HomeMy WebLinkAboutOrd 16391
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ORDINANCE No. 1639
ORDINANCE OF THE CITY OF BURLIN GAME
AMENDING CHAPTER 12.23 OF THE MUNICIPAL CODE
TO ESTABLISH CLEAR STANDARDS FOR
THE PLACEMENT AND MAINTENANCE OF NEWSRACKS
IN PUBLIC RIGHTS-OF-WAY
The City Council of the City of Burlingame does ordain as follows:
Section 1. Chapter 12.23 is amended to read as follows:
Chapter 12.23
NEWSRACKS
� 12.23.010 Purpose.
The purpose of this chapter is as follows:
(a) There is a substantial governmental interest in promoting the public health,
safety, welfare and convenience by ensuring that persons may reasonably use the public streets,
sidewalks, rights -of --way, and other public property without interference with such use.
(b) Newsracks placed and maintained on the streets, sidewalks, or other public
rights -of --way, absent some reasonable regulation, may unreasonably interfere with the use of
such streets, sidewalks, and public rights -of --way, and may present hazards to persons or
propert
(c) The city has adopted a streetscape program for its central commercial areas,
which requires orderly placement of street furniture, installation of extensive public
improvements, and enhancement of public use.
(d) The city has a large proport
ion of elderly who regularly use the commercial areas
as central shopping resources, and pedestrian traffic in the commercial areas is substantial.
(e) The public streets, sidewalks and rights -of --way are historically associated with
the sale and distribution of newspapers and other publi
cations, and access to and use of these
areas for such purposes should not be denied except where this use unreasonably interferes with
the use of these areas by pedestrians or traffic, or where such use presents a hazard to persons
or property.
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(f) Reasonable accommodation of these competing interests can be achieved by
adoption of this chapter, which regulates the design, placement, and maintenance of newsracks.
(g) The public health, safety, welfare and convenience require that: interference with
vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight distance and
views of traffic signs and street -crossing pedestrians be eliminated; damage done to sidewalks or
street be minimized and repaired; the good appearance of the public streets and grounds be
maintained; trees and other landscaping be allowed to grow without disturbance; access to
emergency and other public facilities be maintained; and ingress and egress from properties
adjoining the public rights-of-way be protected.
(h) It is intended that the provisions of this chapter shall be consistent with the
accessibility standards established by the Department of Justice pursuant to the Americans with
Disabilities Act (ADA) of 1990, Public Law 101-336 and the Rules and Regulations established
by the State Architect pursuant to the ADA. These provisions affect the general safety and
welfare of all citizens and visitors of the city, and it is the responsibility of the owner of each
newsrack to comply with all such provisions.
(i) The regulation of the sale or free distribution of newspapers and other
publications dispensed in vending machines as set fort
h in this chapter provides the least
intrusive and burdensome means for ensuring the purposes stated in this chapter are carried out
while still providing ample opportunities for the distribution of news, information, and opinion to
the citizens of the city.
(j) This chapter does not and is not intended to regulate the placement of newsracks
on private property or propert
y under the jurisdiction of any public agency other than the city.
12.23.020 Definitions.
For purposes of this chapter, the following definitions apply:
(a) Abandoned newsrack. Any newsrack which has been left empty for a period of thirty
(30) days, except a newsrack remaining empty due to labor strike or other extraordinary
interruption of distribution or publication by the newspaper or other publication sold or
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distributed from that newsrack.
(b) Broadway Commercial Area and Subarea A of the Burlingame Avenue Commercial
Area. Broadway Commercial Area, as defined in ordinance 1272, and as the Area is amended
by subsequent zoning ordinance. Burlingame Avenue Commercial Area, as shown on the map
attached to Ordinance 1214, and the subareas shown on that map, and as the Area and subareas
are amended by subsequent zoning ordinance.
(c) Director. The city's parks &recreation director or his/her designee.
(d) Distributor. A distributor is any individual or firm that uses any newsrack for the
distribution of any publication.
(e) Modular newsrack. An industry standard structure composed of a group of individual
newspaper dispensing cabinets mounted in a double row of two (2) or more cabinets on a rack
base that is supported by one or more pedestals.
(f) Newsrack. Any self-service or coin-operated box, container, storage unit or other
dispenser installed, used or maintained for the display and sale or distribution without charge of
newspapers, periodicals or other publications.
(g) Roadway. Roadway as defined in the California Vehicle Code.
(h) Sidewalk. Sidewalk as defined in the California Vehicle Code.
(i) Temporary Newsrack Any newsrack placed within a one block location for a trial
period of up to sixty (60) days.
12.23.030 Establishment and responsibilities of the newsrack committee.
(a) In order to facilitate the implementation of this chapter, a newsrack committee shall
be established, consisting of three (3) distributors, or their representatives, whose publications
are circulated within the city. One member of the committee will be the representative of a daily
publication, one will be the representative of a weekly or twice weekly publication, and one will
be the representative of a monthly or other publication.
(b) The committee will be formed within thirt
y (30) days of the effective date of this
chapter, and members' terms of offi
ce shall be three (3) years or until their successors are
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appointed. The members shall be appointed by the city council, and shall be advisory to the
director on matters involving newsracks within the city. The terms of office of the respective
members shall be staggered and overlapped in such a manner that the term of one (1) member
expires each year.
(c) The committee will be responsible for ensuring compliance with this chapter,
including, but not limited to: approving the issuance of the necessary permits, and monitoring
existing newsracks within the city to ensure compliance with design, placement, and
maintenance standards.
12.23.040 Requirements of newsrack permit.
(a) The provisions of this chapter shall be the exclusive requirements for newsrack
encroachments onto city property.
(b) Each newsrack distributor shall obtain a newsrack permit from the city or its designee
prior to placing any newsracks into the public right -of --way or on public property.
(c) The newsrack permit shall be reviewed on an annual basis, which shall be subject to
annual affirmation pursuant to the provisions of this chapter.
(d) The newsrack permit application form shall state the name, address, and telephone
number of those responsible for installation, use and maintenance of the newsracks, and shall
describe, with particularity, the location(s) proposed for installation. Any newsrack permit or
modification shall be issued within ten (10) working days if the type of newsrack and location(s)
proposed meet the standards set forth in this chapter.
(e) A person or distributor who has been issued a newsrack permit may install and
maintain additional newsracks and change the location of existing permitted newsracks by
modifying the original permit. The rules and procedures of this section shall also apply to the
review and approval of any such amendment.
(f) Every
newsrack owner shall permanently affix within plain view to each newsrack,
the name, address and telephone number of the person responsible for the maintenance an
operation of the newsrack.
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(g) All persons or distributors who obtain a newsrack permit shall also obtain and display
an identification/permit marker provided by the city or its designee. Such marker shall be affixed
to the newsrack within plain view.
(h) In Lite event of a change of ownership of a newsrack, the new owners) shall within
ten (10) days modify the existing permit providing the name, address, and telephone numbers)
of the new owners) and obtain and affix a new marker for the newsrack.
12.23.050 Design.
(a) No newsrack shall be installed in the public right -of --way that does not meet the
dimensions of
(1) not more than fifty-four (54) inches high including pedestal, measured from the
ground to the top surface of the newsrack;
(2) not more than two (2) feet deep; and
(3) not more than two (Z) feet wide; and
(4) not less than fifteen (15) inches from the ground as measured from the ground to the
bottom surface of the lowest compart
ment. The bottom of a newsrack maybe as low as five (5)
inches from the ground, so long as it is set back as required in subsection 12.23.070(a)(3)(c)
below.
(b) No group of newsracks shall extend for a distance of more than eight (8) feet without
the written permission of the director. If
sufficient space does not exist to accommodate all
newsracks sought to be placed at one location without violating the standards set forth in this
subsection, the city or its designee shall approve permits for that location as follows:
(1) First priority, first come fi
rst served basis;
(2) Second priori
ty, a lottery will be held to assign spaces.
(c) All newsracks shall be permanently affi
xed to the ground within the Broadway
Commercial Area and Subarea A of the Burlingame Avenue Commercial Area.
(d) The highest operable part
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of the coin slot, if provided for the newsrack, all controls,
dispensers and other operable components of newsracks shall not be greater than to,
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(48) inches above the level of the adjacent pavement or sidewalk, nor lower than fifteen (15)
inches above the level of the adjacent pavement or sidewalk.
(e) Newsracks are not subject to design review.
12. 23.060 Placement.
(a) No person shall install, stock, use or maintain any newsrack which projects onto, into
or over any part of the roadway of any public right -of --way, street, or which rests, wholly or in
part, upon, along or over any portion of a roadway.
(b) No person shall install, use or maintain any newsrack which in whole or in part rests
upon, in or over any sidewalk or roadway, when such installation, use, or maintenance
endangers the safety of persons or property, or when such site or location is used for public
utility purposes, public transportation purposes or other government use, or when such
newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic,
including disabled access, the ingress into or egress from any residence or place of business, or
the use of poles, posts, traffic signs or signals, hydrants, postal service collection boxes or other
objects permitted at or near said location.
(c) Each newsrack shall be installed in a perman
ent fashion to the public sidewalk. The
owner or operator of the newsrack shall provide the installation pursuant to the provisions of
this chapter. Should the newsrack be relocated at any time in the future, the then -owner or
operator of the newsrack shall bear the costs of repairing and restoring the sidewalk to a safe
and attractive condition.
(d) In the Broadway Commercial Area and Subarea A of the Burli
ngame Avenue
Commercial Area, all newsracks shall be contained in modular units for display and sale that
meet the specifications established by the city. The distributors shall provide the modular units.
The modular newsracks shall be of a multi -unit configuration in order to provide the safe
passage of pedestrian and vehicular traffic, while ensuring equivalent access to distribution. The
modular units shall be subject to and shall be attached to one another to facilitate consolidation.
No alteration of these modular newsracks shall be permitted without the express written
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direction of the city.
(e) A publication not previously circulating in a given area which chooses to do so, may
place an industry standard rack on a temporary basis for sixty (60) days so long as:
(1) The newsrack is tagged by the distributor with the placement date and the date of
removal; and
(2) The tag indicates that this is a test location; and
(3) By the sixty-first day, the distributor shall either obtain a newsrack permit or
remove the newsrack; and
(4) During the sixty (60) day temporary basis, the distributor adheres to all other
aspects of this chapter, except for permanently affixing it to the public sidewalk.
12.23.070 Standards.
(a) Any newsrack that in whole or in part rests upon, on or over any sidewalk shall
comply with the following standards:
(1) Newsracks shall only be placed near a curb or adjacent to the wall of a building.
If no building exists at the proposed site, newsracks shall be placed parallel to the back of the
sidewalk and with the back of the newsrack not more than six (6) inches from the back of the
sidewalk. The back of newsracks placed near the curb shall be placed no less than eighteen (18)
inches nor more than twenty-four (24) inches from the edge of the curb except that along a curb
that is painted red prohibiting parking, there shall be no minimum setback from the curb. The
back of newsracks placed adjacent to the wall of a building shall be placed parallel to such wall
and not more than six (6) inches from the wall.
(2) All newsracks shall
be permanently affixed to the ground except as provided in
section 12.23.060(e) above. Newsracks shall not be chained or otherwise attached to a bus
shelter, bench, street light, utili
ty pole, or sign pole, to any other sign or modular newsrack, or
any tree, shrub, or other plant, nor situated upon any landscaped area, or tree grate.
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(3) No newsrack shall be placed, installed, used or maintained:
(A) At any location where the clear space for the passage of pedestrians is
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reduced to less than six (6) feet except that in areas where physical obstructions provide
for less than a six (6) foot clearance, a clear space for passage of not less than four (4)
feet may be permitted for a distance of not more than ten (10) feet with the written
approval of the director;
(B) Within ten (10) feet of any marked or unmarked crosswalk as measured
from the curb return;
(C) Within five (5) feet of any marked crosswalk at a midblock intersection as
measured from the outside edge of the crosswalk, or if the bottom of the newsrack is
lower than fifteen (15) inches above the ground, then the newsrack shall be at least ten
(10) feet from the crosswalk;
(D) Within three (3) feet of any fire hydrant, fire call box, police call box, or
other emergency facility;
(E) Within five (5) feet of any driveway apron, as measured from the edge of
the curb;
(F) Within three (3) feet of any bench fixed parallel to curb or within four (4)
feet of any bench fixed perpendicular to curb;
(G) Within five (5) feet of any red curb of a bus stop zone;
(H) Within five (5) feet of any blue curb or other designated area of a disabled
parking zone;
(I) Within ten (10) feet of the curb return of any wheelchair curb ramp; or
(f) Within twelve (12) inches of any accessible utility or meter flush mounted
in sidewalk.
(K) If there are any confl
icting dimensions with the placement of a newsrack
as described in subsections (a) to 0) above, the greater of the dimensions shall control.
(b) If the committee or the director determines that the placement of a newsrack in a
specific location that would conform to the standards in this section would nevertheless
constitute a safety hazard or unreasonably interfere with pedestrian travel or emergency access,
the committee or director may deny the placement by making written findings specifying what
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constitutes the hazard or unreasonable interference.
(c) Advertisements of any kind shall not be affixed to or displayed on any newsrack,
except for information regarding the sale or distribution of the publication to be sold or
distributed therein.
(d) No distributor shall knowingly display, sell or offer to sell harmful matter in any
newsrack that is at a public place unless (1) minors are excluded from the public place, (2) the
newsrack is supervised by an adult to prevent minors from gaining access to the newsrack, or
(3) access to the newsrack is limited to a token or identification card that can only be obtained
upon proof that the purchaser is 18 years of age or older. Harmful matter is defined in chapter
10.68 of this code.
(e) No publication shall be kept or maintained in any newsrack in such a manner as to
expose to the public view statements, words, pictures, illustrations, cartoons, or drawings
describing or showing any explicit sexual act or sexual organs. Distributors displaying, selling or
offering for sale sexually explicit material shall install in all its newsracks blinders shielding from
view the bottom two-thirds of the front page of the publication and all the above-described
items.
12.23.080 Maintenance.
(a) Each newsrack shall be reasonably free of dirt and grease, be reasonably free of
chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, have no
broken or cracked plastic or glass parts, and have no broken structural parts. Adhesive labels,
other than city- issued identification/approval labels, unrelated to publications in the newsracks
shall not be displayed on newsracks.
(b) Abandoned newsracks shall be unlawful, and maybe removed or reassigned by the
city or its designee pursuant to the provisions of this chapter
(c) Upon the removal of a newsrack, the public right -of --way shall be returned at cost to
the permittee to its original condition including but not limited to the refi
for purposes of placing newsracks.
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lling of holes installed
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(d) No later than July 1 of each year, each distributor shall file a statement with the city
or its designee affirming the continued placement of the distributor's newsracks that shall
contain a list of the newsrack permit numbers and a description of each newsrack's location.
12 23.090 Abatement of violation(s)0
(a) Any newsrack in violation of this chapter may be removed, relocated, or corrected by
direction of the city or its designee as provided in this section and stored at a place convenient to
the city.
(b) Before any newsrack is removed, relocated, or corrected by the city or its designee,
the owner shall be notified by posting and mailing, where feasible, to the address for such party
stated on the newsrack permit and given ten (10) days to remedy the violation and/or contest
removal. If no identification is shown on the newsrack and no newsrack permit has been
obtained, posting of the notice on the newsrack alone shall be sufficient. Both forms of notice
shall state the code section violations, the length of time within which the violation must be
cured, and the forum within which the owner may request a hearing to contest the removal,
relocation, or correction of the newsrack.
(c) Any person notified under subsection (b) above may submit a written request for a
hearing before the city's newsrack committee, which hearing shall be held not less than ten (10)
days after the request as made. The hearing shall be informal, but oral and written evidence may
be given by both sides. Any action by the city with respect to the alleged violation shall be
stayed pending the city's decision following the hearing, which decision shall be rendered no
later than ten (10) days after the hearing. The city may give oral notice of the decision at the
close of the hearing, but shall give written notice as well of the decision.
(d) The city or its designee may remove a newsrack if the distri
butor for such newsrack
has neither (a) requested a hearing before the city nor remedied the violation within ten (10)
days following date of notice; nor (b) remedied the violation within ten (10) days after receiving
a copy of the written decision that the newsrack was installed or maintained in violation of this
chapter, following a hearing as conducted pursuant to this section. Such distributor shall be
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notified of the removal.
(e) Removed or impounded newsracks, and all money contained within, shall be retained
by the city or its designee and may be recovered by their owner within ninety (90) days of their
removal. Newsracks which are not claimed within ninety (90) days shall be deemed permanently
abandoned and shall be disposed of pursuant to Civil Code section 2080.6.
(f) Before release of the newsracks, the distributor shall pay an impound fee covering the
actual cost to the city or its designee of transporting, storing and disposing of such newsrack.
Money contained within the newsrack will not be returned unless the distributor pays for any
impounding fees and receives the newsrack.
(g) The prior notice required by this section will not be a prerequisite to the city or its
designee taking reasonably necessary steps to relocate or remove a newsrack that presents an
immediately imminent danger to public health and safety, or an unmitigable obstruction to the
movement of either pedestrian or vehicular traffic.
(h) Abatement hereunder is a cumulative remedy and does not prohibit the city or its
designee from pursuing any other appropriate criminal or civil action with regard to the
enforcement of this chapter.
12.23.100 Appeal of denial or order.
(a) Any distributor may appeal a denial of a permit or order of the city or its designee to
correct an alleged violation of this chapter by filing a written appeal with the director within ten
(10) days of the date of the decision or order. The city will set the matter for hearing before the
beautification commission within sixty (60) days but at least ten (10) days after the date that the
appeal was filed with the director. The appellant shall be notified by mail, and the notice of the
hearing shall be posted at three (3) public places within the city. The commission will hear the
appeal de novo and consider all relevant facts and testimony presented. At the conclusion of the
hearing, the commission may approve, disapprove, or amend the decision or order of the city or
its designee, as the commission determines is in conformance with the provisions of this chapter.
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(b) The appellant may appeal the commission's decision to the city council by filing a
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written appeal with the city clerk within ten (10) days of the date of the commission's decision.
The city clerk will set the matter for hearing before the city council within sixty (60) days but at
least ten (10) days after the date that the appeal was as filed with the clerk. The appellant shall
be notified by mail, and the notice of the hearing shall be posted at three (3) public places within
the city. The council will hear the appeal de novo and consider all relevant facts and testimony
presented. At the conclusion of the hearing, the council may approve, disapprove, or amend the
decision or order of the commission, as the council determines is in conformance with the
provisions of this chapter.
12.23.110 Amortization requirements.
(a) Every newsrack within the public rights -of --way within the city shall be removed or
otherwise brought into conformance with this chapter according to the following schedule:
(I) For newsracks in the Broadway Commercial Area and Subarea A of the
Burlingame Avenue Commercial Area, within one hundred twenty (120) days of the effective
date of this chapter.
(2) All newsracks outside the Broadway Commercial Area and Subarea A of the
Burlingame Avenue Commercial Area shall meet all requirements of this chapter except
permanent affi
this chapter.
2002.
xing to the sidewalk within one hundred twenty (120) days of the effective date of
(3) All newsracks outside the Broadway Commercial Area and Subarea A ofthe
Burlingame Avenue Commercial Area shall be permanently affixed to the sidewalk by January
(b) Within one hundred twenty (120) days of the effective date of this ordinance, the
owners and operators of all existing newsracks shall obtain the permits required by this chapter
and install permit decals in accordance with this chapter.
(c) Nothing contained herein shall prevent or inhibit the city or its designee from taking
all legal and appropriate steps to ensure that existing newsracks are not located on or projecting
into the
public
rights -of --way in
the city so as to present a hazard to public health
and safety, or
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an obstruction to either pedestrian or vehicular traffic that cannot be reasonably mitigated.
Section 3. This ordinance shall be published as required by law.
n , d'.
Mayor
I, Ann T. Musso, City Clerk of the City of Burlingame, do hereby certify that the
foregoing ordinance was introduced at a regular meeting of the City Council held on the 5th
day of September , 2000, and adopted thereafter at a regular meeting of the City Council held on
the 18th day of September, 2000, by the following vote:
AYES: COUNCILMEMBERS: COFFEY, GALLIGAN, JANNEY, O'MAHONY, SPINELLI
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
D:\wp51 \Files\ORDINANC\newsrack2000.p&r.wpd
9/18/2000
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City Clerk