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HomeMy WebLinkAboutOrdinance No. 12-O5ORDINANCE NO. 12-05 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, REPLACING ARTICLE IV OF CHAPTER 62 OF THE AZUSA MUNICIPAL CODE REGARDING NEWSRACKS WHEREAS, the City of Azusa ("City") is empowered by California Constitution Article XI, Section 7 to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and WHEREAS, the Public Works Department requires greater control of the public right of way regarding newsracks in order to curtail unsightly graffiti and damaged newsracks and to provide for a permitting system to track ownership of newsracks in the City; and WHEREAS, the Public Works Department proposes to amend Article IV, Chapter 62 of the Azusa Municipal Code to require newsrack permits in order to regulate newsrack locations and establish stricter accountabilitly for newsrack owners to maintain and care for newsracks; and WHEREAS, the proposed amendments to Article IV, Chapter 62 will provide the Code Enforcement Division with accountable parties to contact to ensure that newsracks are properly maintained. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES ORDAIN AS FOLLOWS: SECTION 1. RESTATEMENT. Article IV of Chapter 62 of the Azusa Municipal Code is hereby deleted in its entirety and restated to read as follows: "ARTICLE IV. NEWSRACKS Sec. 62-121. - Definitions. Sec 62-122 — Purpose findings and applicability. Sec. 62-123. - Violation of article. Sec 62-124. - Permit required. Sec. 62-125 - Registration index file. Sec. 62-126. - Remedies. Sec 62-127 - Restricted on roadways. Sec. 62-128. —Not used. Sec. 62-129. - Prohibited areas. Sec. 62-130. - Specifications. Sec. 62-131. - Standards for maintenance and installation. Sec. 62-132. - Display of harmful matter in newsracks; blinder racks, adult supervision. Sec. 62-133. - Identification required. Sec. 62-134. - Newsrack permit required. Sec. 62-135. - Severability. Sec. 62-136. — Fees. See. 62-121. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: A. Dangerous condition or obstruction means installation, use or maintenance of any newsrack which in whole or in part rests upon, in or over any public sidewalk or pathway when such installation, use or maintenance endangers the safety of persons or property or which site or location is used for public utility purposes, public transportation purposes or other governmental use or when such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including any legally marked or stopped vehicle, the ingress into or egress from any residence or place of business or the use of poles, posts, traffic signs or signals, hydrants, mailboxes or other objects permitted at or near the location. B. Harmful matter has the meaning set forth in Section 313 of the California Penal Code, or in any successor provision. It also means any matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. C. Newsrack means any self-service or self -operated box, container, storage unit, or other dispenser placed, installed, used or maintained for the display and sale of newspapers, news periodicals, magazines, other publications or any other written or pictorial matter or materials, whether commercial, political, recreational or otherwise in nature. D. 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. The term also includes any area within a roadway which is not open to vehicular traffic. E. Public Works Director (means that person who serves as the City's Public Works Director or his or her designee.) F. Public Works Engineering Division means the group responsible for permit administration of all activities within the City's public right of way. G. Roadway means that portion of a street improved, designed or ordinarily used for vehicular travel. 2 H. Sidewalk means any surface provided for the exclusive use of pedestrians. I. Street means all that area dedicated to public use for public street purposes and includes, but is not limited to roadways, parkways, alleys and sidewalks. Azusa. Sec. 62-122. Purpose, findings and applicability. This article shall apply to all newsracks within the municipal boundaries of the City of A. As the City of Azusa has a substantial interest in promoting the public health, safety, welfare and convenience of its citizens, businesses and visitors, the purpose of this article is to regulate by enacting a reasonable time, place, and manner regulation, regulating the placement, design, appearance, and servicing of publication vending machines so as to: (1) Protect against unreasonable impairment of the vision of motorists and pedestrians, particularly small children; (2) Protect against the neglectful servicing and maintenance of publication vending machines resulting in unclean, dilapidated or broken newsracks that create visual blight on the City's parkways and sidewalks, and detract from the aesthetics of store window displays, adjacent landscaping and other improvements; and (3) Ensure compliance with the Americans with Disabilities Act and improve passage for persons with disabilities by reducing impediments to passage caused by poorly -located newsracks. B. Based on the experience of City staff and an evaluation of newsrack regulation options presented by City staff, the City finds and declares that the most effective way to reduce the visual clutter and hazards associated with excessive numbers of newsracks and their dangerous placement is to limit the number and locations of newsracks installed in the City of Azusa. C. In adopting this chapter, the City Council is mindful that newsrack regulations implicate rights protected by the First Amendment of the United States Constitution and Article I, Section 2 of the California Constitution. To that end, the City Council hereby adopts these regulations and directs that their enforcement be conducted in a manner consistent with the constitutional rights of citizens and regulated parties. D. The City finds that excessive, poorly maintained or abandoned newsracks have contributed and or may contribute to the congestion of City sidewalks, impede the flow of pedestrian traffic, or interfere with the use of streets, sidewalks and public rights-of-way such that they present hazards to persons and property and result in substantial visual blight 3 See. 62-123. Violation of article. A. Notice. Upon knowledge that a newsrack has been placed or installed or is being maintained in violation of this article, the Public Works Director shall so give notice to the person in whose name the newsrack is registered pursuant to section 62-124. Said notice shall state the nature of the violation(s) and .that the newsrack or newsracks belonging to such person(s) will be impounded if the violation is not corrected within a reasonable period of time as specified by the Public Works Director or if a request for a post-removal hearing is not made within ten (10) days after the giving of such notice. Such notice shall state the procedure for requesting such a hearing before the City Manager and the procedures thereof. A timely request for a hearing shall stay any impounding. If a hearing is had, and a finding that the newsrack violated this article is made, if not corrected within five (5) calendar days after such decision is rendered, the Public Works Director, may impound the newsrack in accordance with subsection (C) of this section. B. All notices shall be sent by registered mail to the registrant and the owner at the address shown on the newsrack registration form pursuant to section 62-124 and at their last known address. C. Summary Correction. Notwithstanding subsection (A) of this section, without giving any prior notice, the Public Works Director may immediately correct any violation of this article related to the location of newsracks (sections 62-127, 62-129 & 62-131(1), (2), (3).), restrictions upon the attachment of newsracks to property other than that owned by the owner of the newsrack and to fixed objects or to each other (section 62- 130(2).), without impounding the newsrack as long as such correction can be accomplished simply, easily, quickly and without expense in order to restore them to a safe and legal condition. D. Storage. Whenever a newsrack is impounded pursuant to subsection (A) of this section, the newsrack shall be removed by the Public Works Director and stored in any convenient place where other items of personal property confiscated in connection with a City investigation or enforcement of this Code are stored. The Public Works Director shall notify the person who according to the City's most recent records, is the owner of the newsrack within a reasonable time, by mailing a notice of newsrack removal to the owner's last known address. Such notice shall state the date the newsrack was removed, the reasons for removal, the location of removal, the procedure for claiming the newsrack, and the owner's option to request and obtain a post-removal hearing before the City Manager and the procedure thereof. E. Return of Impounded Newsracks. If no post-removal hearing is properly requested, or alternatively, if a post-removal hearing is requested and at such hearing it is determined that the newsrack when removed was in violation under this article, the newsrack removed and stored pursuant to this section shall only be released to the owner thereof if claimed within 45 days after the mailing of written notice of removal or within 15 days after the final decision of the City Manager per a post-removal 13 hearing, and upon the payment of reasonable charges of removal and storage fees. Upon failure of the owner to claim such newsrack and pay the reasonable charges with the 45 -day or 15 -day period, as appropriate, such newsrack shall be deemed to be unclaimed property in possession of the City's police department and may be disposed of in accordance with the City's policy of disposing of unclaimed property. F. Summary Removal. Notwithstanding any other provisions of this chapter, any newsrack in violation of this article, which creates a dangerous or hazardous condition which immediately and seriously threatens the health or safety of the public, as determined by the Public Works Director, and which violation cannot be simply, easily, quickly and without expense be corrected, may be summarily removed and stored in a convenient location so as to eliminate the danger to the health or safety of the public. The Public Works Director shall notify the owner thereof by mailing a notice of removal to the last known address of the owner within 30 calendar days of the removal. Such notice shall state the date the newsrack was removed, the reasons for removal, the location from where it was removed, the procedure for claiming the newsrack and the procedure for obtaining a post-removal hearing before the City Manager and the procedure thereof. Unless a hearing is requested and a decision on the merits is rendered finding the newsrack was not maintained in such a state as to be dangerous or hazardous and posing an immediate and serious threat to the health or safety of the public at the time of removal, the owner of the newsrack may claim the newsrack within 45 days after the mailing of written notice of removal and upon the payment of reasonable charges of removal and storage thereof. Upon failure of the owner to claim such a newsrack and pay the reasonable charges within the 45 -day period, such newsrack shall be deemed to be unclaimed property in possession of the City's police department and may be disposed of in accordance with the City's policy of disposing of unclaimed property. G. Post -Removal Hearing. Within ten (10) calendar days of the date on which the notice of violation or notice of removal of a newsrack summarily impounded is sent by the City, the person in whose name the newsrack is registered pursuant to section 62-124 or other person who provides satisfactory proof of ownership may request a hearing before the City Manager. The request shall be in writing and addressed to the Public Works Department at 213 E. Foothill Blvd, Azusa, CA 91702 and it shall state the basis for requesting a hearing, and shall be filed with the Public Works Director. The hearing shall be held within five (5) City working days of receipt of the request, unless continued for good cause as may be reasonably determined by the Public Works Director. At the hearing, any person may present evidence or argument as to whether the newsrack has violated this article or whether the newsrack should be returned without payment of an impound fee. Within two (2) City working days after the close of the hearing, the City Manager shall render a decision in writing. The City Manager may give oral notice of the decision at the close of the hearing or may send notice of the decision by mail. 5 See. 62-124. Permit required. A. No person shall place, install or maintain any newsrack which in whole or in part rests upon, in or over any street without first obtaining a newsrack permit from the Public Works Engineering Division and without otherwise complying with this article. One application may be submitted for multiple newsracks owned by one applicant. An application for a permit shall be made upon the form required by the Public Works Engineering Division and shall contain the following: (1) The name, address and telephone number of the owner of the newsrack and the name and address of the person whom any notice pursuant to this article should be given. (2) The location at which the newsrack is to be installed and maintained. (3) An executed document, approved as to form by the City Attorney, by which the owner of the newsrack agrees to indemnify and hold harmless the City, its officers, employees and agents from any claim, demand or judgment in favor of any person, arising out of activities or inactivities of the owner of the newsrack, his officers, employees and agents with respect to damages to persons or property arising from the location, installation, maintenance or removal of the owner's newsracks. (4) A certificate of insurance and endorsement form(s) evidencing that both a liability insurance policy and a property damage insurance policy have been obtained by the owner, naming the City and its officers, employees and agents as additional insureds, in an amount not less than $150,000.00 minimum liability per occurrence on account of personal injury, including bodily injury, per person and $450,000.00 limit per occurrence. The minimum for property damage shall be in the amount of $1,000,000.00. The policies shall also be endorsed to provide that the insurance carrier will give the City 30 days written notice by certified mail before any cancellation of coverage. (5) If a newsrack will contain harmful material, the application shall contain a separate written attachment containing all of the following: i. A summary of Penal Code Sections 313.1 and 313.4 as they exist on the date the application is submitted; ii. A detailed description of how the newsrack will be "adult supervised" and what precautions will be put into place to prevent access to the newsrack by minors; and iii. If tokens or special cards will be used to access the newsrack, a list of the locations at which the tokens will be made available. The list of C locations shall include the name of the residence or business location, the address, the telephone number and the name of a contact person at the location who shall be responsible for selling, distributing or giving out the tokens or cards. B. Each newsrack permit application shall be accompanied by a non-refundable annual application fee. C. Any application that complies with the requirements of this Code and any other applicable county, state of Federal law shall be approved. D. The owner of the newsrack(s) shall obtain a newsrack permit from the City annually. Sec. 62-125. Registration index file. The Public Works Director shall keep and maintain an index file of all newsrack permits issued pursuant to this article. Sec. 62-126. Remedies. The provisions of this article providing for administrative remedies is hereby declared to be an alternative procedure to any other remedy provided by law. Sec. 62-127. Restricted on roadways. No person shall place, install, use or maintain any newsrack in a location where the newsrack or any part thereof projects into or onto any part of any roadway or any public street or which rests wholly or in part upon, along or over any portion of the parkway of any public street. Sec. 62-128. Not used. Sec. 62-129. Prohibited areas. No newsrack shall be placed, installed, used or maintained in a parkway or sidewalk adjacent to property zoned residential, as such zone is defined in this Code, or within 300 feet of any school, church, community gathering center, park, or public building if the newsrack will contain harmful material. This section shall not prohibit the placement of a newsrack in a parkway or sidewalk in such residential zones where the newsrack is on a parkway or sidewalk directly in front of a public building which is open to and used regularly by the public, so long as such public buildings are not elementary, junior high or high schools. 7 See. 62-130. Specifications. Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway shall comply with the following standards and specifications: (1) The newsrack shall not exceed 60 inches in height, 30 inches in width or 24 inches in thickness. (2) The newsrack shall not be chained, bolted or otherwise attached to any property not owned by the owner of the newsrack or to any object permanently affixed to the public right-of-way; provided, however, that the newsrack shall be mounted so that area from the ground surface to at least 16% inches above the ground surface remains open to a significantly unobstructed view. (3) The newsrack shall be installed on a single or multiple pedestal -type or modular -type base; provided, however, that not more than four newsracks shall be installed on any one base. (4) The newsrack shall comply with such other requirements consistent with the foregoing standards which the Public Works Director may reasonably determine are necessary to protect the public safety. Sec. 62-131. Standards for maintenance and installation. Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway shall comply with the following standards: (1) Newsracks shall only be placed near a curb or adjacent to the wall of a building. Newsracks placed near the curb shall be placed no less than 18 inches nor more than 24 inches from the edge of the curb. Newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. Newsracks shall not be placed or maintained on the sidewalk or parkway opposite a newsstand or another newsrack. All newsracks must be level. (2) No newsrack shall be placed, installed, used or maintained within the following distances: a. Five (5) feet of any marked crosswalk. b. Five (5) feet of any curb return. c. Five (5) feet of any fire hydrant, fire callbox, police callbox or other emergency facility. d. Five (5) feet of any driveway. e. Five (5) feet ahead of and 25 feet to the rear of any sign marking a designated bus stop. f Six (6) feet of any bus bench or transit advertising shelter. 9 g. Three (3) feet of any area improved with lawn, flowers, shrubs or trees or three (3) feet of any display window of any building abutting the sidewalk or parkway or in such manner as to impede or interfere with the reasonable use of such window for display purposes. h. Three hundred (300) feet of any school, church, community gathering center, park, or public building if the newsrack will contain harmful material. This section shall not prohibit the placement of a newsrack in a parkway or sidewalk in such residential zones where the newsrack is on a parkway or sidewalk directly in front of a public building which is open to and used regularly by the public, so long as such public buildings are not elementary, junior high or high schools. (3) Newsracks may be placed next to each other; provided, however, no group of newsracks shall extend more than 15 feet along a curb or wall, and no such group of newsracks shall be located within five feet of any other group of newsracks. (4) Newsracks shall be maintained in a clean, neat and safe condition and in good repair at all times. Graffiti shall be removed within 48 hours of the time the Public Works Director notifies the newsrack owner of the graffiti. If the newsrack is not properly maintained within 48 hours, City staff will abate the newsrack at owner's expense. (5) Newsrack locations shall comply with the latest accessibility requirements of the Americans with Disabilities Act (ADA). Sec. 62-132. Display of harmful matter in newsracks; blinder racks, adult supervision. A. Any newsrack which contains harmful material and which is located on a public sidewalk, parkway, street or other publicly owned property shall have a blinder rack attached in such a manner as to shield the harmful material from viewing by the public in accordance with Penal Code Section 313(d). B. Harmful material shall not be exhibited, displayed, sold or offered for sale in any newsrack located in a public place without adult supervision, other than a public place from which indoors are excluded. A newsrack shall be considered to be "supervised by an adult" when either of the following measures are taken to restrict access to harmful material by persons under 18 years of age: (1) the person receiving the harmful material is required to use an authorized access or identification card to access the newsrack and the owner of the newsrack has taken reasonable measures to assure that the card is issued only to persons 18 years old or older and has established a procedure to immediately cancel the card of any person after receiving notice that the card has been lost, stolen or used by persons under 18 years of age, or that the card is no longer desired; or (2) the owner of the newsrack requires the person using the newsrack to retrieve the harmful material to use a token and takes reasonable measures to ascertain that only those people who are 18 years of age or older obtain tokens for the newsrack. Sec. 62-133. Identification required. Every person who places, installs or maintains a newsrack in any public location in the City, including but not limited to, streets, sidewalks and parkways, shall have his/her name, address and telephone number affixed thereto in a place where such information may be easily seen. Sec. 62-134. Newsrack permit required. No person or custodian, whether as a principal or agent, clerk or employee, either for himself/herself or any other person, or as an officer of any corporation or otherwise, shall place or permit the placement of any newsrack in any location within the City, unless either the publisher or distributor of the publication or the person placing the machine upon the sidewalk, parkway, street or other public place, has a valid newsrack permit with the City of Azusa issued pursuant to this Code, or otherwise is exempted from such requirement. Sec. 62-135. Severability. If any section, subsection, clause or phrase of this article or any part thereof is for any reason held to be invalid, unconstitutional or enforceable by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of the ordinance. The City Council hereby declares that it would have passed each section, subsection, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one ore more section, subsection, sentence, clause or phrase would be declared invalid, unconstitutional or unenforceable. Sec. 62-136. Fees. The fees provided for in this chapter shall be established by City Council resolution and shall not exceed the City's actual administrative costs." SECTION 2. CEQA. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly, or indirectly. SECTION 3. EFFECTIVE DATE. This Ordinance shall become effective thirty (30) days after its adoption. SECTION 4. PUBLICATION. The City Clerk shall certify the adoption of this Ordinance and shall cause the same to be posted as required by law. 10 PASSED, APPROVED, AND ADOPTED this 4`h day of September, 2012. Jp4eph R. Rocha Mayor ATTEST: Vera Mendoza U City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF AZUSA I, VERA MENDOZA, City Clerk of the City of Azusa, do hereby certify that the foregoing Ordinance No. 12-05, was duly introduced and placed upon its first reading at a regular meeting of the Azusa City Council on July 16, 2012 and that thereafter, said Ordinance was duly adopted and passed at a regular meeting of the Azusa City Council on the 4th day of September 2012 by the following vote, to wit: AYES: COUNCILMEMBERS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE City Clerk 11