Ordinance 1830• ORDINANCE NO. 1830
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
A11fENDING TITLE 10 OF THE CUPERTINO MUNICIPAL CODE,
REGULATING PLACEMENT AND DESIGN OF NEWSRACKS ON PUBLIC
RIGHTS-OF-WAY
THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES HEREBY'
ORD:~IN that Chapter 10?1 (Newsrack Ordinance) of the Cupertino Municipal Code
shall be amended to read as follows:
10.21.010 Intent and Purpose
The purpose of these regulations is to acknowledge and achieve the following:
(a) There is a substantial governmental interest in promoting the public health, safety,
welfare and convenience by ensuring that public streets, sidewalks, walkways and
all other rights-of-~vay are not restricted for public use and access.
(b) Newsracks placed and maintained within public rights-of--way, absent some
reasonable regulation, may unreasonably interfere with the use of such rights-of-
way.
(c) Streets and sidewalks within public rights-of--way are historically associated with
the sale and distribution of newspapers and other publications and access to and
use of these areas for such purposes would not be denied, except where such use
unreasonably interferes ~vitlt the use of public rights-of--way by pedestrians or
traffic, or where such use represents a hazard to persons or property.
(d) Unrestricted placement of newsracks within public rights-of--way, which display
• or describe explicit sexual conduct and nudity may constitute an unwarranted
invasion of individual privacy and is unsafe and obscene.
(c) Reasonable accommodation of these competing interests can be achieved by the
adoption of this ordinance, which regulates the design, placement, maintenance
and time, place and manner of newsracks on public-rights-of--way.
(f) The public health, safety, welfare and convenience require that: interference with
vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstniction of sight
distance and views of traffic signs and street-crossing pedesMans be avoided;
damage done to sidewalks or streets be minimized or repaired; a positive visual
appearance of public streets and grounds be maintained; trees and other
landscaping be allowed to grow without interference; access to emergency and
other public facilities be maintained; litter adjacent public rights-of-~vay be
controlled; and access to and from properties adjoining major roadways be
protected.
(g) It is intended that the provisions of this article be consistent with the accessibility
standards established by the Department of Justice pursuant to the Americans with
Disability Act (ADA) of 1990. These provisions affect the general safety and
welfare of all residents and visitors to the City of Cupertino and it is the
responsibility of the owner of each newsrack to comply with these provisions.
(h) Improve the aesthetic appearance of streets and roadways in the community by
promoting the placement of modular newsracks rather than stand-alone
newsracks.
(i) The regulation oC the sale or free distribution of newspapers and other
publications in vending machines as set forth in this article provides the (east
intrusive and burdensome means for ensuring that the purposes stated in this
section arc carried out while still providing ample opportunities for the
• distribution of news and opinions to the community.
Ordnance IS30
• 10.21.020 Definitions
Page 2
(a) Abandoned newsrack: Any newsrack which has been left empty for a period
of thirty (30) continuous days, except a newsrack remaining empty due to a
labor strike or other extraordinary interruption or publication by the
newspaper or other publication sold or distributed from that newsrack.
(b) Modular newsrack: An industry standard structure composed of a group of
individual newspaper dispensing cabinets mounted in multiple rows of two or
more cabinets on a rack base that is supported by a maximum of two
pedestals.
(c) 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 with or without the charge of newspapers, periodicals or other
publications.
(d) Public right-of--way: The area and those areas dedicated for public use for
public street purposes, including but not limited to roadways, parkways, alleys
and sidewalks.
(e) Roadway: As defined in the California Vehicle Code.
(f) Temporary newsrack: Any newsrack maintained within a public right-of--way
for a trial period of up to ninety (90) days.
10.21.030 Applicability
This Ordinance shall apply only to newsracks placed within public rights of way or
encroaching over public rights-of--way.
• 10.21.Od0 Design Standards
Approval of pernti[s for newsracks shall be based on compliance with the design of
newsracks set forth in the City Newsrack Specifications, adopted separately by the City.
as well as the placement and maintenance provisions established in this ordinance.
Design Specifications are intended to foster a unified, aesthetically pleasing modular
newsrack configuration.
A publication not previously circulating in a given area which chooses to do so may place
a temporary newsrack for a maximum of ninety (90) days as long as:
(1) The newsrack is tagged by the publisher or distributor with the placement
date and date of removal;
(2) By the ninety-first day, the publisher or distributor shall either obtain a
newsrack permit or remove the newsrack;
(31 During the ninety (90) day trial period the owner or distributor shall
adhere to all other aspects of this Chapter.
Failure to comply with any of these requirements shall constitute a violation of this
Ordinance and shall be grounds for abatement in accord with Section 10.21.090.
10.21.050 Display of certain material prohibited
Publications dispensed from newsracks placed or maintained on or over the public right-
of-way shall not be displayed or exhibited in a manner which exposes to public view
from the public right-of--way the following:
(a) 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;
Ordnance 1830
Page 3
(b) Any picture or illustration of genitals, pubic hair, anuses, or anal regions of
any person, where such picture or illustration has as its purpose or effect
sexual arousal, gratification or affront;
(c) Any picture or illustration depicting explicit sexual acts, where such picture or
illustration has as its purpose or effect sexual arousal, gratification or affront;
(d} Any pictures, photographs, illustrations or pictorial representations of any of
the following acts: sodomy, oral copulation, sexual intercourse, masturbation,
or a photograph of a penis in an erect and turgid state.
10.21.060 Administrative Authority and Newsrack Committee
There is conferred on the City Manager those powers and duties necessary for the
administration of this Chapter. In addition, there is also conferred upon the City Manager
the authority and power to designate such officers and officials of the City and of other
cooperating public agencies, as may be required to assist in the carrying out the intent and
purpose of this Chapter. An Ad Hoc Newsrack Committee may also be established by the
City consisting of representatives of publishers and/or distributors whose publications are
distributed within the community, members of the general public and City staff.
Membership of the Ad Hoc Newsrack Committee shall be until successor members are
•ippointed by the City Manager and Mayor. The Committee shall be advisory to the City
Ivlanager on an as-needed basis for the purpose of resolving disputes regarding location of
ncwsracks, advising the City as to any suggested changes to Design Standards and
resolving disputes regarding allocation space for newspapers and periodicals.
10.21.070 iv1aintenancc
(a) Each newsrack shat( be reasonably kept free of dirt and grease, be free of
graffiti, be reasonably free of chipped, faded, peeling or cracked paint, be
reasonably free of rust and corrosion, have no cracked or broken plastic or
glass parts and have no broken structural parts. Adhesive labels, other than
those required by the City of Cupertino and unrelated to publications, shall not
be displayed on ncwsracks.
(b) Abandoned ncwsracks shall be unlawful and may be removed by the City of
Cupertino or its designee pursuant to the provisions of this Article.
10.21.080 Permits and insurance Required
(a) No person shall place, maintain or relocate a newsrack in the City public
right-of--way or which projects onto a public right-of--way unless and until an
encroachment permit has been issued by the City of Cupertino Public Works
Department.
(b) Perntits shall not be transferable and shalt remain renewable on a yearly
basis for as long as the newsrack complies with the provisions of this
Chapter.
(c} Applications for a permit shall include the name, address, telephone number
and facsimile number of those responsible for the installation, use and
maintenance of the newsrack(s).
(d) The proposed permittce shall ~rovidc evidence of adequate types and levels
• of insurance as may be required by the Public Works Department. Said
insurance shall be in full force and effect during the time newsrack(s) are
Ordnance 1330 Page 4
maintained in the City. The certificate of insurance filed with the City shall
N include a statement by the insurance carrier that thirty (30) days advance
notice shall be given the City prior to cancellation.
(e) A newsrack permit shall be issued within ten (10) working days following
submittal of a complete application if the newsrack complies with the
standards set forth in this Chapter and the supplemental Design Standards.
(f) A person or distributor who has been issued a newsrack encroachment
permit may install and maintain additional newsracks and change the
location of an existing permitted newsrack by requesting a new permit. The
rules and procedures of this section shall also apply to the review and
approval of any such amendment.
(g) Newsrack encroachment peimittees shall obtain and display an
identification/permit marker provided by the City or its designee. Such
marker shall be affixed to each permitted newsrack within plain view.
(h) In the event of a change of ownership of a newsrack the new owner(s) shall,
within ten (10) working days, modify the existing permit providing the
name, address, telephone number and facsimile number of the new owner(s)
and obtain and affix a new marker to the newsrack.
10.21.90 Abatement of Violations
(a) Before any newsrack is removed, relocated or corrected by the City, the owner
shall be notified by posting and mailing, where feasible, to the address for
such party as stated on the encroachment permit and given ten (10) days to
remedy the violation and/or contest the removal. If no identification is shown
on the newsrack and no permit has been issued, posting of a notice of
. violation on the newsrack itself shall be sufficient. Both forms of notice shall
state the code violation, the length of time within which the violation must be
cured, and the forum within which the owner may contest the removal,
relocation or correction of the newsrack.
(b) The City may immediately correct any violation if such violation is deemed to
be an immediate hazardous or dangerous condition. This may entail
immediate removal and impoundment of a newsrack by the City. If such
action is taken, written notice of such action shall he sent to the pcnnittee or
owner of the newsrack within two (2) working days aRer impoundment.
Necessary fees shall be charged to the pcnnittee or owner to retrieve the
newsrack.
(c) Any person notified of a correction or violation under this Chapter may
submit a written request for a hearing before the Cupertino City Council in
accord with Section 10.21.100 of this Chapter.
(d) The City or its designee may remove a newsrack i f the person responsible for
such newsrack has (1) neither requested a hearing by the City pursuant to
subsection "a" nor remedied the violation within thirty (30) calendar days
following the date of the notice; or (2), following an appeal hearing has failed
to remedy the violation within the (l0) calendar days aRer receiving a copy of
the written decision that the newsrack was installed or maintained in violation
of this Chapter, following a Bearing as set forth in this Section.
(e) Removed or impounded newsracks 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 according to the
appropriate sections of California Civit Code.
r
~J
Ordnance 1830
Page 5
. (f) Before release of the newsrack, the person responsible for such newsrack shall
pay an impound fee to the City covering actual cost of transporting, storing
and disposing of such newsracks.
(g) Abatement hereunder is a cumulative remedy and does not prohibit the City of
Cupertino from pursuing other appropriate civil or criminal action with regard
to the enforcement of this Chapter.
10.21.100 Appeal of 4ecision
An applicant or owner/operator of a permitted newsrack 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 in accord with Chapter 1.16 of the Municipal Code.
10.21.110 Penalty
Any person wlro violates any provision of this Chapter shall be guilty of an infraction
and, upon conviction thereof, may be punished as prescribed in Chapter 1.12 of the
Municipal Code.
10.21.120 Amortization
Every newsrack within or encroaching into public rights-of--way shall be removed or
otherwise brought into conformance with this Chapter within six (6) months of the
effective date of this Ordinance, including obtaining necessary permits, payment of any
fees, compliance with design and placement requirements and all other sections of this
Chapter.
This ordinance shall take effect and be in force thirty (30) days after its passage.
•
INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 21st
clay of June 1999, and ENACTED at a regular meeting of the City Council of the City of
Cupertino the 6th day ofJ~e 1999, by the following vote:
~'rJIY
b'otc Members of the City Council
r11'ES: Burnett, Chang, Dean, James, Station
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
i ~~
rty . er •
APPROVED:
t..
ayor, tty o upertmo
•
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, KIMBERLY SMITH, City Clerk and ex-officio Clerk of the City
Council of the City of Cupertino, California, do hereby certify the attached
to be a true and correct copy` of OrdinancegNo. ~ ~ 3 L~ ,which
was enacted on _ ~ Le-L~ ~ ~ / ~ ,and that it has
been published or posted pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
~ day of ~~ , 19 99 .
~~~~~~~
KIMBERLY S ITH, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California