Ordinance No. 934ORDINANCE NO. 934
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CYPRESS, CALIFORNIA, ESTABLISHING
RULES AND REGULATIONS APPLICABLE TO
NEWSRACKS
THE CITY COUNCIL OF THE CITY OF CYPRESS DOES HEREBY ORDAIN
AS FOLLOWS:
Section 1. Article VII, sections 24 -61 through 24 -76 are hereby added to
Chapter 24 of the Code of the City of Cypress to read as follows:
"ARTICLE VII - REGULATION OF NEWSRACKS
Sec. 24 -61 Intent and purpose.
The purpose of this Article is to promote the public health, safety,
and welfare through the regulation of placement, appearance, number, size
and servicing of newsracks on public rights -of -way so as to:
(1) Provide for pedestrian and driving safety and convenience.
(2) Ensure no unreasonable interference with the flow of pedestrian or
vehicular traffic including ingress into, or egress from, any residence
or place of business, or from the street to the sidewalk, by persons
exiting or entering parked or standing vehicles.
(3)
Provide reasonable access for the use and maintenance of sidewalks,
poles, posts, traffic signs or signals, hydrants, telephones,
mailboxes, and access to locations used for public transportation
services.
(4) Reduce visual blight on the public rights -of -way and adjacent private
properties, and protect the aesthetics of store window displays,
public landscaping and other improvements.
(5)
Maintain and protect the value of all adjacent private surrounding
properties.
(6) Reduce exposure of the City to personal injury or property damage
claims and litigation.
(7)
Protect the right to distribute information protected by the State and
federal Constitutions through the use of newsracks.
It is not the intent of this Article to in any way discriminate against,
regulate or interfere with the publication, circulation, distribution or
dissemination of any newspapers or other written materials.
Sec. 24-62. Definitions.
For the purpose of the provisions of this Article regulating
newsracks, the following words and phrases shall be construed to have the
meanings herein set forth, unless it is apparent from the context that a
different meaning is intended:
(1) City Engineer means the City Engineer of the City of Cypress or
his /her designated representative.
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(2) Department means the Public Works Department of the City of
Cypress.
(3) Display means to make available or locate material in such a manner
so as to make the material reasonably exposed to view.
(4) Exhibit means to show or display.
(5) Minor means any natural person under eighteen (18) years of age.
(6) Person means any individual, partnership, firm, association,
corporation, or other legal entity.
(7) Newsrack means any self - service, coin or slug- operated box,
container, storage unit or other dispenser installed, used, or
maintained for the display and /or sale of newspapers, books,
magazines, flyers, periodicals or other similar material.
(8) Curb means the raised edge adjacent to roadway between the
sidewalk and the roadway located within public right -of -way.
(9) Street means all that area dedicated to public use for public street
purposes and shall include, but not be limited to, roadways,
parkways, alleys and sidewalks.
(10) Roadway means that portion of a street which is improved, designed,
or ordinarily used for vehicular traffic.
(11) Parkway means that area between the sidewalk and the curb of any
street and, where there is no sidewalk, that area between the edge of
the roadway and the property line adjacent thereto. "Parkway" shall
also include any area within a roadway which is not open to
vehicular travel.
(12) Sidewalk means any surface provided for the exclusive use of
pedestrians.
(13) Driveway approach means the portion of public right -of -way,
including curb returns or depressed curbs, providing vehicular access
to a private roadway, building or other facility.
(14) Public right -of -way means any place of any nature which is dedicated
to use by the public for pedestrian and vehicular travel, and includes,
but is not limited to, a street, sidewalk, curb, gutter, intersection,
parkway, highway, alley, lane, mall, court, way, avenue, boulevard,
road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park,
square and any other similar public way.
Sec. 24 -63. Installation -- Permit required -- Conditions.
(a) Permit Required
An annual newsrack permit issued in accordance with this Article
shall be required prior to installation, placement or maintenance of any
newsrack which in whole or in part rests upon, in, or over any public right
of way.
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(b) Application
Applications for new permits required hereunder, shall be filed with
the City Engineer upon printed forms provided by the City. The
application shall be signed by the applicant and shall contain the following
information:
(1) Name of the street and approximate location of the newsrack
to be installed or maintained.
(2) Name, address, and telephone number of both the Applicant
and owner of the newsrack.
(3) The name of the newspaper, periodical or other publication to
be contained in each newsrack.
(4) Type or brand of newsrack, including a description of the
newsrack and how it will be mounted.
(5)
A precise diagram showing the Applicant's proposed location
for the newsrack and the location and number of all other
newsracks existing within one - hundred (100) feet thereof.
(6) Number of newsracks requested at the proposed location.
(7)
Hold harmless statement. Every Applicant for a newsrack
permit shall file a written statement satisfactory to the City
Attorney whereby the Applicant agrees to indemnify, defend
and hold harmless the City, its elected officials, officers, and
employees, with respect to any loss or liability or damage,
including attorneys fees, expenses and costs, for personal
injury and for property damage sustained by any person as a
result of the Applicant's approved installation, use or
maintenance of a newsrack or newsracks within the City.
(8) Proof of insurance. Every Applicant for a newsrack permit
shall provide proof of liability insurance in an amount
satisfactory to the City Attorney and naming the City as an
additional insured.
(c) Each application for a newsrack permit shall be accompanied by a
non - refundable application fee as established by Resolution of the City
Council. This fee shall not exceed the actual cost of investigating the facts
contained in the application, processing the application, and field inspection.
The term of the permit shall be one year.
(d) Based upon information provided pursuant to Subsection (b), above,
the City Engineer shall determine whether or not the Applicant has
complied with all requirements of this Article, including those standards on
file in the office of the City Engineer.
(e) Provided the Applicant has complied with the requirements of this
Section and the proposed location(s) is in compliance with the requirements
of this Article, a newsrack permit or permits shall be issued. If the
application is denied, the Applicant shall be notified in writing of the
specific cause for denial by the City Engineer and of the right to appeal in
accordance with Section 24 -73 of this Article.
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(f) Each permittee shall report immediately to the City Engineer any
change of address of such permittee. Prior to any sale or transfer of
ownership of newsracks for which a newsrack permit has been issued, the
permittee shall notify the City of such sale or transfer of ownership. All
new owners or newsrack transferees shall comply with the provisions of this
Section and the provisions of Section 24 -66 related to identification of
newsracks, with ten (10) days of the effective date of such transfer or sale.
A failure to comply with this Subsection (f) shall be grounds for revocation
of a newsrack permit.
(g) Every newsrack shall have affixed thereto in a place where it may be
easily seen, the annual permit tag issued by the Department.
(h) Applications for annual renewal of existing permits shall be filed
with the City Finance Department and shall contain all information required
under this Section.
Sec. 24 -64. Prohibited installation.
(a) No person shall install, use or maintain, or cause to be installed,
used or maintained, any newsrack which projects onto, into or over any
part of the roadway of any public street, or which rests, wholly or in part,
upon, along or over any portion of the roadway of any public street.
(b) No person shall install, use or maintain, or cause to be installed,
used or maintained, any newsrack which in whole or in part rests upon, in
or over any public sidewalk or parkway, when such installation, use or
maintenance:
(1) Would likely endanger the safety of person or property; or
(2) Is on a site or location used for public utility purposes, public
transportation proposes or other governmental use; or
(3)
Would likely interfere with or impede the flow of pedestrian
or vehicular traffic, including passage to or from any legally
parked or stopped vehicle; or
(4) Would likely interfere with or impede ingress into or egress
from any residence or place of business, or would likely
interfere with the use of poles, posts, traffic signs or signals,
hydrants, mailboxes or other objects permitted at or near the
location; or
(5)
Would likely interfere with the cleaning of any sidewalk by
the use of mechanical sidewalk cleaning machinery.
(c) No person shall install, use or maintain, or cause to be installed,
used or maintained, any newsrack outside of any public right -of -way under
any circumstances where to do so would cause a violation of a City zoning
ordinance. A newsrack shall be deemed to be a 'structure' for purposes of
this section.
Sec. 24 -65. Placement and maintenance standards.
Any newsrack which in whole or in part rests upon, in or over any
public sidewalk or parkway shall comply with the following provisions:
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(1) No newsrack shall be chained, bolted or otherwise attached to public
property in violation of those standards on file in the Office of the
City Engineer; nor shall any newsrack be permitted on private
property without the express written permission of the owner of such
property.
(2) No newsrack shall be used for advertising signs or publicity purposes
other than that dealing with the display, sale or purchase of a
newspaper or printed material sold therefrom.
(3)
Each newsrack shall be maintained in a clean and neat condition and
in good repair at all times.
(4) Each newsrack shall be installed and maintained in compliance with
this Article, and in such manner as to comply with all State and
federal regulations concerning access by disabled persons.
(5)
The design, style, location, numerical limitations and method of
installment of all newsracks in any area shall be in accordance with
standards on file in the office of the City Engineer.
Sec. 24 -66. Owner's name and address to be on newsrack.
Every newsrack requiring a permit pursuant to this Article shall have
affixed thereto in a place where such information may be easily seen, the
name, address and telephone number of the owner thereof. Upon
acceptance of a newsrack permit, each permittee shall be deemed to have
consented to receive any notices, given pursuant to this Article by mail, at
the address affixed to such permitted newsrack.
Sec. 24 -67. Violation -- Notice to owner.
Whenever any newsrack is found to be in violation of this Article the
Department shall cause a tag to be attached to such newsrack specifying the
date and nature of the violation. Within three (3) working days thereafter,
a written notice of such violation shall be sent by the Department to the
person whose name appears on the newsrack as provided in Section 24 -66,
specifying the nature of the violation, that the newsrack shall be impounded
if corrections are not timely made, and that a hearing may be requested
within ten (10) working days of the mailing date of such Notice. The
owner shall, within ten (10) working days of the date on which the Notice
of violation was mailed, or the violation tag was affixed to such newsrack
where no name and address or telephone number of the owner may be
found thereon, either cause the violation to be corrected or request a
hearing in writing pursuant to Section 24 -72.
Sec. 24 -68. Impounding of newsracks -- When authorized.
(a) The Department may impound a newsrack installed, used or
maintained in violation of this Article and after notice of such violation is
given pursuant to Section 24 -67 provided the permittee has not timely
requested a hearing pursuant to Section 24 -72.
(b) In the event any newsrack does not have the owner's name, address
and telephone number affixed, or where a newsrack has been determined
to be abandoned, the Department may impound it pursuant to procedures
set out in this Article. For the purposes of this Section, the term
'abandoned' shall mean no publication has been displayed in the newsrack
for a period of twenty -one (21) consecutive days or the same publication
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has remained in the newsrack for no fewer than forty -five (45) days.
Notwithstanding the foregoing, a permittee shall be authorized to use and
maintain a newsrack containing no publications for a period of up to thirty
(30) days, once during the term of the permit, provided no fewer than ten
(10) days prior written notice of such intended non -use has been provided
to the Department.
(c) In the event that any newsrack is found in a location or in damaged
condition, creating an immediate threat to the public health, safety or
welfare, the Department may immediately impound it pending a hearing
pursuant to Section 24 -72 provided such hearing is requested by the owner
within ten (10) working days of the date of mailing of a written Notice of
Impoundment to the owner, if known.
Sec. 24 -69. Impounding of newsracks -- Request for hearing.
Whenever any newsrack is to be impounded pursuant to Subsections
(a) or (b) of Section 24 -68, the owner may, within ten (10) working days
of the date of mailing of the Notice of violation, or the date a violation tag
was affixed to the newsrack where no name and address or telephone
number of the owner may be found thereon, request a hearing in writing as
provided in Section 24 -72.
Sec. 24 -70. Return of impounded newsracks -- Conditions.
(a) Any newsrack, together with its contents, which have been
impounded, shall be returned to the owner, provided the owner's identity
is known, as follows:
(1) Upon receipt of an impound fee in an amount set by
Resolution of the City Council, within thirty (30) days of the
date of impoundment or an order affirming an impoundment;
or
(2) Upon a determination after hearing by the Department that the
newsrack should not have been impounded or should
otherwise be returned to the owner; or
(3)
Where an appeal is timely filed, upon a decision by the City
Council that the newsrack should not have been impounded or
should otherwise be returned.
(b) I the event a hearing has not been requested within the time
permitted, an impound fee, the amount of which has been set by resolution
of the City Council, shall be imposed upon the owner.
Sec. 24 -71. Sale or disposal after impoundment -- Impoundment
hearing.
The Department may sell or otherwise dispose of any newsrack,
together with its contents, and retain the proceeds including any monies, on
behalf of the City, provided that either:
(a) Thirty (30) days have elapsed since impoundment or the date of an
order affirming an impoundment, and the owner has failed to pay all
impound fees assessed; or
(b) A hearing, if requested, and /or an appeal, if filed, have resulted in
a final determination that the newsrack was property impounded and
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fees assessed have not been received within thirty (30) days of the
date of such final determination.
Sec. 24 -72. Impoundment -- Hearing procedures.
(a) Any owner may file a written request with the Department for a
hearing within the time specified in Section 24 -69 for the purpose of
demonstrating that a newsrack should not be impounded or that a violation
as specified in the Notice or on the tag attached to a newsrack has not in
fact occurred.
(b) Within five (5) working days from the date on which the request for
hearing is received, the Department shall set a hearing date and shall notify
the owner by first class mail of the date, time and place of such hearing.
The hearing shall occur within ten (10) working days of the date of mailing
the notice.
(c) At the hearing, the Department shall receive all evidence relevant to
the occurrence or nonoccurrence of the specified violation(s), the
compliance or noncompliance with any of the provisions of this Article and
any other relevant information. The hearing need not be conducted
according to technical rules relating to evidence and witnesses.
(d) Within ten (10) working days after the conclusion of the hearing, the
Department shall find and determine, from the facts adduced at the hearing,
whether the newsrack was in violation of this Article. The decision of the
Department shall be in writing and shall contain findings of fact, a
determination of the issues presented and the amount of the impound fee,
if any, to be imposed. The Department may order the owner to remove the
newsrack, if determined to be in violation of this Article, within ten (10)
working days of the mailing date of the decision. If a notice of appeal is
not filed during said period, the Department may thereafter impound such
newsrack without further notice to the owner.
(e) The Department shall send to the owner, by first class mail, a copy
of its decision and order.
Sec. 24-73. Appeals.
(a) Any newsrack owner, permittee or applicant, may, within ten (10)
working days of the mailing date of the copy of the Department decision
and order, appeal such decision to the City Council by filing a written
notice of appeal with the City Clerk of the City of Cypress
(b) An appeal shall set forth in writing the basis upon which the
appellant believes there was error or abuse of discretion on the part of the
Department. The City Clerk shall advise the Department of the appeal and
the Department shall, as soon as practical, transmit a copy of its file,
decision and order, to the Clerk of the City Council, who shall set the
matter for hearing within thirty (30) calendar days.
(c) Following the hearing on the appeal, the City Council shall make
written findings in support of its decision which decision shall:
(1) Affirm the Department's decision and order and impose
impound fees;
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(2) Modify the Department's decision and order, with or without
imposing impound fees, and /or refer the matter back to the
Department;
(3)
Reverse the Department's decision and impose no impound
fee; or
(4) In the event of an appeal of a permit denial, affirm, reverse
or modify the City Engineer's decision.
Sec. 24-74. Costs.
The installation, maintenance, replacement, removal and relocation
of newsracks, shall be at the sole expense of the permittee or owner. Upon
removal of any newsrack, the permittee or owner shall at his or her sole
expense cause the public right -of -way to be repaired to its original condition
and in conformity to the surrounding area. If the permittee or owner fails
to make such repairs within ten (10) working days of removal, the work
may be done by the City and charged to the permittee or owner.
Sec. 24-75. Penalties.
It shall be unlawful for any person to violate any provision or to fail
to comply with any of the requirements of this Article. Any person
violating any provision of this Article or failing to comply with any of its
requirements shall be deemed guilty of a misdemeanor and upon conviction
thereof shall be punished by a fine not exceeding one thousand dollars
($1,000.00), and /or by imprisonment not exceeding six (6) months. Each
person shall be deemed guilty of a separate offense for each day or any
portion thereof during which any violation of any of the provisions of this
Article is committed, continued or permitted by such person, firm,
partnership or corporation, and shall be punishable as provided in this
Section.
Sec. 24 -76. Civil remedies available.
The violation of any of the provisions of this Article shall constitute
a nuisance and may be abated by the City through civil process by means
of restraining order, preliminary or permanent injunction or in any other
manner provided by law for the abatement of such nuisances.
Section 2. Time limit for compliance.
Owners of existing newsracks shall comply with the requirements of this
Article within ninety (90) calendar days from the effective date of this Ordinance.
FIRST READ at a regular meeting of the City Council of said City held on
the 9th day of January , 199 5 ; and finally adopted and ordered posted at
a regular meeting held on the 23rd day of January , 199 5 .
ATTEST:
CITY CLERK
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‘44.42
-8-
39Z
(Mayor Pro Tem)
395
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF CYPRESS
) ss.
I, DARRELL ESSEX, City Clerk of the City of Cypress, California, DO
HEREBY CERTIFY that the foregoing ordinance was duly adopted at a regular meeting
of the City Council of the City of Cypress, held on the 23rd day of January
199 5 ; by the following roll call vote:
AYES: 4
NOES: 0
ABSENT: 1
COUNCIL MEMBERS: Carroll, Jones,
Kerry and Bowman
COUNCIL MEMBERS: None
COUNCIL MEMBERS: Age
a4e#"-4(
CI Y CLERK OF THE CITY OF CYPRESS
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