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CITY COUNCIL STAFF REPORT
DATE: DECEMBER 7, 2005 LEGISLATIVE
SUBJECT: PROPOSED ORDINANCE DELETING PALM SPRINGS MUNICIPAL
CODE SECTIONS 14.16.461 THROUGH 14.16.466 RELATING TO
PUBLICATION VENDING MACHINES AND ADDING CHAPTER 14.26
TO THE PALM SPRINGS MUNICIPAL CODE ESTABLISHING
STANDARDS FOR NEWSRACKS
FROM: David H. Ready, City Manager
BY: City Attorney's Office
SUMMARY
Newsracks are recognized as a means for public distribution and sale of periodicals and
publications. As such, news racks are frequently placed on the public rights-of-way to
serve the convenience of the public. Without proper and orderly regulation, news racks
and their placement on the public rights-of-way would interfere with the health and
safety of pedestrians and motorists using the rights-of-way, and adversely impact the
appearance and aesthetics of the city streets. The principal purpose and objective of
this ordinance is to provide for the administration and regulation of news racks placed
on the public rights-of-way. The proliferation and maintenance of newsracks have
become an issue of increasing concern in the downtown area. This ordinance
establishes reasonable health, safety and aesthetic controls in the form of a
comprehensive program for the regulation of newsracks in the City and additional
regulations for the downtown.
RECOMMENDATION:
'I. Waive the reading of text in its entirety and read by title only.
2. Introduce on first reading Ordinance No. , "AN ORDINANCE OF THE CITY
OF PALM SPRINGS, CALIFORNIA DELETING MUNICIPAL CODE SECTIONS
14.16.461 THROUGH 14.16.466 RELATING TO PUBLICATION VENDING
MACHINES AND ADDING CHAPTER 14.26 TO THE PALM SPRINGS
MUNICIPAL CODE ESTABLISHING STANDARDS FOR NEWS RACKS."
Item No. 3 . " .
City Council Staff Report
December 7, 2005-- Page 2
Newsrack Ordinance
STAFF ANALYSIS:
Palm Springs is an internationally known destination resort which attracts visitors due to
its unique natural beauty, climate, variety of hotels and charming downtown shopping
district. The City's image, including the aesthetic beauty of its downtown shopping
district, is a critical factor in the community's success as a destination resort.
The uncontrolled placement of news racks in and about the public rights-of-way creates
visual clutter which detracts from the appearance of streets, sidewalks, and adjacent
business. Moreover, the uncontrolled proliferation of news racks presents an
inconvenience and danger to the safety, health and welfare of persons using such
rights-of-way, including but not limited to pedestrians, persons entering and leaving
vehicles and buildings, and persons performing essential utility, traffic control, and
emergency services.
Freedom of speech and press protects not only the right to publish, but also the right to
distribute and circulate. The California Supreme Court has held that "the right to
distribute newspapers and other periodicals on the public street lies at the heart of our
constitutional guarantees of freedom of speech and freedom of press." This right to
distribute also includes the right to distribution by means of newsracks.
First Amendment rights are not absolute, however, and the government may place
reasonable time, place, and manner restrictions on news racks. The California
Supreme Court has also stated, "localities retain authority to impose reasonable 'time,
place and manner' regulations on the use of news racks, so as to protect legitimate
state interests while preserving First Amendment rights." In order to assert a valid time,
place and manner restriction, the government must establish that the regulation: (1)
serves a significant governmental interest; (2) is narrowly tailored to further the public's
interest; (3) is content-neutral; and (4) leaves open ample alternative channels of
communication.
The Mainstreet Merchants Association is concerned about the proliferation of news
racks throughout the downtown area. Staff shares this concern and presented
extensive evidence in the form of photographs and other graphics at a Council meeting
earlier this year. Staff's presentation demonstrated that there is a proliferation of
newsracks in the downtown; that many of these newsracks are poorly constructed and
maintained; that many of these newsracks interfere with pedestrian use of the
sidewalks; that the newsracks interfere with visibility and line of sight of the traveling
public; that many newsracks unreasonably inhibit entry, passage and/or departure of
vehicles to and from public rights of way; and that the number, location, and general
appearance of the newsracks are unsightly and a significant aesthetic detriment to the
downtown are of the City. Moreover, since the City is an extremely popular tourist
destination with unusually high pedestrian and vehicular traffic volumes, there is a
substantial governmental interest in promoting the public health, safety, welfare, and
City Council Staff Report
December 7, 2005 -- Page 3
Newsrack Ordinance
convenience by ensuring that persons may reasonably use the public streets,
sidewalks, rights-of-way, and other public property without interference with such use.
Staff believes that the current newsrack situation in the downtown substantially
interferes with the public's use of the streets, sidewalks, rights-of-way, and public
property.
The reasonable use of news racks within the public rights-of-way and other public
property can be accomplished without interfering with the normal and reasonable use of
these areas by the public, all while still providing ample access to the news.
In response to Council direction earlier this year, staff has prepared an comprehensive
ordinance that essentially amends the City's current newsrack regulations, updates
these regulations, and provides for an additional regulatory program for the downtown.
The ordinance accomplishes the following:
• Updates and revises the City's current regulatory program, updates the
basic standards, including maintenance requirements, and imposes an
improved regulatory program for issuance of permits, imposition of
insurance requirements, and enforcement.
• Establishes special requirements for newsracks in the Downtown; namely,
limits newsrack placement to 20 locations; establishes a maximum of six
newsracks (divided in two groups of three) at any one location; and
requires each newsrack to be painted white.
• Establishes a priority for the issuance of permits dependent upon
frequency of publication and whether the publication is adjudicated for the
publication of notices under law.
• Provides for additional and improved enforcement techniques, including
making the installation or maintenance of a newsrack in violation of the
ordinance a nuisance subject to an abatement process.
• Requires blinder racks for publications that contain "harmful matter" as
that term is defined under law.
The Assistant City Manager and the City Attorney have had several meeting with
representatives of several newspaper publications. The ordinance reflects changes and
approaches that these members of the publishing industry requested and negotiated. It
is staffs understanding that the industry supports this ordinance. The ordinance has
been presented to Mainstreet Merchants Association and it staffs understanding that
Mainstreet also supports the ordinance.
City Council Staff Report
December 7, 2005-- Page 4
Newsrack Ordinance
FISCAL IMPACT: IFinance Director
It is anticipated that any additional cost of enforcement will be orne by permit fees.
Troy tzlaff, f ia t City Manager David H. Ready, City M ager
Douglas Q. Holland, City Attorney
Attachment:
Proposed Ordinance
ORDINANCE NO. A�
AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,
REPEALING SECTIONS 4.16.461 THROUGH 14.16.466 OF,
ADDING SECTION 11.72.111 AND 14.16.105 TO, AND ADDING
CHAPTER 14.26 TO, THE PALM SPRINGS MUNICIPAL CODE,
RELATING TO THE ESTABLISHMENT OF STANDARDS FOR
NEWSRACKS AND PUBLICATION VENDING MACHINES
City Attorney Summary
This ordinance amends existing provisions of the City's Municipal
Code relating to newsracks and publication vending devices by re-
codifying and amending the these provisions as a separate Chapter in
the Municipal Code. This ordinance provides expanded
comprehensive standards and requirements within the entire City as
well as additional design and location requirements for the Downtown
area of the City.
The Council of the City of Palm Springs finds:
A. The City Council of the City of Palm Springs enacted in 1976 Palm Springs
Municipal Code Sections 14.16.461 - 14.16.466, establishing certain standards for
publication vending machines.
B. The City Council finds and declares that the lack of enforcement of its current
regulations for newsracks and similar newspaper and vending devices within the City
and the lack of regulations for certain aspects of such newsracks have allowed some
newsrack proprietors to continue using newsracks and similar devices which are
physically deteriorated and otherwise aesthetically displeasing and in some instances
constitute a threat to public health, safety and welfare.
C. The City Council finds and declares that its current regulations for newsracks
within the City improperly allow the proliferation of newsracks and, in some instances,
constitute a threat to public health, safety and welfare by impeding pedestrian traffic,
interfering with ingress and egress to and from buildings and impeding vehicles and
public transportation.
D. The City Council further finds that additional standards and regulations for
newsracks are necessary and desirable for the preservation and enhancement of the
appearance of the City's unique and charming downtown shopping district and the
improvement of pedestrian and traffic safety in the downtown by maintaining clearer
sight lines for both pedestrians and drivers.
E. The City Council desires to adopt this ordinance to enact updated and more
thorough regulations for newsracks.
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NOW THEREFORE, the City Council of the City of Palm Springs ordains:
SECTION 1. Section 11.72.111 is added to the Palm Springs Municipal Code to read:
11.72.111 Newsracks Violations.
Any newsrack or publication vending device installed or maintained in violation of
Chapter 14.26 is a public nuisance.
SECTION 2. Section 14.16.105 is added to the Palm Springs Municipal Code to read:
114.16.105 Conflicts with Existing Facilities, improvements, and
Encroachments.
The applicant shall design, plan, install, and maintain the encroachment in such a
manner that the applicant's encroachment will not unreasonably interfere with existing
facilities, improvements, and encroachments within the public right of way. The
determination of whether an encroachment unreasonably interferes with an existing
facility, improvement, or encroachment will be made by the director. The applicant's
encroachment shall not be constructed, installed, or maintained in a manner that would
make any existing encroachment non-conforming under the standards and
requirements of this Title.
SECTION 3. Sections 14.16.461 through 14.16.466, inclusive, of the Palm Springs
Municipal Code are repealed. In repealing these specific provisions, the Council finds
that the content of these provisions have been appropriately amended, renumbered,
and incorporated as a part of the provisions of Section 3 of this Ordinance.
113ECTION 4. Chapter 14.26 is added to the Palm Springs Municipal Code to read:
Chapter 14.26
Newsracks and Publication Vending Devices
Sections:
14.26.010 Intent.
14.26.015 Purpose.
14.26.020 Definitions.
14.26.030 Installation and Newsrack Standards.
14.26.040 Special Requirements for Newsracks in the Palm Springs Downtown Area.
'14.26.050 Permit Required.
'14.26.060 Time for Issuance of Permits.
'14.26.070 Priority for Permits.
'14.26.080 Permit Renewal.
14.26.090 Maintenance Standards.
'14.26.100 Newsracks in Violation of this Chapter.
14.26.110 Revocation of Permit.
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14.26.120 Nuisance and Abatement.
14.26.130 Removal of Newsracks for Public Purpose.
14.26.140 Binder Racks Requirement
14.26.150 Nonconforming Abatement Period for Existing Racks.
14.26.160 Business License.
14.26.170 Appeals.
114.26.010 Intent.
A. The City of Palm Springs is an internationally known destination resort which
attracts visitors due to its unique natural beauty, climate, variety of hotels and charming
downtown shopping district. Maintenance of the special character of its shopping areas
is vital to the City's success.
B. It is in the public interest to establish regulations that balance the right to
distribute information through newsracks with the right of persons to reasonably access
and use public property. The City Council wishes to provide for the placement of
newsracks, strands, containers and similar newspaper and publication vending
machines to provide a forum for communication while preserving the convenience of
those using the public rights-of-way. Newsracks placed and maintained on public
property, absent some reasonable regulation, may unreasonably interfere with the use
of such property, and may present hazards to persons or property. The regulations
contained in this Chapter are in lieu of the encroachment permit regulations in Chapter
'14.16 which would otherwise govern such structures.
C. The public health, safety, welfare, and convenience require that: interference with
vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight
distance and views of traffic signs and street-crossing pedestrians be eliminated;
damage done to sidewalks or streets be minimized and repaired; the good appearance
of public property be maintained; trees and other landscaping be allowed to grow
without disturbance; access to emergency and other public facilities be maintained; and
ingress and egress from, and the enjoyment of store window displays on, properties
adjoining public property be protected.
D. The City Council of the City of Palm Springs finds that newsracks, stands,
containers, and similar newspaper and publication vending devices have proliferated
and increased in certain areas of the City to the extent that they are producing visual
clutter and degrading the quality of these resort and shopping areas.
E. Moreover, the City of Palm Springs finds that the City is an extremely popular
tourist destination with unusually high pedestrian and vehicular traffic volumes. The
proliferation of newsracks in certain areas of the City creates undue interference with
pedestrian and traffic circulation and increased safety hazards. For these reasons, the
City Council finds that it is necessary to specifically limit the number of locations and
spaces for newsracks and other publication vending devices.
F. The regulations on the time, place and manner of the placement, location and
maintenance of newsracks set forth in this chapter are carefully tailored to ensure that
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the purposes stated in this section are implemented while still providing ample
opportunities for the distribution of news to the public.
14.26.015 Purpose.
A. 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
newsracks on public rights-of-way so as to:
1. Provide for pedestrian and driving safety and convenience;
2. Prevent unreasonable interference with the flow of pedestrian or vehicular
traffic including ingress into, or egress from, any residence, place of business, or
from the street to the sidewalk, by persons exiting or entering parked or standing
vehicles;
3. Provide reasonable access for the use and maintenance of sidewalks,
poles, posts, traffic signs or signals, hydrants and mailboxes, and access to
locations used for public transportation services;
4. Reduce visual blight on the public rights-of-way and protect the aesthetics
of store window displays, public landscaping and other improvements;
5. Maintain and protect the value of surrounding properties;
6. Reduce exposure to the City to personal injury or property damage claims
and litigation;
7. Protect the right to distribute information which is protected by State and
Federal constitutions through the use of newsracks.
13. It is not the intent of this Chapter to in any way discriminate against, regulate, or
interfere with the publication, circulation, distribution, or dissemination of any
newspapers.
14.26.020 Definitions.
For the purpose of this Chapter, certain words and phrases are defined in this Section,
unless it is apparent from the context that a different meaning is intended:
"Approved newsrack base" means a newsrack base which conforms to specifications
approved by the Director, as defined below. All pedestals shall be at least three (3)
inches in height.
"Blinder rack" means a newsrack that is constructed or modified so that no less than the
bottom two-thirds of the printed material is obscured from view.
"Block" means one side of a street between two (2) consecutive intersecting streets.
"Business day" shall mean Monday through Friday, inclusive, of every week excepting
holidays for which the City is closed to official business.
"Daily publication" means a publication with no fewer than five (5) new editions per
week.
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"Director" means the City Manager or the City Manager's designee. The Director is
hereby designated as the administrative enforcement official for this Chapter and may
issue a compliance order.
"Harmful matter" has the meaning set forth in Section 313(a) of the California Penal
Code, or in any successor provision.
"High density newsrack area" means a block in which it is likely that there will be more
applications for newsracks than there will be permits issued for newsracks under the
standards set forth in this chapter.
"Newsrack" means any approved self-service or coin-operated box, container, storage
unit, or other dispenser or publication vending device of any kind installed, used, or
maintained for the display and distribution of newspapers or other periodicals.
"Newsrack space" means the surface area in the public right-of-way sufficient to
accommodate a newsrack.
"Parkway" means that area between the concrete sidewalk and the curb of any street
surfaced with interlocking concrete pavers. Where no interlocking concrete pavers
.'parkway" exist, the parkway is that area between the property line/right-of-way line and
the curb.
"Palm Springs Downtown Area" means that portion of the City within the boundaries of
both sides of Alejo Road on the north, Ramon Road on the South, Belardo
Road/Museum Drive on the West and Indian Canyon Drive on the East. This area
includes both sides of Palm Canyon Drive, Amado Road, Andreas Road, Tahquitz
Canyon Way, Arenas Road and Baristo Road within such boundaries.
"Permit" means a permit issued pursuant to this chapter which allows for the placement
of a newsrack within a specifically designated portion of a public sidewalk or parkway.
"Person" means any individual, firm, company, corporation or other organization.
"Public sidewalk" means any surface dedicated to the use of pedestrians by license,
easement, and operation of law or by grant to the city.
"Public street" means all of that area dedicated to public use for public street and
sidewalk purposes and includes, but is not limited to, roadways, parkways, alleys,
service drives and sidewalks.
"Roadway" means that portion of a public street improved, designed or ordinarily used
for vehicular travel.
"Shared permit" means a permit issued to a person as a primary applicant providing for
the sharing of a newsrack among specified publications as long as all of the standards
of this chapter are otherwise met. The primary applicant shall be considered the
permittee for all purposes under this chapter except as explicitly set forth in this chapter.
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14.26.030 Installation and Newsrack Standards.
Any newsrack which, in whole or in part, rests upon, in or over any public sidewalk,
parkway or similar public right-of-way shall substantially comply with the following:
A. Newsracks shall not project onto, into, or over any part of the roadway of any
public street and any newsrack 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 inches from the wall.
B. Newsracks shall not be chained, bolted, or otherwise attached to any private
property without the consent of the property owner and newsracks shall not be chained,
bolted, or otherwise attached to any public property without the express approval of the
Director.
C. Newsracks may be placed immediately adjacent to one another, provided that no
more than 3 newsracks shall be placed next to each other. Each group of attached
newsracks shall be separated by eighteen (18) inches or more. The City Engineer shall
determine, consistent with the purposes of this Chapter, and the standards herein, the
number of newsracks that can be bolted, attached or grouped in a particular location on
a location by location basis.
D. Newsracks shall not be placed, installed, used, or maintained in a manner that
endangers the safety of persons or property, or in a manner that unreasonably impedes
or interferes with 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. In
furtherance of these requirements, a newsrack which in whole or in part rests upon, in,
or over any sidewalk or parkway or other public property shall not be placed, installed,
used, or maintained:
1. Within ten (10) feet of any marked crosswalk;
2. Within fifteen (15) feet of the curb return of any unmarked crosswalk;
3. Within ten (10) feet of any fire hydrant, fire call box, traffic signal controller,
police call box or other emergency facility;
4. Within ten (10) feet of any driveway or alley approach;
5. Within five (5) feet ahead and thirty-five (35) feet to the rear of any sign
marking a designated bus stop;
6. Within six (6) feet of any bus bench;
7. Within three (3) feet of any utility meter, manhole, service box, parking
meter, street light pole or other utility;
8. At any location whereby the clear space for the passageway of
pedestrians would be reduced to less than six (6) feet in the Palm Springs
Downtown Area and less that four (4) feet for the all areas of the City outside of
the Palm Springs Downtown Area;
9. Within three (3) feet of any permitted sidewalk dining area or area
improved with lawn, flowers, shrubs, or trees or within three (3) feet of any
display window of any building abutting the sidewalk or parkway or in such
manner as to impede or interfere with the reasonable use of such window for
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display purposes unless an engineering study in a high density newsrack area
concludes that a minor variance is consistent with the purposes of this Chapter;
10. Within the boundary of a valet parking zone or loading/unloading zone;
11. At any location where street furniture may not generally be installed
because of potential harm to subterranean structures;
12. Within 250 feet of another newsrack containing the same newspaper or
periodical except where separated by a street or comer or 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) a newspaper demonstrates
that it publishes more than one edition of the newspaper for sale at the same
time; and
13. Facing another newsrack, divided only by the width of a public sidewalk or
public pedestrian wall.
E. 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.
F. Newsracks shall not carry any advertising and shall not be used for advertising
signs or publicity purposes, except:
1. The name of the newspaper or periodical being dispensed on the face of
the newsrack or the side of the newsrack; and
2. Rack cards contained in card pans, limited solely to the display, sale, or
purchase of the newspaper or periodical being dispensed, which are attached to
and located on the front or back of the newsrack and do not exceed fifteen (15)
inches in height and twenty-two (22) inches in length.
G. Newsracks shall be kept clean and maintained in good working order at all times,
freshly painted and with unbroken hoods. Newsracks shall be regularly serviced so that
the each publication is reasonably available consistent with the publication dates and
practices of the respective publisher.
H. Frames and racks for newsracks shall be: (1) at least forty-eight (48) inches in
height and shall not exceed fifty-two (52) inches in height, including the base or
pedestal and any coin mechanism; (2) at least twenty (20) inches and no more than
thirty (30) inches in width: and at least twelve (12) inches and no more than twenty (20)
inches in thickness. The top of the coin mechanism shall not be more than six (6) inches
above the top of the newsrack. Each newsrack shall be installed on a base or pedestal
which shall be at least three (3) inches in height. Mounts shall be bolted in place in
accordance with specifications provided by the Director and shall be painted flat black.
,J. The design of a newsrack shall not create a danger to the persons using the
newsrack in a reasonably foreseeable manner. All newsracks shall comply with all
applicable federal, state, and local laws and regulations including, without limitation, the
Americans with Disabilities Act and other laws and regulations relating to barrier-free
design.
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K Newsracks shall conform to such other specifications as may be required or
specified by the Director.
114.26.040 Special Requirements for Newsracks in the Palm Springs Downtown
Area.
A. The City Council finds that special circumstances require special design,
placement, and other standards for newsracks located in the Palm Springs Downtown
Area. The City Ccouncil finds that the Palm Springs Downtown Area has become very
congested, with street furniture and other sidewalk encroachments, automobiles, and
other means of travel competing with pedestrians for the public space; and that special
standards for the design and location of newsracks, which may include a program for
the furnishing and installation of street furniture, and the enforcement of existing
regulations for other encroachments in the Palm Springs Downtown Area, will help to
create a sense of order out of chaos and provide a friendly environment for those who
come to the area.
13. Notwithstanding any contrary provisions in this Chapter, the following special
standards shall apply to newsracks and the placement of publications in newsracks
within the Palm Springs Downtown Area:
1. Newsracks shall be permitted at only 20 locations as indicated or
otherwise specified by the Director on a map of the Palm Springs Downtown
Area on file in the Office of the City Clerk. The Director may increase or
decrease the number of locations, depending upon seasonal, event, or demand
requirements, in order to implement the results or recommendations of a location
study utilizing the standards and requirements set forth in this Chapter.
2. Each location shall accommodate up to a maximum of 6 newsrack
spaces. The 6 newsrack spaces shall be divided into 2 groups with a maximum
of 3 newsrack spaces in each group. Each group shall be separated by eighteen
(18) inches or more.
3. Newsracks shall be painted gloss white on all sides and the mount shall
be painted gloss black.
14.26.050 Permit Required
A. It is unlawful to install, place, maintain, or cause to be placed, installed, or
maintained a newsrack on, or projecting on, any public property without first receiving a
permit from the Director and unless such newsrack is in compliance with the provisions
of this Chapter; provided that, except for newsracks proposed to be located within the
Palm Springs Downtown Area, a newsrack located on public property as of May 11,
2005, may continue to remain in such location, under the following conditions:
1. The newsrack is in compliance with all of the requirements for the
installation and maintenance of newsracks contained in this Chapter;
2. A permit application for such newsrack has been filed as of that date with
the city engineer by the duly authorized representative of both the publisher and,
if applicable, any independent distributor authorized to service the publisher's
newsrack; and
3. A permit pursuant to such application has not been denied with respect to
any such newsrack.
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If a permit application has been not been filed by that date by the duly authorized
representative of both the publisher and, if applicable, any independent distributor
authorized to service the publisher's newsrack, or such permit is denied, such newsrack
shall be deemed to be in violation of the provisions of this Chapter.
B. Applications for a newsrack permit for one or more newsracks shall be made to
the Director on a form prescribed by the Director, which shall include, without limitation:
1. The name, street and mailing address, and telephone number of the
applicant, which hall be the duly authorized representative of both the publisher
and, if applicable, any independent distributor authorized to service the
publisher's newsrack for which the permit is sought.
2. The name, street, and mailing address and telephone number of the
distributor or other responsible person whom the city may notify or contact at any
time concerning the applicant's newsrack(s).
3. The number of proposed newsracks and a description of the exact
proposed location (including a map or site plan, drawn to scale, with adequate
locational information to verify conformance with this chapter) and the proposed
means of affixing each proposed newsrack;.
4. A description of each proposed newsrack, including its dimensions, the
number of publication spaces it will contain, a photograph and/or model number
of the type of newsrack being proposed; and whether it contains a coin-operated
mechanism.
5. The name and frequency of publication of each publication proposed to be
contained in each newsrack.
6. A statement in a form approved by the City Attorney signed by the
applicant that the applicant agrees to indemnify, defend, and hold harmless, the
City and its representatives from all claims, demands, loss, fines, or liability to the
extent arising out of or in connection with the installation, use, or maintenance of
any newsrack on public property by or on behalf of any such person, except such
injury or harm as may be caused solely and exclusively by the negligence of the
City or its authorized representatives.
7. A statement in a form approved by the City Attorney signed by the
applicant that the applicant agrees, upon removal of a newsrack, to repair any
damage to the public property caused by the newsrack or its removal.
8. Proof of insurance acceptable to the Director showing that the applicant is
covered by a policy of general liability insurance, naming the City as an additional
insured, in an amount, form, and coverage requirements as may be specified
from time to time by the Director for any injury to persons and/or damage to
property by reason of installation, use, and maintenance of the newsrack on
public property. The applicant shall provide and keep in force that policy of public
liability insurance during such time as it continues to operate any newsrack under
the terms of this Chapter. If the insurance is canceled at any time during the
term of the permit, it shall be grounds for revocation of the permit.
9. An agreement in a form approved by the City Attorney that the applicant
agrees to conform to the requirements of this Chapter.
10. Payment of any processing fee, as may be established by resolution of the
City Council.
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D. In the case of a shared permit, all of the information set forth in Subsection C of
this Section must be supplied for all of the publications proposed to be sharing the
newsrack. In addition, the primary applicant shall assume responsibility and authority for
complying with all of the standards of this chapter for the shared permit, and all
publications sharing the newsrack must assent to the assumption of responsibility and
authority by the primary applicant.
E_. Applications will not be accepted for geographic locations which are then
unavailable due to construction activity.
14.26.060 Time for Issuance of Permits.
A. A permit shall be granted, denied or granted conditionally within twenty (20)
business days after a completed application is filed, unless the study described in
;iection 14.26.070-A is undertaken, in which case it shall be granted, denied, or granted
conditionally within twenty (20) business days of the Director's approval of the study by
the Director.
B. The Director shall formulate and administer an accelerated implementation
program that will commence on the effective date of this Chapter and end ninety (90)
calendar days thereafter. Fees for the accelerated implementation program shall be
established by resolution of City Council and shall be in an amount that does not
exceed the cost of the administration and implementation of the program. All
applications received during the accelerated implementation program shall be deemed
filed as of the last day of the accelerated implementation program, so that priority will
not be given for any location based upon the time the application was submitted, and
shall be granted, denied, or conditionally granted within the time frames specified in
Subsection A of this Section, unless a study pursuant to Section 14.26.070-A is
undertaken, in which case it shall be granted, denied, or granted conditionally within
twenty (20) business days of the Director's approval of the study. The Director shall
give notice of the commencement of the accelerated implementation program by
publication once in a newspaper of general circulation in the City and shall endeavor to
mail notice thereof to the owners and/or distributors of newsracks existing on the
effective date of this Chapter; provided, however, that failure to provide mailed notice to
any person shall not invalidate any action taken pursuant to this Section or this Chapter.
'14.26.070 Priority for Permits
A. There is a rebuttable presumption created by this Section that, within one block,
18 is the maximum number of newsracks which can be accommodated in a block under
the standards of Section 14.26.030. The Director, however, may establish a number
greater or less than 18 in any specific block by conducting a location study utilizing the
standards and requirements set forth in this Chapter . Such a study shall be conducted
in any areas in which the Director reasonably identifies as a high density newsrack area
and where such areas are identified within sixty (60) days of the effective date of this
Chapter, such studies shall be completed as a part of the accelerated implementation
program.
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B. If a permit application for a specific geographic location on a block is received
and such geographic location complies with the standards set forth in Section 14.26.030
and, all other requirements of this Chapter are met, applications shall be approved on a
first come, first served basis, except that all applications accepted during the
accelerated implementation program, described in Section 14.26.060(A), shall be
deemed pending as of the same date and time. If there is another permitted newsrack
at that location, then the permit application shall be approved for a location on that block
which complies with the requirements of this Chapter which is in closest proximity to the
requested location and for which a permit has not been previously granted. If there is
more than one application for a specific geographic location pending, then the priority
for granting the applications shall be as set forth in Subsection C of this Section. The
priorities for granting applications shall not displace any previously permitted
newsracks.
C. If permit applications in excess of the number of potential locations which are
available on a block are pending, then the priority for granting applications shall be as
set forth in this Subsection. No applicant may be granted priority for a newsrack location
for a publication on a block for which that specific publication has already been granted
a permit or is part of a shared permit.
1. First priority shall be given to newsracks used for the sale of daily
publications which have been adjudicated to be newspapers of general
circulation for Riverside County, pursuant to the procedure set forth in Title 1,
Division 7, Chapter 1 of the California Government Code.
2. Second priority shall be given to newsracks used for the sale of daily
publications which have not been adjudicated to be newspapers of general
circulation for Riverside County.
3. Third priority shall be given to newsracks used for the sale of weekly
publications which have been adjudicated to be newspapers of general
circulation for Riverside County, pursuant to the procedure set forth in Title 1 ,
Division 7, Chapter 1 of the California Government Code.
4. Fourth priority shall be given to newsracks used for the sale of weekly
publications which have not been adjudicated to be newspapers of general
circulation for Riverside County.
In the event that there is a conflict between newspapers within the same priority seeking
the same location, or within groups of applicants not entitled to priority, and there are
insufficient newsrack spaces remaining to accommodate the conflicting newspapers
after first filling as many spaces as possible by utilizing the criteria set forth above,
permits shall be granted to the maximum allowable in a block by the drawing of lots in a
process established by the Director. Such drawing of lots shall be open to the public at
a time and date designated by the Director.
D. It shall be a condition of any permit granted according to a priority set forth in this
section to maintain editions in the newsrack according to the frequency for which the
priority was given.
'14.26.080 Permit Renewal
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If a permittee is in compliance with this Chapter, a permit will be automatically renewed
for each successive calendar year by timely payment of the renewal fee established by
resolution of City Council and filing of a complete city renewal application at least sixty
(60) days prior to the expiration of the current permit.
14.26.090 Maintenance Standards.
A. Every person issued a permit for a newsrack under this Chapter shall observe
and comply with the following standards:
1. Each newsrack shall be maintained and serviced so that it is reasonably
free of:
a. General dirt and grease;
b. Chipped, faded, peeling, and cracked paint, on all visible painted
areas;
C. Rust and corrosion on all visible unpainted metal areas;
d. Cracks, dents, blemishes, and discoloration in the clear plastic and
glass parts, if any, through which publications are viewed;
e. Tears, peeling, or fading in the paper or cardboard parts and
inserts; and
f. Broken and misshapen structural parts.
2. Each newsrack, including any coin-return mechanism, shall be
mechanically operable.
3. Newsracks shall contain current editions of the publication for which the
permit was issued and new editions placed in the newsrack at no less than the
frequency for which any priority was given for a permit in that location.
4. No newsrack shall be used for advertising signs or publicity purposes
other than that directly related to the display, sale or purchase of the publication
sold therein.
5. No newsrack shall remain empty for a period of fifteen (15) consecutive
days or longer.
6. No newsrack may contain a publication other than the one for which the
permit was issued. The primary applicant for a shared permit may add or remove
publications from a shared permit or permit renewal by making application to the
Director and providing the information set forth in Section 14.26.050.
7. Each newsrack will have the name, address and telephone number of the
person who owns the newsrack affixed thereto in a place where it may be seen
by anyone viewing the newsrack.
IB. When use of a newsrack is permanently discontinued, it shall be removed and
the location restored to its previous condition, including, but not limited to, repair of any
portion of the sidewalk or parkway damaged by the newsrack or its removal and
according to specifications provided by the Director.
C. Except as set forth herein, permits shall not be sold or transferred other than as a
part of the sale of all of the assets of the permittee. Any other attempted sale or transfer
shall void the permit.
14,26.100 Newsracks in Violation of this Chapter
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Upon determination by the Director that a newsrack for which a person has been issued
a permit has been installed, used, or maintained in violation of the provisions of this
Chapter, including, but without limitation, failure to observe any term or condition of the
permit or not meeting conditions related to priority for the location of any permit, an
order to comply may be issued to the person who holds the permit. A permit holder
may appeal an order of the Director pursuant to the provisions of Section 14.26.170. If
a permit holder fails to comply with an order of the Director the Director may commence
the revocation process provided in Section 14.26.110. The Director shall not enforce
am order to comply while an appeal is pending.
'14.26.110 Revocation of Permit
Whenever any permit holder fails to correct three or more orders to comply, the
Director, after giving the permit holder ten (10) days' notice in writing specifying the time
and place of hearing and requiring the permit holder to show cause why the permit
should not be revoked, may suspend or revoke any one or more of the permits held by
the permit holder. The Director shall give the permit holder written notice of the
suspension or revocation of such permit or permits.
'14.26.120 Nuisance and Abatement
A. Any newsrack or any material in a newsrack placed, installed, or maintained in
violation of this Chapter shall constitute a public nuisance and may be abated in
accordance with applicable provisions of law and this Code.
13. In addition to the enforcement remedies available to the city, which are set forth
in Chapter 1 of this Code, any newsrack placed, installed, or maintained in violation of
this Chapter may be removed by the City, subject to the notice and hearing procedures
set forth in this Subsection.
1. Before removal of any newsrack, the code enforcement officer shall notify
the owner or distributor of the violation. Written notification by first class mail to
the address or addresses shown on the offending newsrack shall constitute
adequate notice. The code enforcement officer may, but need not, affix an
additional notice tag onto the offending newsrack. If no identification is shown on
the newsrack, posting of the notice on the newsrack alone shall be sufficient. The
notice shall state the nature of the violation, shall specify actions necessary to
correct the violation, and shall give the owner or distributor ten business days
from the date appearing on the notice to either remedy the violation or to request
a meeting before the chief building official or designee of the chief building
official, who shall not be the code enforcement officer. The date on the notice
shall be no earlier than the date on which the notice is mailed or affixed to the
newsrack, as the case may be.
2. Any owner or distributor notified under paragraph 1 may request a meeting
with the Director by making a written request therefor within ten business days
from the date appearing on the notice. The meeting shall be informal, but oral
and written evidence may be given by both sides. The Director shall give his or
her decision within ten business days after the date of the meeting. Any action by
the City to remove the newsrack shall be stayed pending the written decision of
the chief building official or designee following the meeting.
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3.The city may remove and impound a newsrack or newsracks in accordance
with this Subsection following the written decision of the Director upholding the
determination of a violation, or if the owner or distributor has neither requested a
meeting nor remedied the violation within ten business days from the date on the
notice. An impounded newsrack shall be retained by the City for a period of at
least thirty calendar days following the removal, and may be recovered by the
permittee upon payment of a fee as set forth by the Council by resolution. An
impounded newsrack and its contents may be disposed of by the city after thirty
calendar days.
4.Notwithstanding the provisions of paragraphs 1 and 2 of this Subsection, prior
notice and an opportunity to be heard shall not be required prior to removal of
any newsrack that is installed or maintained in such a place or manner as to
pose an immediate or clear and present danger to persons, vehicles or property
or any newsrack that is placed in any location without a permit. In such case, the
city shall proceed in the following manner:
a. Within the next working day following removal, the Director shall
notify by telephone the permittee or, in the case of an unpermitted
newsrack, the owner of the newsrack or a person whose name is
shown on the required identification. Within three business days, the
chief building official or designee shall send written confirmation of
the telephoned notice. The written confirmation shall contain the
reasons for the removal and information supporting the removal,
and shall inform the recipient of the right to request, in writing or in
person, a post-removal meeting within four business days of the
date of such written notice.
b. Upon timely request, the Director shall provide a meeting within
forty-eight hours of the request, unless the requesting party agrees
to a later date. The proceeding shall be informal, but oral and written
evidence may be given by both sides. The Director shall give his or
her decision in writing to the requesting party within forty-eight hours
after such meeting. If the Director finds that the removal was proper,
he or she shall notify the requesting party to pay any applicable
penalties and costs and recover the newsrack. If the Director finds
that the removal was improper and that placement of the newsrack
was lawful, the Direoctor shall order that the newsrack be released
and reinstalled without charge.
G. If the owner of an unpermitted rack cannot be determined and the
rack does not contain the required identification, notice of the
removal shall not be required and the newsrack shall be treated as
abandoned property.
14.26.130 Removal of Newsracks for Public Purpose.
When the Director determines that it is necessary to remove a newsrack for the
construction or installation of public improvements, an order to comply may be issued
for the purpose of suspending or terminating the newsrack permit. The person who
holds the permit for the newsrack shall be entitled, on permittee's election, to either a
pro-rata refund of fees or to a new permit, without additional fee, in the original location
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or as close to the original location as the standards set forth in this chapter allow. All
other costs of relocating the newsrack shall be borne by the owner.
14.26.140 Blinder Racks Requirement.
A. No person shall exhibit, display, or cause to be displayed, harmful matter as such
term is defined in Section 313 of the California Penal Code, as may be amended from
time to time, in any newsrack located on a public sidewalk or public place unless blinder
racks have been installed so that the lower two-thirds of the matter is not exposed to
public view.
13. Any publication offered for sale or distribution 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:
1. 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
2. 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 or
effect sexual arousal, gratification, or affront; or
3. 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 Subsection, 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 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.
'14.26.150 Nonconforming Abatement Period for Existing Racks.
A nonconforming existing newsrack which does not conform to the installation, location,
or color standards contained in this Chapter shall be permitted to continue for a period
of one hundred and twenty (120) days after the effective date of this Chapter, provided
that the newsrack is used in a manner which is consistent with this Chapter and the
owner of the newsrack applied for and maintains a valid permit and business license.
Any newsrack that does not conform to the installation, location, or color standards
within one hundred and twenty (120) days after the effective date of this Chapter shall
be converted or removed before the one hundred and twenty first (121') day after the
effective date of this Chapter, unless the owner (1) demonstrates to the satisfaction of
the Director that the owner has made a substantial, good faith effort to bring all of the
owner's newsracks into conformance with the provisions of this Chapter and (2)
complies with a schedule of compliance approved by the Director A nonconforming
existing newsrack which does not conform to the maintenance standards contained in
this Chapter shall not be permitted to continue on or after the effective date of this
Chapter. The Director shall give written notice of nonconformance to all of the owners
of non-conforming newsracks, to the extent that the Director has information identifying
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the owners of such newsracks. Any nonconforming newsrack which remains after the
dates specified in this Section shall be deemed a public nuisance and shall be abated
accordingly to the procedures provided in this Code.
14.26.160 Business License.
A permit issued under this chapter shall not substitute for any business license
otherwise required under Palm Springs Municipal Code Section 3.48.010.
14.26.170 Authority of City Manager to Adopt Regulations
The Director is authorized to adopt, implement, and enforce reasonable standards and
regulations consistent with the provisions of this Chapter and predicated upon street
and pedestrian traffic requirements, access to parking places and facilities, and to
preserve the public safety, health and welfare. This authority includes the ability to
promulgate additional standards for uniformity of design and appearance of machines
for which permits will be issued, in an effort to minimize adverse aspects and other
detriments to the public interest.
14.26.170 Appeals.
Any person or entity aggrieved by a finding, determination, notice, action or failure to act
taken under the provisions of this Chapter with respect to issuing, revoking or
enforcement action under a permit under this Chapter, only, may appeal such finding,
determination, notice, action or failure pursuant to the appeal process specified in
Chapter 11.72 of this Code.
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SECTION 4. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of law and this Ordinance shall take
effect thirty (30) days after passage.
PASSED AND ADOPTED THIS DAY OF 12005.
AYES:
NOES:
ABSTAIN:
ABSENT:
RONALD ODEN, MAYOR
ATTEST:
,James Thompson, City Clerk
APPROVED AS TO FORM:
Douglas Holland, City Attorney
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