HomeMy WebLinkAboutCC AG PKT 2004-01-12 #L AGENDA REPORT
Date January 12, 2004
TO: Mayor and Members of the City Council
ATTENTION: John B. Bahorski, City Manager
FROM: Lee Whittenberg, Director of Development Services
SUBJECT: Second Reading - Ordinance No. 1510 Regarding
Newsracks
SUMMARY OF REQUEST: <
Council to hold second reading and adopt Ordinance No. 1510 approving new design, location
and permitting requirements for newsracks located on public property.
BACKGROUND:
Council considered this matter at their December 8, 2003 meeting and introduced Ordinance No.
1510. It is now appropriate to hold 2 reading for adoption of the ordinance.
Staff will return to the City Council on January 26 with a Staff Report and proposed Resolution
to establish the necessary permit. Appeal and impound fees that will necessitated by adoption of
Ordinance No. 1510.
FISCAL IMPACT:
No impact.
RECOMMENDATION:
Upon motion of the consent calendar, Council hold second reading and adopt Ordinance No.
1510, An Ordinance of the City of Seal Beach Amending Chapter 11B of the Code of the City of
Seal Beach Pertaining to Newsracks.
AGENDA ITEM ,L
Z:\My Documents \ORD \Newsrack Ordinance.2nd Reading.CCSR doc \LW\01 -07-04
Adoption of Ordinance No. 1510 re: Newsracks
City Council Staff Report
January 12, 2004
. NOTED A ' ' PROVE .
• y ,
/e Whittenberg John Bahorski
i i rector of Development Servi Ci anager
Attachment: Ordinance No. 1510, An Ordinance of the City of Seal Beach Amending Chapter
11B of the Code of the City of Seal Beach Pertaining to Newsracks
Newsrack Ordinance.2nd Reading.CCSR 2
PLANNING
DEPARTMENT
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Memorandum
To: Mayor and Members of the City Council
Attention: John B. Bahorski, City Manager
From: Lee Whittenberg, Director of Development Services f
Date: January 12, 2004
SUBJECT: AGENDA ITEM L , - ORDINANCE NO. 1510,
PROVISION OF CORRECTED ORDINANCE FOR
ADOPTION
The attached ordinance is substantially similar to the ordinance provided in the City
Council agenda packet. Several typographical errors have been corrected in the
attached version; no substantive language changes have been made.
Attachment: Ordinance No. 1510, An Ordinance of the City of Seal Beach
Amending Chapter 11B of the Code of the City of Seal Beach
Pertaining to Newsracks
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SEAL
BEACH AMENDING CHAPTER 11B OF THE
- CODE OF THE CITY OF SEAL BEACH
PERTAINING TO NEWSRACKS
The City Council of the City of Seal Beach does ordain as follows:
Section 1. Code Amendment. Chapter 11B ( "Newsracks ") of the Code of
the City of Seal Beach is hereby amended to read as follows:
"Chapter 11B
NEWSRACKS
§ 11B -1 Purpose.
§ 11B-2 Definitions.
§ 11B -3 Newsrack Permit.
§ 11B -4 Placement Standards
§ 11B -5 Additional Placement Standards - Main Street Specific Plan Area.
§ 11B-6 Operation Standards. -
§ 11B -7 Summary Impoundment.
§ 11B -8 Non - Summary Impoundment.
§ 11B -9 Administrative Hearing.
§ 11B -10 Return of Impounded Newsracks.
§ 11B -11 Disposal of Impounded Newsracks.
Section 11B -1 Purpose.
The purposes of this chapter are to: protect pedestrian safety; preserve the
aesthetics of the city's sidewalk areas; facilitate distribution of publications through
newsracks on public property; and to mitigate the traffic hazards and visual blight that
can result from the unregulated placement of newsracks on public rights -of -way.
Section 11B-2 Definitions.
For the purposes of this chapter, the words and phrases set forth in this section
shall mean:
(a) Abandoned: Newsrack wherein no publication or the same publication has
been displayed for a period of at least 30 consecutive days.
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(b) Block: Public right -of -way abutting on one side of a street and lying
between the two nearest intersecting streets or between the nearest intersecting street and
the termination of such public right -of -way.
(c) City - approved newsrack model and pedestal: Model series M100, M50,
or a model that the director deems equivalent in size and appearance to the M100 or M50,
painted a color equivalent to wood grain brown, mounted on a 16 1/2" standard pedestal -
placed on a 10" X 10" pad. The director has the discretion to allow different colors
outside the Main Street Specific Plan area.
(d) Curb: Raised edge adjacent to a roadway between the sidewalk and the
roadway.
(e) Department: Department of Public Works
(f) Director: Director of Public Works or the designee thereof.
(g) Driveway approach: Portion of a public right -of -way, including curb
returns or depressed curbs, providing vehicular access to a private roadway, building or
other facility.
(h) Explicit sexual acts: Depictions of sexual intercourse, oral copulation, anal
intercourse, oral -anal copulation, bestiality, sadism, masochism or excretory functions in
conjunction with sexual activity, masturbation, or lewd exhibition of genitals, whether
any of the above conduct is depicted or described as being performed alone or between
members of the same or opposite sex or between humans and animals, or any other act of
sexual arousal involving any physical contact with a person's genitals, pubic region,
pubic hair, perineum, anus or anal region.
(i) Main Street Specific Plan Area: Area described in the Main Street Specific
Plan. -
(j) Newsrack: Self- service or coin - operated box, container, storage unit or
other dispenser installed, used or maintained for the display, sale or distribution of a
publication.
(k) Newsrack Area: An area designated by the City for the placement of
newsracks within the Main Street Specific Plan Area.
(1) Owner: Person to whom a newsrack pennit is issued. For purposes of this
chapter, "owner" is synonymous with pennittee.
(m) Parkway: Area between the sidewalk and the curb of a street. Where there
is no sidewalk, area between the edge of the roadway and the property line adjacent
thereto. "Parkway" includes any roadway area that is not open to vehicular travel.
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(n) Pre - existing Publications: Publications that on December ,1, 2003: were
located in newsracks that complied with the newsrack location and placement standards
set forth in the Code of the City of Seal Beach as such standards existed immediately
prior to the effective date of this Ordinance; and which were placed in such location
pursuant to a validly issued newsrack permit and City business license.
(o) Public right -of -way: Place of any nature that is dedicated to use by the
public for pedestrian or vehicular travel, including without limitation: a street, sidewalk,
curb, gutter, intersection, parkway, highway, alley, lane, mall, court, way, avenue,
boulevard, road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park, square or
any similar public way.
(p) Roadway: Portion of a street improved, designed or ordinarily used for
vehicular travel.
(q) Sidewalk: Surface improved, designed or ordinarily used for pedestrian
travel.
(r) Street: As defined in California Vehicle Code Section 590.
Section 1 1B -3 Newsrack Permit.
(a) Requirement. No person shall place a newsrack on any public right -of-
way without first obtaining a newsrack permit for such newsrack.
(b) - Application. Applications for newsrack permits shall be filed with the
director upon a city - provided form. The application shall be signed by the applicant and
shall contain the following information:
(1) Name, address and telephone number of the applicant.
(2) A precise diagram showing the location proposed for the newsrack
and the location and number of all other newsracks existing on the same block.
(3) Brand name of the newsrack and a description of how it will be
installed.
(4) The name of the publication to be contained in the newsrack.
• (5) A city attorney- approved written statement obligating the applicant
to indemnify, defend, and hold harmless the city and its officers, employees and agents
against any and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies that the city shall incur or suffer as a result of the
applicant's newsracks. Such obligation shall include payment of interest, penalties and
reasonable attorneys fees.
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(6) A certificate of endorsement evidencing that a comprehensive
liability insurance policy has been issued for the period of the requested newsrack permit
by an insurance company that both (i) is admitted and licensed to do business in the State
of California; and (ii) is rated A or better according to the most recent A.M. Best Co. -
Rating Guide. The policy limits of such insurance shall not be less than $1,000,000.00
combined single limit or equivalent. Such policy shall name the city as an additional
insured; shall specify that it acts as primary insurance and that no insurance held or
owned by the designated additional insureds shall be called upon to cover a loss; and
shall contain a provision that no termination, cancellation or change of coverage of
insured or additional insureds shall be effective until after 30 days notice thereof has been
given in writing to the director.
(7) Business License. Every applicant for a newsrack permit shall
present proof of receipt of a business license or proof of application for such license.
(c) Fee. Each newsrack permit application shall be accompanied by a
nonrefundable application fee. This fee shall be established by city council resolution
and shall not exceed the actual cost of processing a newsrack permit application.
(d) Approval or Denial. The director shall, within 10 city business days of the
filing of an application, approve and issue a newsrack permit if there are no grounds for
denial; otherwise the permit shall be denied. Notice of the approval or denial of the
permit shall be given to the applicant in writing. If the application is denied, the director
shall attach to the notice a statement of the reasons for the denial. The times set forth in
this section shall not be extended except upon written consent of the applicant.
(e) Grounds for Denial. The director may deny an application for a newsrack
permit for any of the following causes:
(1) The following grounds for denial shall apply to all applications:
(A) Failure to complete the application.
(B) Knowing submission of a fraudulent statement of material
fact.
(C) Failure to comply with the provisions of this chapter.
(2) In addition to the grounds specified in sub - paragraph (1) above, the
director may deny an application for placement of a newsrack within the Main Street
Specific Plan Area if the proposed location of the newsrack is a location at which no
newsrack space is available due to the issuance of newsrack permits to other persons
pursuant to Section 11B-5.
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(f) Term. Each newsrack permit shall be valid for three year from the date
of issuance unless revoked. A newsrack owner shall submit an application for renewal at
least 15 days prior to the expiration of the owner's newsrack permit.
(g) Appeals. Any interested person may request an administrative hearing
regarding the issuance, denial of issuance, renewal or denial of renewal of a newsrack
permit: Notwithstanding the preceding, no administrative hearing shall be held regarding
the denial of a newsrack permit for a newsrack space within the Main Street Specific Plan
Area if the denial was based on the lottery. A request for an administrative hearing must
be filed in writing with the city clerk within 10 days after the decision of the director.
Section 11B -4 Placement Standards
Newsracks located on public right -of -way shall comply with the following
placement standards: -
(a) Newsracks shall not be placed:
(1) Within 20 feet of any marked crosswalk.
(2) Within 20 feet of the curb return of any unmarked crosswalk. -
(3) Within 15 feet of any driveway approach.
(4) Within 10 feet of any fire hydrant, fire call box, police call box or
other emergency facility.
(5) Within 5 feet ahead of and 25 feet to the rear of any sign marking a
designated bus stop.
(6) Within 10 feet of any bus bench or bus shelter.
(7) Within 10 feet of any mailbox, utility pole, telephone pedestal or
any other permanent fixture located in the public right -of -way.
(8) Within three feet of any area improved with lawn, flowers, shrubs
or trees.
(9) Within three feet of any display window of any building abutting
the sidewalk or parkway or in such a manner as to impede or interfere with the reasonable
use of such window for display purposes.
(10) At any location whereby the clear space for the passageway of
pedestrians is reduced to less than four feet.
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(11) At any location whereby the clear space for the passageway of
pedestrians is reduced to less than five feet for a length of more than thirty feet.
• (12) Adjacent to or on the curb abutting any fire access lane.
(13) Within the limits of any portion of curb painted yellow or white.
(b) Newsracks shall be placed between 6 inches and 24 inches from the curb
at the sole discretion of the Director.
(c) No newsrack shall unreasonably interfere -with or impede the flow of
pedestrian or vehicular traffic.
(d) No newsrack shall unreasonably interfere with the cleaning of any
sidewalk by the use of mechanical sidewalk cleaning machinery.
(e) No newsrack shall project into a roadway.
(f) No newsrack shall unreasonably interfere with or impede ingress into or
egress from any residence or place of business.
Section 11B -5 Additional Placement Standards - Main Street Specific Plan Area.
(a) Concentration. The director shall determine the locations within the Main
Street Specific Plan Area of newsracks on the public right -of -way and shall mark such
locations on a map that is available to the public on request. In determining such
locations, the director shall adhere to the following concentration standards:
(1) No more than 24 newsracks shall be located on any one block of
Main Street between Pacific Coast Highway and Ocean Avenue. The maximum
grouping of newsracks at each location shall be eight. There shall be a minimum 100 -foot
separation between each grouping.
-(2) No more than four newsracks shall be located on any one block of
the northerly side of Ocean; each side of Central Avenue; each side of Electric Avenue;
and the southerly side of Pacific Coast Highway, between Main Street and the adjoining
alleys.
(b) No person shall place or maintain a newsrack in the Main Street Specific
Plan area except in one of the City designated areas.
(c) Pennit Process.
(1) Except as provided in sub - paragraph (2) below, the director shall
approve applications on a first -come, first- served basis.
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(2) Where two or more publications seek the same location for a
newsrack and there is insufficient space at the location to accommodate all such
publications, the Director shall allocate newsrack permits in accordance with the
following process. No publication shall be eligible for more than one newsrack pernit
per newsrack grouping where demand exceeds supply.
(a) Priority shall be given to Pre - Existing Publications. In the
•event demand by Pre - Existing Publications exceeds supply at any particular location, the
Director shall adhere to the following criteria:
1. Pre - Existing Publications previously located at that location
have priority. Where demand by publications seeking to stay in the same location ,
exceeds supply at that location, the Director shall assign the desired location:
a. First to daily publications published at least five
days a week ( "daily publications")..
b. Second to weekly publications published between
one and four days per calendar week ( "weekly publications "). .
c. Third to monthly publications published between
one and three days per calendar month ( "monthly publications ").
2. Pre - Existing Publications not previously located at the
desired location will be given priority based upon the criteria in 1 a -c. In the event two or
more Pre - Existing Publications seeking to relocate to the same location have the same
level of priority, the Director shall assign the desired location to the publication that was
located in closest proximity to the desired location.
(b) All Other Publications. As between publications that are •
not Pre - Existing Publications, the Director shall adhere to the following criteria:
1. First priority shall be given to daily publications.
2. Second priority shall be given to weekly publications.
3. Third priority shall be given to monthly publications.
(c). Location and space assignment by lottery. The Director
shall approve newsracks by lottery in the event that both (i) two or more publications
having the same level of priority seek the same location or space for a newsrack; and (ii)
either there is insufficient space at the location to accommodate all such publications, or
two publications are seeking the same space in a particular designated area. The lottery
shall be conducted by placing into a container the names of all of the applicants having
the same level of priority and drawing names from the container one at a time until the
number of available newsrack spaces at the location reaches zero. The Director shall
give advance written notice to the applicants of the time and place of the lottery, and shall
allow members of the public to witness the lottery. The initial lottery shall be held on a
date 30 days after the effective date of this Ordinance.
3. Space Request. The applicant shall indicate on the application its
preference for a particular space in the designated area.
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(d) Permit Renewal. If a newsrack in the Main Street Specific Plan Area is
abandoned during the permit term, or if the newsrack permit for that space is not renewed
at the expiration of the tern, then the newsrack pennit for that newsrack space shall be
re- allocated pursuant to paragraph (c) above. The permittee who abandoned the
newsrack or failed to renew the newsrack permit shall not be eligible to participate in the
re- allocation process.
(e) Authority of Director. The director may promulgate policies necessary or
convenient for the administration of this Section.
Section 11B -6 Operation Standards.
Newsracks located on public right -of -way shall comply with the following
operation standards:
(a) Each newsrack shall be the City- approved newsrack model and pedestal.
(b) Each newsrack shall have conspicuously affixed thereto the name, address
and telephone number of the owner thereof. -
(c) Each newsrack shall have conspicuously affixed thereto the annual permit
tag issued by the department.
(d) No newsrack shall be abandoned.
(e) The liability insurance required by this chapter shall not be reduced or
cancelled.
(f) No newsrack shall be used for an advertising or publicity purpose, other
than that dealing with the display, sale or purchase of the newspaper or other publication
distributed therein. In addition, the naive and logo of the publication distributed in a
newsrack may be stenciled upon the front and back of such newsrack.
(g) No newsrack shall be chained, bolted or otherwise attached to any
property without the express written permission of the owner of such property.
Notwithstanding the preceding, each newsrack shall be bolted to the sidewalk upon
which it is maintained unless it is vertically stacked upon another newsrack pursuant to
this chapter.
(h) Each newsrack shall be maintained in a clean and neat condition and in
good repair at all times. The owners of vertically stacked newsracks shall be jointly
responsible for maintenance of the shared components of such newsracks. Occurrence of
any of the following conditions on a newsrack shall constitute evidence that the newsrack
is not being maintained in a clean and neat condition or in good repair:
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'(1) Graffiti.
(2) Broken or unreasonably misshapen structural components.
(3) Cracks, dents or discoloration of the display window.
(4) Substantial accumulation of dirt, grease rust or corrosion.
(5) Substantial amount of chipped, faded, peeling, or cracked paint.
(6) Substantial amount of tearing, peeling or fading of any paper or
cardboard parts or inserts of the newsrack.
(i) Publications offered for sale or distribution in the newsrack shall not be
displayed or exhibited in a manner that exposes to public view from any public right -of-
way any of the following:
(1) Any statements or words describing explicit sexual acts, sexual
organs or excrement where such statements or words have as their purpose or effect
sexual arousal, gratification or affront.
(2) Any picture or illustration of genitals, pubic hair, perineum, anus
or anal region of any person where such picture or illustration has as its purpose or effect
sexual arousal, gratification or affront.
(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.
Section 11B -7 Summary Impoundment.
The director may summarily impound any newsrack that poses an imminent
danger to pedestrians or vehicles. On the day of such impoundment, the department shall
send the owner identified on the newsrack written notice of the seizure and the
opportunity for an administrative hearing. If the owner files a written hearing request
with the city clerk within 10 days of such notice, then the city manager shall conduct an
administrative hearing regarding the propriety of the summary impoundment.
Section 11B -8 Non - Summary Impoundment.
Whenever any newsrack is found to be in violation of this chapter, but the
violation does not present an imminent danger to pedestrians or vehicles, the department
shall affix a notice of violation tag upon such newsrack and shall send a written notice of -
violation to the owner identified on the newsrack. The notice shall state the nature of the
violation and shall indicate that failure to correct the violation or to file a written hearing
request with the city clerk within 10 days may result in impoundment of the newsrack.
The director may impound such newsrack if the owner has not corrected the violation or
filed a written hearing request within the allotted period. If the owner files a timely
written hearing request with the city clerk, then the city manager shall conduct an
administrative hearing regarding the existence of the violation. The director may
impound such newsrack two days after the city manager's administrative hearing
decision if the decision confirms the existence of the violation and the owner has not
corrected the violation.
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Section 11B -9 Administrative Hearing.
•
(a) The city manager shall be responsible for conducting administrative
hearings related to the implementation of this chapter. This responsibility may not be
delegated.
(b) The city manager shall conduct an administrative hearing and take the
matter under submission for decision no later than 15 city business days following the
timely filing of the request for hearing, unless the requestor and owner (if different than
the requestor) consent in writing to an extension. At least 10 days prior to such hearing,
written notice thereof shall be mailed to the requestor and owner (if different than the
requestor).
(c) Administrative hearings shall be conducted in accordance with procedures
established by the city manager. All parties involved shall have a right to: (1) offer
testimonial, documentary and tangible evidence bearing on the issues; (2) be represented
by counsel; and (3) confront and cross - examine witnesses. Any relevant evidence may
be admitted that is the sort of evidence upon which reasonable persons are accustomed to
rely in the conduct of serious affairs. Any hearing under this paragraph may be continued
for a reasonable time for the convenience of a party or a witness.
(d) The city manager shall, within 10 city business days from the conclusion
of the administrative hearing, render a written decision supported by findings. The time
period set forth in this section shall not be extended except upon written consent of the
requestor and the owner (if different than the requestor). The decision of the city
manager shall be final. Notice of the decision and a copy thereof shall be mailed to the
requestor and the owner (if different than the requestor). Such notice shall contain the
substance of the following statement: "You are hereby notified that the time within
which judicial review of this decision may be sought is governed by California Code of
Civil Procedure Section 1094.8."
Section 11B -10 Return of Impounded Newsracks.
(a) Newsracks that have been summarily impounded shall be returned to the
owner without charge if a timely hearing request was filed and the city manager
determined that the seizure was improper. Otherwise such newsracks shall be returned
upon payment of the impound fee and filing of a written request therefore within 30 days
of the date of the seizure or, if applicable, the date of the city manager's administrative
hearing decision upholding the seizure.
(b) Newsracks that have been non - summarily impounded shall be returned to
the owner upon payment of the impound fee and filing of a written request therefore
within 30 days of the date of the seizure.
(c) The amount of the impound fee shall be set by city council resolution.
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Section 11B -11 Disposal of Impounded Newsracks.
The department may sell or otherwise dispose of any newsrack provided that both
(i) 30 days have elapsed since the impoundment or city manager decision affirming the
impoundment; and (ii) the owner of the newsrack has failed to pay the impound fee. The
proceeds of such disposal shall be deposited in the city's general fund. "
Section 2. Transition Program.
Owners of newsracks lawfully placed on public right -of -way as of the effective
date of this section shall have 60 days from the date of the lottery to re -apply for a
newsrack permit for each such newsrack and to bring each approved newsrack into
compliance with this chapter.
Section 3. Severability. If any section, subsection, subdivision, sentence,
clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of this Ordinance. The City Council
hereby declares that it would have adopted this Ordinance, and each section, subsection,
subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any
one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions
thereof be declared invalid or unconstitutional.
Section 4. The City Clerk shall certify to the adoption of this Ordinance and
shall cause the same to be published in the manner prescribed by law.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal
Beach at a meeting thereof held on the day of
, 2004.
MAYOR
ATTEST:
CITY CLERK
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STATE OF CALIFORNIA } .
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Joanne M. Yeo, City Clerk of the City of Seal Beach, California, do hereby certify that
the foregoing Ordinance is an original copy of Ordinance Number on file in
the office of the City Clerk, introduced at a meeting thereof held on the day
of , 2003 and was passed, approved and adopted by the City
Council at a meeting thereof held on the day of
2004 by the following vote:
AYES: Councilmembers
NOES: Councilmembers
ABSENT: Councilmembers
ABSTAIN: Councilmembers
And do hereby further certify that Ordinance Number has been published
pursuant to the Seal Beach City Charter and Resolution Number 2836.
City Clerk
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