HomeMy WebLinkAbout11 - Newsracks-Fixed Pedestal Zones in CdMQ SEW Pp�T
CITY OF
s NEWPORT BEACH
C'94IF09 City Council Staff Report
March 14, 2017
Agenda Item No. 11
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Antony Brine, City Traffic Engineer, tbrine@newportbeachca.gov
PHONE: 949-644-3329
TITLE: Newsracks/Fixed Pedestal Zones in Corona del Mar
ABSTRACT -
Staff is working with Corona del Mar Business Improvement District (CdM BID) to address
concerns with the overall appearance and safety of existing newsracks throughout
Corona del Mar Village. To address concerns, staff completed an inventory of the
conditions of existing freestanding newsracks located along East Coast Highway and
concluded that a number of existing newsracks do not meet Municipal Code requirements
for pedestrian access and visual blight. CdM BID requested that freestanding newsracks
be replaced with fixed pedestal unit assemblies (consolidated racks) at six (6) separate
locations (Attachment A). The new pedestal units would be installed in organized
locations near "high retail activity areas" along both sides of East Coast Highway from
Avocado Avenue to Poppy Avenue. Additionally, staff revised Chapter 5.70 "Newspaper
Racks and Stands" to establish specific guidelines for Corona del Mar and requests
Council's review and approval. Upon approval, staff will work with local publications to
consolidate the sales and distribution of news publications into the new fixed pedestal
unit assemblies.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378 of the CEQA Guidelines,
California Code of Regulations, Title 14, Chapter 3), because it has no potential for
resulting in physical change to the environment, directly or indirectly;
b) Rescind Ordinance No. 86-18; and
Newsracks/Fixed Pedestal Zones in Corona del Mar
March 14, 2017
Page 2
c) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance
No. 2017-6, An Ordinance of the City Council of the City of Newport Beach, California,
Amending Chapter 5.70 of the Newport Beach Municipal Code in its Entirety Relating
to Newspaper Racks and Designating Portions of Corona del Mar as Fixed Pedestal
Zones, and pass to second reading on March 28, 2017.
FUNDING REQUIREMENTS:
CdM BID will fund the cost of the new six (6) pedestal unit assemblies directly.
DISCUSSION:
Staff received a request from Corona del Mar Business Improvement District (CdM BID)
to install fixed pedestal units to consolidate the number of existing individual freestanding
newsracks currently spread throughout Corona del Mar Village. A copy of the plan for
proposed fixed pedestal units is attached as Attachment B. CdM BID asserts clutter and
congestion of the numerous different types of freestanding newsracks is "unsightly and
not in keeping with the nature of Corona del Mar Village". The segment of East Coast
Highway between Avocado Avenue and Poppy Avenue has twenty (20) freestanding
newsracks or stands located on the north side of the roadway and twenty-seven (27)
freestanding newsracks or stands located on the south side of the roadway.
Municipal Code Chapter 5.70 outlines regulations related to the placement, appearance,
number, size, and servicing of newsracks on public rights-of-way. Section 5.70.025 states
"Newsracks shall be kept clean and maintained in good working order at all times, freshly
painted and with unbroken hoods". Staff has reviewed the existing conditions of
newsracks and has determined that ten (10) newsracks are in poor condition and clearly
do not meet the defined maintenance requirements as established in the Municipal Code.
The proposed Ordinance defines a process to improve the aesthetics of Corona del Mar
Village by consolidating publications into fixed pedestal units.
The proposed Ordinance (Attachment D) designates Corona del Maras a "Fixed Pedestal
Zone". The revised Ordinance respects the ability of publications to effectively distribute
by allowing publications that are currently distributed from individual newsracks in Corona
del Mar to receive distribution space in fixed pedestal units located at, or as close as
reasonably possible to, the locations of their existing freestanding newsrack. The
proposed plan would be to locate the fixed pedestal units in high activity areas, such as
near restaurants, coffee shops, cafes, etc.
Each publication seeking access to a section of the fixed pedestal unit shall apply for a
Fixed Pedestal Permit and adhere to the guidelines as defined in Attachment C. Each
publication that currently exists in the zone will be allotted a space in the fixed pedestal
unit. A Resolution will be prepared, subsequent to the adoption of this Ordinance,
establishing the permit fees.
11-2
Newsracks/Fixed Pedestal Zones in Corona del Mar
March 14, 2017
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is exempt from the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A —
Location Map
Attachment B —
Fixed Pedestal Plan
Attachment C
— Fixed Pedestal Guidelines
Attachment D
— Ordinance No. 2017-6
11-3
I
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Corona del Mar Newsracks
Location Map
Attachment A
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CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
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PEDESTAL
Corona Del Mar Newsracks
Location Map
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Attachment A
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CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
1 3/14/17
City Solutions
How City Newsracks Work
i3uild your own oustom configuralion. Each City Newsrack (tower) is made up of a 'base, a housing, and a trap. Each housing holds two slide -
in (interchangeable). internally locking publication inserts These inserts are firmly secured and lo:ked to the housing for complete secunly,
yet they are easily removed and interchanged if needed. The inserts have either a single paid publication door and coin mechanism, on a
single compartment (fig. 1 }, or two tree publication doors on two compartments (fig. 2). On modular units with three or more lowers the
renter towers (housings) rest on a bridge (fig. 3).
Get a City Newsrack Quote
Start with simple list of the number of locations and the number of paid and free publications at each location. City Solutions will provide a no
obligation, itemized proposal. Please note, City Newsracks must be mounted to structurally sound, dully -cured concrete (or through brick with
concrete substrate below), such as a typical sldewelk or equivalent Newsrack installation Guide provides complete. instructions.
— top (arch)
fig. 17
paid
— housing
E
— -I
— baja .
3 -tower modular newsrack cabinet shell
CluotationtSurrvey
Cbecklist:
Locatmn 0
Total # pubhi ations at site,
Paid publications -
Free publlcations:
Refer to RESOURCES on ibis websile
FOr R dawrl Ir:adable publdcatiarl field
Survey lernplate.
11-6
Guidelines for the Fixed Pedestal Zone in Corona del Mar
1. All Fixed Pedestal Units (FPU) will be placed and installed per the City of
Newport Beach (City) Municipal Code Section 5.70.025 (A) as the standard,
with the exception that one FPU cannot be attached to another FPU or
located within the same location or zone (see item four below).
2. FPUs will be purchased by the Corona del Mar Business Improvement
District (CdM BID). All FPUs will be installed, repaired and maintained by
the City, or a City approved contractor. All costs associated with the
purchase, installation, repair, and maintenance will be funded by the
Corona del Mar Business Improvement District.
3. All FPUs shall be either a "3 -tower Modular Newsrack" constructed by City
Newsracks LLC, 12574 Promise Creek Lane, Suite 100, Fishers, IN 46038; or
a City approved equivalent. The color of the FPU shall be dark green.
4. One FPU may be located at each of the following locations or zones:
East Coast Highway at Acacia Avenue.
East Coast Highway at Goldenrod Avenue (north)
East Coast Highway at Goldenrod Avenue (south)
East Coast Highway at Marigold Avenue
East Coast Highway at Orchid Avenue
East Coast Highway at Poinsettia Avenue
5. The initial implementation (tentative) shall be June 1, 2017 per Section
5.70.032 (H).
11-7
ORDINANCE NO. 2017 -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING
CHAPTER 5.70 OF THE NEWPORT BEACH MUNICIPAL
CODE IN ITS ENTIRETY RELATING TO NEWSPAPER
RACKS AND DESIGNATING PORTIONS OF CORONA
DEL MAR AS FIXED PEDESTAL ZONES
RECITALS
WHEREAS, the City of Newport Beach finds that there is a proliferation of
dilapidated freestanding newsracks in Corona del Mar, which contributes to the
congestion of public sidewalks; impedes the flow of pedestrian and vehicular traffic;
interferes with the use of streets, public sidewalks and the public right-of-way; presents
hazards to persons and property; contributes to the litter on public sidewalks; and
results in visual blight;
WHEREAS, the City of Newport Beach, in an effort to promote the public health,
safety and welfare and the aesthetic qualities of Corona del Mar, finds it is necessary to
control the placement, size, construction and appearance of the existing freestanding
newsracks by utilizing fixed pedestal units along both sides of East Coast Highway from
Avocado Avenue to Poppy Avenue;
WHEREAS, the City Council desires to respect the publishers' interests in
effective distribution, by (i) allowing publications currently distributed from freestanding
newsracks to receive distribution space in fixed pedestal units located at, or as close as
reasonably possible to, the locations of such existing freestanding newsracks; (ii)
allowing publishers not currently distributing publications from freestanding newsracks
to receive distribution space in fixed pedestal units; (iii) allowing the number, locations,
and usage of fixed pedestal units to change over time in response to changing market
conditions; and (iv) specifying reasonable conditions under which publishers shall have
the right to repair, maintain, replace or otherwise engage in self-help as to specific
components of newsrack boxes they occupy that relate to newsrack box functionality;
WHEREAS, the City Council further desires to provide for street -worthy fixed
pedestal units and prompt and effective maintenance, repair and replacement of such
units, by providing for expeditious maintenance, repair and replacement of parts of such
units which, if not thus maintained, repaired or replaced, could significantly impede the
effective use of such units for the sale or distribution of publications;
WHEREAS, the City Council, in adopting this ordinance, is mindful that
regulation of newsracks implicates rights protected by the First Amendment of the
United States Constitution and by Article I, Section 2 of the California Constitution, and,
to that end, the City Council directs the City Manager and the Director of the
Department of Public Works to interpret and apply this ordinance and to exercise their
11-8
Ordinance No. 2017 -
Page 2 of 17
powers and duties in a manner consistent with the constitutional rights of citizens and
the regulated community; and
WHEREAS, this ordinance is not intended to, and does not, ban freestanding
newsracks and freestanding newsracks may continue to be placed in areas of the City
that are not designated as fixed pedestal zones pursuant to Chapter 5.70.
NOW THEREFORE, the City Council of the City of Newport Beach does ordain
as follows:
Section 1: The City Council of the City of Newport Beach hereby finds that the
above recitals are true and correct and are incorporated into the substantive portion of
this ordinance.
Section 2: The City Council hereby deletes Chapter 5.70 of the Newport
Beach Municipal Code entitled "Newspaper Racks and Stands" in its entirety and
replaces it with the following:
Chapter 5.70
NEWSPAPER RACKS
Sections:
5.70.010 Intent and Purpose.
5.70.015 Definitions.
5.70.020 Freestanding Newsrack Permits.
5.70.025 Requirements and Duties.
5.70.030 Special Requirements for Newsracks Along Marine Avenue on
Balboa Island.
5.70.032 Designation of a Fixed Pedestal Zone in Corona del Mar.
5.70.035 Display of Certain Matter Prohibited.
5.70.040 Display of Harmful Matter.
5.70.045 Costs.
5.70.050 Removal of Freestanding Newsracks.
5.70.055 Appeals and Calls for Review.
5.70.060 Severability; Supplemental Provisions.
5.70.010 Intent and Purpose.
The City Council hereby finds that Freestanding Newsracks have proliferated and
increased in certain areas of the City to such an the extent that, in some
instances, they constitute a threat to public health, safety and welfare by
impeding pedestrian traffic and interfering with ingress and egress to and from
buildings, vehicles and public modes of transportation.
The City
Council hereby
finds that Marine Avenue on
Balboa Island is an
extremely
popular tourist
destination, with unusually
high pedestrian and
vehicular
traffic volumes
in the summer months and
holidays. There is a
11-9
Ordinance No. 2017 -
Page 3 of 17
proliferation of Freestanding Newsracks along Marine Avenue on Balboa Island
resulting in undue interference with pedestrian and traffic circulation and
increased safety hazard. Due to unique problems along Marine Avenue on
Balboa Island, it is necessary to specifically limit the number of locations and
spaces for Freestanding Newsracks.
The City Council further finds that Corona del Mar is an extremely popular
destination with unusually high pedestrian and vehicular traffic volumes, year
round. There is a proliferation of Freestanding Newsracks in Corona del Mar
which has caused congestion of public sidewalks, impeded the flow of pedestrian
traffic, interfered with the use of the Public Right -of -Way, presented hazards to
persons and property, and contributed to the litter problems of public sidewalks
and streets. In addition, the City Council finds that the proliferation of
Freestanding Newsracks has resulted in visual blight, based on the large number
and varying design of the Freestanding Newsracks, the poor maintenance of
Freestanding Newsracks and the virtually unrestricted placement of Freestanding
Newsracks on the Public Right -of -Way in Corona del Mar. To promote the public
health, safety and welfare and the aesthetic qualities of Corona del Mar, it is
necessary to eliminate Freestanding Newsracks and utilize Fixed Pedestal Units.
The purpose of this chapter is to promote the public health, safety and welfare
through the regulation of placement, appearance, number, size, and servicing of
Freestanding Newsracks on the Public Right -of -Way so as to:
A. Provide for pedestrian and driving safety and convenience;
B. Ensure no unreasonable interference with the flow of pedestrian or
vehicular traffic including ingress into, or egress from, any residence or
place of business, or from the street to the sidewalk, by persons exiting or
entering parked or standing vehicles;
C. Provide reasonable access for the use and maintenance of sidewalks,
poles, posts, traffic signs or signals, hydrants, mailboxes, and access to
locations used for public transportation services;
D. Reduce visual blight on the Public Right -of -Way and protect the aesthetics
of store window displays, public landscaping, and other improvements;
E. Maintain and protect the value of surrounding properties;
F. Reduce exposure to the City related to personal injury or property damage
claims; and
G. Protect the right to distribute and disseminate Publications as protected by
the State and Federal constitutions.
11-10
Ordinance No. 2017 -
Page 4 of 17
It is not the intent of this chapter to discriminate against, regulate, or interfere, in
any way, with the printing, circulation, distribution, or dissemination of any
Publication in violation of the State or Federal Constitution.
5.70.015 Definitions.
A. "Corona del Mar" means the Public Right -of -Way within fifty (50) feet of
both sides of East Coast Highway from Avocado Avenue to Poppy
Avenue.
B. "Director" means the Director of the Department of Public Works or his or
her designee.
C. "Fixed Pedestal Unit" means an assembly which is of a type, design or
model approved by the Director and which contains one (1) or more self-
service or coin-operated boxes, containers, storage units or other
dispensers installed, used or maintained for the display, vending, sale or
distribution, with or without charge, of any Publication, and which is
attached to the Public Right -of -Way in accordance with the provisions of
this chapter and provided and maintained by the City.
D. "Fixed Pedestal Zone" means any area as designated in this chapter
where the distribution of Publications is restricted to Fixed Pedestal Units
installed in a style and manner approved by the Director.
E. "Freestanding Newsrack" means any self-service or coin-operated
freestanding box, stand, container, storage unit or other similar newspaper
or vending dispenser or device placed, installed, used or maintained on
any Public Right -of -Way for the display, vending, sale or distribution, with
or without charge, of any Publication, and which is not a Fixed Pedestal
Unit authorized under this chapter.
F. "Historically Present Publication" means a Publication that, according to
the survey completed prior to the Initial Implementation of a Fixed
Pedestal Zone, was identified as being located in the Fixed Pedestal
Zone, and was distributed from at least one (1) Freestanding Newsrack
situated in the Fixed Pedestal Zone.
G. "Initial Implementation" means the transition period from Freestanding
Newsracks to Fixed Pedestal Units and shall include the selection of
locations for initial Fixed Pedestal Units in the Fixed Pedestal Zone; the
allocation of Newsrack Box space within those Fixed Pedestal Units to
persons or entities that have had Historically Present Publications and, if
possible, to other interested persons or entities; the installation of the
Fixed Pedestal Units; and the removal of all Freestanding Newsracks from
the Fixed Pedestal Zone.
Ordinance No. 2017 -
Page 5 of 17
H. "Newsrack Box" means the individual space within a Fixed Pedestal Unit
that dispenses one (1) or more Publications and includes the door, coin
return mechanism, and associated hardware and which is maintained by
the permit holder.
"Public Right -of -Way" means any public property, such as public streets,
highways, roadways, sidewalks, parkways or alleys, used or intended for
use, by the travelling public, whether vehicular or pedestrian, located
within the City.
J. "Publication" means any newspapers, magazines, periodicals, or other
printed material.
5.70.020 Freestanding Newsrack Permits.
A. A Freestanding Newsrack permit issued in accordance with this chapter
shall be required prior to the installation, placement or maintenance of any
Freestanding Newsrack which in whole or in part rests upon, in or over
any Public Right -of -Way. No Freestanding Newsrack Permit shall be
issued for any Freestanding Newsrack proposed to be located in a Fixed
Pedestal Zone. Unless located in a Fixed Pedestal Zone, a new
Freestanding Newsrack permit shall not be required for any Freestanding
Newsrack that complies with the provisions of this chapter and has a valid
permit in effect on the adoption date of the ordinance codified in this
chapter.
B. A written application for a Freestanding Newsrack permit shall be filed with
the Director, and shall contain the following information:
1. The name, address, and telephone number of the applicant and owner
of the Freestanding Newsrack.
2. The name, address, and telephone number of a representative or other
responsible person whom the City may notify or contact at any time
concerning the applicant's Freestanding Newsrack.
3. The number of Freestanding Newsracks and address for the proposed
location of the new Freestanding Newsrack, as shown on a scaled
drawing of the proposed location.
4. A detailed diagram of the location proposed for the installation of the
Freestanding Newsrack(s).
5. The names of the Publications to be contained in each Freestanding
Newsrack.
11-12
Ordinance No. 2017 -
Page 6 of 17
6. The type or brand of Freestanding Newsrack, including description of
the Freestanding Newsrack and mount, if other than K -Jack Style
Mount Model 100.
C. Each application for a Freestanding Newsrack permit shall be
accompanied by an application fee as established by resolution of the City
Council.
D. Upon a finding that the applicant is in compliance with the provisions of
this chapter, the Director may issue a Freestanding Newsrack permit at a
location approved by the Traffic Engineer. If a permit is denied, the
applicant shall be notified in writing of the specific cause of such denial by
the Director and the right to appeal in accordance with Section 5.70.055 of
this chapter.
E. An application for a Freestanding Newsrack permit shall be approved, or
conditionally approved, unless:
1. The Freestanding Newsrack is located in a Fixed Pedestal Zone;
2. The proposed Freestanding Newsrack projects onto, into or over any
part of the roadway or public street, or which rests, wholly or in part,
upon, along or over any portion of the roadway or public street;
3. The proposed Freestanding Newsrack is to be installed in whole or in
part, in or over any sidewalk or parkway and does not comply with
Section 5.70.025 A;
4. The Freestanding Newsrack, in its proposed location, would endanger
the safety of persons or property;
5. The proposed location is used for public utility purposes, public
transportation purposes or other public use;
6. The proposed Freestanding Newsrack would unreasonably interfere
with or impede the flow of pedestrian or vehicular traffic, the ingress
into or egress from any residence, place of business, or any legally
parked or stopped vehicle, or the use of poles, posts, traffic signs or
signals, hydrants, mailboxes, or other objects present at or near said
location; or
7. The proposed Freestanding Newsrack would interfere with the
cleaning of any sidewalk by the use of mechanical sidewalk cleaning
machinery.
11-13
Ordinance No. 2017 -
Page 7 of 17
F. In addition to the provisions of this chapter, the Director is authorized to
place any necessary conditions which promote the public health, safety
and welfare on the approval of a Freestanding Newsrack permit.
G. The Director shall not consider the content or viewpoint of the material to
be distributed through Freestanding Newsracks in administering or
enforcing this chapter, or in adopting or implementing guidelines pursuant
to this chapter.
5.70.025 Requirements and Duties.
A. Any Freestanding Newsrack which, in whole or in part, rests upon, in or
over any sidewalk shall comply with the following:
1. Freestanding Newsracks located near a curb shall be placed not less
than eighteen (18) inches nor more than twenty-four (24) inches from
the edge of the curb. Freestanding Newsracks placed adjacent to the
rear of the sidewalk shall be placed parallel to the wall and at least six
(6) inches from the wall.
2. Freestanding Newsracks shall not be chained, bolted or otherwise
attached to any private property without the consent of the property
owner.
3. Freestanding Newsracks may be attached to one another. Each group
of attached Freestanding Newsracks shall be separated by eighteen
(18) inches or more. The Traffic Engineer shall determine the number
of Freestanding Newsracks that can be bolted, attached or grouped on
a location by location basis.
4. Freestanding Newsracks shall not be placed, installed, used or
maintained:
a. Within fifteen (15) feet of any marked crosswalk;
b. Within twenty (20) feet of the curb return of any unmarked
crosswalk;
c. Within ten (10) feet of any fire hydrant, fire call box, police call box or
other emergency facility;
d. Within ten (10) feet of any driveway;
e. Within ten (10) feet ahead, and forty (40) feet to the rear of any sign
marking a designated bus stop;
11-14
Ordinance No. 2017 -
Page 8 of 17
f. Within ten (10) feet of any bus bench;
g. At any location whereby the clear space for the passageway of
pedestrians is reduced to less than four (4) feet;
h. Within one hundred (100) feet of another Freestanding Newsrack or
Fixed Pedestal Unit containing the same Publication except where
separated by a street or corner, or except where a person or entity
demonstrates that there is insufficient room in one (1) machine for
the Publication which may be sold in one (1) day, or it publishes
more than one (1) edition of the Publication for sale or distribution
at the same time; and
L Facing another Freestanding Newsrack, divided only by the width
of a public sidewalk or public pedestrian wall.
B. The name, address, and telephone number of a responsible person who
may be contacted at any time concerning the Freestanding Newsrack
shall be displayed on the hood of a Freestanding Newsrack in such
manner as to be readily visible to and readable by a prospective customer.
C. Freestanding Newsracks shall carry no advertising except:
1. The name of the person, entity or Publication being dispensed on the
bottom one-third (113) of the plastic hood; and
2. Advertising rack cards contained in card pans which are attached to
and located on the front of the Freestanding Newsrack and do not
exceed fifteen (15) inches in height and twenty-two (22) inches in
length. The rack cards shall be limited to the display, sale or purchase
of the Publication being dispensed.
D. Freestanding Newsracks shall be kept clean and maintained in good
working order at all times, freshly painted and with unbroken hoods.
E. Frames and racks for Freestanding Newsracks shall be K -Jack Style
Mounts Model 100 or a Director -approved equal with a height not to
exceed forty (40) inches. Mounts shall be bolted in place in accordance
with specifications provided by the City.
F. Freestanding Newsracks shall have wood grain panels or be painted
brown on all sides and the mount shall be painted gloss black.
G. No person, association, firm or corporation shall place, locate or maintain
a Freestanding Newsrack on the Public Right -of -Way unless there is on
file with the Director, in full force and effect at all times, a document issued
11-15
Ordinance No. 2017-
Page9of 17
by an insurance company authorized to do business in the State of
California evidencing that the permittee or owner is insured under a
liability insurance policy providing minimum coverage of five hundred
thousand dollars ($500,000.00) for injury or death to persons arising out of
the location, placement or operation of the Freestanding Newsrack on the
Public Right -of -Way.
H. Every permittee of a Freestanding Newsrack located upon the Public
Right -of -Way must comply with the provision of Newport Beach Municipal
Code, Business Licenses and Regulations, Section 5.04.020.
5.70.030 Special Requirements for Newsracks along Marine Avenue on
Balboa Island.
In addition to all other applicable provisions of this chapter, the following rules
shall apply to Freestanding Newsracks along Marine Avenue on Balboa Island:
A. Freestanding Newsracks shall be permitted at only four locations: 201
Marine Avenue (Location One); 206 Marine Avenue (Location Two); 300
Marine Avenue (Location Three); and the northern twenty-five (25) percent
of 301 Marine Avenue and 305 Marine Avenue (Location Four).
B. Each location shall accommodate up to a maximum of eight (8)
Freestanding Newsrack spaces. The eight (8) Freestanding Newsrack
spaces shall be divided into two (2) groups with a maximum of four (4)
Freestanding Newsrack spaces in each group. Each group shall be
separated by forty-eight (48) inches or more. Freestanding Newsrack
space is defined as that surface area in the Public Right -of -Way sufficient
to accommodate a Freestanding Newsrack.
C. Priority shall be given to existing vendors of Publications at these locations
and any new space that becomes available shall be allocated on a first-
come, first-served basis to any new vendors.
5.70.032 Designation of a Fixed Pedestal Zone in Corona del Mar.
The proliferation of Freestanding Newsracks in Corona del Mar and the
particularly poor maintenance or abandonment of Freestanding Newsracks have
contributed to the congestion of public sidewalks; impeded the flow of pedestrian
traffic; interfered with use of the Public Right -of -Way; presented hazards to
persons and property; contributed to the litter problems of public sidewalks and
streets; and resulted in visual blight. Therefore, Corona del Mar shall be
designated as a Fixed Pedestal Zone and the following rules shall apply in said
zone:
11-16
Ordinance No. 2017 -
Page 10 of 17
A. The Director is hereby authorized to select and enter into an agreement to
provide for the installation and maintenance of Fixed Pedestal Units in
accordance with this section. The Director, in consultation with the City's
Traffic Engineer, is further authorized and directed to promptly promulgate
guidelines consistent with the provisions of this section controlling the
selection of locations for, as well as the placement, size, construction,
design, methods of attachment, appearance, and maintenance and repair
of Fixed Pedestal Units and Newsrack Boxes to be contained therein in
Corona del Mar.
B. The locations of Fixed Pedestal Units in Corona del Mar shall be selected
by the Director so that, to the extent reasonably possible:
Historically Present Publications in Corona del Mar may receive space
in Fixed Pedestal Units located close to their former Freestanding
Newsracks; and
2. The number of Newsrack Boxes at each Fixed Pedestal Unit location is
equal to or greater than the number of Freestanding Newsracks
containing Historically Present Publications near each such location.
C. Except where this section or the Director's guidelines expressly provide
otherwise, no person may place any Publication in any Newsrack Box in a
Fixed Pedestal Unit without having first obtained from the Director a Fixed
Pedestal permit authorizing placement of the Publication in that Newsrack
Box.
1. Each person or entity seeking access to a Newsrack Box shall apply to
the City, on forms provided by the Director, for a Fixed Pedestal permit
for each Newsrack Box in each Fixed Pedestal Unit to which the
person or entity seeks space.
2. A written application for a Fixed Pedestal permit shall be filed with the
Director and shall contain the following information, as well as any
other information deemed reasonably necessary by the Director:
a. The name, address, and telephone number of the applicant and
owner of the Publication seeking a Newsrack Box;
b. The name, address, and telephone number of a representative or
other responsible person whom the City may notify or contact at
any time concerning the space granted to the applicant in a
Newsrack Box; and
c. The name of the Publication to be contained in the Newsrack Box.
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3. Each application for a Fixed Pedestal permit shall be accompanied by
an application fee as established by resolution of the City Council. No
Fixed Pedestal permit fee shall be charged to a Historically Present
Publication during the Initial Implementation and the City shall pay the
direct cost associated with the initial installation of any Historically
Present Publication, including the door, coin return mechanism and
associated hardware, in the Newsrack Box.
4. Upon a finding that the applicant is in compliance with the provisions of
this chapter, the Director shall issue a Fixed Pedestal permit for use of
the space in the designated Newsrack Box. If a Fixed Pedestal permit
is denied, the applicant shall be notified in writing of the specific cause
of such denial by the Director and the right to appeal in accordance
with Section 5.70.055 of this chapter.
5. The Director shall not consider the content or viewpoint of the material
to be distributed through a Newsrack Boxes within a Fixed Pedestal
Units in issuing a Fixed Pedestal permit. An application for a Fixed
Pedestal permit shall be approved unless:
a. The application is incomplete; or
b. There is no available space in the Newsrack Box in the Fixed
Pedestal Unit.
6. An applicant shall be responsible for the payment of all fees due or
imposed under this section with respect to that applicant's Newsrack
Box. Once a Fixed Pedestal permit has been granted pursuant to this
section and the requirements of the guidelines, and if the Fixed
Pedestal permit has not subsequently been revoked, the Fixed
Pedestal permit holder shall not be required to renew or reapply for
another Fixed Pedestal permit for the same Newsrack Box.
D. Each person or entity granted a Fixed Pedestal permit shall comply with
the following:
1. The name, address, and telephone number of a responsible person
who may be contacted at any time concerning the Newsrack Box shall
be displayed on the face of the Newsrack Box in such manner as to be
readily visible to and readable by a prospective customer;
2. The Newsrack Box shall carry no advertising except the name of the
person, entity or Publication being dispensed on the bottom one-third
(1/3) of the face of the Newsrack Box;
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3. The Newsrack Box shall be kept clean and maintained in good working
order at all times;
4. Each person or entity granted a Fixed Pedestal permit shall maintain on
file with the Director, in full force and effect at all times, a document
issued by an insurance company authorized to do business in the State
of California evidencing that the permittee is insured under a liability
insurance policy providing minimum coverage of five hundred thousand
dollars ($500,000.00) related to the exercise of permittee's rights under
the Fixed Pedestal permit including, but not limited to, the injury or
death to any person related to the operation of the Newsrack Box;
5. Every permittee of a Fixed Pedestal Unit located upon the Public Right -
of -Way must comply with the provision of Newport Beach Municipal
Code, Business Licenses and Regulations, Section 5.04.020, and;
E. If Newsrack Boxes in a Fixed Pedestal Unit located at a particular location
have been abandoned or have otherwise become available for
reallocation, and the Director has made reasonable efforts to reallocate
such Newsrack Boxes, the Director may consolidate the Fixed Pedestal
Units, modify the size of the Fixed Pedestal Unit to reduce the number of
Newsrack Boxes it contains, and reallocate Newsrack Box space among
existing permit holders. If the City reallocates Newsrack Box space as
provided in this section, the City shall pay the direct costs to convert the
newly assigned Newsrack Box space to the same level as the permit
holders' existing Newsrack Box space.
F. Except as otherwise provided for in this chapter, no Publication that has
obtained a Newsrack Box in a Fixed Pedestal Unit may receive a second
space in that Fixed Pedestal Unit until all other Publications that have
applied for space in that Fixed Pedestal Unit have had the opportunity to
select a space.
G. During the Initial Implementation, space in the Fixed Pedestal Unit in each
Fixed Pedestal Zone shall be allocated to Publications that have applied
for space in such a Fixed Pedestal Unit based on the following priorities:
1. First priority shall be given to Historically Present Publications in the
Fixed Pedestal Zone based on their distance from the historical
location of the Freestanding Newsrack and the Fixed Pedestal Unit.
2. Second priority shall be given to all other Publications that have
applied for space in the Fixed Pedestal Unit.
H. The Director is instructed to promptly move forward with the Initial
Implementation by establishing dates by which all Fixed Pedestal Units in
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the Fixed Pedestal Zone shall be in compliance with the requirements of
this subsection, and by which all Freestanding Newsracks shall be
removed from the Fixed Pedestal Zones. The deadlines for compliance
with this section shall be prominently posted at the location of each
Freestanding Newsrack in the Fixed Pedestal Zone. Notice, along with a
copy of the guidelines, shall be mailed to each Historically Present
Publication in the Fixed Pedestal Zone, to the extent the Director can
determine the identity of the Publication, not less than thirty (30) days prior
to the date for the Initial Implementation specified in the Director's
guidelines. Each Historically Present Publication shall, within thirty (30)
days of receiving said notice, inform the Director of the cost of removing
the Freestanding Newsrack. The City shall pay the direct cost associated
with removing the Freestanding Newsrack if the Freestanding Newsrack is
removed within ninety (90) days after the effective date of this ordinance.
Any Freestanding Newsrack not removed within ninety (90) days of the
effective date of this ordinance shall be subject to removal in accordance
with Section 5.70.050.
I. Unless otherwise provided, any person who is aggrieved by any decision
made under this section may file a written request for review of the
decision pursuant to section 5.70.055.
J. No person shall place or maintain a Freestanding Newsrack in Corona del
Mar ninety (90) days after the effective date of this ordinance.
5.70.035 Display of Certain Matter Prohibited.
Any Publication offered for sale in a Freestanding Newsrack or in a Newsrack
Box shall not display or exhibit in a manner which exposes to public view, from
any public place, any of the following:
A. Any statement or word describing explicit sexual acts, sexual organs or
excrement where such statements or words have sexual arousal,
gratification or affront as their purpose or effect;
B. Any picture or illustration of genitals, pubic hair, perineum, anuses or anal
regions of any person where such pictures or illustrations have sexual
arousal, gratification or affront as their purpose or effect; or
C. Any picture or illustration depicting explicit sexual acts where such
pictures or illustrations have sexual arousal, gratification or affront as their
purpose or effect.
For the purpose of this section, the term "explicit sexual acts" means the
depiction of sexual intercourse, oral copulation, anal intercourse, oral -anal
copulations, bestiality, sadism, masochism, or excretory functions in conjunction
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with sexual activity, masturbation or lewd exhibition of the genitals, whether any
of the above is depicted or described as being performed alone or between
members of the same or opposite sex, or between humans and animals, or other
act of sexual arousal involving any physical contact with a person's genitals,
pubic region, pubic hair, perineum, anus or anal region.
5.70.040 Display of Harmful Matter.
A. For the purposes of this section, the terms "harmful matter," "matter,"
"person," "distribute," "knowingly," "exhibit," and "minor" shall have the
meanings specified in Section 313 of the California Penal Code. For the
purposes of this chapter, the term "blinder rack" shall mean opaque
material placed in front of, or inside, the newsrack and which prevents
exposure to public view.
B. No person shall knowingly exhibit, display, or cause to be exhibited or
displayed, harmful matter in any Freestanding Newsrack located on a
Public Right -of -Way or public place, or Newsrack Box from which minors
are not excluded, unless blinder racks have been installed so that the
lower two-thirds (2/3) of the first or cover page of the matter is not
exposed to public view. The permit holder shall be responsible for the
installation and maintenance of the blinder racks.
5.70.045 Costs.
Except as expressly provided in this chapter, the costs of installation,
maintenance, replacement, removal, and relocation of Freestanding Newsracks
or Newsrack Boxes shall be at the sole expense of the permittee or owner. Upon
removal of any Freestanding Newsrack or Newsrack Box, the permittee or owner
shall, at his or her sole expense, cause the Public Right -of -Way or Newsrack Box
to be repaired to a condition in conformity to the surrounding area. Upon failure
of the permittee or owner to make such repairs, the work may be done by the
City and charged to the permittee or owner.
5.70.050 Removal of Freestanding Newsracks.
A. Commencing ninety (90) days after the effective date of the ordinance
codified in this chapter, any Freestanding Newsrack in violation of any
provision of the ordinance codified in this chapter will be deemed
nonconforming.
B. In the event that the Director determines that a Freestanding Newsrack
does not comply with the provisions of this chapter, he or she shall provide
written notice of such determination to the permittee or owner. The notice
shall specify the nature of the violation, the location of the Freestanding
Newsrack which is in violation, the intent of the Director to remove the
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nonconforming Freestanding Newsrack in the event a hearing is not
requested, and the right of the permittee to request a hearing, before the
Director, within fifteen (15) days from the date of the notice. If the
Freestanding Newsrack is one which has not been authorized by the
Director and ownership is neither known nor apparent after inspection, a
notice complying with this section shall be affixed to the Freestanding
Newsrack.
C. In the event that a hearing is held pursuant to this section, the Director
shall render a decision, in writing, within ten (10) days from the date of the
hearing, and the decision shall advise the permittee or owner of his or her
right to appeal to the City Council, pursuant to the provisions of Section
5.70.055. Notice of the decision shall be mailed to the permittee or owner
and shall be considered effective on the date mailed, provided that the
notice is properly addressed and placed in the U.S. Mail with first-class
postage prepaid.
D. The Director may take possession of a Freestanding Newsrack and, upon
the expiration of thirty (30) days, dispose of the Freestanding Newsrack as
required by law, if:
1. No hearing is requested by the permittee or owner within fifteen (15)
days as provided in Section 5.70.050(6);
2. The appeal period specified in Section 5.70.055 has expired; or
3. In the event that an owner or permittee fails to remove the rack within
ten (10) days from the date of the decision of the City Council, that the
Freestanding Newsrack is not in compliance with the rules, regulations
and standards established by this chapter.
E. The Director shall inspect any Freestanding Newsrack reinstalled after
removal pursuant to this chapter. The permittee of the Freestanding
Newsrack shall be charged a fee for this re -inspection as established by
resolution of City Council.
F. In the event that any Freestanding Newsrack is abandoned, the Director
may remove it pursuant to the procedures set out in this section. For the
purposes of this section, the term "abandoned" shall mean that no
Publication has been displayed in the Freestanding Newsrack for a period
of fifteen (15) consecutive days, no prior written notice has been given by
the permittee to the Director specifying the reason(s) for nonuse, and the
condition of the rack and related circumstances indicate it will not be
actively used within a reasonable period of time.
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5.70.055 Appeals and Calls for Review.
The City Council shall have the power to hear and decide appeals based upon
the enforcement or interpretation of the provisions of this chapter. Any permittee
or owner who is aggrieved by any decision of the Director may appeal that
decision by submitting a written notice of appeal to the City Clerk within twenty-
one (21) days of the date on which notice of the decision was mailed. A member
of the City Council, in his or her official capacity, may call for review of any action
of the Director under this chapter for the purpose of bringing the matter in front of
the entire body for review. A call for review shall be filed with the City Clerk, on a
form provided by the City Clerk, within twenty-one (21) days of the date on which
the notice of the decision was mailed. The City Council may preside over the
hearing on appeal or may designate a hearing officer to take evidence and
submit a proposed decision, together with findings, within fifteen (15) days from
the date of the hearing. The City Council shall preside over the hearing for a call
for review. The City Council shall, within thirty (30) days from the date of the
hearing, render its decision on the appeal or call for review, together with
findings. The decision of the City Council shall be final.
5.70.060 Severability; Supplemental Provisions.
If any provision of this chapter as herein enacted or hereafter amended, or the
application thereof to any person or circumstances, is held invalid, such invalidity
shall not affect the other provisions or applications of this chapter (or any section
or portion of section hereof) which can be given effect without the invalid
provision or application, and to this end the provisions of this chapter are, and
are intended to be, severable.
The provisions of this chapter are intended to augment and be in addition to
other provisions of the Municipal Code. Whenever the provisions of this chapter
impose a greater restriction upon persons, premises, or practices than is
imposed by other provisions of this Municipal Code, the provisions of this chapter
shall control.
If any section, subsection, sentence, clause or phrase of this ordinance is for any
reason held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance, and each
section, subsection, clause or phrase hereof, irrespective of the fact that any one
or more sections, subsections, sentences, clauses and phrases be declared
invalid or unconstitutional.
Section 3: The City Council finds the approval of this ordinance is not subject
to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
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Ordinance No. 2017 -
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indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly. Alternatively, the City Council finds the
approval of this ordinance is not a project under CEQA Regulation Section 15061 (b)(3)
because it has no potential for causing a significant effect on the environment.
Section 4: This ordinance shall be in full force and effect thirty (30) days after
its adoption by a majority vote of the City Council. The Mayor shall sign and the City
Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this
ordinance, or a summary thereof, to be published pursuant to Charter Section 414.
This Ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach held on the 101 day of March 2017, and adopted on the 28t" day
of March, 2017, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MAYOR
ATTEST:
KEVIN MULDOON, MAYOR
LEILANI 1. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
J � t/'
AARON C. HARP, CITY ATTORNEY
11-24