americans with Disabilities Act (ADA). Additionally, publishers have disregarded current newsrack registration requirements; none of the newsracks currently located within the City have obtained the required permit. Improperly located newsracks can inconvenience and endanger the safety of persons using the public rights-of-way, including disabled persons, pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services. Poorly-maintained and unsightly newsracks create visual blight, may lower surrounding property values, and diminish Dublin's civic pride. Nevertheless, the City has an interest in facilitating the ability to distribute newspapers and periodicals through newsracks, an activity at some level protected by the United States and California Constitutions. Proposed Ordinance Based on concerns with the existing regulation, Staff has drafted a proposed Ordinance (Attachment 2) that will require publishers to locate within aCity-owned newsrack, where available, rather than allowing publishers to install their own newsracks in the City. A system of City-owned newsracks requires significantly different regulations than a system of publisher- owned newsracks; therefore, Staff developed an ordinance that replaces the existing ordinance. Earlier this year, the City received a grant to help pay for the purchase and installation of City- owned newsracks on Dublin Boulevard. By installing City-owned newsracks, the City would ensure that sidewalks comply with ADA requirements and provide a safe path of travel for all pedestrians. Additionally, by providing City-owned newsracks, the City will ensure a consistent design, reduce clutter, and will ensure that the newsracks are regularly cleaned and maintained to enhance the streetscape and provide an attractive environment for all visitors and residents. Page 2 of 5 Because the grant will fund only the replacement and installation of newsracks on Dublin Boulevard, and because the City does not have money budgeted at this time for replacing the newsracks in other parts of the City, Staff recommends transferring to a system of City-owned newsracks in two or more phases. In the first phase, the City would replace all the newsracks on Dublin Boulevard with newsracks purchased with the grant money and all other newsracks in the City would remain publisher-owned. In one or more subsequent phase(s), the remaining newsracks would be replaced with City-owned newsracks. There are approximately 33 publisher-owned newsracks on Dublin Boulevard, and approximately 34 publisher-owned newsracks in other parts of the City. City-Owned Newsracks Staff has researched the various brands of newsracks available and has chosen a model that is attractive, unique to the City and complies with the City's Streetscape Master Plan. A photosimulation of the proposed newsrack is provided in Attachment 3. It is anticipated that 7 newsrack units will need to be installed along Dublin Boulevard at an estimated cost of $5,000 per unit, for a total cost of $35,000. Assuming maximum capacity of all 33 spaces being occupied, the estimated revenue will be $5,940 for atwo-year period. Should the City Council adopt the proposed Ordinance, Staff will purchase the newsracks and installation of the newsracks will begin in April 2010. Staff has identified four locations on Dublin Boulevard where newsracks are currently located. These locations are: ^ South side of Dublin Blvd, East of San Ramon Road (near Burger King). ^ North side of Dublin Blvd, West of Golden Gate Dr (near Toys R' Us). ^ North side of Dublin Blvd, West of Village Parkway (near McDonald's). ^ South side of Dublin Blvd, East of Village Parkway (near Carl's Jr.). The City proposes to install newsracks in the same locations on Dublin Boulevard where the publisher-owned newsracks are currently located. Adequate space will be provided in the City- owned newsracks to accommodate the existing publishers. Additional spaces have also been provided to allow additional publishers to distribute publications from the new newsracks should they choose to do so. The newsracks will be administered, maintained and cleaned by the City. The publishers will be required to maintain and repair their own coin-operated mechanism (if they have one). Jurisdictions with similar ordinances suggested that the City should seek to avoid the type of monetary disputes that arise when the City is responsible for the coin-operated mechanism. Permit Procedures The proposed Ordinance requires each publisher to apply for a permit in order to obtain a space inside aCity-owned newsrack. The Public Works Department will issue the permits. The proposed permit fee is $180, and each permit will be valid for two years. The City's Fee Schedule will be updated prior to implementation of this program to include the new fee. The existing publishers in each of the four locations on Dublin Boulevard will have the first right to locate within the new newsracks. After the existing publishers have obtained space, other publishers will be invited to obtain any remaining spaces. Once the newsracks are full, the City will review requests for additional newsracks and grant space as vacancies become available. Page 3 of 5 Permit Fee As previously discussed, Staff is proposing a Permit Fee of $180 for each space within aCity- owned newsrack. Each permit is valid for atwo-year period (Permit Fee is $90 per year). The Permit Fee is intended to generate sufficient revenue for administration and maintenance of the City-owned newsracks and future newsrack replacements. Maintenance of the racks includes painting, cleaning and graffiti removal. It is anticipated that the annual maintenance costs for the four newsracks will be $1,500. The initial funding for installation of the newsracks has been provided through a grant. In the future, the City will be required to cover the remainder of the replacement costs for the City-owned newsracks, if insufficient funds are obtained from permit fees to fund replacement. The City Council will consider the adoption of a proposed resolution amending Resolution 49-06 to revise the City's Fee Schedule and add a $180 permit fee for the rental of one space (for a two-year period) in the City's newsrack (Attachment 4). Constitutional Constraints Government regulation of newsracks implicates First Amendment free speech and free press issues. Newsrack ordinances are thus subject to federal and state constitutional constraints. Under the law, newsrack regulations may contain time, place and manner restrictions, but these restrictions must be content neutral, narrowly tailored to serve a significant government interest, and must leave open ample alternative channels of communication. Both safety concerns and aesthetic considerations (in certain circumstances) have been recognized as significant government purposes by the courts. The proposed Ordinance is modeled after an ordinance that was upheld by the Ninth Circuit Court of Appeals in 2002 as constitutionally sound. (Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037 (9t" Cir. 2002).) Content neutral regulations are those that apply to all publications regardless of their content. A content-based regulation, on the other hand, is presumptively unconstitutional but will be found constitutional where it is the least restrictive means to further a compelling government interest. The proposed Ordinance incorporates one content-based regulation from California statutes by prohibiting the sale of "harmful matter" (essentially, adult content) from newsracks unless certain protective measures are followed. (Penal Code § 313 et seq.) The 9t" Circuit has found California's statutory scheme to be constitutional. (Crawford v. Lungren, 96 F.3d 380 (9t" Cir. 1996).) In addition, and in accordance with California statutes, the proposed Ordinance provides that publications containing harmful matter on their covers may be sold or displayed only if the publisher uses "blinder racks," that is, inserts in the windows of the newsracks that block the lower two-thirds of the publication from view. (See Penal Code § 313.1(d); Berry v. City of Santa Barbara, 40 Cal.App.4t" 1075 (1995).) In addition, so as not to eliminate any current avenues for distribution, the City will provide enough City-owned newsracks to accommodate all publishers currently distributing publications through privately-owned newsracks in the City. NOTICING REQUIREMENTS/PUBLIC OUTREACH: A notice of tonight's meeting and the proposed Ordinance has been published in the Valley Times. Additionally, on November 9, 2009, Staff sent a letter (Attachment 5) to all of the existing publishers in the City and to the property owners on Dublin Boulevard who are adjacent to an Page 4 of 5 existing or proposed newsrack. The letter identified the proposed modifications and also notified the individuals of a workshop that was held on November 17, 2009, at City Hall. The workshop was attended by several publishers who asked questions and provided feedback to Staff. Generally, these publishers expressed their support of the proposed Ordinance. In accordance with State law, a public notice was published twice in the Valley Times and posted at several locations throughout the City. A notice of this hearing was mailed to those requesting such notice 14 days before the hearing and the Staff Report and attachments were made available for public review 10 days prior to the public hearing. ATTACHMENTS: 1. 2009 survey of existing newsracks, with attached photographs 2. Ordinance Repealing Current Chapter 5.104 of the Dublin Municipal Code Relating to Newsracks and Adding New Chapter 5.104 Relating to Newsracks 3. Photosimulation of the proposed newsrack 4. Resolution Amending Resolution 49-06 To Revise The Adopted Fee Schedule And Add A Permit Fee For Locating Within A City-Owned Newsrack 5. 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PIlOtO I2 ~ ~{- a3 Photo 13 Photo 14 to of- a3 Photo 15 ~i ~fia3 ORDINANCE NO. - 09 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN REPEALING CURRENT CHAPTER 5.104 OF THE DUBLIN MUNICIPAL CODE RELATING TO NEWSRACKS AND ADDING NEW CHAPTER 5.104 RELATING TO NEWSRACKS RECITALS WHEREAS, the City of Dublin Municipal Code Chapter 5.104 provides for the regulation of newsracks within public rights-of--way in the City of Dublin ("City"); and WHEREAS, newsracks upon any street, sidewalk, alley, or other public way may be subject to content-neutral time, place, and manner regulations; and WHEREAS, the City's Public Works Department has completed three separate surveys of existing privately-owned newsracks, the results of which showed that many newsracks in the City are not being properly maintained, are in various states of disrepair, are in locations that impede pedestrian traffic, or have been abandoned without having been removed; and WHEREAS, the City Council wishes to move to a system of City-owned newsracks in predetermined locations, so as to remedy the problems described above while providing ample channels for the distribution of publications within the City and to City residents; and WHEREAS, the City received a grant to cover the costs of purchasing newsracks for Dublin Boulevard; and WHEREAS, the City Council therefore desires to repeal the existing regulations pertaining to newsracks and replace them with new regulations to govern both the system of City-owned newsracks (where applicable) and circumstances where City-owned newsracks are not available; NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows: Section 1. The City Council finds that the above recitals are true and correct. Section 2. Findings. A. It is in the public interest to establish regulations that balance the ability to distribute information through newsracks with the ability of persons to reasonably access and use public property. -1 - ATTACHMENT 2 ~~ ~~-a3 B State law provides that cities may use the police powers and land use powers vested in them to provide for the public health, safety and welfare of the citizens, and also provides that cities may use the police powers and land use powers vested in them to shape the aesthetic conditions of the community. C. The public health, safety, welfare and convenience require that: interference with vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight distance and views of traffic signs and street-crossing pedestrians be eliminated; damage done to sidewalks or streets be minimized and repaired; the good appearance of public property be maintained; trees and other landscaping be allowed to grow without disturbance; access to emergency and other public facilities be maintained; and ingress and egress from, and the enjoyment of store window displays on properties adjoining public property be protected. D. Newsracks placed and maintained on public property, absent some reasonable regulation, may unreasonably interfere with the public's use of such property and may present hazards to persons or property. E. The City has documented, in three surveys conducted in 2007, 2008, and 2009 by the Public Works Department, recurrent violations of its Newsrack Ordinance, including obstructions of the public right-of--way and aesthetic issues due to the improper placement and maintenance of privately-owned newsracks. F. To remedy these issues, the City has elected to invest in a system of City- owned newsracks in order to remedy the problems documented in its surveys. G. The system of City-owned newsracks will be phased in; the existing privately-owned newsracks on Dublin Boulevard will be replaced in the first phase, and all other privately-owned newsracks will be replaced in one or more subsequent phase(s). H. In developing this Ordinance, the City is mindful of the legal principles relating to the regulations of newsracks and does not intend to violate any rights to engage in expressive activities protected by the First Amendment or California law, but instead desires to ensure that the purposes stated in this section relating to safety, access, and aesthetics are implemented while still providing ample opportunities for the distribution of news to the public. Section 3. Chapter 5.104 of the Dublin Municipal Code is hereby repealed. Chapter 5.104 of the Dublin Municipal Code is hereby added to read as follows: Chapter 5.104. NEWSRACKS Sections: 5.104.010 Applicability. 5.104.020 Definitions. -2- i3 o~a3 5.104.030 Location and installation of newsrack enclosures. 5.104.040 Newsrack space permits. 5.104.050 Provision of newsrack spaces. 5.104.060 Unallocated, abandoned or surrendered newsrack spaces. 5.104.070 Abandonment of publication dispensing devices. 5.104.080 Installation, maintenance, and repair of newsracks, spaces and inserts. 5.104.090 Maintenance of publication dispensing devices. 5.104.100 Temporary dislocations. 5.104.110 Prohibitions. 5.104.120 Enforcement. 5.104.130 Penalty. 5.104.140 Correction or impoundment. 5.104.150 Hearings. 5.104.160 Return of impounded publication dispensing devices. 5.104.170 Disposal of impounded publication dispensing devices. 5.104.180 Administrative Guidelines. 5.104.010 Applicability. The provisions of this article shall apply to publication dispensing devices, newsracks and newsrack spaces throughout the City of Dublin. 5.104.020 Definitions. When used in this article, unless another meaning is clear from the context, the following terms shall have the following meanings: "Allocation" means an allocation made by the Director under Section 5.104.040. "Director" means the Director of Public Works of the City of Dublin, or the Director's designee. "Install" includes construct, erect, fabricate and affix. "Newsrack" means a structure owned and installed by the City with spaces in which publications may be inserted. "Newsrack space" or "space" means an area within a newsrack that is constructed to hold, display and dispense a publication. "Permit" or "newsrack space permit" means a paid newsrack space allocation or reallocation invoice issued pursuant to this article. "Permit period" means the two-year period for which spaces are allocated under Section 5.104.040. "Permittee" means a person to which or to whom a newsrack permit has been issued pursuant to this article. "Publication" means any written or printed matter, including but not limited to, daily and/or periodical newspapers, leaflets, magazines, visitor information publications, or other publication that is materially distinct from all other publications for which there is already another permit. -3- i~l ~~ a3 "Publication dispensing device" means any stand, box, rack or other device, other than a newsrack, located in a public right-of--way, used to dispense any publication. For purposes of this definition, a natural person shall not be deemed a device. "Publisher" means an owner or authorized agent of the owner of a publication. The Director may adopt rules defining the term "owner" or "authorized agent" for purposes of this definition. "Reallocation" means a reallocation of unallocated, abandoned or surrendered spaces made by the Director. 5.104.030 Location and installation of newsracks. (a) Newsracks shall be installed at locations designated by the Director. Unless the Director determines that the locations of the publication dispensing devices existing as of the date of enactment of this Ordinance are problematic based on the considerations listed in subsection (c), the newsracks shall be installed in roughly the same locations as the then-existing publication dispensing devices. (b) The newsracks will be installed in two or more phases. In the first phase, the City will replace the publication dispensing devices on Dublin Boulevard with newsracks. In one or more subsequent phase(s), remaining publication dispensing devices in the City will be replaced with newsracks. (c) The design, dimensions, location, materials and orientation of each newsrack shall be determined by the Director and shall be based on sound traffic engineering principles, pedestrian safety factors, traffic safety factors, and compliance with the Americans with Disabilities Act (ADA). (d) Upon notice from the City that a newsrack will replace a publication dispensing device, the owner will have 30 days to remove, at the publisher's cost, the publication dispensing device. After 30 days, the City will have the right to remove the publication dispensing device and bill the owner for the costs of removal and disposal. 5.104.040 Newsrack space permits. (a) Publishers using newsrack spaces shall first have obtained a newsrack space permit permitting such use. Any publisher desiring the use of a newsrack space in a newsrack for purposes of dispensing a publication shall submit an application for a newsrack space permit to the Director. Publishers must submit one application for each publication. Only those publishers submitting completed applications shall be eligible to obtain a newsrack space permit. The Director shall determine the form of, and provide to interested persons copies of, the newsrack space permit application form. (b) The application for a newsrack space permit shall be submitted by the publisher and shall include the following: (1) The name, mailing address, telephone number and/or cellular telephone number, and, if any, the facsimile number and/or a-mail address of both the owner of the publication and the applicant and the names under which the owner and applicant conduct business, if any. -4- -5 ~ a3 (2) The name, mailing address, telephone number and/or cellular telephone number, and, if any, the facsimile number and/or e-mail address of the individual person or persons who will have supervision of and responsibility for the use and maintenance of the newsrack space. (3) The relationship between the owner of the publication and the applicant and a statement of the applicant's authority to make the application on behalf of the owner of the publication. (4) The name of the publication for which the space is desired, a statement verifying that the publication exists as of the date of the application, and a copy of the publication for which the permit is desired. (5) Proof of liability insurance, for the term of the permit, with minimum policy limits for personal injury or death and for property damage as is determined appropriate by the Director based on the risk experience under this article, naming the City as an additional named insured in the event of personal injury or death or property damage caused by any negligence of the permittee in the maintenance of any newsrack space. For purposes of this subdivision, "negligence" also includes reckless, knowing or intentional conduct. (6) Whether acoin-operated mechanism is desired. (7) Such other information as is requested on the form. (c) There shall be a permit fee, set by Resolution, for each newsrack space allocated for a publication. (1) No refund of fees shall be made if the publication abandons or surrenders a space. (2) All fees shall be paid before issuance of the permit. When one applicant has submitted applications on behalf of a number of publications, the applicant shall pay the permit fees for all spaces and for all of the publications before a permit may be issued for any of the publications. (3) A permit shall not be issued to an applicant, or for a publication, which fails to pay the applicable permit fee for all spaces allocated to the applicant for the publication. Failure to pay the permit fee will result in the newsrack space being deemed unallocated and available to be allocated to another publisher. (d) The requirement that a copy of the publication be submitted with the application is intended to ensure only that the publication exists at the time of the application; the Director may not deny a permit for any publication based upon its content. No permit shall be issued for a publication that does not exist at the time of the application. (e) The Director shall maintain a record of all newsrack spaces that have been allocated or reallocated, the permittees to which the spaces have been allocated or reallocated, and the publication permitted to be dispensed from the spaces. (f) Each newsrack space permit will allow the distribution of one publication in a specific newsrack location. (g) Permits are not transferable. (h) Permits issued under this section shall expire on December 31 of each odd- numbered year. -5- I b ~- a~~ 5.104.050 Provision of newsrack spaces. (a) When the City replaces the publication dispensing devices on Dublin Boulevard with newsracks, the Director will make one newsrack space available for each publication a publisher is distributing from a publication dispensing device on Dublin Boulevard as of the effective date of this Ordinance, as long as that publisher submits a completed application within 60 days of the effective date of this Ordinance and complies with all the provisions of this chapter. The newsrack space provided will be in the same general location as the current publication. (b) When publication dispensing devices are replaced in other parts of the City, the Director will make one newsrack space available for each publication a publisher is distributing from a publication dispensing device as of the date the City purchases the newsracks. The newsrack space provided will be in the same general location as the current publication. (c) The City will consider requests for additional newsracks in locations where all the existing spaces are full and one or more publishers wishes to distribute publications in that location. (d) If, for ADA compliance, safety, aesthetic or financial reasons, the City cannot continue to install additional newsracks to accommodate all publishers wishing to distribute publications in a single location, and no publisher is willing to move to a different location where newsrack space is available, then the City shall implement a first-come, first-served system. Additional rules and procedures related to implementing the system may be adopted pursuant to Section 5.104.180. 5.104.060 Unallocated, abandoned or surrendered newsrack spaces. (a) The Director may make an initial determination that a newsrack space has been abandoned or surrendered when the newsrack space has been empty for 60 days or longer or the publication for which the permit was issued has ceased publication. (b) When the Director makes an initial determination that a newsrack space has been abandoned or surrendered, the affected permittee shall be notified of the Director's initial determination in accordance with Section 5.104.140(c). (c) The permittee shall have an opportunity to contest the initial determination by filing a request for a hearing in accordance with the procedures described in Section 5.140.150. (d) Upon a final determination that the newsrack space is abandoned, any permit purporting to be a permit for the space or spaces finally determined to be surrendered or abandoned shall be void as to the space or spaces so determined, and the holder of the voided permit shall no longer be deemed a permittee as to the space or spaces so determined. (e) A permittee may surrender a newsrack space prior to expiration of the permit for the space when the permittee no longer wishes to dispense the publication through the space. (fJ Any person desiring to use a newsrack space that is unallocated, or that has become available through abandonment or surrender may apply for the reallocation of such newsrack spaces. (g) The Director shall maintain a record of unallocated, abandoned and surrendered spaces. Unallocated, abandoned or surrendered spaces shall be reallocated by a first- come, first-served system. -6- i~ ~-a3 (h) No person, including the person to whom a newsrack space has been allocated or reallocated, may place any publication in the space if the space has been finally determined to have been abandoned or surrendered, until such time as the space has been reallocated, after which the permittee under the reallocation may insert its publication in the space. 5.104.070 Abandonment of publication dispensing devices. Publication dispensing devices remaining empty for 60 days or not claimed within 30 days of seizure shall be deemed abandoned. An abandoned publication dispensing device may be removed by the Director or his or her designee and maybe disposed of if it is not claimed by the responsible party within 30 days. 5.104.080 Installation, maintenance, and repair of newsracks, spaces and inserts. (a) It shall be the responsibility of the City to install, maintain and repair the City-owned newsracks, except for any coin-operated mechanisms on the newsracks, either directly, by contract with a private contractor or through a special improvement district. (b) It shall be the responsibility of the permittee to maintain any newsrack space, and any coin-operated mechanism, for which it holds a permit, in good working order. Any cost to maintain the space or the coin-operated mechanism shall be borne by the permittee. 5.104.090 Maintenance of publication dispensing devices. Publication dispensing devices already existing as of December 1, 2009, may be entirely removed, but may not be moved or modified and shall continue to be maintained in a neat and clean condition until they are replaced by a City-owned newsrack. 5.104.100 Temporary dislocations. (a) The Director may direct a permittee to temporarily remove copies of the permitted publication from a newsrack during any public, private or utility construction work, conducted on the public sidewalk, the abutting roadway, an adjacent building or structure or to any utility, when the Director determines that the removal is necessary to facilitate such work. (b) The Director may direct a permittee to remove copies of the permitted publication from a newsrack during any installation or repair work on the newsrack. (c) In the event such direction is given, the Director shall specify a reasonable date by which the publications shall be removed. If the publications are not removed by that date, the Director may have them removed. 5.104.110 Prohibitions. (a) The following prohibitions shall apply to publication dispensing devices: (1) Except for publication dispensing devices already installed as of December 1, 2009, there shall be no publication dispensing device allowed, and no person may install or direct another person to install any publication dispensing device, on any sidewalk within the City. -7- ~~ ~- (2) Any publication dispensing device installed in violation of this article shall be subject to removal by, and forfeiture to, the Director if not removed within five (5) days of demand for removal thereof by the Director. The publication dispensing device will not be returned to the owner thereof unless and until the City's reasonable cost of removal and storage has been paid to the City. (3) The Director or a person designated by the Director shall be responsible for the removal and forfeiture of the publication dispensing device. (4) No person may offer for sale in any publication dispensing device any harmful matter, as defined in Penal Code section 313, in a manner that violates Penal Code section 313.1(c)(2). In addition, no person may display a publication containing harmful matter on the cover unless such publication is covered by a device commonly known as a blinder rack, so that the lower two-thirds of the publication is not exposed to view. (b) The following prohibitions shall apply to newsracks and newsrack spaces: (1) No person may move, remove, destroy, deface or detach any newsrack unless directed to do so by the Director. (2) No advertising, signage or lettering of any kind shall appear on the exterior of, or be otherwise visible from the exterior of, any newsrack or any space within a newsrack. For the purposes of this section, the display of a copy of the publication being dispensed, the designation assigned to a space by the Director, and/or instructions on the dispensing of the publication from the newsrack insert shall not be deemed advertising, signage or lettering. (3) No publication may be inserted within a space in a newsrack, except pursuant to a current and valid permit issued under this article. Any publication so inserted without a current and valid permit shall be subject to removal by and forfeiture to the Director. (4) No person may place any trash, rubbish, or, without the approval of the Director, any other material, other than copies of the permitted publication, in a space in a newsrack. (5) No person may move, remove or deface any publication that has been inserted into a newsrack space under a current and valid permit without authorization of the permittee or the City. (6) No person may offer for sale in any newsrack any harmful matter, as defined in Penal Code section 313, in a manner that violates Penal Code section 313.1(c)(2). In addition, no person may display a publication containing harmful matter on the cover unless such publication is covered by a device commonly known as a blinder rack, so that the lower two-thirds of the publication is not exposed to view. 5.104.120 Enforcement. The Director and any person or agency designated by the Director may enforce and administer the provisions of this article. 5.104.130 Penalty. Any person violating any provision of Section 5.104.110, any other provision of this article, or any rule adopted pursuant to Section 5.104.180, shall be fined not less that -8- $100 and not more than $500 for each violation. In addition, a permittee violating any provision of Section 5.104.110, any other provision of this article, or any rule adopted under Section 5.104.180 may have the permit suspended or revoked, may have some or all of the spaces allocated or reallocated to the permittee deemed abandoned or surrendered, or may be precluded for a time from the allocation or reallocation of newsrack spaces under this article. 5.104.140 Correction or impoundment. In addition to the penalties described in section 5.104.130, the Director may: (a) Immediately correct any violation of Section 5.104.110 if such correction can be accomplished simply, easily, quickly and without substantial public expense; (b) Immediately remove and impound any publication dispensing device in violation of this chapter if the violation is creating a dangerous or hazardous condition which cannot be corrected under subparagraph (a) above. Notice of such action and the right to request a hearing shall be mailed to the owner within two working days after such action; (c) Notify the owner maintaining a publication dispensing device or the publisher using a newsrack space found in violation of this chapter, by mail, that unless the violation is corrected or a hearing requested, within seven working days of the date of the notice, that the publication dispensing device will be impounded, the publications will be seized, or the newsrack space permit will be revoked. If no identification is shown on the publication dispensing device or newsrack space and no permit has been obtained, posting of the notice on the publication dispensing device or the newsrack space alone shall be sufficient; or (d) Impound any publication dispensing device in accordance with the decision of any hearing requested pursuant to this chapter. 5.104.150 Hearings. (a) Any owner aggrieved by a decision under Section 5.104.140 may request a hearing before the City Manager at any time within seven working days of the date of notice under Section 5.104.140 (b) or (c). (b) A hearing shall be held, within seven working days of the request for a hearing. At the hearing, any person may present evidence or argument as to whether the publication dispensing device should not be impounded or should be returned without payment of an impound fee. (c) The City Manager shall render a written decision within five working days after the close of the hearing. The decision of the City Manager shall be final. Failure to render the decision within five working days shall not affect the validity of such decision. 5.104.160 Return of impounded publication dispensing devices. The owner may, at any time up to and including the thirtieth (30th) day after the impounding, and if a hearing is held concerning the publication dispensing device at any time up to and including the thirtieth (30th) day after the written decision, obtain a return of the publication dispensing device and its contents, upon paying an impound fee of ninety dollars ($90) plus the reasonable additional cost, if any, of impounding the publication dispensing device in excess of ninety dollars ($90), unless such fee is waived. -9- a~ b~-a3 5.104.170 Disposal of impounded publication dispensing devices. If a hearing on the impounding of the publication dispensing device is not timely requested or if the publication dispensing device is not returned in accordance with the provisions of this chapter within 30 days, the Director may sell or otherwise dispose of the publication dispensing device, and its contents, and deposit the proceeds, if any, from any such sale or other disposition, and any moneys contained in said publication dispensing device, in the City's general fund. 5.104.180 Administrative Guidelines The Director may adopt administrative guidelines for the interpretation, implementation, administration and enforcement of this Newsrack Ordinance. Section 4. Severability. The provisions of this ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the Ordinance or their applicability to other persons or circumstances. Section 5. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 6. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least,three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this day of , 2009. AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor H:~News Rack Ordinance~Newsrack Ordinance (rev).DOC -10- a~ ~- a3 ^ ~~~ ~- ~~p -- -~_a~_. ~ ~ ~s: ~; 1 t ~. =~ ...4 ~"^~~1~ f ." ~ J+NT~ `e y ~ w ~}# ~. _ - ` '` •~' , ; , ~; ~T" ~ '~ ~: ~;, ~ ~' ~"'~'~" ~~ ~+~ r _ a . ~y. ATTACHMENT 3• a~ ~ a~ RESOLUTION NO. - 09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING RESOLUTION 49-06 TO REVISE THE ADOPTED FEE SCHEDULE AND ADD A PERMIT FEE FOR LOCATING WITHIN ACITY-OWNED NEWSRACK WHEREAS, the City Council has adopted Chapter 5.104, Newsracks, of the Municipal Code which requires publishers to locate within aCity-owned newsrack when one has been provided; and WHEREAS, the City Council adopted the current fee schedule on April 18, 2006, by Resolution 49-06 and the fees took effect on July 1, 2006; and WHEREAS, the current fee schedule does not include a permit fee related to the rental of one space within aCity-owned newsrack; and WHEREAS, a Staff Report was submitted outlining the estimated Staff time for the maintenance of the newsracks; and WHEREAS the City Council held a properly noticed public hearing on said fees on December 15, 2009; and NOW, THEREFORE, the City Council of the City of Dublin does RESOLVE to amend Resolution 49-06 to revise the adopted fee schedule and add a $180.00 Permit Fee (valid for a two year period) for the rental of one space within aCity-owned newsrack for a period of two years. PASSED, APPROVED AND ADOPTED this 15th day of December, 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk H:\News Rack Ordinance\Fee Reso.doc Mayor ATTACHMENi~ ~~~ ~~~ ~~ November 9, 2009 ~ ~ ~ ~~> CITY OF DUBLIN 100 Civic Plaza, Dublin, California 94568 Website: http:i/www.ci.dublin.caus To Newsrack Owners /Publishers, and Business Owners: RE: City of Dublin's Newsrack Ordinance Input Outreach Tuesday, November 17, 10:00 am to 11:30 am, Dublin Civic Center Regional Meeting Room On December 15, 2009, the Dublin City Council will consider whether to introduce an ordinance repealing current Chapter 5.104 and adding a new Chapter 5.104 of the Dublin Municipal Code relating to Newsracks (the "newsrack ordinance"). Before the new newsrack ordinance is introduced and adopted, the City would like to meet with you to review the proposed ordinance, receive your feedback, and answer any questions you may have. Although the City's current newsrack ordinance regulates location and contains requirements for newsrack registration, maintenance and repair, the City has found that many newsracks are rarely, if ever, cleaned properly, and that some newsracks are also located improperly. Improperly located newsracks can inconvenience and endanger the safety of persons using the public rights-of-way, including disabled persons and pedestrians. Broken and neglected newsracks damage the aesthetic appeal of our City's public areas. To resolve these continuing problems, and to continue to facilitate the ability to distribute newspapers and periodicals through newsracks, the City is proposing to shift to a system of City-owned and maintained newsracks. Anew newsrack ordinance would govern this new system. The key elements of the proposed ordinance are as follows: • Requires the filing of a bi-annual newsrack permit application, and allows the City Council to adopt permit fees for the use of City newsracks. Requires newspaper distributors to use newsrack banks installed by the City and prohibits the placement of any privately-installed newsracks once City newsracks are installed in a particular area. • Provides enough newsrack spaces to accommodate current publications. Please join City Staff for an informational workshop and presentation on the City's new Newsrack Ordinance on Tuesday, November 17, 2009, from 10:00 am to 11:30 am, at the City of Dublin Civic Center's Regional Meeting Room. This will be an opportunity to ask questions and provide feedback about this ordinance. If you have any questions regarding the workshop, please call me at (925) 833-6630. Sincerely, ~~/~ , Melissa Morton ~~~ Public Works Director Copy: Chris Foss, Assistant City Manager \\oldfileserverl\PCCOMMON\News Rack Ordinance\Workshop Invite Final.doc Area Code (925) City Manager 833-6650 City Council 833-6650 Personnel 833-6605 Ec Finance 833-6640 Public Works/Engineering 833-6630 Parks & Community Services 833 ~~~~ ~ ~ ~ ~ ~~ Planning/Code Enforcement 833-6610 Building Inspection 833-6620 Fire Preventio ~ ~~