HomeMy WebLinkAboutOrd 02-10 Muni Code NewsracksORDINANCE NO. 2-10
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.
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.
Page 1 of 9
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.
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.
Page 2 of 9
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.
"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. Page 3 of 9
(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/ore-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.
(2) The name, mailing address, telephone number and/or cellular telephone number,
and, if any, the facsimile number and/ore-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.
Page 4 of 9
(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.
5.104.050 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 afirst-come, first-served system. Additional rules and
procedures related to implementing the system may be adopted pursuant to Section 5.104.1.80.
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.
Page 5 of 9
(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.
(f) 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.
(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 may be 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.
Page6of9
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.
(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 lowertwo-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.
Page 7 of 9
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 $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.
Page 8 of 9
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 19th day of January, 2010 by the following
vote:
AYES: Councilmembers Biddle, Hart, Hildenbrand, Scholz, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
/ " ~I
Mayor
ATTEST:
J ~~~
City Clerk
Ord No. 2-10, Adopted 1-19-10, Item 4.6 Page 9 of 9