HomeMy WebLinkAboutCC AG PKT 2011-12-08 #S is
AGENDA REPORT g
DATE: December 8, 2003 , 9;
TO: Honorable Mayor and City Council o
THRU: John B. Bahorski, City Manager 0v�
FROM: Lee Whittenberg, Director of Development Services
SUBJECT: ORDINANCE RE- INTRODUCTION,
NEWSRACK REGULATIONS
SUMMARY OF REQUEST:
Introduce 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. Receive
and File Staff Report.
BACKGROUND:
This proposed re- introduction of the " Newsrack Ordinance" reflects the
recommendations of the City Attorney and staff regarding this matter, based on a follow -
up meeting held with the newspaper distributors on November 24, 2003. The major
amendments proposed by the re- introduction of the ordinance are generally as follows:
❑ Stipulates either a M100 or M50 model newsrack structure, mounted on a
stipulated pedestal design that can accommodate either the M100 or stacked M50
newsracks, and a recommended color of "Mack Truck Green" in Section 11B-
2(c). This revision will allow for either the use of a single or a "stacked"
newsrack configuration.
❑ Eliminates the previously suggested "newsrack enclosure structures" within the
Main Street Specific Plan Area in Section 11B -2(k). This is suggested in light of
the agreement of the newsrack providers to utilize a common design and color of
newsrack, and a common pedestal mounting system, throughout the entire city.
Retains the use of city - designated "newsrack areas" within the Main Street
Specific Plan Area, based on the previous recommendations of Staff to the City
Council.
❑ Establishes a definition of "Pre- existing Publications" in Section 11 B -2(n). This
is necessary to determine the priority order for newsracks that may be requested at
the specified "newsrack areas" within the Main Street Specific Plan Area.
❑ Establishes the priority determination process in Section 11B -5(c). This is
necessary to determine the priority order for newsracks that may be requested at
the specified "newsrack areas" within the Main Street Specific Plan Area.
Agenda Item S
Z. \My Documents \Newsracks \Newsrack Ordinance Re- Introduction CC Staff Report.doc \LW\12- 034 -03
Re- Introduction of Ordinance re: Newsrack Regulations
City Council Staff Report
December 8, 2003
❑ Prohibits the use of the newsracks for advertising or publicity purpose, other than
that dealing with the display, sale, or purchase of the newspaper or other
publication distributed therein in Section 11B -6(f).
This ordinance does not in any way control the location, number, or size of newsracks
placed on private property: that is an issue between the private property owner and the
publication wishing to place a newsrack on a specific privately owned property. The
proposed ordinance reflects a change in the recommendation of Staff, based on
discussions with representatives of the major newspapers regarding the original proposal
of the City.
The recommended 22 "Newsrack Areas" within the Main Street Specific Plan would
have the capacity to accommodate between 66 -88 and 132 -176 newsracks, depending on
if the installations are single or "stacked" newsracks. The number of newsracks within
the Main Street area is 90 at the current time. Of those 90 newsrack structures, only 47
are "legal" in that they are currently utilized by businesses having a business license in
the City.
Based on the above recommendations, the proposed "Newsrack Ordinance" has been
revised and is presented for introduction. The proposed ordinance is provided as
Attachment 1. Attachment 2 is a redline /strikeout version comparing the previous
ordinance language to the currently recommended ordinance language.
A copy of this Staff Report and the attachments has been mailed to each publication
having newsracks within the Main Street Specific Plan Area that have a business license
to operate within the City. Those publications are:
❑ Sun Newspaper
❑ Long Beach Press Telegram
❑ Orange County Register
❑ Los Angeles Times
❑ Real Estate and Home Magazine
❑ USA Today
FISCAL IMPACT:
Minimal. Permit fees will be established by the City Council at the time of second
reading and adoption of the ordinance to recover the staff costs involved in processing the
required "newsrack permits" as set forth in Section 11B -3.
RECOMMENDATION:
Introduce 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. Receive
and File Staff Report.
Newsrack Ordinance Re- Introduction CC Staff Report 2
DECEMBER 8th, 2003
Q. BARROW: On the second page of the ordinance, page 6 of
the 12 -8 -03 report....item C at the top, City Approved
Newsrack Model, delete K Jack Engineering Company
Mack Truck Green, change that to 'a color of the equivalent
of wood grain brown'
In that same section the additional sentence will be added
'the Director has the discretion to allow different colors
outside the Main Street Specific Plan area'
Then an earlier change relating to curb distance....Section
11 B -4 (13b) to read 'newsracks shall be placed between
six inches and twenty -four inches from the curb at the sole
discretion of the Director'
Re- Introduction of Ordinance re: Newsrack Regulations
City Council Staff Report
' December 8, 2003
NOTED ►) APPR •
/ r
� . A / / /�, ... �
� / a Whittenberg Jo'T �` . ahorski
Director of Development Services Ci anager
Attachments: (5)
Attachment 1: 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
Attachment 2: Redline /Strikeout Version of Previous and Proposed
Newsrack Ordinance
Attachment 3: Listing of Newsrack Publications within the Main Street
Specific Plan Area
Attachment 4: City Council Staff Report, November 10, 2003 .
Attachment 5: City Council Memorandum, November 10, 2003
Newsrack Ordinance Re- Introduction.CC Staff Report 3
Re- Introduction of Ordinance re: Newsrack Regulations
City Council Staff Report
December 8, 2003
ATTACHMENT 1
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
Newsrack Ordinance Re- Introduction.CC Staff Report 4
Re- Introduction of Ordinance re: Newsrack Regulations
City Council Staff Report
December 8, 2003
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.
§ 11 B -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: Standard K -Jack
Engineering Company model series M100 or 50, or a model that the director deems
equivalent in size and appearance, painted a color equivalent to K -Jack Engineering
Company "Mack Truck Green," mounted on a 16 1/2" standard pedestal placed on a 10"
X 10" pad. -
(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 de by the City for the placement of
newsracks within the Main Street Specific Plan Area.
(1) Owner: Person to whom a newsrack permit is issued. For purposes of this
chapter, "owner" is synonymous with permittee.
(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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December 8, 2003
(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 11B -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
following grounds for denial shall apply to applications for placement of a newsrack
within the Main Street Specific Plan Area:
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December 8, 2003
(A) 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.
(1) Term. Each newsrack permit shall be valid for three years 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 11 B -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.
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(10) At any location whereby the clear space for the passageway of
pedestrians is reduced to less than four feet.
(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 18 inches and 24 inches from the curb.
(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) Permit Process.
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(1) Except as provided in sub - paragraph (2) below, the director shall
approve applications on a first -come, first -served basis.
(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 permit
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 la-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
Newsrack Ordinance Re- Introduction.CC Staff Report 1
Re- Introduction of Ordinance re: Newsrack Regulations
City Council Staff Report
December 8, 2003
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. .
(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 term, then the newsrack permit 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 name and logo of the publication distributed in a
newsrack may be stenciled upon the front and back of such newsrack.
Newsrack Ordinance Re- Introduction.CC Staff Report 12
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(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:
(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 1 1B-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
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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.
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.
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(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.
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
• - , 2003.
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MAYOR
ATTEST:
CITY CLERK
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
2003 by the following vote:
AYES: Councilmembers
NOES: Councilmembers
AB SENT: 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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December 8, 2003
ATTACHMENT 2
REDLINE /STRIKEOUT VERSION OF
PREVIOUS AND PROPOSED NEWSRACK
ORDINANCE
Newsrack Ordinance Re- Introduction.CC Staff Report 17
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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: Standard K -Jack
Engineering Company model series M100 or 50, or a model that the director deems
equivalent in size and appearance, painted a color equivalent to K -Jack Engineering
Company "Mack Truck Gretn," mounted on a 16 1/2" standard pedestal placed on a
10" X 10" pad.
(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 eftelestwatittetitre Area: An area designated " 'eeerat e
by the City for the placement of newsracks within the Main Street
Specific Plan Area.
(1) Owner: Person to whom a newsrack permit is issued. For purposes of this
chapter, "owner" is synonymous with permittee.
(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- existin . 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
immediatel _ s rior to the eff • ctive date of this Ordinance- and which were • laced 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 11B -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
Newsrack Ordinance Re- Introduction CC Staff Report 20
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applicant's - newsracks. Such obligation shall include payment of interest, penalties and
reasonable attorneys fees.
(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.
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(2) In addition to the grounds specified in sub - paragraph (1) above, the
following grounds for denial shall apply to applications for placement of a newsrack
within the Main Street Specific Plan Area:
(A) 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.
(f) Term. Each newsrack permit shall be valid for three years 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.
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(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.
(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 18 inches and 24 inches from the curb.
(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.
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(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) Permit Process.
(1) Except as provided in sub - paragraph (2) below, the director shall
approve applications on a first -come, first - served basis.
(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 permit
per newsrack grouping where demand exceeds supply.
a Priori shall be Given to Pre - Existin' Publications. In
the event demand b Pre - Existing Publications exceeds sus .1 at an
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 sum& 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 da s per calendar month ( "month
publications ").
2. Pre - Existin . Publications not previously located at the
desired location will be given priority based upon the criteria in la -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) 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.
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3. Third priority shall be given to monthly publications.
(c). Location and space assignment by lottery. The Director
shall a . • rove newsracks b lotte 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 s . ace at the location to
accommodate all such publications, or two ' ublications 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 priori _ and drawin . names from the container one at a time until
the number of available newsrack spaces at the location reaches zero. The
Director shall • ive advance written notice to the a . . licants of the time and
place of the lotte and shall allow members of the public to witness the
lottery.
3. Space Request. The applicant shall indicate on the application
its preference for a particular space in the designated area.
(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 term, then the newsrack permit 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:
(b) 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.
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(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 name 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:
(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 new srack 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.
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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.
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.
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(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.
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 such date 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
Newsrack Ordinance Re- Introduction CC Staff Report 28
•
Re- Introduction of Ordinance re: Newsrack Regulations
City Council Staff Report
December 8, 2003
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
, 2003.
MAYOR
•
ATTEST:
CITY CLERK
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 , 2003 by the
following vote: •
AYES: Councilmembers
NOES: Councilm embers
ABSENT: Councihnembers
ABSTAIN: Councilmembers
Newsrack Ordinance Re- lntroduction.CC Staff Report 29
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And do hereby further certify that Ordinance Number has been published
pursuant to the Seal Beach City Charter and Resolution Number 2836.
City Clerk
Newsrack Ordinance Re- lntroduction.CC Staff Report 30
,
Re- Introduction of Ordinance re: Newsrack Reoulatio;ts
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December 8, 2003
ATTACHMENT 3
LISTING OF NEWSRACK PUBLICATIONS
WITHIN THE MAIN STREET SPECIFIC
PLAN AREA
Adjacent Street
Address & Number of Business Newsrack Publications
Newsracks
102 Main Street (19) Kinda Lahina LBPT, LA Times, OC Register
Restaurant (2), Sun, USA Today, Contact
Real People, LAXpress,
Destroy All, Private Dancer,
OC Weekly (All on Main
Street)
Apartment magazine, Real
Estate Book, Home Source,
. Coupon Guide, Home & Real
Estate, Career Builder, Grunion
Gazette, Apartment for Rent
(all on Ocean Avenue)
112 Main Street (6) Seal Beach Liquor LBPT, LA Times, OC Register,
Career Builder, Private Dancer,
LAXpress
1231/2 Main Street (2) Sweet Jill's LA Times, USA Today
142 Main Street (7) O'Malley's on LBPT, LA Times, OC Register
Main (2), Career Builder, USA
Today, OC Weekly
148 Main Street (8) Hennessey's LBPT, LA Times, OC Register
(2), Sun, USA Today, Career
Builder, Apartment magazine
201 Main Street (5) Walt's Wharf LBPT, LA Times, OC Register,
Sun, Career Builder
Newsrack Ordinance Re- Introduction CC Staff Report 31
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Adjacent Street
Address & Number of Business Newsrack Publications
Newsracks
202 Main Street (2) Bank of America USA Today, Career Builder
(both on Central Avenue)
216 Main Street (1) Sun Newspaper Sun
223 Main Street (9) Nick's LBPT, LA Times, OC Register
(2), Apartments for Rent
302 Main Street (6) Corner Drug Store LBPT, LA Times, OC Register,
Career Builder, LAXpress,
Yank
303 Main Street (9) Main Street Cafe LBPT, LA Times, OC Register,
Sun, Apartments for Rent,
LAXpress, Real Estate Book,
Home & Real Estate,
Apartment Magazine
322 Main Street (4) Sideboard LBPT, LA Times, OC Register,
Sun
347 Main Street (3) Coffee Bean & LBPT, LA Times, OC Register,
Tea Sun
900 Ocean Avenue (9) Seal Beach Pier LBPT, LA Times, OC Register
(2), LAXpress, Private Dancer,
Career Builder, Harmon Autos,
Apartment for Rent, Apartment
Magazine
Note: Survey taken on November 6, 2003
Newsrack Ordinance Re- Introduction.CC Staff Report 32
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ATTACHMENT 4
CITY COUNCIL STAFF REPORT, NOVEMBER 10, 2003
Newsrack Ordinance Re- Introduction.CC Staff Report 33
AGENDA REPORT
DATE: November 10, 2003
TO: Honorable Mayor and City Council
THRU: John B. Bahorski, City Manager .
FROM: . Lee Whittenberg, Director of Development Services
SUBJECT: ORDINANCE INTRODUCTION - NEWSRACK
REGULATIONS AND PREPARATION OF
PLANS FOR NEWSRACK ENCLOSURE
STRUCTURES
SUMMARY OF REQUEST:
Introduce 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. Adopt
Resolution No. , A Resolution of the City Council of the City of Seal Beach
Authorizing Budget Amendment No. 04 -14 for Preparation of Plans and Specifications
for Proposed Newsrack Enclosure Structures. Receive and File Staff Report.
BACKGROUND:
The proposed " Newsrack Ordinance" revision reflects the current recommendation of
City Staff regarding the regulation of newsracks located on City property within the City,
with additional provisions regarding the placing of newsracks within the "Main Street
Specific Plan Area" ( "MSSP area "). This ordinance does not in any way control the .
_ location, number, or size of newsracks placed on private property: that is an issue
between the private property owner and the publication wishing to place a newsrack on a
specific privately owned property. The proposed ordinance reflects a change in the
• recommendation of Staff, based on discussions with representatives of the major
newspapers regarding the original proposal of the City.
The original proposal stipulated the City would own, install, and maintain all newsracks
within the MSSP area, and then lease the newsracks to the various purveyors that wished
to provide their publications to the public frequenting Main Street. A meeting was held •
• with the representatives of those publications that are legally licensed to have publication
racks on Main Street on August 28, 2003. Concerns were expressed by all of the
publishers that the proposal of the City could result in a loss of sales due to the
installation of "stacked newsracks" as opposed to the installation of standard single- racks,
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November 10, 2003
and that the City's efforts to maintain the newsracks may be more of a cost issue than
staff had anticipated.
Overview of Proposed Change to Newsrack Ordinance for the Main Street Specific
Plan Area:
"Section 11B -5, Placement Standards - Main Street Specific Plan Area ", of the proposed
ordinance, sets forth the proposed standards for newsracks within the Main Street
Specific Plan Area. The ordinance language discussed with the newspapers provided for
city ownership, installation and maintenance of newsracks within the MSSP area.
Staff is recommending that the City revise its policies and install "newsrack enclosure
structures" within the MSSP area, and require all companies wishing to install a
newsrack, as defined within the ordinance, to obtain a "Newsrack Permit" as required by
Section 11B -3, and then install the permitted newsrack within a "newsrack enclosure
structure ". Any newsracks located within the MSSP area that are not located within a
"newsrack enclosure structure" would be illegal and removed pursuant to the ordinance.
This proposal would relieve the City of the acquisition, installation, and maintenance of
newsrack structures within the "newsrack enclosure structure ", while maintaining a
clearly defined area for the location of newsracks. As drafted, the ordinance will require
that all newsracks on public property, whether within or outside of the MSSP area be the
City- approved newsrack model — a "Mack Truck Green" standard K -Jack Engineering
Company model series 50 or equivalent approved by Staff.
Staff has obtained a preliminary cost estimate to construct such structures out of different
materials and the cost estimates are $1,000 to $1,800, depending on the finish material
chosen. Preliminary design proposals for the recommended structures are provided as
Attachment 3. Staff has identified 21 locations along Main Street for such structures
which would allow for between 3 and 4 newsracks in a single rack configuration and up
to 6 to 8 newsracks in a "stacked" configuration. The estimated cost for preparation of
construction plans and specifications is $5,000 and the costs for constructing all 21
structures is estimated to be approximately $42,000. The size of the newsrack enclosure
structures will be 52" high, 20" deep and vary in length depending on the capacity of the
structure. The 3 -unit (6 -unit if stacked) structure would be 7' to 8" in length, and the 4-
unit (8 -unit if stacked) would be 9' to 10' in length. Preliminary conceptual designs for
the newsrack enclosure structures are proved as Attachment 3. The exterior materials are
proposed to be:
❑ "Trex" material that is similar in appearance- to wood, but is a manufactured
material offering longer life and easier maintenance; and
❑ "Faux stone" that is manufactured from concrete and available in many colors.
The recommended 21 locations would have the capacity to accommodate between 63 -84
and 126 -168 newsracks, depending on if the installations are single or "stacked"
newsracks." The number of newsracks within the Main Street area is 90 at the current
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Introduction of Ordinance re: Newsrack Regulations and
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time. Of those 90 newsrack structures, only 47 are "legal" in that they are currently
utilized by businesses having a business license in the City.
Staff is also recommending that the "Newsrack Permit Fee" be established at a level to
provide a reserve fund for the replacement of the "newsrack enclosure structures ", based
on a seven -year replacement cycle. The cost of the newsrack permit would be
established by formal City Council resolution once the final costs for the construction of
the "newsrack enclosure structures" is known. Ongoing maintenance and repair of the
"newsrack enclosure structures" would be the responsibility of the City.
Based on the above recommendations, the proposed "Newsrack Ordinance" has been
revised and is presented for introduction. The proposed ordinance is provided as
Attachment 1. Attachment 2 is a redline /strikeout version comparing the previous
ordinance language to the currently recommended ordinance language.
A copy of this Staff Report and the attachments has been mailed to each publication
having newsracks within the Main Street Specific Plan Area that have a business license
to operate within the City. Those publications are:
❑ Sun Newspaper
❑ Long Beach Press Telegram
❑ Orange County Register
❑ Los Angeles Times
❑ Real Estate and Home Magazine
Requested Budget Amendment:
If the City Council determines to proceed with consideration of the provision of City -
installed newsrack enclosure structures it will be necessary for the City Council to
authorize a budget amendment for the unanticipated consultant expense to prepare the
necessary plans and specifications for the newsrack enclosure structures. Funds are
available in the Undesignated General Fund Balance, and will be spent out of the
Planning Department contract professional services account. Staff has prepared the
appropriate resolution and it is provided as - Attachment 4. The resolution has been
prepared to reflect the maximum proposal amount of $ 10,000.00 under consideration for
the preparation of construction level plans and specifications.
At the time of the awarding of construction bids for the newsrack enclosure structures,
staff will return with an additional budget amendment resolution to reflect the necessary
costs for the construction of these structures.
Recovery of Costs of Newsrack Enclosure Structures:
A newsrack permit will be required to place newsracks on city property throughout the
City. Each newsrack permit application shall be accompanied by a nonrefundable
application fee. This fee shall be established by city council resolution and shall not
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Introduction of Ordinance re. Newsrack Regulations and
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exceed the actual cost of processing a newsrack permit application. This fee will be
applicable to all newsracks located on City property throughout the City.
For those newsracks located within the Main Street Specific Plan Area, an additional fee
shall be imposed to include the amortized costs of the replacement of the City -
constructed "newsrack enclosure structures" within the Main Street Specific Plan Area.
This fee shall be established by city council resolution at a future date when the final
construction cost of the newsrack enclosure structures is determined.
FISCAL IMPACT:
The increase in contract professional services for the preparation of plans and
specifications for the proposed newsrack enclosure will be applied to the General Fund.
Total increase in General Fund expenditures is $ 10,000.00 which will decrease the
Undesignated General Fund Balance for Fiscal Year 2003 -2004 from $4,168,316.00 to
$4, 158,316.00.
Proceeding in the manner recommended would result in an additional future cost to the
City of an estimated $42,000 for the construction of the proposed newsrack enclosure
structures, in addition to the allocation of staff resources to complete the construction as
proposed.
RECOMMENDATION:
Introduce 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. Adopt
Resolution No. , A Resolution of the City Council of the City of Seal Beach
Authorizing Budget Amendment, No. 04 -14 for Preparation of Plans and Specifications
for Proposed Newsrack Enclosure Structures. Receive and File Staff Report.
NOTED AND APPROVED
4 . ;� A
e Whittenberg John `- . Bahorski
D trector of Development Services Ci/ anager
Attachments: (4)
Attachment 1: . 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
Newsrack Ordinance Introduction CC Stitt' Report 4
Introduction of Ordinance re: Newsrack Regulations and
Preparation of Plans for Newsrack Enclosure Structures
City Council Staff Report
November 10, 2003
Attachment 2: Redline /Strikeout Version of Previous and Proposed
Newsrack Ordinance
Attachment 3: Conceptual Newsrack Enclosure Structures
Attachment 4: Resolution No. , A Resolution of the City Council
of the City of Seal Beach Authorizing Budget Amendment
No. 04 -14 for Preparation of Plans and Specifications for
Proposed Newsrack Enclosure Structures
•
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Introduction of Ordinance re: Newsrack Regulations and
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' November 10, 2003
ATTACHMENT 1
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
Newsrack Ordinance Introduction CC Staff Report 6
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November 10, 2003 -
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 — Non -Main Street Specific Plan Area
§ 11B -5 - 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 public right -of -way.
' - (c) City - approved newsrack model: Standard K -Jack Engineering Company
model series 50, or a model that the director deems equivalent in size and appearance,
painted a color equivalent to K -Jack Engineering Company "Mack Truck Green."
(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 enclosure structure: A decorative structure installed by the City
for the placement of newsracks within the Main Street Specific Plan Area.
(1) Owner: Person to whom a newsrack permit is issued. For purposes of this
chapter, "owner" is synonymous with permittee.
(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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Introduction of Ordinance re Newsrack Regulations and
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(n) 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.
(o) Roadway: Portion of a street improved, designed or ordinarily used for
vehicular travel.
(p) Sidewalk: Surface improved, designed or ordinarily used for pedestrian
travel.
(q) Street: As defined in California Vehicle Code Section 590.
Section 11B -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.
(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
Newsrack Ordinance Introduction CC Staff Report 9
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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, except for applications for spaces in the Main Street Specific Plan Area shall not
exceed the actual cost of processing a newsrack permit application. The application fee
for spaces in the Main Street Specific Plan Area shall not exceed the sum of the actual
cost of processing a newsrack permit application and the amortized costs of the
replacement of the City - installed newsrack enclosure structures within the Main Street
Specific Plan Area.
(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.
(D) Within one year prior to the date of the application, the city .
_ has impounded a newsrack previously maintained by the applicant on the block listed in .
the application and the propriety of such impound has not been successfully challenged.
(2) In addition to the grounds specified in sub - paragraph (1) above, the
following grounds for denial shall apply to applications for placement of a newsrack
within the Main Street Specific Plan Area:
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(A) 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.
(f) Term. Each newsrack permit shall be valid for one 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 — Non -Main Street Specific Plan Area.
Newsracks located on public right -of -way outside of the Main Street Specific
Plan Area 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 10 feet ahead of and 40 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.
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(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.
(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 18 inches and 24 inches from the curb.
(c) No newsrack shall unreasonably interfere with or impede the flow of
pedestrian or vehicular traffic.
•
(d) No newsrack shall 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 interfere with or impede ingress into or egress from any
- residence or place of business.
Section 11B -5 Placement Standards - Main Street Specific Plan Area.
(a) Concentration. The director shall determine the locations within the Main
Street Specific Plan Area of newsrack enclosure structures 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.
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Introduction of Ordinance re • Newsrack Regulations and
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(b) No person shall place or maintain a newsrack in the Main Street Specific
Plan area except in one of the City -built newsrack enclosure structures.
(c) Permit Process.
(1) Except as provided in sub - paragraph (2) below, the director shall
approve applications for spaces in a newsrack enclosure structure on a first -come, first -
served basis.
(2) The director shall approve newsrack permits by lottery in the event
that both (i) two or more publications seek the same location for a newsrack; and (ii)
there is insufficient space at the location to accommodate all such publications. No
publication shall be eligible for more than one newsrack permit per newsrack grouping.
The lottery shall be conducted by placing into a container the names of all of the eligible
permit applicants 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. -
(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 term, then the newsrack permit 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 1 1B-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.
(b) Each newsrack shall have conspicuously affixed thereto the naive, address
and telephone number of the owner thereof.
L
(c) Each newsrack shall have conspicuously affixed thereto the annual permit
tag issued by the department.
(d) No newsrack shall be abandoned. _
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(e) The liability insurance required by this chapter shall not be reduced or
cancelled.
(f) No newsrack shall contain an advertising sign. Notwithstanding the
preceding, the name 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:
(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 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.
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Introduction of Ordinance re. Newsrack Regulations and
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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.
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
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rely in the conduct of serious affairs. Any hearing unddr 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.
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 such date 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
Newsrack Ordinance Introduction CC Staff Report 16
Introduction of Ordinance re: Newsrack Regulations and
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November 10, 2003
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. Violations and Penalties. Each person violating any provision
of this Ordinance is guilty of a misdemeanor punishable by a fine not to exceed one
thousand dollars or imprisonment for a term not exceeding six months, or by both.
Section 5. 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
, 2003.
MAYOR
ATTEST:
CITY CLERK
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 ,
2003 by the following vote:
AYES: Councilmembers
NOES: Councilmembers
Newsrack Ordinance Introduction CC Staff Report 17
introduction of Ordinance re: Newsrack Regulations and
Preparatzon of Plans for Newsrack Enclosure Structures
City Council Staff Report
November 10, 2003
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
Newsrack Ordinance Introduction CC Staff Report 18
Introduction of Ordinance re: Newsrack Regulations and
Preparation of Plans for Newsrack Enclosure Structures
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November 10, 2003
ATTACHMENT 2
REDLINE /STRIKEOUT VERSION OF .
PREVIOUS AND PROPOSED NEWSRACK
ORDINANCE
•
Newsrack Ordinance Intrmduction.CC Stan' Report 19
Introduction of Ordinance re • Newsrack Regulations and
Preparation of Plans for Newsrack Enclosure Structures
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November 10, 2003
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 — Non -Main Street Specific Plan Area.
§ 1 1B-5 Ofelelitieft&I Placement Standards fof = 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:
Newsrack Ordinance Introductron.CC Staff Report 20
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November 10, 2003
(a) Abandoned: Newsrack wherein no publication or the same publication has
been displayed for a period of at least 30 consecutive days.
(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: Standard K -Jack Engineering Company
model series 50, or a model that the director deems equivalent in size and appearance,
painted a color equivalent to K -Jack Engineering Company "Mack Truck Green."
(d) Curb: Raised edge adjacent to a roadway between the sidewalk and the
roadway. •
(e) Department: Department of Public Works.
(f) Director: Director of DeN.elopmeltterviees 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 enclosure structure: A decorative structure installed by
the City for the placement of newsracks within the Main Street Specific Plan Area.
(t) ll Owner: Person to whom a newsrack permit is issued. For purposes of this
chapter, "owner" is synonymous with permittee.
•
Newsrack Oidmance Introduction CC Stall Report 21
Introduction of Ordinance re. Newsrack Regulations and
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November 10, 2003
( (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.
( (n)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.
(-j Roadway: Portion of a street improved, designed or ordinarily used for
vehicular travel.
•
Sidewalk: Surface improved, designed or ordinarily used for pedestrian
travel.
Street: As defined in California Vehicle Code Section 590.
Section 11B -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. Th ° r" ei _ _ net l if the + .ck
(4) The naive 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.
Newsrack Ordinance Intioduction.CC Staff Report 22
Introduction of Ordinance re: Newsrack Regulations and
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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, except for applications for spaces in the Main Street Specific Plan Area, shall
not exceed the actual cost of processing a newsrack permit application. The application
fee for spaces in the Main Street Specific Plan Area shall not exceed the sum of the
actual cost of processing a newsrack permit application and the amortized costs of
the re s Iacement of the ci - installed newsrack enclosure structures within the Main
Street Specific Plan Area.
(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.
Newsiack Ordinance tntroduction.CC Statt Report 23
Introduction of Ordinance re • Newsrack Regulations and
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(D) Within one year prior to the date of the application, the city
has impounded a newsrack previously maintained by the applicant on the block listed in
the application and the propriety of such impound has not been successfully challenged.
(2) In addition to the grounds specified in sub - paragraph (1) above, the
following grounds for denial shall apply to applications for placement of a newsrack
within the Main Street Specific Plan Area:
(A) 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.
(f) Term. Each newsrack permit shall be valid for one 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 10 feet ahead of and 40 feet to the rear of any sign marking
a designated bus stop.
(6) Within 10 feet of any bus bench or bus shelter.
Newsrack Ordinance Introduction CC Staff Report 24
Introduction of Ordinance re: Newsrack Regulations and
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November 10. 2003
- (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.
(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 18 inches and 24 inches from the curb.
(c) No newsrack shall unreasonably interfere with or impede the flow of
pedestrian or vehicular traffic.
(d) No newsrack shall 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 interfere with or impede ingress into or egress from any
residence or place of business.
Section 11B -5 ykeldirtiettal Placement Standards fet = Main Street Specific Plan
Area.
(b a) Concentration. The director shall determine the locations within the
Main Street Specific Plan Area of newsrack enclosure structures -- •' -i t' - Fte "'"'k`"'`°
on the public right -of -way and shall mark such locations on a map that is
Newsrack Ordinance Introduction CC Staff Report 25
Introduction of Ordinance re • Newsrack Regulations and
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City Council Staff Report
November 10, 2003
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
alley eitr
s.
- - - - -- - - - - - -- - - - - - - - - - - - - ------- - - - - --
(b) Prohibition. No person shall lace or maintain a newsrack in
the Main Street Specific Plan Area except in a City- installed newsrack enclosure
structure.
(c) Permit Process.
(1) Except as provided in sub - paragraph (2) below, the director shall
approve applications for spaces in a newsrack enclosure structure on a first - come,
first -served basis.
(2) The director shall approve newsrack
permits by lottery in the event that both (i) two or more publications seek the same
location for a newsrack; and (ii) there is insufficient space at the location to accommodate
all such publications. No publication shall be eligible for more than one newsrack permit
per newsrack grouping. The lottery shall be conducted by placing into a container the
names of all of the eligible permit applicants 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.
( (d) Permit T=eptti Renewal. T If a newsrack - pa '°
in the Main Street Specific Plan Area =_ � _ : - = -- _ _ — - °° . = —_ - - _
is abandoned during the permit term, or if ftteiii the
Newsrack Ordinance Intioduction CC Staff Report 26
Introduction of Ordinance re • Newsrack Regulations and
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November 10, 2003
newsrack pennit for the space is not renewed at the expiration of the term, then the
newsrack permit for that newsrack space shall be re- allocated pursuant to paragraph (d c)
above. The pennittee who abandoned the newsrack or failed to renew the newsrack
pennit shall not be eligible to participate in the re- allocation process.
(e) Authority of Director. The director may promulgate polices 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:
Laj Each newsrack shall be the Citv - approved newsrack model.
(a b) Each newsrack shall have conspicuously affixed thereto the name, address
and telephone number of the owner thereof.
(h c) Each newsrack shall have conspicuously affixed thereto the annual pennit
tag issued by the department.
(e d) No newsrack shall be abandoned.
(el e) The liability insurance required by this chapter shall not be reduced or
cancelled.
. (e f) No newsrack shall contain an advertising sign. Notwithstanding the
preceding, the name and logo of the publication distributed in a newsrack may be
stenciled upon the front and back of such newsrack.
(f 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.
(g 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:
(1) Graffiti.
(2) Broken or unreasonably misshapen structural components.
Newsrack Ordinance Intioduction CC Staff Report 27
Introduction of Ordznance re. Newsrack Regulations and
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City Council Staff Report
November 10, 2003
(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.
(h i) Publications offered for sale 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
Newsrack Ordinance introduction CC Staff Report 28
Introduction of Ordinance re: Newsrack Regulations and
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November 10, 2003
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
im • ound such newsrack two da s after the ci manaoer's administrative hearing
decision if the decision confirms the existence of the violation and the owner has not
corrected the violation. -
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.
Newsrack Ordinance Introduction CC Staff Report 29
Introduction of Ordinance re: Newsrack Regulations and
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November 10, 2003
(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.
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 such date to re -apply for a newsrack permit for each such newsrack and to bring
each approved newsrack into compliance with this chapter.
Section 3. Severabilitv. 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. Violations and Penalties. Each person violating any provision
of this Ordinance is guilty of a misdemeanor punishable by a fine not to exceed one
thousand dollars or imprisonment for a tenn not exceeding six months, or by both.
Section 5. 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
, 2003.
MAYOR
Newsrsck Ordinance Intioduction CC Stall Report 30
Introduction of Ordinance re. Newsrack Regulations and
Preparation of Plans for Newsrack Enclosure Structures
City Council Staff Report
November 10, 2003
ATTEST:
CITY CLERK
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 , 2003 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
Newsiai.k Ordinance Introduction CC Staff Report 31
Introduction of Ordinance re: Newsrack Regulations and
Preparation of Plans for Newsrack Enclosure Structures`
City Council Staff Report
November 10, 2003
•
ATTACHMENT 3
CONCEPTUAL NEWSRACK ENCLOSURE STRUCTURES
Newsrack Ordinance introduction CC Staff Report 32
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stone study
Introduction of Ordinance re: Newsrack Regulations and
Preparation of Plans for Newsrack Enclosure Structures
City Council Staff Report
November 10, 2003
ATTACHMENT 4
RESOLUTION NO. , A RESOLUTION -
OF THE CITY COUNCIL OF THE CITY OF
SEAL BEACH AUTHORIZING BUDGET
AMENDMENT NO. 04 -14 FOR
PREPARATION OF PLANS AND
SPECIFICATIONS FOR PROPOSED
NEWSRACK ENCLOSURE STRUCTURES
Newsrack Ordinance Introduction CC Staff Report 33 -
%I
Introduction of Ordinance re • Newsrack Regulations and
Preparation of Plans for Newsrack Enclosure Structures
City Council Staff Report
November 10, 2003
RESOLUTION NO.
- A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF SEAL BEACH AUTHORIZING
BUDGET AMENDMENT NO. 04 -14 FOR
PREPARATION OF PLANS AND
SPECIFICATIONS FOR PROPOSED .
NEWSRACK ENCLOSURE STRUCTURES
WHEREAS, the fiscal year budget requires budgetary amendments as outlined below:
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY
RESOLVE:
REVISED/
ADOPTED PROPOSED BUDGET (diff)
DEPT , ACCOUNT BUDGET BUDGET AMENDMENT
Contract Professional
Services 001 -030 -44000 $ -0- $ 10,000 $ 10,000
PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal
Beach at a meeting thereof held on the day of
, 2003.
AYES: Councilmembers
NOES: Councilmembers
ABSENT: Councilmembers
ABSTAIN: Councilmembers
Mayor
Newsrack Ordinance Introduction CC Staff Report 34
Introduction of Ordinance re: Newsrack Regulations and
• Preparation of Plans for Newsrack Enclosure Structures
- City Council Staff Report
November 10, 2003
ATTEST:
City Clerk
STATE OF CALIFORNIA
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH
I, Joanne M. Yeo, City Clerk of Seal Beach, California, do hereby certify that the foregoing
resolution is the original copy of Resolution Number on file in the office of
the City Clerk, passed, approved, and adopted by the City Council of the City of Seal Beach,
at a regular meeting thereof held on the day of
, 2003.
•
Joanne M. Yeo
City Clerk
•
Newsrack Ordinance Introduction CC Staff Report 35
Re- Introduction of Ordinance re: Newsrack Regulations
City Council Staff Report
-
December 8, 2003
ATTACHMENT 5
CITY COUNCIL MEMORANDUM, NOVEMBER 10, 2003
•
Newsrack Ordinance Re- Introduction.CC Staff Report 34
r'r E L ��
•
PLANNING
DEPARTMENT
SEA(' ,
V f \y � 4084 F 9 C y 5
l ? ` rte
Memorandum
To: Mayor Larson and Members of the City Council
Attention: John B. Bahorski, City Manager
Quinn Barrow, City Attorney
From: Lee Whittenberg, Director of Development Services
Doug Dancs, Director of Public Works /City Engineer
Date: November 10, 2003
SUBJECT: AGENDA ITEM "L" - NEWSRACK
REGULATIONS AND PREPARATION OF PLANS
FOR NEWSRACK ENCLOSURE STRUCTURES
The City has received a letter dated November 7, 2003 from Davis Wright Tremaine
LLP, representing the Orange County Register, the Los Angeles Times, and the Seal
Beach Sun (See Attachment 1), regarding this matter on the City Council Agenda
this evening.
As staff has reviewed the letter, there appear to be 6 major issues for the City
Council consider, as identified by staff. Those issues are:
❑ Section 11B — Uniform color and model of newsracks (page 4 of
letter):
❑ Concern of Newspapers — The newspapers see this as an unreasonable
imposition that is unnecessary to combat blight and imposes a significant
economic burden, especially on smaller publishers, by forcing them to
invest in new newsracks or to repaint existing racks.
❑ Possible Compromise Position — This is a policy choice for the City
Council. The intent of this language was to specify a common design of
newsracks throughout the community, and especially within the Main
Street Specific Plan Area (MSSP Area).
• Z My Documents \Newsracks \Newsrack Enclosure Response Memo doc \LM11 -10 -03
City Council Memo re
Response to Newspaper Publishers Concerns re:
Proposed Newsrack ordinance
November 10, 2003
If the City Council determines to proceed with the installation of the
newsrack enclosure structures, this provision may not be necessary, as
the newsracks within the MSSP area would generally be screened from
view, except from pedestrian traffic on Main Street_ itself. Staff is also
suggesting that the City Council maintain the requirements for an
approved newsrack design and color for newsracks located within the
MSSP Area along Ocean, Central and Electric Avenues, 'as it is not
anticipated that the newsrack enclosure structures would be located on
those streets.
For the other areas of the community staff is now recommending
elimination of the provision regarding the use of a city- approved newsrack
structure or color; just compliance with the permit, location and
maintenance provisions.
❑ Policy Decisions of City Council —
❑ Should the City require a city- approved newsrack structure or color
within the community, except for the areas within the MSSP Area
along Ocean, Central and Electric Avenues?
❑ Is the provision of the proposed newsrack enclosure structures an
adequate action on the part of the City to address the aesthetic, '
location, and pubic safety issues of newsracks within the MSSP Area?
❑ Are the permit, location and maintenance provisions for newsracks
outside of the MSSP Area sufficient to address the concerns of the City
Council and the community, or are specific types and colors for
newsracks also necessary in these areas?
❑ Section 11B- 3(b)(7) — Business License Concern (page 5 of letter)
.❑ Concern of Newspapers — The newspapers are concerned regarding
this provision unless there is. absolutely no discretion vested in the City
officials who issue such licenses.
❑ Response of City Staff — The City officials that issue business licenses to
newsrack applicants have no discretion in issuing such a business license.
The issuance of a business license for the newsrack applicant, either the
publishing business or a separate newsrack provider business is a purely
ministerial action, with no discretion involved. This should adequately
address the concern regarding issuance of a business license.
❑ Section 11B-3(c) — Newsrack permit application fee (page 5 and 6 of
letter)
Newsrack Enclosure Response Memo
City Council Memo re:
Response to Newspaper Publishers Concems re •
Proposed Newsrack ordinance
November 10, 2003
❑ Concern of Newspapers — The newspapers are concerned that the fee
for a newsrack permit fee is not stipulated within the ordinance and wish to
clarify that the newsrack permit fee charged by a municipality may "charge
no more than the amount needed to cover administrative costs ". The
letter also indicates "Because of these constitutional limitations, we do not
_ believe that the City can lawfully increase the permit fee in the main Street
Specific Plan Area in order to defray the costs of constructing the
proposed newsrack enclosures. The construction costs for such
enclosures are not `administrative costs; they represent an aesthetic
choice by the City. Publishers cannot be forced to subsidize that choice."
❑ Position of City Staff — A city may impose reasonable time, place, and
manner restrictions on the placement of newsracks on public sidewalks
only where the regulations are content - neutral, narrowly tailored to serve a
significant government interest, and allow for reasonable altemative
channels of communication. To justify a newsrack regulation, a city must
present evidence establishing that its ordinance is narrowly tailored to
serve the city's interest in public safety and aesthetics.
City staff have provided a rough estimate of the newsrack permit fees that
would be suggested at the time of adoption of the Newsrack Ordinance.
As envisioned at this preliminary date, the fee for the issuance of a
"Newsrack Permit" would be approximately $55.00 per newsrack
installation. That fee is based on certain assumptions as to the amount of
time to review a permit application, approve the permit application, and
physically inspect the approved newsrack installation for compliance with
the permit conditions.
City staff have provided a rough estimate of the newsrack permit fees that
would suggested at the time of adoption of the Newsrack Ordinance if the
City Council determines to include an amortization feature for those
newsracks located within the newsrack enclosure structures in the MSSP ,
Area. As envisioned at this preliminary date, this fee for would be
- approximately $160.00 per newsrack installation per year, again amortized
over a 7 -year time period. That fee is based on certain assumptions as to
the amount of the final costs of the installation of the proposed newsrack
enclosure structures; which are currently estimated between $70,000 and
$75,000.
As discussed above under Section 11 B -2(c) — Uniform color and model
of newsracks, the issue of mandating a standard newsrack design and
color is permissible, in the opinion of staff, and could be imposed to obtain
a common design theme within the MSSP Area. Although the
newspapers might not agree with the action of the City, it is an enforceable
Newsrack Enclosure Response Memo
City Council Memo re:
Response to Newspaper Publishers Concerns re:
Proposed Newsrack ordinance
November 10, 2003
provision, and would provide a more pleasing aesthetic environment within
the MSSP Area. In regards to a specific newsrack model /models and
colors, the City may impose an aesthetic determination that those
publishers wishing to display publications within the MSSP Area would be
required to "subsidize" by having to replace existing non - conforming racks
with those that are in compliance with the approved design and color
standards, if the City Council determines to impose such requirements.
The City Council may wish to consider this issue in regards to the costs of
the installation of the proposed newsrack enclosure structures. -
❑ Policy Decisions of City Council —
❑ Should the City require a city- approved newsrack structure or color
within the MSSP Area, and eliminate the proposed installation of the
newsrack enclosure structures; thereby eliminating a potential cost to
the City of the installation of the newsrack enclosure structures?
❑ Is the City Council desirous of proceeding with the installation of the
newsrack enclosure structures with the allocation of un- allocated City
reserve funds (estimated to be between $70,000 and $75,000) and
bearing those costs, including long -term maintenance?
❑ 11B-4(a) — Increased distance of newsracks from bus stops, bus
shelters, and bus benches (page 6 and 7 of letter)
❑ Concern of Newspapers — The newspapers see this as an unreasonable
imposition that is much more restrictive than the newsrack ordinances of
cities such as San Francisco, Pasadena, San Diego, or Los Angeles.
They request that the city maintain its existing placement standards
relative to bus stops, bus shelters, and bus benches, absent any evidence
• demonstrating a need to increase the placement standards.
❑ Compromise Recommendation of City Staff — Staff can adequately
ensure public safety by utilizing the current placement standards from bus
stops, bus shelters, and bus benches and therefore recommends retention
of the existing separation standards from bus stops, bus shelters, and bus -
benches, which are within 5 feet ahead and 25 -feet to the rear of any
designated bus stop. While staff is comfortable with the proposed
standards of 10 -feet ahead and 40 -feet to the rear of a designated bus
stop, the existing provisions are also adequate.
❑ 11 B — Distance of newsracks from street curbs (page 7 of letter)
❑ Concern of Newspapers — The concern is that the proposed distance
from a street curb would not allow for compliance with ADA accessibility
requirements.
Newsrack Enclosure Response Memo
City Council Memo re:
Response to Newspaper Publishers Concems re:
Proposed Newsrack ordinance
November 10, 2003
❑ Recommendation of City Staff — Maintain proposed setback standard
fro street curbs along Main Street. Allow newsracks along Ocean, Central
and Electric Avenues to be located between 6 and 24 inches from the
curb, as these streets have parallel parking.
The writer of the letter, in the opinion of staff, has not acquainted
themselves with the physical layout of Main Street, including the provision
, of diagonal parking along Main Street and the width of the sidewalk area,
which is 10 -feet. It is not feasible to locate the proposed newsrack
enclosure structures that close to the curb without expecting future
damage to the structures from card parking in the diagonal spaces, and
damaging the structure and the vehicle, as many vehicles routinely
overhang the curb by 6 to 12 inches.
❑ 11B-5(a) — Limitation on number of newsracks on a block face in the
Main Street Specific Plan Area (page 8 of letter)
❑ Concem of Newspapers — Concern about the limitation as to the number
of newsracks permitted on a block face within the Main Street Specific
Plan Area. Newspapers feel the other placement standards should
control, and that no limit be set.
❑ Position of City Staff — The intent of the City to only allow newsracks within
the Main Street Specific Plan Area to be located within the proposed
newsrack enclosure structures. The size of the structures and the
configuration of the newsracks that could installed within the enclosures
would determine the actual number of newsracks that could be placed on
a certain block face.
. In addition, the City went through an extensive field survey of the MSSP
Area in 2002 and 2003 to delineate the position of all existing bus stops,
fire hydrants, telephone stands, signal poles, street signs, street trees,
utility poles, bus stops zones, driveway approaches and pedestrian
crosswalks. Based on that information, staff indicated where potential
newsracks could be located along Main Street in compliance with the
placement standards set forth in Section 11 B-4, assuming at that time that
those placement standards would be applicable. Based on that analysis,
staff identified 21 locations along the three blocks of Main Street where
newsracks could be located, and still provide a sufficient number of
newsrack for existing publications located on Main Street, irregardless of
whether the particular publication also has a business license within the
- City. Maps of the Main Street area indicating this information was
presented to the City Council in 2002 as part of the initial consideration of
Newsrack Enclosure Response Memo
City Council Memo re:
Response to Newspaper Publishers Concems re:
Proposed Newsrack ordinance
November 10, 2003
a revised Newsrack Ordinance, and subsequently provided to all of the
publishers having a business license within the City on August 11, 2003 as
an attachment to a letter inviting the publishers to meet with City staff
regarding the proposed Newsrack Ordinance.
- Provided below is the actual number of newsracks existing on each block
face in the Main Street Specific Plan Area on Thursday, November 6,
2003 and the maximum number that would be permitted by the proposed
ordinance:
Maximum # of
# of Existing Proposed
Block Face Newsracks Newsracks
100 Block Main — Even 24 24
100 Block Main — Odd 10 24
200 Block Main — Even 3 24
200 Block Main — Odd 14 24
300 Block Main — Even 10 24
300 Block Main — Odd 12 24
Seal Beach Pier 9 , 12
- 900 Ocean - Inland 8 4
900 Ocean — Ocean -0- 4
800 Ocean - Inland -0- 4
800 Ocean — Ocean -0- 4
900 Central - Inland 2 4
900 Central — Ocean -0- 4
800 Central - Inland -0- 4
800 Central — Ocean -0- 4
900 Electric - Inland -0- 4
900 Electric — Ocean -0- 4
800 Electric - Inland -0- 4
800 Electric — Ocean -0- 4
Total 92 204
6
Newsrack Enclosure Response Memo
City Council Memo re:
Response to Newspaper Publishers Concerns re
i
Proposed Newsrack ordinance
November 10, 2003
The above information as to the various placement standards utilized by
the city staff in arriving at the recommend locations for newsracks along
Main Street in the MSSP Area clearly indicate that the City will be able to
accommodate all existing newsracks located along Main Street, even
those not having a business license to operate within the City and still
allow for more than a doubling of the number of potential newsracks that
could be located along Main Street.
o Remaining Issues of Concern:
o It is the opinion of Staff that the remaining issues generally set forth below are
of a minor nature and can be resolved with further discussion among the
parties, and that City Council action this time is not necessary
o 11 B 3(e)(D) — Denial of Permit if Newsrack has been Impounded
(page 6 of letter) — Staff will revise language to address the concern after
language has been proposed to the City to address this issue.
o 11B and (f) — Denial of Newsrack Permit for Interference with
Street Cleaning Activities (page 7 of letter) — Staff will revise to the
language to indicate that the newsracks should not "unreasonably"
interfere.
o 11 B 5(c)(2) — Random Lottery for Newsrack Spaces (page 8 of letter) -
Staff will revise language to address the concem after language has been
proposed to the City to address this issue.
o 11B — Three year permit for Newsracks (page 9 of letter) — Staff
agrees with this suggestion and will revise the ordinance accordingly.
o 11B — Advertising Signs on Newsracks (page 9 of letter) - Staff
will revise language to address the concern after language has been
proposed to the City to address this issue.
o 11B — Sexually Explicit materials (page 9 of letter) - Staff agrees
with this suggestion and will revise the ordinance accordingly.
o Transition Program (page 9 and 10 of letter) - Staff will revise language
to address the concern after language has been proposed to the City to
address this issue. The transition period will be primarily dependent on
the City Council determination regarding the issue of the placement of
standard model and color newsracks within the MSSP Area. If the City •
Council determines that is not necessary, Staff is of the opinion that the
transition period can be a fairly short time period after completion of the
newsrack enclosure structures.
o Violations and Penalties (page 10 of letter) — This is standard language
of any ordinance, as the violation of any section of the Municipal Code is a
misdemeanor, unless the City Council wishes to make such violations an
infraction. .
Newsrack Enclosure Response Memo �
City Council Memo re:
Response to Newspaper Publishers Concems re
Proposed Newsrack ordinance
November 10, 2003
Attachments: (2)
Attachment 1: Letter dated November 7, 2003 from Davis
Wright Tremaine LLP, representing the Orange
County Register, the Los Angeles Times, and the
Seal Beach Sun re: Proposed Newsrack
Ordinance
Attachment 2: Map of Main Street Specific Plan Area Indicating
Proposed Newsrack Locations, dated 8 -8 -03
* * * *
I
Newsrack Enclosure Response Memo 8 .
City Council Memo re:
Response to Newspaper Publishers Concems re:
Proposed Newsrack ordinance
November 10, 2003
ATTACHMENT 1
LETTER DATED NOVEMBER 7, 2003 FROM
DAVIS WRIGHT TREMAINE LLP,
REPRESENTING THE ORANGE COUNTY
REGISTER, THE LOS ANGELES TIMES, AND
THE SEAL BEACH SUN RE: PROPOSED
NEWSRACK ORDINANCE
Newsrack Enclosure Response Memo 9
■
iCY - .I -O3 0 : LC pin F 3 'rIG.{ FEA;:K.F. - :1B F'])1, i
LA77Yckt
e"'s -
Davis Wright Tremaine L LP
P.NC ic. ; :AZ.g -- L'.,S ,.v rL_ V- Yc:ov ru:t' _.i:: .A* FR- 411.311,;.n `C•1TT:t )1•I WA5-i1 ^• -�N,
,1J1TE 2430 T__ (.l_f L.3-6LJL`
= .l:±C[UWICj :crsIV &65 SCUT:: F1CL'F ?..)A _ r,== :AX !3 Lj) .53'•6.ST19
- l;u] -6 w L P sJGET_ES. CA 5i,n• :906 w dwt.com
No erL 7.2003
"s. FACSIMILE
Mr. Lee Whittenberg
Director of Development Services
Ciry of Seal Beach
1 11 Ei "hth Street
Seal Beach, California 90740
Re: Proposed Newsrack Ordinance
Dear MT. Wl iittenber.:
On behalf of The Orange County Register, the Los kaaeles Times, and the S1 Beach
Sun, we respectfully submit the following ca n-_e nts regardin the City of Seal Beach's revised
proposed IIewsrack ordinance, which was circulated to the publishing carm_unity on November
6.2003.
introduction -
The Reba ster, The T hn.e;, and The Sun appreciate the City's decision not tc re-quire
publishers to use publicly owned newsracks in the Main. Street Specific Pin Area. We still have
31�'ilrl c nt concerns, however, about set' m1 other provisions of the proposed CtrdinaT c .
in-cl ding regularlon_s that would force publishers to pay for the constr:htion and replacement of
T es in the Main Streit Scecific Plan Area_ would r e,Z aire a: publishers to ]1_SC a
newsrack �.i]C1Uj11= - -
single 1 and color of newsrack, "id would deny penrlils to 211) publisher whose newsrack
n�e ]ilodC 21] �`
had. been :i?2_pounded in the last year. We r eco size that the City has a legitimate 'interest in
ensuring that T _ newsracks comply with reaso b ` t c e 5 d . do IIO1. L'nteriere with
eulsr hic or edestri::i. rafic. and are well niaincained. But the City's 'ne slack ordinance ce Lust
1 :1 X_UU — •1 _:'1) — � -
Nov —Cr —i: e2: LQrz i ?AV E A li , ; l L'i.! IFEIMI Pi: LL : t -:10 , U:: /1.
Lee .t r erg.
1 0
November " 2003
'
,
balance t : os' municipal interests \i:t_7 publishers' First .A..menairne. tt nzht t0 disseiminare
\ perS tlirou=h newsrack. onpu'il w
c sidewalks, W. do not be. the that e Ci_ 'S prop
ne \'gip:; x osed
proper ,
ordinance , �i1iG5 the prop••• balance.
This letter summarizes the constitutional oroteections that courts have aiTorded to
newsrack, and details our concerns about the City' proposed ordinance. In addition!, we have
sunested some alternanve i'1eeaS S that the rrti ht adopt 10 prof Ote its interests in
aesthetics public afe:y,' Lhottt infringing publishers' First Amendment rizhts. s� e
�sth °U%S iAi'1L j � � to �
appreciate the opportunity to provide the ccrnments and 1.onk forwar1, to .'�ior_ing with the City
and with interested citizens to formulate an ordinance that will be ei'ecuve and consTitu ionzd.
To that h end, we respectfully request that the City Council deli` consideration of the proposed
. ���
ordinance for 30 days to allow us to r ='eet with you or your staff to address these issues.
The City's Authority To Regulate'ticw'sraeis iS Much More Limited Than Its Authority
To Regulate Other Items Placed On Public Sidewalks-
Both the United States Supreme Court and the California Supreme Court have made clear
t h a t --First Amendment protections are applicable to the public distribution of newspapers and
periodicals throu.g7h ne'.vsracks, Kash Enterprises. Inc.:. ' Ci of "�n
f Los .neles, 19 Cal. 3 d 294,
30 (197 see also Cir. of Lak.ev, v. Plain Dealer Plibl. Co_. 486 U.S. 750.7�8(9S8). As
one court: reiterate: earlier this year, `(tjhe distribution of newsra .er ; ,nil less than the
publica tion of the nev,rspaper5 themselves, is an activity protected by the First .kmendrne��II
Atlanta ti 2S1iS our!iisl 1 ',?Sid Constitution -s . Caw o% Atlanta Dpt. of Avia ion. 322 F.3d 1298. 1305 (lath
.�
Cir. 2003). Importantly, Article 1 § 2 of the California Consutution <<uaLrantees newsracks even
does the Firs krltend e• :. Cart Luis_ Obispo Tribune v. City of El Paso
;;?'utter protection than m =t'
tie Robles_ 2 002 \W L (Second ., 318/2737 (S°d Dist "00 ") list r_ published opinion; eiun_ Gonzales
� - — �,
v. Superior Court. 130 Cal_ App. 3d 1116.112 ?-'3 (1988)).
have 1, broad T��'�' i i h�l
are L'npOrttaft reasons why courts ha.�e e`' h Con t~_r:on
There r � titend such
n �l'sr acks on 'public sidewalks The: First. ent�..rne:it "rests on the assumption
on
7 for ne = '
that the widest possible dissemination of inirDrrngtio •n from •diverse and ar acaoA15tiC sources is
r he .� . =_ ,a Ti j ii:te _'t`_ -:tes. 326 L1.J. 1, 20 (1943).
'S_�'Pr3� L'J'• v ;e�� - r' - re L'1 L•l., Gli�•11C. .' .SC�C',3ie� � reS. \. - ,.
By reporting ` . y cornrneniti )g on public : fat acd by preseridn'g a diversity of viewpoints,
V r t •J iL1,. �- ,
wed by the 1�rs o f the
re ess ential u.) t%' ' *rlt�_ p ace of ides ,envisi,:n _:cuts.. -_
nay sttut e. 97 1 1.y _3 3. 150 (19= 6). News-racks 2110W
Constitution. Gros.; \�. American Y. c_, Co., � 2 � . � y _
r� to Ifiil their i:i}.ai�.ua.cle role. in our SOCi�ly `,ev srac a enable publisher_ to
r'�i� �iS�"1e. r i�
N "Cr f7'10pil rforll-J.ifl PI iri II'',_ }.R:r !Li L 7— Fie P i-3-
Mr- Lee , ti.,'nittenberg
Nov_ibber 7, 2003
disseminate information to the. public efficiently and effectively. twenty-four hours a day, seven
They a di link to he public,
days _ week. `lriey also promote an independent press because. as V -1 e a er r! : ° u g the approval of any third party.
they er� enable publishers to Crtj`:nuiit. P... •'•,'S,. � -= tii iR rtli S',.1; ri>1 _
City of Lakewood. 486 U.S. at 76S.
Under these circur,•i ces ,
:t it is not surprising that in both of its newsrack cas-es. the
Unite d ,. Court ourt. t in a 1 the ci s at tis a and afttmed that the First
�t3T.�5 Supreme t invalidated .17e 01•l.,.on_ tissue and
d t protects the distribution of newspapers and other publications through r1ews; ticks on
?ors n..l-ri n. p p `` y 31
507 U.S. ^, 4? 0 42�, '123 -
puhs_ic sidewalks. See City of Cincinnati v. Discovery Net a'or] Plain 0 D S. 1 • ['i]iberty 8
(1993); Flair. Dealer. 486 U.S. at 768. As the Court declared in —
a ii f , 1i „ c* reed, without he
eircuiati�g is as essential (l,c;.don? of expression] as sb.r[}' o_ p1- _- 51 -n'
circulation, the publication would be of little �•a1�ae. 486 U.S. at-768 (brackets in original). The
California i Supreme. Court likewise leas emphasized that "('she right to fee speech necessarily
likewise of embodies the means used for its d.isseinina .on because the right is worthless in the absr.i e of a
mean: me-Ill method of its expression- ... Freedom of speech entails cost nuniCatior; it
Wollam v. City o: Palm S:.rin ^_s, 59 Cal. 2d 276, 284
• contemplates effective cOITirntiriiG'a :10�:. ' al -,
(1963).
The California Supre :ne. Court also has recoani. that the First Amerrdment protects the
a ' through e hash. 19 Cal. 3d at 309. In
publics right to acquire information tiiro_ ne�t'sracks. Se — llatt court
in? down a municipal newsrack ordinance, a other California app
recognized the - public's right to buy and read Cnetvspapers]" from ne.twsracks. California
• ?gym- ra Pubis. Assn v. Ci of Bi: bunk. 51 Cal. App. 3d 5r'. 53 (1975)- Each week,.ilir
millions
of .' mericans, including thousands of Seal Beach residents and visitors, exercise this right.
Indeed, the United States Supreme Court t has noted that ''almost half of the sir.gle op. salts of
.
now disLibd h
uto trouzh i?ewsrack" Disco
s.�`ei , Networks. 507 U.S. at 416 n.l
V�S p�rSa.I'L � t 0
nit p�
r • • de the draf or ii must rive i�,il_l :' eiffht to the constitiil' . nal. rights of
:1` the LLr� considers u ,. draft �• �. - — .-
those Seal Brach residents who rely on newsracks to obtain information
Because nebvsr3cks are constitutionally pro :ov a City 's regulatory power is limit 1.
r here, }}.. ro ,on anon S ewsr^cn. _ 3_blic cite aika.
� 11t. c r a:i r • e ks a
Ll`• J. 1 .. 1 .. K.,
�c is especially Tr'_? where, as � C N, CU!tri�' C!t Clark.. .vhich are. the ` :.rchetype of the traditional public foam." See. S•O.C.. Inc,
a 1136, 1144 -4: (9t Cir. 1999). A city in-iv impose eastinable time place, and manner
152 ' l- herc the :e ui. 1 L?r�s 'art
a �?..'. u1�^it�',nt +7i n�t'�$rXChC.i C:? +7Ubi•: �1:. :: only -
res�iction's on � L u _ � for
- content-neutral. . nano,' tailored to serve. a st_rjficani rTovernfl1 °...'_'t i:ite e__ - . an ailovs' oa
.Tl �..
_ -- � ;.r� - S sat ^. =8 -_ is
�� a._erna channols of cornmunira :ion. Dis corer-. , e:' _ s - -
LAX i Cry-`-•- -,t1
Lot.
F; :m-)..MS WSiG i THWINE 117 L I-i10 r 0:!/1:
•
Mr. Lee W hit:en ery
November I 2 3
P1a`n Dealer '86 L.S. at 763 (;r:ilphasis added: San Luis Obisoo Tribune. 002 WL 3181
*'
To justify a newsrack regu arlon, a cl?y must presen.t evidence establishime that its
ordinance is narrowly tailored to ser, the city's interests in 12ubhc safety and aesthetics:. This is
a heavy burden. isa the most recent California appellate decision lir ai v irig a municipal newsrack
re?ulation, the Court of peu affirmed trial cowl' ord=r striking cloWI'i the City of Paso
Robles newsrack Ordinance, on the Found_ that it was not narrowly tailored to promote that
Ciit : Ln._r;:sts :Il afetr• and aesthetics. San Luis Obispo Tribune. 2002 WI 31812737 at
A federal district court applied to same analysis in eajoinin3 portions of Caiistoea s newsrack
;srdi ,ance. Naga .Pu lishin_ Co. v. City of Caltstoca 0 =6 F. Surrn. 2d 1176. 1188 -89
(N.D. Cal. 2002). In each case, the court based its decision in oar on the City's failure to present
erltiricail e'vii_nce to supporI its restrictions. Id. As c a milk:: clear, newsrack
ordinanc are subject to close judicial scrutiny.
The City Should Revise Several Provisions in The Proposed Ordinance.
The Register, Tad Times, and The Sur, are sensitive to both the corLsttuti0n:i1 and the
practical effects of the City's proposed newsrack ordinance. Based on ;3 'ur re few of bropcsal
that was circulated to publishers, we Have concerns about the followin°_ provisions:
Section 11B -2 {c) — This provision would impost a uniform iuodel and color
requirement on all newsracks in the City_ L_l e that this approach is
unnecessary to combat b1? r.tht. From our experience, the enforcement of maintenance
standards vv11l do more than nt _ im else to prornote . s. e_._ h � u :aline
1 sracv —rowel ri 1 ' e ' will i s 1 adverse
r
uniformity ii, ism � +...._, .,. d color, :J�. �.\ r. 'r 7' ] 11 � v =rs � erSe
consequences. Most notably, it imposes a si_niiic i economic burden, pardcula:13
all publishers. ioTC them - or
on smaller puva_S �CrS. b: { iris to ll. : "5t_ri f12';v n °1.yc uC1.�:� to repaint
existing rack:. in addition._ uniIormit:' inert res v-..hi l:VilsrerS ability to oeveloo
brand id.enaties and makes it more d'fi1cult for reader to Find their desired
publications. 1 .Vhile one appellate Court in the south astern United States held that a
nun pa it ' could mandate a sin vie oo1or for ilLnk s i* it_ di '.t :to s e Gold
Coast Pubis._ Inc v. Corri_ar 42 F.3d 131a, 13.40-4) ( 1 ith Cir. 1994), we encoura =
he City ins.ead to focus on ensur — fvF whatever model and
color —tare , _11 `i_int ?fined.
Ftcl-DAYI fcF;;GFT Ir_t;r'A_ !! T-Si0 f OCS /Cl r -5:?
c..
Mr. Lee Whitt_nber!
Noverlcer 7. 2003
Page M
� e do not object to these provisions, which. require all
• Section 11B-3(b)(5)-(6) — these � � r ,:�, indemnify
1\' aci applicants to pro'ii proof nsee °r
' �sr �en�ii p of i�.ir nee and to a .
n4 1 W` no never, that courts Baer all.:
the City against P..°.'rY ?r �cl:- relut ►d claims it•t�. 114' from
not per` nrte
id'l cities to require indemniiicatiori provisions from rews1ack
T3 First Amendment: unless cities also
operators, `v1'nCS.°, activities are protected bv :l'1�. First
require indemnification from others who place iterus on public sld'.wajk.s : , such =
and ,:ia. ilce Journal Co.
f o a r_ r overnight ex_; ress delivery coraL�2.oies. See p7O
r C of.N y rInrt. 665 F. Sapp. 10'7, 113 (D.R.i- 1987). Nevertheless, The . e_.st °_ ,
Tree Times. proof The Sun are «iiilna to provide proof ofi insurance and to indemnify the City for Uewsra .. =related claims thin °_ do not result from the City's willful CoridtlCL
• Section 11B- 3(b)(7) — R'n>L all newsrack appllca as to demonstta "proof of
receipt oI a business license" may raise cons iaition•31 issues. depending upon the
criteria for issuing business licenses. The City may require newsrack perrnitees to
discretion obtain a business license iscr ~ in the City
only if there is absolutely no -
officials who issue such licenses. As courts repeatedly have held, newsrack
ordinances "MUST. al' tng city officials with dis retion to grant or deny
� avoid �.•' Sri. -d 666, 673 ( 11t
Miami Herald Publ Co. v City' of Hallandale. 734 F h
licenses.' •ol, �'
Ci i9 4). Because of the importance of First Amendment rig is, "permit system system system
v no factors to be d, jud ens to be made, or discretion to be
nrust' lea e * assessed, _-
a icersin_ , official.'" Distribution S —:( nsns of A erica.
exercised by u;� appropriate l.- ;•l
In T Old Westbury. S 347 355 { � N.Y' 1992). other
v Village a Cl t� tip, 7$� F. �! pp. E.U._. �.
Inc. Tl is the decision to grant or deny the !iC °, Se application must be 'vL Gaily a
words, ''
,� e l one.' Cbicat7c Newso� Der Pubis. Ass'n v. Cit4' of Vs- heaton. r_t9 i F. Stipp.
1464. 146g (N.D. Ili. 19g8). La Napa VzLeY publishing 225 F. Supp. 2d at 11 SS -S9.
' enforcement of a Ltrovision of Ca stogy : newsrack
the federal district court enjoined , _ -
ordinance that required publishers to ob'..ain an encroachment permit. as L as a
newsrack ri ni :. because city offici=als had "discretion to ip•a t or deny [thel
court thus heidt :r, i 5ll= requirement likely was "facially
e ,�•7oachn::r1. permit." The o , business (d. r_t i 18 -H.' . C tv ,, f Seal Reac!• s business license
°ti then the issuance of a nt:vs m .i.
_ +pplics�on vests officials with a?r }•ci.scr discretion.. _ - .
r_•annCat be conditioned flticne• an .a p.ib ic;5ei %._� obt .. _
Section 11B-3(c) — ann.`s dc-s not ape _
"npnlication s tnC t av d iy is are +° the .5�_ rack] 1io r.sir4 see is
*�,- the 'did TO
'i:.issible but cn. ... 4: u�_C1T5^iin ma`' char: _ .o" an . n
L A . --.. 4 v l 12".. t 5:
kn
e=.12,2ra WRIah7 TR:MAINE UP :-Els-Ein; T —elf! F.CCT/C12
F
Mr. Lee 7,1irtenberg
NOV'llibe: 7, 2003
Page 6
coN,cr athninistrative costs," Sentinel Commn aiic 936 F.2d 1189,
205-06 (11 Cir. 1991). The. City 'may net m
by imposing licensin2 or ptz.rnit
fees on the exercise of Ent amendment rights. . . and is prohibited from raising
rev-nue ander the 2.uisc of defrayinv its administrath'e costs." Id. (eLations omitted).
We ur2e the City to adopt a reasor..able. i. .1rid to keep in rnir:d that permit fees will
he held unconstitutional unless the City can "produce evidence to ju.stift; frl[e]
Atlanta Journal & Constitution v, Cl of .Att`" ta. 1 F. Stapp. 2d 1375, 1381-82 and
n..4 (N.D. Ga. 1997), aff 3.322 F.3d 1298 (11r:n Cir. 2003).
Because of tliese constiardonal limitations, we do not believe that the City can
lawfully incrtt.ase the permit fee m the Main Steal Specific Plan Area in order to
defray the- cost of constructing the proposed newsrack enclosures. The construction
costs for such enclosures are not "administrative co they represent an aeSthatic
choice by The City. Publishers cannot be forced to subsidize that choice.
• Section 1113-3(e)(D) — This provision would authorize the City to deny a newsrack
-permit applicarion to any publisher whose nev.. had been impounded durinti the
previous year, unless the publisher successfully challened the - propriety of such
impound[.]" Such a rule would be rnai.siftesfiv Icrifair — and unconstitutional — to the
extent that it would Llow the City to derry a permit to a publisher whose news:rack
had been sunaniarily impounded TH-oit_211 no rad: of the publisher. For example, the
City could deny a permit applicarlon from a publisher whose riewsrack had been
summarily impounded because h was struck by a vei that drove. onto the Eidzwalk
or that was severely damage.d by vandals. We do not belie' tit the City intends
such a result, and irg th e City to evise . this provisio
. Section 11B — We fail to see the need for proposed nit% placeme.ra standards for
nemsracks nee: bus stops, bus shell...en and bus enches. The existing ordinance
regtilres newsracks to be placed at least L. feet .head and. Twenty-five feet to the
rear of any desisautted bus stop,' and at est t frorn any iz bench. 72:dting
Ordinance.. 11B-2(b,1(6)-(7). The proposed ordinance would increase those
distances simificantly, reouiriri riv‘Pr k. to be m. least ' f 2:r....cad of and 40
feet to the rear of zy sign markin2 desicr_ate.Abuz. stop and m least "10 feet I
any bus bench or bus shelter." We ir nct aware of --my justification for ± ncrease.,
which would make Seal atazh's orAinance much more restrictive th= citie.s such as
San Francisco. Pasadena, San. Die:To. or Los Alizeits.
t, 4491:,-9
1
Lee Wi-.i nenber2
November 7, 2003
Pane
safety undoubtedly is a si?ni ELcant City interest. "broad wsserions of a safety
t evidence TO sL tait iale th cannot survive e 'a•i'e.n The First
iri�rest..�'iTJ10u
.1.1:1en±nL1• implicated.' r t .S `1 '+ted.' C- nnett Satellite Information Network ti. 1 c'w ish1 t of
^,I V� t • k , e 5 709 F. Supp. 0. 5 6 (`D N.J. 1989). Accordir.gly, c -ou-s aeneral1�
1
vzike d ; d restrictions based on Safet'y'' Concerns unless th licensing
ct:ar_ :s. 1d. (r jectinv safety
authority can present Id�.'LCe to support those I Sir? '�
f cation for ne'w rack resu iction's where city "provided 110 t �ricle�ce of any t
�1.I.]1111 _ honor •a n ti > also r 1TTi'1 ° "'� I4 �'.hr JeT�1•
accidents or co ip17tnis resulting from uonc L,•o. eS f. Ste- so SLi. '`-
\l i
Sb ewsi?a ere v State of New rersev, 4 l 85- ;D_it_J. 1982) ") F. Supp. 173, �_
a
� ,
(rejecting -speculation" th:I restnicdou 'Were to promote safely g^» necessary "t` `
a- rttning7 ordinance based on interest in prnmoting promoting a'esthetics). Providence Journal,
665 a ` F. at 113 a ° that C111' had failed to produce evidence Supp G rtina'ts
►thatileW_TaCk ordinance v as justi1'1 d by cater one- -
c erns: in�.alidinvalidating. P d• a ); San Lu ObisDo Tri bune. 2002 `VL ; (invalidating
ce ; 1S1s7 �7 at : �in;,rlida
�.
ne s *1 a c e ;, gar. ed to determine whether Il e:7vSfItC4:- bIlllnanCZ in pan because "no evidence �': -S �•
°r t was bein.g threatened "). 1n the absence of any evidence
any aQV2:LT_LT'1ZT}tdl interest J �
demonstrating a need to increase the placement standards for ..us stops,
requirements.
c. g g e :l that the Ci ;i tin tthe current ret;uir-
and bus shelters, ��.. su e r r m
Section 11B -4(b) - Under this provion, newsracks would have to be placed
'between 1 8 and 24 inches from the curb. - T o facilitate compliance with Section ens,_ e a4$ -inch "clear space for the passageway of
11B-4(a)(10); which requires �:s s>-�c _ - .
allow place -tii�srael :s miler`: eerg sir
ask that City a ve Li t`1.Ush •ere to 1 iace rte
pedestrians," we L\ '.i i ti'1.e t
1
1 a ,u_ to be placed closer to the curb,
and 24 inches from the curl ?. By :aI.Q',�� n� �' - _
y ensure compliance with federal and state
the L.it'1''.Z'l1 P. :s!l�c', it easier fuI lJt,� L�LaL�ziS _v^ ensure :._• -
regulaticnts r o:rernii g access Lo: persons . ith disabilities.
ti - 4(d) a nd (F) These provisions would give the City discretion to deny a
Section 11 - � c of ;K t s in ,;1.
,r i a t'4t'_._ti
permit if tilt. proposed newsrack .':Qt+i `lnl' °rf're with th l 4.i s
the , ofr_lech='nic31 sidewalk el nin ma or '•21te.7fer_ wit OT impede
�v .�,e LSZ , .. t• %1_i1-
a ';. ° a��I :Ct.'�
r.ss iv= r Yc_ or puce of y!" &--t'3 '-ti_
• �YZe= into OT ec any wit "-- -- , he
t, t^ e V s.ions should, at a rd.nlr_U_rn. prohibit t
+1•.� City' intent. we believe t�37.t,LSeSC iG 1 -� ��
t- i .: re they 'void : "unreasonably" :nterfe -e with.
placement of i:ct�'SraCs3 in u'C. :_ _ '�`IIe. they - -i a
sidewalk caning i a=1 or «itl1 acct : to busir_'eSSes. This would tiC� tC ese
_ 1 ; B ( vn°` `=would prohibit -.s that
provisions CCn-- -le :1. +V:' �ei_�_ +L_ _ : � — ii
t ••-- +, _ _
t' _ r ri cI vehicular traffic
.S.�Mi -.i� . :�_ —• - - -P `t .� :a' _1T�r �' "l �L �L'it ��1 1]�l1'L:. L__ ,
i= ? -t: i -G: 0:: _z— N.,'{: ';4=. IV T;. =!,A !_° ;P :? -:i0 0:5/012
. r q.
M T 'i� hirtenber
1. Let
' over::ber , 2003
Pave 8
a ; L Zc s dawn a yi��:ilar provision that
ti�' C note, however. Lniit 'a federal district COl1: i . .
T the public of the public to use
ban ed 1 ewsracks that `'interfere[d] with the :7'`r1I o p� $, �V4a1S
,mss 7 F . at 140? -^ se
�hiCa <'G �• °\?15�ai'2S T'1r 't<. b � t Supp. the sidewalks.' held �^ z
t W a3 - at least i tt put t .. - sub ec tivre� the court that 1.
this ��t � iLaLiC i1 1 y 11 decision er n the •�"SITI? =t.2 hnri'-Y, Id. As
L*11c:prl::ti�itio ^111, vested discretion 1171y ;I.. ...
a ;; der a rlewlsrack re2iation
d.:TLOi15L "c^.t8 the absence of objective C.I"ii' i_L:i� render
uneiiforc eab ie.
W e e 1 concerned about the process for determining
are \L'' L,C.1� ��
■ Section 11B-5(a) - We ` Area and alJ'J1t the
placement o newsracl s within the Main Street Specific PIa
of 24 ne4'; Srac1 s per block, of Ma?n Street and even n.ewsracks
proFosed limit
on certain cross- streets. Courts ha been skeptical of arbitrary limits on the at;�
t Last. vear, in d'ecision'_iil pining a
{i T Tie�.Sr3c1C5 allowed on a particular block. �'�•-• -n a -
permitted ure than eialat nev :srack_s on some block acts
Calist���a or3ixianc� that permi no m� - there district � .. 1 1 se that - there appe,'iTs.TO be
and 1? n °_�•\'`?Cf.S on others, a federal G:5t1, ��;.'� ca..- .=�•�'-
'tangible evidence' justifyinz the Ordinance's pardccular limit on the n umber 0.
no tan . � a • a T "� how tile limit was arrived per block. The City has produced no c :.idertc'
Nana Valley Publishina, _251.. Supp. 2d at 1195. T.he court also noted that
other cities including St. Helena, Pasariena. Santa on c S _, "- `• 1i '= and that
and San Luis Obispo, - s•_t higher or no n' erical • mits,
Pao Alto, Orinda. a San ,. _ _ _ . � _�:. r .
Ordinance hem a_n the size,
"The comprehensiveness '3I Cct.R�r �',,rl�?1= i= `trjui v •.•
T modular. racks .. would appear to °o a long
color, :�n:ii�^,'•'•s =ti%?II and 'location of the - s
C pedeS en circulation and
v,�Y L'.�'j'- �'- rE551nn the City's concerns about aesthetics, why L11? number 1195. "In short," the court concluded, 'it is not clear
safety.' Id. not all "ciical;or'.s,
of �s could not be Expanded to acc7rir odate n_ore. if no r•. l
ph ne�v5r3Ct.>,... .�, -� We anticipate that a court would �,eopardizittg the City's asserted i crests F
have similar doubts ott the CiTY of SCa1 Beach's pro - posed limits an the. number of
�,� Street Q Cif c Plan Area. Given the va ious placement
;iZ�xrsr'C� c >1Z the �a -.:=1 �u 1 �p� 1 1
}` limits a re neCeSS�a - Y 'Jr cons-dral:El
S'.I!dc� -T�_, we l' whether such �r i_r$ *}� ..
11�'' V. 1.. b1Lwr SwC.1 J
f j The c::•ntet-a ia:es a r a..aom lottery for
■ Section 11�-j1�jf? � Th irG�,QSCM ordinance - -_
City follow L1e 4':_.rpli: 02 ' "t1E5
��'�- p
saces instead. N e re-cc I hit the Cit,
news - and T anti i .j � "1rr�1' t� Y',;.P:= 4 ° ^C�L_5 u:+�:.lJ'.
like San anC.5CJ, ?as,ndena, anT d h oil ace, anti _ N F._ a s�_ - and
lib n_,diudica:e'd- revroaper. s_ _.�, a
..• ., fpublication.
� : 1-15 - 4E'
Les -_ vzk5
It - 12::L :p; . .,,,-r.AVI: �1'iu- i,= . -„i- - -� :':- ... -_E ?; 7-:10 F 0i0 /Ci2 . -500
vh. Lee W 1.i1 iUenoer g
November 7, 2003
Page 9
r^'% �LeS t0 renew their
— T his section woald require iewsrack pc -_.i
Sectioll11B , "
oe_nnis every year. To Ieduce the administrative burden on ti City and on
v.:: su°=`'est feat the City re.cluire renewal `n. three
of +�,�:� provision, which — �, "J e are uncertain about the nies.ni g
•
Section � s this provision. 1 s d-= '�Tl�'d'CQ
prohibit '`a veitising signs" on newsracks. i - `, >z
would pro- J � no obi-.°..;tt011. Alternatively, the
apply only to third-pa y ad�'t rnrsincr, hcn we 'awe
l y incorporate Section 11B-4 from the existing nevrsrack orc4Tn7 ^Ce,
City could sirnpl,
which forbids third-parry advertis:rir b' allows rack Cards- the small cardboard
h contents of their ne\h spapers tot e
inserts that publishers use to communicate. th coa „-
� this n � intended to prohibit rack cards.
C°
public. We CO o'O;irCt, tlu'41 °giver, if ir1� provision lri• :n informing its r°ud?Lstllr_i a
Forbidding The Reds The Times, or The Sun. fro ,=
` d'ti� ,f the newspdFer Co t lIls. for - xamrle• "Election Coverage or
Particular edition of -
does to any conCei\ able saint/ or
"1-Tigh School Football Coverage," not promote
^t `��'::.id raise r ^ First concern. In addition: such a re ri. • on r r r e s Trif .,:�_
amend .g. Lorillard Tobacco Co. , F_eiIly. 212 S. Ct. 2404 (2001)
a.�tendnleTlt issues. S e �- � speech): GL - �•.
scope of constitutional protection fo commercial sa 1 i
(._:p: lading Tj p - '0, S 7 2- 7 3 (1979) (Bird; C. T -,
S _^otid� Prod ictimis. 25 Cal. 3d. 86 - ,• r (B i ez ein� for
ion all i prottzt .., is ad v -,
concurring) ( ;V'•1ere defendant 3 film �'r'F:5 Consililiz � 02y third-party
vas also protected). As long as th provision proscribe_ ,
film 0 pI�Lrl` on�1 concerns advertising ::rt rietivsracks- it does not ;present any consiituti•
it Section 1iB - 6(h) — We support the City's proposed maintenance requirements.
Based on our ex in other Citie we belie
that enforcement of these
l will , y ¢ the Cit •s saft.tcy �%lrY aesthetic
provision -s more than an_�thmg else, 3ddr °_s '_ e -
CoIi::err -.
• S.ecrion 113 — .1 drafted: this provision, which deals with the display of
',� r�tir' il4T;s offered. toT :,^: lei 1,.
1 explicit materials, would apply only to -r �L• lica
( E rnph Sis add: r ) To avoid %re3.tirg s
paid publications differently : jai+ +
,,,,
e i the City vise this sectioTi so hrr it ap'iies more
publications: `•� : recommend :e
b pubIieat ofl distributed'' Trough nev;s-acks.
M '- .i; - S .eCOc?'tiLl.�. :i C. the need
_ pinto ■ Section 2 (Transition ! � ^frr7ra�) — apPr�G �G - Y ;:L.S into .`r,1r,l:.;,,Ce
Publishers r of bri - thC1r n I1 etii s s c
� � rL h i14 i U'� t� time to Provide �� b t 1L' a j � •� would propose r:
to t h o ' i .',in, ^.e. ? s_l??r `t m n 60-day p:.r:od_ i ever. 'v� ; C p•
�i�til alit) li��v� r..rL.L�
• " ^s A.ns:lzz
C:.L4p • _m-DAVIS 71F;;;3-7 1-= Mr..1E ._. 21.-''-"'-' Lip I' 01,/r:2
\4r. 7 ee Wnt Ti:.nber a
io` e 1:bt:r ^, 1003
1oale 10
1 n n the final ordinance that the City
?^ 13 S' :'-rnGit� n transition ocrio�• t?e;�endir• u '
l ' < 1 have to order
new n'ewsr a cks paint their e
or ?: srin_
adopts. some pui;l� hers rnii lla.' '
Th would i p sis:-nif caii economic burden_ p;Srti illarlY on small
rteV.SraC� i,l: 4 \,,'_ld s - -
publishe - s. that would be even. more onerous if those investments Were required
within 60 days. Accordingly, iaf° wSn th;ti the City extend the transition period to at
1eaSt 31X months. i
eT1 �
Section 4 (Violations and Penalties) — The City should eliminate CtLL.lnu1 pen��s_ r ie "s
a ca e t?�e newsrack ordinance dlirectl
for violations of its newsrack cir.�ina;lce. Be 1:.5 -
regulates constitutionally protected Conduit, it is subject to eN:il.C.Q i•ud?cia1 scrutiny.
It ti.�ll be subject to a lu_hcr level of sc :utir:v if aliened violators are subject to
criminal prosecution. As one court explained. " jc }r etinal statutes MUST he more;
� �,
precise than civil statutes h ecause the consequences of ti are more severe.
[Tlhe Constitution de, r s more clarity of laws which threaten to inhibit
_ y 1 protected conduct especially conduct prot?Cte.:i by the First
�.rnen..1:1 -ni.
" United States v. Ca'adreau 860 F.2d 357, 360 (10th Cir. 1988).
Criminal penalties raise signific2:ni constitutional concerns. are =necessary, arid
should he omitted from the ordinance.
Conclusion
The Rea:s.e *, f lre Titres, and The Sun hope to w0 ;1:
with the City to resolve these issues
�? aesthetics atld protects tn? press' and public's First
in a manner that promotes public safety =r1 1
Amendment.
- ask that the City Council postpone
��n�?P.iC?lt P�lItS. To ensure sUCC?sS in that ZiTO_ , '�'�? i~,a
S r ordinance d c s oh 11 we have an opportunity to meet with
consider : dv -1 the nr.:pa_ed orL����ance far 33
you or with City sia±f to discuss these issues.
7 J 1
:
, t
3`3.X77- ='1 ,1•1`,';)-9
C1'— --'!j i . r 'C!C-V r'„lij wr .vni aiY�.ti�� ..Y 2:,,—..� Eit P eiZ /C12 7 :
.a is —pi
Mr. 1., ��i� i tEenber
November 7, 2003
, page 11
least do not
If . pr ovide you with additional. information in e meantime. P
�l. d a�,�rni3:
_,tale to caU me at (213) 633-6S65.
6'11 ?0
a
Alonzo \V c ers I
Davis Wright Tr ernaine LL?
Mr. Charles Antos, CounciL'nernber
cc: a • Campbell, Co�.lrcilrne ber
Ms. )? 3li'iC i a
W, riliia Doa11e, Councilmenzber
Mr. John Larson- Cou
Mr. Paul Yost, Councilmember
Q. :ooThiv.;
,
City Council Memo re:
Response to Newspaper Publishers Concerns re:
Proposed Newsrack ordinance
November 10, 2003
ATTACHMENT 2
MAP OF MAIN STREET SPECIFIC PLAN
AREA INDICATING PROPOSED NEWSRACK
LOCATIONS, DATED 8 -8 -03
Newsrack Enclosure Response Memo 10
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