HomeMy WebLinkAboutItem 6.4 NewsrackOrdinance (2)
CITY OF DUBLIN
AGENDA STATEMENT
City Council Meeting Date: June 11, 1990
SUBJECT:
Public Hearing: Ordinance Relating to Newsracks
(Report by Public Works Director Lee Thompson)
EXHIBITS ATTACHED:
1) Draft Ordinance
2) Draft Registration Form
3) Memo from City Attorney
RECOHMENDATION:
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5)
Open public hearing
Receive Staff presentation and public testimony
Question Staff and the public
Close public hearing and deliberate
Waive reading and INTRODUCE ordinance relating to
newsracks
FINANCIAL STATEMENT:
Minor expense of printing permit forms, as well as
staff time to review applications and issue permits.
This expense would be paid from the Engineering
Operating Budget. The City cannot constitutionally
charge a fee for the permit.
DESCRIPTION:
At the Hay 14, 1989, meeting, the City Council held a public hearing regarding
a proposed ordinance that would require news agencies and other publications
that use on-street newsracks to obtain a no-charge permit from the City. The
draft ordinance contained guidelines for placement of racks, an insurance
requirement, a maintenance obligation, an insurance requirement, and a
procedure for impounding racks that were determined to be hazardous.
Comments received during this hearing were as follows:
1) The term "permit" implies an ability to allow or not allow placement
of the racks, contrary to the news agencies' First Amendment rights.
2) The requirement for modular racks in the City's Central Business
District should be eliminated because of the expense involved in
purchasing and installing that type of rack.
3) The insurance and indemnification section should be modified in
accordance with language provided by counsel for one of the news
agencies. A specific dollar amount for liability coverage should be
stated.
4) Objections were made to the placement and maintenance requirements.
5) It was felt that news agencies should be able to appeal the City
Manager's decision regarding violations to the City Council.
The City Attorney has made modifications to the draft ordinance which address
these issues as follows:
1) The "permit" form has been changed to a "registration" form, and the
news agency or publication is allowed up to 24 hours following
placement to register a rack.
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ITEM NO.
6·4
COPIES TO:
2) The requirement for modular racks in the Central Business District
has been changed to apply to locations with four or more racks only.
In cases where multiple racks are involved, the likelihood is
greater of the racks straying into the street or blocking the
sidewalk.
3) The language provided by counsel for one of the news agencies
regarding indemnification has been incorporated into the draft
ordinance. In addition, the specific amount of $1,000,000 in
liability coverage has been added.
The City Attorney has prepared a memorandum (Exhibit 3) which off~s
additional information regarding these issues. Items 4, 5, an~~above are
also discussed in the memorandum; however, no changes were made to the draft
ordinance in regard to those items.
The revised draft ordinance was circulated to the news agencies, as well as to
publishers of a number of the "advertising" papers or magazines contained in
on-street newsracks. At the time of preparation of the Staff report, no
comments had been received. Staff recommends that the City Council conduct a
public hearing, deliberate, waive the reading and INTRODUCE the ordinance
relating to newsracks.
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ORDINANCE NO.
- 90
AN ORDINANCE OF THE CITY OF DUBLIN
AN ORDINANCE RELATING TO NEWSRACKS
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES ORDAIN AS FOLLOWS:
Section 1.
The city Council of the city of Dublin does
hereby find and declare:
A. There lS a substantial governmental interest in
promoting the public health, safety, welfare and convenience by
ensuring that persons may reasonably use the public streets,
sidewalks, rights-of-way, and other public property without
interference with such use.
B. Public streets, sidewalks and rights-of-way are public
forums and their reasonable use in sale, distribution and
circulation of newspapers is a constitutionally protected right.
C. Newspaper vending within the public rights-of-way and
other public property can be accomplished without unreasonably
interfering with the normal and reasonable use of these areas by
the public.
D. The public health, safety, welfare and convenience
requlre 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
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eliminated; damage done to sidewalks or streets be minimized and
repaired; the good appearance of the public streets and grounds
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 properties
adjoining the public rights-of-way be protected.
E. The regulation of the sale or free distribution of
newspapers and other publications dispensed in newsracks as set
forth in this chapter provides the least intrusive and burdensome
means for ensuring the purposes stated in this section are
carried out while still providing ample opportunities for the
distribution of news to the citizens of the city.
ARTICLE 1. GENERAL PROVISIONS
section 2.
Reqistration Required.
Any person placing or maintaining any newspaper vending
device which dispenses newspapers and/or other publications
(hereinafter "newsrack") on or projecting into any public street
which includes but is not limited to, any highway, alley,
sidewalk, park, parkway mall, parking lot, plaza or other public
property or right-of-way, shall register such newsrack(s) with
the city Engineer, or his designee, within 24 hours of such
placement.
Section 3.
provisions SUDersede Encroachment
Requlations.
The provisions of this Chapter shall supersede the
provisions of Ordinance No. 15-89 relating to encroachments
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except to the extent specifically incorporated of referenced
herein.
section 4.
Reqistration Form.
Registration of a newsrack shall be made with the city
Engineer on prescribed forms containing the information required
by §§ 6 and 7. One registration form may be filed for any number
of newsracks placed on the streets in accordance with the
provisions of this Ordinance.
Section 5.
Reqistration - No Fee.
No fee or bond shall be required for the registration of a
newsrack.
section 6.
contents of Reqistration Form.
The newsrack registration form shall state the name, address
and telephone number of those responsible for installation, use
and maintenance of the newsrack(s) subject to the registration.
section 7.
Insurance and Indemnification.
As a part of a registration under this Article, the
registering party or newsrack owner (hereinafter "owner") shall
furnish to the city a certificate showing that such person has
then in force public liability and property damage insurance,
naming the city as an additional insured, in an amount not less
than $1,000,000 (one million). The newsrack owner shall provide
and keep in force that policy of public liability insurance
during such time as it continues to locate any newsrack under the
terms of this Ordinance. The evidence of insurance filed with
the city shall include a statement by the lnsurance carrier that
.
thirty (30) days unconditional notice will be given to the city
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before any cancellation.
If an owner presents credible evidence
demonstrating an inability to comply in good faith with any of
the foregoing insurance requirements, the city Manager or his
designee shall waive the subject insurance requirement(s).
In additionr the application shall contain a provision
wherein every person operating or maintaining a newsrack upon the
streets of this City shall agree to indemnify and hold harmless
the city, its officers and employees, from any loss, liability,
damage, or cost sustained by any person or property, to the
extent any such loss, liability, damage or cost arises from the
installation, operation, or use of such newsraCK¡ provided,
however, that such obligation to indemnify and hold harmless the
City, its officers and employees shall not extend to any loss,
liability, damage or cost resulting from the acts, failure to
actr or property of a person other than the owner.
Section 9.
Term of Registration.
The registration completed pursuant to this Ordinance shall
remain in effect until all newsracks are removed, abandoned or
impounded.
ARTICLE 2. LOCATION AND TYPE OF PERMISSIBLE NEWSRACKS
~ection 9. Identification.
Every newsrack owner shall permanently affix to each
newsrack the owner's name, address and phone number as required
by Business and Professions Code § 17570.
Section 10.
Location and Placement of Newsracks.
No newsracks shall be installed, used, or maintained in any
location upon public propertYr within rights-of-way, or within
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public easements adjacent to streets where such installation,
use, or maintenance endangers the safety of persons or property,
or interferes with public utility, public transportation, or
other government use, or unreasonably interferes with or impedes
the flow of pedestrian, bicycle, wheelchair, 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
traffic signs or signals, hydrants, or mail boxes. without
limitation of the foregoing, the following specific standards
apply:
(a) When a sidewalk lS contiguous to a street curb,
newsracks shall be placed on the back of the sidewalk
away from the curb so that the back edge of the
newsrack is no farther than six (6) inches from the
back edge of the sidewalk.
(b) When a sidewalk is separated from a street by a planter
strip, newsracks may be placed on either side of the
sidewalk so that the back edge of the newsrack is no
farther than SlX (6) inches from either edge of the
sidewalk, or with the permission of the city Engineer,
in the planter strip; newsracks may not be placed
within twenty-four (24) inches of the face of curb.
(c) When a newsrack is placed adjacent to the wall of any
building, the newsrack shall be placed with its long
axis parallel to the building and with the back edge of
the newsrack at least six (6) inches away but no more
than twelve (12) inches away from the building.
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(d) Clear space for pedestrian/bicycle passage shall be
maintained as follows:
(1) on bicycle-pedestrian paths, at least eight
(8) feet clear space, provided no newsrack
shall be placed on the paved portion of such
path.
(2) on sidewalks of eight (8) feet or less in width,
at least three (3) feet clear space.
(e) No news rack shall be installed, used, or maintained
within the following distances, measured parallel to
the street unless otherwise indicated, from the
following:
(1) within three (3) feet of any marked crosswalk;
(2) within the area adjacent to the curb return of any
intersection with unmarked crosswalks;
(3) within a five (5) foot radius of any fire hydrant,
traffic controller box, or other emergency
facility;
(4) within three (3) feet of any driveway, entrance to
a building, or sidewalk leading to the entrance of
a building;
(5) In front of, or so situated so as to impede access
to or from, any bus bench or shelter or access to
or from public transit;
(6) within three (3) feet of any no parking or
stopping zone, unless the newsrack is located on
the side of the sidewalk farthest from the street;
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(7) within the limits of a handicap r~mp; and
(8) within any area found to be a safety problem by
the city Engineer in accordance with the standards
established by this section.
The city Engineer may require a newsrack owner to move a
newsrack if the city Engineer determines that the placement of
the newsrack does not meet the criteria of this section.
section 11. Permissible TVDes of Newsracks.
a. Multi-Unit Confiqurations. Newsracks in a multi-unit
configuration standard in trade use permanently affixed
to the ground ln a manner conforming to a standard
detail for permanent installation of newsracks as
established by the City Engineer shall be permitted as
follows:
(1) Central Business District. In recognition of the
business oriented aspects of the area bounded by
San Ramon Road, Amador Valley Boulevard, village
Parkway and Dublin Boulevard, and along Dublin
Boulevard between Hansen Drive and Dougherty Road,
which in this Article shall be designated the
Central Business District (CBD) , where four or
more newsracks are or would be placed immediately
adjacent to each other within the CBD, multi-unit
configuration shall be used.
(2) Areas outside the CBD. Multi-unit configurations
shall also be permitted in areas outside the CBD.
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b. Sinqle-unit Confiqurations. Any single newsrack of
standard design commonly in trade use may be either
movable or permanently affixed to the ground in the
following circumstances:
(1) In any location in the CBD where use of a multi-
unit configuration is not practical or lS not
required by Section (a) (1) above.
(2) In any location outside the CBD.
Section 12. Attachina Newsracks to Other Propertv.
A newsrack shall not be chained, bolted, or otherwise
attached to public property or any property not owned by the
owner of the newsrack without the consent of the owner of the
property. Newsracks shall not be chained, bolted, or otherwise
attached to any shrub, tree, tree stake, or other plant nor
situated upon any landscaped area, unless approved by the city
Engineer.
section 13. Newsrack Maintenance.
Each newsrack shall be maintained in a neat, graffiti free
clean condition and in good repair at all times and shall be
painted on a regular basis. Newsracks that are damaged or
defective shall be replaced or repaired as soon as is practical,
unless the owner wishes to abandon the location, in which event
the owner shall promptly remove its newsrack. When use of any
newsrack is permanently discontinued, it shall be removed and the
location restored to its previous condition, normal wear and tear
excepted.
A newsrack which is unused for six months shall be
presumed to be permanently discontinued. No newsrack shall be
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used for advertising signs or publicity purposes, other than the
one concerned with the display, sale, or distribution of the
newspaper distributed from it.
section 14. Correction or Impoundment of Newsracks.
(a) The city Engineer may:
(1) Immediately correct any violation of section
10 or 13 and shall do so without impounding
if such correction can be accomplished
simply, easily, quickly and without
substantial public expense;
(2) Immediately remove and impound any newsrack
in violation of this Ordinance if the
violation lS creating a dangerous or
hazardous condition which cannot be corrected
under subparagraph (a) (1) 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;
(3) Notify the owner maintaining a newsrack found
in violation of this Ordinance, by mail, that
unless the violation is corrected or a
hearing requested, within seven working days
of the date of the notice, that the newsrack
will be impounded; or
(4) Impound any newsrack in accordance with the
decision of any hearing requested pursuant to
this Ordinance.
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section 15. Hearinqs on Impoundment.
(a) Any owner aggrieved by a decision under section 14
(a) (2) or (3) may request a hearing before the
city Manager at any time within seven working days
of the date of notice under section 14 (a) (2) or
( 3) .
(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 newsrack 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.
section 16.
Return of Impounded Newsracks.
(a) The owner may, at any time up to and including the
30th day after the impounding, and if a hearing is
held concerning the newsrack at any time up to and
including the 30th day after the written decision,
obtain a return of the newsrack and its contents,
upon paying an impound fee of $25.00 plus the
reasonable additional cost, if any, of impounding
the newsrack in excess of $25.00, unless such fee
is waived.
Section 17.
OisDosal of Impounded Newsracks.
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If a hearing on the impounding of the newsrack is not timely
requested or if the newsrack is not returned in accordance with
the provisions of this ordinance, the city Engineer may sell or
otherwise dispose of the newsrack, and its contents, and deposit
the proceeds, if any, from any such sale or other disposition,
and any moneys contained in said newsrack, in the city's general
fund.
section 18.
postina and Effective Date.
This Ordinance shall take effect and be in force thirty (30)
days from and after the date of its passage. 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
, 1990, by the following vote:
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
city Clerk
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CITY OF DUBLIN
100 Civic Plaza
Dublin, CA 94568
(415) 833-6630
NEWSRACK REGISTRATION FORM
NAME:
REGISTRATION NO.
[Person responsible for installation,
use & maintenance of newsrack]
ADDRESS:
DATE OF REGIS. COMPLETION
PHONE:
INSURANCE CARRIER(S):
[Public Liability &
Property Damage]
POLICY NO. AMOUNT OF COVERAGE $
CERTIFICATE RECEIVED: EXPIRATION DATE:
[Certificate naming the City as additional insured must be on file for
registration to be ~alid.]
LOCATION(S) PROPOSED:
TYPE OF RACK (MODULAR, BOLTED TO SIDEWALK, FREESTANDING, ETC.)
BY SIGNATURE BELOW, THE RESPONSIBLE PARTY/OWNER AGREES TO COMPLY WITH THE
CONDITIONS OF CITY OF DUBLIN ORDINANCE -90 AND INSTALL NEWSRACK(S)
ACCORDING TO THE DETAIL ATTACHED TO THIS FORM. THE RESPONSIBLE PARTY/OWNER
FURTHER AGREES TO INDEMNIFY AND HOLD HARMLESS THE CITY OF DUBLIN, ITS OFFICERS
AND EMPLOYEES, FROM ANY LOSS, LIABILITY, DAMAGE OR COST SUSTAINED BY ANY PERSON
OR PROPERTY ARISING FROM THE INSTALLATION, OPERATION OR USE OF THE NEWSRACK(S)
SUBJECT TO THIS REGISTRATION; PROVIDED, HOWEVER, THAT SUCH OBLIGATION TO DEFEND
AND HOLD HARMLESS SHALL NOT EXTEND TO ANY LOSS, LIABILITY, DAMAGE OR COST
RESULTING FROM THE ACTS, FAILURE TO ACT, OR PROPERTY OF A PERSON OTHER THAN THE
NEWSRACK OWNER.
SIGNATURE:
DATE:
Responsible Party/Owner
APPROVED BY :
DATE:
114\mísc\newsrack.ehs
~IEYERS. ~A VE, RIBACK & 'VEST
MICHAEL P NAVE
STEVEN R. MEYE.~S
NATAL!!::::. E. "áEST
EUZABETH f-' SILV::R
MICHAEc S RI6ACK
MOLLY T. TAMI
MICHAEL F RODRIQUEZ
KATHLEEN FAUBION
=REDERICK S ETHERIDGE
WENDY A. ~OB::RTS
~ PROFESSIONAL LAW CORPORA TION
PENINSULA OFFICE
GATEWAY PLAZA
777 DAVIS STREET. SUITE 300
SM" LEANDRO, CALIFORNIA 94577
(415) 35H300
FAX (415) 351-4481
1220 HOWARD AVE. SUlí¡: 250
BURLINGAME. CA 94010-"211
(4151348-7130
FAX (415) 3"2-0888
MARIN OFFICE
1202 GRANT AVE. SUI~E Õ
NOVATO. CA 949"5
("'5) 892-8879
MEMORANDUM
REPI_Y TC
San Leandro
TO:
City council
DATE:
May 25, 1990
FROM:
Elizabeth H. Silver, Acting City Attorney
RE:
Ordinance Relating to Newsracks
At the City Council meeting of May 14, 1990, the Council
considered a proposed ordinance relating to the placement of
newsracks. In light of comments and concerns raised during the
public hearing on this ordinance, the Council continued the item
to the June 11, 1990 meeting in order to allow the city Attorney
to consider whether any changes to the ordinance are required or
appropriate. We have accordingly reviewed the ordinance further
and propose a few changes which are contained in a revised draft
of the ordinance which is attached hereto. This memorandum
discusses those proposed revisions and addresses the major concerns
and issues raised regarding this ordinance at the May 14 I 1990
meeting.
Initially, I offer the following general comments on the right
of the city to regulate the placement and appearance of newsracks.
Pursuant to its police powers, the city has broad power to enact
and enforce regulations which are necessary to promote the public
health, safety, and welfare. The police power, however, must often
yield to rights guaranteed under the federal and state constitu-
tions . with respect to cities' regulation of newsracks, the
conflict is between a pUblisher's desire to exercise First Amend-
ment rights of distribution and cities' efforts to regulate
newsracks in order to protect the public health and aesthetic
values. While municipal regulation of newsracks is within the
power of the city, any such regulations must be carefully drawn to
meet constitutional requirements. There has been signif icant
litigation over the constitutionality of city regulation of news-
racks providing guidance for drafters of such ordinances on several
issues. There are, nevertheless, numerous issues relating to the
regulation of newsracks which remain unsettled. The proposed
TO:
city council
May 25, 1990
2
DATE:
PAGE:
ordinance attempts to comply with applicable case law and has been
revised to address some of the major concerns raised at the public
hearing.
Following are specific provisions of the ordinance which have
been revised or which were the subject of major comment at the
public hearing.
1. Permit Requirement (Ordinance sections 2-6)
One of the maj or concerns raised regarding the proposed
ordinance relates to the permit requirements. While some permit
requirements may present problems in that they create a "prior
restraint" on speech, it would appear that a properly designed
permit scheme will survive constitutional scrutiny. In Gluck v.
Countv of Los Anqeles (1979) 93 Cal.App.3d 121, 155 Cal.Rptr, 435,
the one California case which considered a permit scheme, the court
upheld the County's permit system. Under that scheme, the County
issued permits upon request without a fee and with no discretion
on the part of local officials. In addition, the County required
only one permit for each newsrack distributor, regardless of how
many newsracks the distributor planned to deploy. 93 Cal.App. 3d
at 140, n. 2. The scheme in the proposed ordinance for Dublin is
patterned after Gluck in the foregoing respects.
While courts in other states have found some permit/licensing
schemes for newsracks invalid, a recent decision by the U. S.
Supreme Court indicates that a properly drawn permit scheme should
be valid. In the case of ci tv of Lakewood v. Plain Dealer
PublishinG Co., u.s. , 108 S.ct. 2138, 100 L.Ed.2d 771 (1988),
the Supreme Court held that a city may require periodic licensing
of newsracks on public property, but must establish neutral
criteria to ensure that licensing is not based on speech content
and may not employ a licensing scheme which vests unbridled
discretion in a government official to grant or deny the permit.
In the citv of Lakewood case, the ordinance at issue gave the Mayor
unlimited discretion to approve or deny the placement of newsracks
on city property. The ordinance contained no standards upon which
to base the permit decision, and the Mayor could condition a permit
on any terms that he found to be "necessary and reasonable. II
Newsrack permits had to be renewed annually, thus permitting the
Mayor to base the continuing permit decision on past speech. The
Court held that the absence of standards to control the mayor's
discretion in his permit decisions constituted a prior restraint
and made it difficult to distinguish between denials for legitimate
reasons and denials based on content and viewpoints of the speech
being considered. 108 S.ct. at 2147-2152.
TO:
DATE:
PAGE:
city council
May 25, 1990
3
The deficiencies in the Lakewood ordinance are clearly not
present in the proposed Dublin ordinance which does not place
unfettered discretion in the City Engineer to grant or deny a
newsrack permit. Under the proposed ordinance, if the applicant
meets the specific standards prescribed by the ordinance, then the
city Engineer must issue the permit. Moreover, it is undisputable
that the proposed regulations are otherwise content-neutral.
In light of the foregoing discussion, it appears that the
permi t requirement contained In the proposed ordinance should
withstand constitutional scrutiny. Another option, however, to
avoid any possible claims of unlawful prior restraint would be to
enact, in lieu of a permit requirement, a registration system which
requires that a newsrack be registered within 24 hours of placement
on public property. The city Engineer has concurred that this may
be an advisable approach since it would eliminate any objections
or challenges to a permit system, yet would accomplish the goals
desired by the City. Accordingly, we have revised the newsrack
ordinance to provide for a registration system while leaving all
the substantive regulations intact.
A few final points regarding the scope of the regulations
should be made. There was some discussion at the previous council
meeting as to whether or not the ordinance would also regulate
purely commercial , give-away newspapers or other publications often
placed in newsracks. The language of the ordinance has been
clarified to provide that these latter publications are clearly
included by the very terms of the regulations, and thus, would be
treated in the same manner as any other publications found in
newsracks. There is clearly no legal impediment to applying these
regulations to such publications, and, in fact, we would advise
treating them in the same manner as all other publications under
the newsrack ordinance.
Another issue raised was whether the regulation of the
placement of newsracks was somehow improper because a similar
scheme of regulation is not applicable to utility poles, mailboxes,
etc., which are placed in the public rights of way. We do not
believe that a "differential treatment" argument has any merit in
this context since public utilities are subject to the encroachment
permit requirements regulating their placement. Furthermore, it
appears that there are "obvious differences" between "public
services of a quasi-governmental nature" and publishers' newsracks
justifying a different scheme of regulation for newsracks. On-
street objects, such as bus shelters, telephone and electric wiring
poles, and emergency phone boxes, are "essential to the public
safety and welfare"; newsracks are not. (See ci tv of Lakewood,
TO:
DATE:
PAGE:
City council
May 25, 1990
4
supra, 108 S.ct. at 2165, dissenting opinion.) Thus, a specific
regulatory scheme for newsracks should not be invalid simply
because it does not also apply to other objects on the public
rights of way.
2. Insurance and Indemnification Requirements (Section 7)
Several issues regarding the insurance and indemnification
requirements contained in the proposed ordinance were raised. Our
research indicates that no California court has ruled on such
provisions, but courts in other jurisdictions have rejected them.
Consequently, the insurance/indemnity issue remains unsettled.
While such requirements for newspaper publishers do not appear to
be per se unconstitutional, unless properly tailored, they may be
subject to a successful challenge.
Accordingly, if the insurance and indemnity requirements are
to be retained in the proposed ordinance, several revisions to
these requirements appear to be advisable. First of all, the
ordinance should establish the amount of insurance to be required
rather than leaving it to city official's discretion. In
accordance with the City's standard insurance requirements, the
ordinance has been revised to require insurance in an amount not
less than $1 million. However, in order to avoid any challenge to
the insurance requirements in cases where a newspaper publisher
cannot afford or cannot otherwise obtain the required insurance and
thereby claims that the insurance requirements unduly interfere
with the distributor's ability to disseminate protected material,
a waiver provision has been added to section 7 of the ordinance.
That provision provides that if a newsrack owner presents credible
evidence demonstrating an inability to comply with any of the
insurance requirements, the city Manager or his designee shall
waive the subject insurance requirement(s).
with respect to the indemnity requirements, counsel for one
of the affected newspapers proposed some alternate language for
consideration. A review of that proposed language indicates that
its effect is exactly the same as the indemnification clause
contained in the prior version of the ordinance, and consequently,
either language would adequately protect the City's interests. In
the interests of cooperation, we have revised the indemnity clause
contained in section 7 to reflect the additional language requested
by counsel for the affected newspaper.
TO:
DATE:
PAGE:
city Council
May 25/ 1990
5
3 .
Location and Placement of Newsracks (Section 10)
with respect to the provisions of the ordinance relating to
the location and placement of newsracks, the only maj or issue
raised by one of the distributors regarding these provisions was
a desire for an exception to the placement regulations where a
sidewalk is not large enough to permit placement as otherwise
prescribed by the ordinance. In response, we see no legal
requirement that such an exception be created. A newspaper
distributor does not have the right to place a newsrack on any
given sidewalk regardless of its size when safety concerns dictate
otherwise. Moreover, since the location and placement restrictions
clearly provide for adequate, alternative forums for communication
on public property, the requested exception is not legally mandated
and would appear to undermine the basic rationale of the location
restrictions.
4. Permissible Types of Newsracks (Section 11)
A concern raised by an affected newspaper distributor is the
requirement for multi-unit configuration newsracks only (with
limited exceptions) in the Central Business District (CBD). The
contention apparently is that this requirement may constitute an
unreasonable restriction in that it could interfere with a dis-
tributor's ability to disseminate its protected material. While
it is not entirely clear whether the city can mandate the use of
multi-unit configuration newsracks only in the CBD purely for
aesthetic reasons, it appears that it may do so for safety reasons.
The City Engineer indicates that where four or more newsracks are
located immediately adjacent to each other, there is more likeli-
hood of the newsracks straying into the travelled portion of the
sidewalk. Therefore, the ordinance provides for multi-unit
configurations where there are four or more newsracks.
5. Newsrack Maintenance (Section 13)
A few comments were made at the public hearing regarding the
requirements for news rack maintenance. We have further reviewed
the requirements in the ordinance in light of applicable case law
and find them to be appropriate. (See Kash Enterprises, Inc. v.
City of Los Anqeles (1977) 19 Cal.3d 294, 305, 138 Cal.Rptr. 53;
Duffv v. city of Arcadia (1987) 195 Cal.App.3d 308, n.1, 243
Cal.Rptr. 87 (ordinance which requires that newsrack be kept neat
and clean is valid, but requirement that a news rack by kept in an
" attractive condi tion" presents consti tutional problems of
vagueness and arbitrary application).)
TO:
DATE:
PAGE:
City Council
May 25, 1990
6
6.
Enforcement provisions (Sections 14-17)
A constitutional newsrack ordinance must provide adequate
procedural protections to guard against overzealous and arbitrary
enforcement. The adequacy of enforcement procedures was examined
in two California cases, and in accordance with these cases, we
believe that the enforcement provisions contained in the proposed
ordinance would be held valid.
In Kash Enterprises, Inc. v. City of Los Anqeles (1977) 19
Cal.3d 294, 138 Cal.Rptr. 53, the California Supreme Court held
that the enforcement provisions of a newsrack ordinance which
authorized the seizure, retention and destruction of newsracks
without affording the owner of the rack either a pre- or post-
taking hearing, violated the owner' s rights to procedural due
process and the public's first amendment rights. Id. at 309. In
that case, the ordinance authorized a public officer to summarily
remove any newsrack which he believed to be in violation of the
ordinance I s requirements. The ordinance failed to afford the owner
any hearing on the merits of the impoundment in violation of due
process. Furthermore, the enforcement provisions were held
defective in that they sanctioned immediate removal of newsracks
for any violation whatsoever, rather than limiting its removal
sanction to violations which actually created hazards for pedes-
trians or motor vehicles. The court, however, did recognize that
an ordinance could provide for the immediate seizure, without prior
notice or hearing, of any newsrack that posed a danger to
pedestrians or vehicles. Id. at 312-313.
In Gluck v. County of Los Anqeles (1979) 93 cal.App.3d 121,
155 Cal.Rptr. 435, the court struck down the entire enforcement
scheme of the County I s newsrack ordinance. The procedure was
defective on two grounds. First, the owner was not entitled to
hearing until after the rack was seized. Second, the procedure for
a hearing was deemed "farcical" in that it left the owner with
unfair choice of paying a $25 impoundment fee and recovering his
property immediately, or contesting the fee, which allowed the
County to delay a hearing for as long as 30 days. The court called
this scheme "a transparent one to force payment of impound fees
irrespective of the propriety of the seizure." Id. at 133-135.
In the proposed Dublin ordinance, the deficiencies found in
the Kash and Gluck cases do not exist. A pre-taking hearing is
authorized in all cases, except where immediate removal and
impoundment is necessary because the violation is creating a
dangerous or hazardous condition which cannot be easily remedied
by action of the City Engineer. (Section l4(a) (2).) In all other
TO:
DATE:
PAGE:
city council
May 25, 1990
7
cases, a newsrack owner can avoid impoundment either by correcting
the violation or by timely requesting a hearing. (Section
14 (a) (3) . ) An evidentiary hearing before the City Manager is
afforded any owner upon request. (Section 15.) While there was
some suggestion by one of the affected newspaper distributors that
an appeal to the city council of the City Manager's determination
should be required, such an appeal would not appear to be required
in order to afford an owner due process. The owner would be
entitled to seek judicial review of the City Manager's decision if
aggrieved by that decision. Consequently, while the ordinance
certainly could be revised to provide for an appeal to the city
counci 1 if that is deemed desirable, such a procedure does not
appear to be constitutionally required.
Conclusion:
If you have any questions regarding this memorandum or the
revised ordinance, please let me know. I will be happy to advise
you further on this matter at the June 11, 1990 meeting.
Very truly yours,
MEYERS, NAVE, RIBACK & WEST
.'\ -,' /
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Elizabeth H. Silver
Acting city Attorney
cc: Richard Ambrose, City Manager
Lee Thompson, City Engineer