HomeMy WebLinkAbout88-20 - Amending Chapter 5.70 of the Newport Beach Municipal Code Pertaining to Manner of Display of Certain Material in NewsracksNO. 88 -20
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH AMENDING CHAPTER 5.70 OF THE NEWPORT
BEACH MUNICIPAL CODE PERTAINING TO MANNER OF
DISPLAY OF CERTAIN MATERIAL IN NEWSRACKS.
The City Council of the City of Newport Beach does hereby
ordain as follows:
Section 1: Chapter 5.70 of the Newport Beach Municipal
Code is hereby amended to read as follows:
CHAPTER 5.70
Section 5.70.010
Section 5.70.015
Section 5.70.020
Section 5.70.025
Section 5.70.030
Section 5.70.035
Section 5.70.040
Section
5.70.045
Section
fo
5.70.050
Section
5.70.055
Section
5.70.060
Section 5.70.010
RACKS AND STANDS
Intent and Purpose.
Definitions.
Newsrack Permits.
Requirements and Duties.
Special Requirements -
Along Marine Avenue on
Balboa Island.
Display of Certain
Matter Prohibited.
Display of Harmful
Matter.
Costs.
Removal of Newsracks.
Appeals.
severability; Supplemental
Provisions.
Intent and Purpose.
The City Council of the City of Newport Beach hereby
finds that newsracks, stands, containers and similar newspaper and
vending devices have proliferated and increased in certain areas
of the City of Newport Beach to 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 of Newport Beach finds Marine Avenue, on
iBalboa Island, to be an extremely popular tourist destination with
•unusually high pedestrian and vehicular traffic volumes in the
summer months and holidays. There is a proliferation of newsracks
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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 newsracks.
The purpose of this ordinance is to promote the
6%public health, safety, and welfare through the regulation of
placement, appearance, number, size, and servicing of newsracks on
public rights -of -way so as to:
A. Provide for pedestrian and driving safety
and convenience;
B. Insure 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 rights -
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 to personal
injury or property damage claims and litigation;
G. Protect the right to distribute
information protected by state and federal constitution through
the use of newsracks.
It is not the intent of this ordinance to in any way
discriminate against, regulate, or interfere with the publication,
• circulation, distribution, or dissemination of any newspapers.
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Section 5.70.015 Definitions.
A. Newsracks.
Newsracks shall mean any type of self-
4%service or coin - operated box, container, storage unit or other
dispenser placed upon any public rights -of -way for the vending or
,free distribution of newspapers, periodicals or other printed
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material.
B. Public Right -of -Way.
Public right -of -way shall mean 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
of Newport Beach.
C. City Manager.
City Manager shall mean the City Manager or
his or her designee.
Section 5.70.020 Newsrack Permits.
A. Permit Required.
A newsrack permit issued in accordance with
this chapter shall be required prior to the installation,
placement or maintenance of any newsrack which in whole or in part
rests upon, in or over any public right- off -way.
A new newsrack permit shall not be required
for any newsrack that complies with the provisions of this chapter
and has a valid permit in effect on the adoption date of this
ordinance.
B. Application.
A written application for a newsrack permit
shall be filed with the City Manager, or his or her designee, and
48 shall contain the following information:
1. The name, address, and telephone
• number of the applicant and owner of the newsrack.
2. The name, address, and telephone
number of a representative or other responsible person whom the
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City may notify or contact at any time concerning the applicantes
newsrack.
3. The number of newsracks at the street
address of the proposed location of each as shown on a scaled
drawing of the proposed location.
4. A diagram of the location proposed for
the installation of the newsrack(s).
S. Names of newspapers or periodicals to
be contained in each newsrack.
6. Type or brand of newsrack, including
description of the newsrack and mount, if other than R -Jack Style
Mount Model 100.
C. Fee.
Each application for a newsrack permit
shall be accompanied by an application fee as established by
resolution of the City Council.
D. Issuance and Denial.
Upon a finding the applicant is in
f0compliance with the provisions of this chapter, the City Manager
shall issue a 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
City Manager and the right to appeal in accordance with Section
5.70.055 of this chapter.
E. Conditions for Auvroval.
be approved unless:
An application for a newsrack permit shall
1. The proposed 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
40 roadway or public street:
2. The proposed newsrack is to be
• installed in whole or in part, in or over any sidewalk or parkway,
and
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a. The newsrack, in its proposed
location, would endanger the safety or persons or property; or
b. The proposed location is used for
public utility purposes, public transportation purposes or other
public use; or
C. The proposed newsrack would
4unreasonably 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
d. The proposed newsrack would
interfere with the cleaning of any sidewalk by the use of
mechanical sidewalk cleaning machinery.
Section 5.70.025 Requirements and Duties.
A. Any newsrack which, in whole or in part,
rests upon, in or over any sidewalk, shall substantially comply
with the following:
1. 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. 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. Newsracks shall not be chained, bolted
or otherwise attached to any private property without the consent
of the property owner.
3. Newsracks may be attached to one
another. Each group of attached newsracks shall be separated by
eighteen (18) inches or more. The Traffic Engineer shall
determine the number of newsracks that can be bolted, attached or
grouped on a location by location basis.
4. Newsracks shall not be placed,
• installed, used or maintained:
marked crosswalk;
a. Within fifteen (15) feet of any
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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;
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 newsrack containing the same newspaper or news periodical
,,except where separated by a street or corner, or except where (1)
a newspaper demonstrates that there is insufficient room in one
machine for the newspapers which may be sold in one day, or (2)
where a newspaper demonstrates that it publishes more than one
edition of the newspaper for sale at the same time;
i. Facing another 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 newsrack shall be displayed on the hood of a newsrack in such
manner as to be readily visible to and readable by a prospective
customer.
except:
1. The name of the newspaper or
• periodical being dispensed on the bottom one -third (1/3) of the
plastic hood; and
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2. Advertising rack cards contained in
card pans which are attached to and located on the front of the
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 newspaper or periodical
being dispensed.
D. 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 newsracks shall be R-
Jack Style Mounts Model 100 or 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. Newsracks shall have woodgrain 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 newsrack on the public right -of-
way unless there is on file with the City Manager, or his or her
designee, in full force and effect at all times, a document issued
by an insurance company
California evidencing th
a liability insurance
$500,000 for injury or
location, placement or
right -of -way.
authorized to do business in the State of
at the permittee or owner is insured under
policy providing minimum coverage of
death to one person arising out of the
operation of the newsrack on the public
H. Every permittee of a 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. Newsracks are exempted from any applicable annual fee
required under Newport Beach Municipal Code Section 5.08.040.
Section 5.70.030 special Recruirements for
• Newsracks Along Marine Avenue
on Balboa Island.
In addition to all other applicable provisions of
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this chapter, the following rules shall apply to newsracks along
Marine Avenue on Balboa Island;
A. Newsracks shall be permitted at only four
(4) locations: 201 Marine Avenue (Location One); 206 Marine Avenue
6% (Location Two); 300 Marine Avenue (Location Three); and northern
25% of 301 Marine Avenue and 305 Marine Avenue (Location Four).
H. Each location shall accommodate up to a
maximum of eight (8) newsrack spaces. The eight (8) newsrack
spaces shall be divided into two (2) groups with a maximum of four
(4) newsrack spaces in each group. Each group shall be separated
by forth -eight (48) inches or more. Newsrack space is defined as
that surface area in the public right -of -way sufficient to
accommodate a newspaper rack.
C. In the event that the newsracks proposed to
be placed at any one location violate the provisions of Section
5.70.020 (E) or 5.70.030 (A), (B), priority shall be given as
follows:
1. Within ninety (90) days after the
adoption of this ordinance:
a. First priority shall be given to
vending machines used for the sale of daily publications (those
published on five [5] or more days in a calendar week) of general
circulation in Orange County that otherwise comply with the
provisions of this chapter.
b. Second priority shall be given to
vending machines used for sale of weekly publications (those
published on at least one [1] day, but less than five [5] days in
a calendar week) of general circulation in Orange County that
otherwise comply with the provisions of this chapter.
C. Third priority shall be given to
46vending machines used for sale of daily publications (those
published on five [5] or more days in a calendar week) not of
• general circulation in Orange County that otherwise comply with
the provisions of this chapter.
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d. Fourth priority shall be given to
vending machines used for the sale of weekly publications (those
published on at least one [1] day, but less than five [5] days in
a calendar week) not of general circulation in Orange County that
otherwise comply with the provisions of this chapter.
e. Fifth priority shall be given to
4%all other vending machines on the basis of first -come, first
served.
In the event that an applicant disagrees
with the Cityls priority category for such publication, it shall
have the right to appeal in accordance with Section 5.70.055 of
this chapter.
2. Commencing ninety (90) days after the
adoption date of this ordinance, priority shall be given on a
first -come, first - served basis.
Section 5.70.035 Display of Certain Matter
Prohibited.
Any publication offered for sale in a newsrack placed
or
maintained on
a
public sidewalk
or public right -of -way
shall
not
be displayed
or
exhibited 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 as their purpose or effect, sexual arousal,
gratification or affront; or
B. Any picture or illustration of genitals,
pubic hair, perineums, anuses or anal regions of any person where
such picture or illustration has as its purpose of effect sexual
arousal, gratification or affront; or
C. Any picture or illustration depicting
explicit sexual acts where such picture or illustration has as its
purpose or effect, sexual arousal, gratification or affront.
•For the purpose of this section the term Hexplicit
sexual acts'$ means the depiction of sexual intercourse, oral
copulation, anal intercourse, oral -anal copulations, bestiality,
sadism, masochism, or excretory functions in conjunction with
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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 persongs genitals, pubic
region, pubic hair, perineum, anus or anal region.
Section 5.70.040 Display of Harmful Matter.
A. Definitions. For the purposes of this
section, the terms "harmful matter,11 I'matter,'l "person,91
11distribute,'s 11knowingly,11 flexhibit,." and 11minor" shall have the
meanings specified in Section 3.13 of the Penal Code of the State
of California. For the purposes of this chapter, the term
11blinder rackof shall mean opaque material placed in front of, or
inside, the newsrack and which prevents exposure to public view.
B. Prohibition. No person shall knowingly
exhibit, display, or cause to be exhibited or displayed, harmful
matter in any newsrack located on a public sidewalk or public
place from which minors are not excluded, unless blinder racks
have been installed so that the lower two - thirds of the matter is
not exposed to public view.
Section 5.70.045 Costs.
The costs of installation, maintenance, replacement,
removal, and relocation of newsracks shall be at the sole expense
of the permittee or owner. Upon removal of any newsrack, the
permittee or owner shall, at his or her sole expense, cause the
public right -of -way 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.
Section 5.70.050 Removal of Newsracks.
A. Commencing ninety (90) days after the
adoption date of this ordinance, any newsrack in violation of any
• provision of this ordinance will be deemed nonconforming.
B. in the event that the City Manager
determines that a newsrack does not comply with the provisions of
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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 newsrack which is
in violation, the intent of the City Manager to remove the
4%nonconforming newsrack in the event a hearing is not requested,
and the right of the permitter to request a hearing, before the
City Manager, within fifteen (15) days from the date of the
notice. If the newsrack is one which has not been authorized by
the City Manager and ownership is not known, nor apparent after
inspection, a notice complying with this section shall be affixed
to the newsrack.
C. In the event that a hearing is held
pursuant to this section, the City Manager 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 City Manager may take possession of a
newsrack and, upon the expiration of thirty (30) days, dispose of
the 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 (B); or
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
40date of the decision of the City Council, that the newsrack is not
in compliance with the rules, regulations and standards
• established by this chapter.
E. The City Manager shall inspect any newsrack
reinstalled after removal pursuant to this chapter. The permittee
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of the newsrack shall be charged a fee for this reinspection as
established by resolution of City Council.
F. In the event that any newsrack is
abandoned, the City Manager may remove it pursuant to the
procedures set out in this section. For the purposes of this
section, the term 11abandonment1l shall mean no publication has been
displayed in the newsrack for a period of fifteen (15) consecutive
days, no prior written notice has been given by the permittee to
the City Manager 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.
Section 5.70.055 Appeals.
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 City Manager 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. 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, within thirty (30) days from the date of the
hearing, render its decision on the appeal, together with
findings. The decision of the City Council shall be final.
Section 5.70.060 Severabilitvs 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
Iftthe other provisions of 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 and 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
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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 sentence, clause or phrase of this ordinance
is, for any reason, held to be unconstitutional or otherwise
invalid, such decision shall not effect the validity of the
remaining provisions of this ordinance. The City Council hereby
declares that it would have passed this ordinance, and each
sentence, clause, and phrase thereof irrespective of the fact that
any one or more sentences, clauses or phrases be declared
unconstitutional or otherwise invalid.
Section 2: The City Clerk shall cause the same to be
published once in the official newspaper within fifteen (15) days
after its adoption.
Section 3: This Ordinance was introduced at a regular
meeting of the City Council of the City of Newport Beach held on
the 27th day of June, 1988, and adopted on the 11th day of July,
1988, by the following vote, to -wit:
AYES: Cox, Hart, Maurer, Plummer, Sansone,
Turner
ATTEST:
I US) a[ =F
•
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