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HomeMy WebLinkAbout6.4 NewsrackOrdinance CITY OF DUBLIN AGENDA STATEMENT City Council Meeting Date: June 11, 1990 SUBJECT: Public Hearing: Ordinance Relating to Newsracks (Report by Public Works Director Lee Thompson) EXHIBITS ATTACHED: 1) Draft Ordinance 2) Draft Registration Form 3) Memo from City Attorney RECOHMENDATION: /ì ' ~{f ( \L/V\J;~ ~ 4) 5) Open public hearing Receive Staff presentation and public testimony Question Staff and the public Close public hearing and deliberate Waive reading and INTRODUCE ordinance relating to newsracks FINANCIAL STATEMENT: Minor expense of printing permit forms, as well as staff time to review applications and issue permits. This expense would be paid from the Engineering Operating Budget. The City cannot constitutionally charge a fee for the permit. DESCRIPTION: At the Hay 14, 1989, meeting, the City Council held a public hearing regarding a proposed ordinance that would require news agencies and other publications that use on-street newsracks to obtain a no-charge permit from the City. The draft ordinance contained guidelines for placement of racks, an insurance requirement, a maintenance obligation, an insurance requirement, and a procedure for impounding racks that were determined to be hazardous. Comments received during this hearing were as follows: 1) The term "permit" implies an ability to allow or not allow placement of the racks, contrary to the news agencies' First Amendment rights. 2) The requirement for modular racks in the City's Central Business District should be eliminated because of the expense involved in purchasing and installing that type of rack. 3) The insurance and indemnification section should be modified in accordance with language provided by counsel for one of the news agencies. A specific dollar amount for liability coverage should be stated. 4) Objections were made to the placement and maintenance requirements. 5) It was felt that news agencies should be able to appeal the City Manager's decision regarding violations to the City Council. The City Attorney has made modifications to the draft ordinance which address these issues as follows: 1) The "permit" form has been changed to a "registration" form, and the news agency or publication is allowed up to 24 hours following placement to register a rack. - - - - - - - - - - - -- -- -- - -- - - - - - - - - - - - - - -- - - - - - - - - - -- - -- - -- -- -- -- - - - -- --- - - - - - -- --- ITEM NO. 6·4 COPIES TO: 2) The requirement for modular racks in the Central Business District has been changed to apply to locations with four or more racks only. In cases where multiple racks are involved, the likelihood is greater of the racks straying into the street or blocking the sidewalk. 3) The language provided by counsel for one of the news agencies regarding indemnification has been incorporated into the draft ordinance. In addition, the specific amount of $1,000,000 in liability coverage has been added. The City Attorney has prepared a memorandum (Exhibit 3) which off~s additional information regarding these issues. Items 4, 5, an~~above are also discussed in the memorandum; however, no changes were made to the draft ordinance in regard to those items. The revised draft ordinance was circulated to the news agencies, as well as to publishers of a number of the "advertising" papers or magazines contained in on-street newsracks. At the time of preparation of the Staff report, no comments had been received. Staff recommends that the City Council conduct a public hearing, deliberate, waive the reading and INTRODUCE the ordinance relating to newsracks. -2- .ñ,t' ~F .1~-__J .¢".~j .C:¡ Ii .-:(;J /' <7' ";1 / """>" ~.{¡ \ ./~ .6" ORDINANCE NO. - 90 AN ORDINANCE OF THE CITY OF DUBLIN AN ORDINANCE RELATING TO NEWSRACKS THE CITY COUNCIL OF THE CITY OF DUBLIN DOES ORDAIN AS FOLLOWS: Section 1. The city Council of the city of Dublin does hereby find and declare: A. There lS a substantial governmental interest in promoting the public health, safety, welfare and convenience by ensuring that persons may reasonably use the public streets, sidewalks, rights-of-way, and other public property without interference with such use. B. Public streets, sidewalks and rights-of-way are public forums and their reasonable use in sale, distribution and circulation of newspapers is a constitutionally protected right. C. Newspaper vending within the public rights-of-way and other public property can be accomplished without unreasonably interfering with the normal and reasonable use of these areas by the public. D. The public health, safety, welfare and convenience requlre that: interference with vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight distance and views of traffic signs and street-crossing pedestrians be -1- 11~\or~\ne~$rack.ehs\5.25.90 ~~~, ~~.-\ :,-..;.1 ,::,.£.J :1 .' ,-.) ;'. \, ~:":.2 ~; t:-:::,.c' ~: -:~ ~ :=:: -~~ J U eliminated; damage done to sidewalks or streets 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. E. The regulation of the sale or free distribution of newspapers and other publications dispensed in newsracks as set forth in this chapter provides the least intrusive and burdensome means for ensuring the purposes stated in this section are carried out while still providing ample opportunities for the distribution of news to the citizens of the city. ARTICLE 1. GENERAL PROVISIONS section 2. Reqistration Required. Any person placing or maintaining any newspaper vending device which dispenses newspapers and/or other publications (hereinafter "newsrack") on or projecting into any public street which includes but is not limited to, any highway, alley, sidewalk, park, parkway mall, parking lot, plaza or other public property or right-of-way, shall register such newsrack(s) with the city Engineer, or his designee, within 24 hours of such placement. Section 3. provisions SUDersede Encroachment Requlations. The provisions of this Chapter shall supersede the provisions of Ordinance No. 15-89 relating to encroachments -2- 11~\~rd\ne~sracx.eh5\5,25.ÇO C-" ::::--"\ i' .",.. ::.'..~. L -i -',- - ...--.~ -, j' J except to the extent specifically incorporated of referenced herein. section 4. Reqistration Form. Registration of a newsrack shall be made with the city Engineer on prescribed forms containing the information required by §§ 6 and 7. One registration form may be filed for any number of newsracks placed on the streets in accordance with the provisions of this Ordinance. Section 5. Reqistration - No Fee. No fee or bond shall be required for the registration of a newsrack. section 6. contents of Reqistration Form. The newsrack registration form shall state the name, address and telephone number of those responsible for installation, use and maintenance of the newsrack(s) subject to the registration. section 7. Insurance and Indemnification. As a part of a registration under this Article, the registering party or newsrack owner (hereinafter "owner") shall furnish to the city a certificate showing that such person has then in force public liability and property damage insurance, naming the city as an additional insured, in an amount not less than $1,000,000 (one million). The newsrack owner shall provide and keep in force that policy of public liability insurance during such time as it continues to locate any newsrack under the terms of this Ordinance. The evidence of insurance filed with the city shall include a statement by the lnsurance carrier that . thirty (30) days unconditional notice will be given to the city -]- 11~\ord\ne~srâck.ens\5.2S,90 r0. ';:' /!\ ~ ~d:; ;...."...;- t;'~ ~_-"J ~ d w before any cancellation. If an owner presents credible evidence demonstrating an inability to comply in good faith with any of the foregoing insurance requirements, the city Manager or his designee shall waive the subject insurance requirement(s). In additionr the application shall contain a provision wherein every person operating or maintaining a newsrack upon the streets of this City shall agree to indemnify and hold harmless the city, its officers and employees, from any loss, liability, damage, or cost sustained by any person or property, to the extent any such loss, liability, damage or cost arises from the installation, operation, or use of such newsraCK¡ provided, however, that such obligation to indemnify and hold harmless the City, its officers and employees shall not extend to any loss, liability, damage or cost resulting from the acts, failure to actr or property of a person other than the owner. Section 9. Term of Registration. The registration completed pursuant to this Ordinance shall remain in effect until all newsracks are removed, abandoned or impounded. ARTICLE 2. LOCATION AND TYPE OF PERMISSIBLE NEWSRACKS ~ection 9. Identification. Every newsrack owner shall permanently affix to each newsrack the owner's name, address and phone number as required by Business and Professions Code § 17570. Section 10. Location and Placement of Newsracks. No newsracks shall be installed, used, or maintained in any location upon public propertYr within rights-of-way, or within -4- 114\ord\newsracK.ehs\5.25.90 cOd 8[01=1 18ÞÞ-1SZ/S1Þ:ON l31 l~ 13 3~~N Sd3À3W:QI 6ë::91 Q3M 06,-0Z-À~W r·-- ,...., :..J ~- ...: . - , . .. ~..- --'. ..; public easements adjacent to streets where such installation, use, or maintenance endangers the safety of persons or property, or interferes with public utility, public transportation, or other government use, or unreasonably interferes with or impedes the flow of pedestrian, bicycle, wheelchair, or vehicular traffic, the ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or the use of traffic signs or signals, hydrants, or mail boxes. without limitation of the foregoing, the following specific standards apply: (a) When a sidewalk lS contiguous to a street curb, newsracks shall be placed on the back of the sidewalk away from the curb so that the back edge of the newsrack is no farther than six (6) inches from the back edge of the sidewalk. (b) When a sidewalk is separated from a street by a planter strip, newsracks may be placed on either side of the sidewalk so that the back edge of the newsrack is no farther than SlX (6) inches from either edge of the sidewalk, or with the permission of the city Engineer, in the planter strip; newsracks may not be placed within twenty-four (24) inches of the face of curb. (c) When a newsrack is placed adjacent to the wall of any building, the newsrack shall be placed with its long axis parallel to the building and with the back edge of the newsrack at least six (6) inches away but no more than twelve (12) inches away from the building. -5- 11~\orC\ne~srack.ehs\5.Z5.90 (d) Clear space for pedestrian/bicycle passage shall be maintained as follows: (1) on bicycle-pedestrian paths, at least eight (8) feet clear space, provided no newsrack shall be placed on the paved portion of such path. (2) on sidewalks of eight (8) feet or less in width, at least three (3) feet clear space. (e) No news rack shall be installed, used, or maintained within the following distances, measured parallel to the street unless otherwise indicated, from the following: (1) within three (3) feet of any marked crosswalk; (2) within the area adjacent to the curb return of any intersection with unmarked crosswalks; (3) within a five (5) foot radius of any fire hydrant, traffic controller box, or other emergency facility; (4) within three (3) feet of any driveway, entrance to a building, or sidewalk leading to the entrance of a building; (5) In front of, or so situated so as to impede access to or from, any bus bench or shelter or access to or from public transit; (6) within three (3) feet of any no parking or stopping zone, unless the newsrack is located on the side of the sidewalk farthest from the street; -6- ¡'~\crd\~e~sracK.ens\5,25,90 (7) within the limits of a handicap r~mp; and (8) within any area found to be a safety problem by the city Engineer in accordance with the standards established by this section. The city Engineer may require a newsrack owner to move a newsrack if the city Engineer determines that the placement of the newsrack does not meet the criteria of this section. section 11. Permissible TVDes of Newsracks. a. Multi-Unit Confiqurations. Newsracks in a multi-unit configuration standard in trade use permanently affixed to the ground ln a manner conforming to a standard detail for permanent installation of newsracks as established by the City Engineer shall be permitted as follows: (1) Central Business District. In recognition of the business oriented aspects of the area bounded by San Ramon Road, Amador Valley Boulevard, village Parkway and Dublin Boulevard, and along Dublin Boulevard between Hansen Drive and Dougherty Road, which in this Article shall be designated the Central Business District (CBD) , where four or more newsracks are or would be placed immediately adjacent to each other within the CBD, multi-unit configuration shall be used. (2) Areas outside the CBD. Multi-unit configurations shall also be permitted in areas outside the CBD. -7- 114\orc\newsrack.ehs\5.25.ÇO b. Sinqle-unit Confiqurations. Any single newsrack of standard design commonly in trade use may be either movable or permanently affixed to the ground in the following circumstances: (1) In any location in the CBD where use of a multi- unit configuration is not practical or lS not required by Section (a) (1) above. (2) In any location outside the CBD. Section 12. Attachina Newsracks to Other Propertv. A newsrack shall not be chained, bolted, or otherwise attached to public property or any property not owned by the owner of the newsrack without the consent of the owner of the property. Newsracks shall not be chained, bolted, or otherwise attached to any shrub, tree, tree stake, or other plant nor situated upon any landscaped area, unless approved by the city Engineer. section 13. Newsrack Maintenance. Each newsrack shall be maintained in a neat, graffiti free clean condition and in good repair at all times and shall be painted on a regular basis. Newsracks that are damaged or defective shall be replaced or repaired as soon as is practical, unless the owner wishes to abandon the location, in which event the owner shall promptly remove its newsrack. When use of any newsrack is permanently discontinued, it shall be removed and the location restored to its previous condition, normal wear and tear excepted. A newsrack which is unused for six months shall be presumed to be permanently discontinued. No newsrack shall be -8- 1:4\ord\~ewsraCK.ehs\5.25.90 used for advertising signs or publicity purposes, other than the one concerned with the display, sale, or distribution of the newspaper distributed from it. section 14. Correction or Impoundment of Newsracks. (a) The city Engineer may: (1) Immediately correct any violation of section 10 or 13 and shall do so without impounding if such correction can be accomplished simply, easily, quickly and without substantial public expense; (2) Immediately remove and impound any newsrack in violation of this Ordinance if the violation lS creating a dangerous or hazardous condition which cannot be corrected under subparagraph (a) (1) above. Notice of such action and the right to request a hearing shall be mailed to the owner within two working days after such action; (3) Notify the owner maintaining a newsrack found in violation of this Ordinance, by mail, that unless the violation is corrected or a hearing requested, within seven working days of the date of the notice, that the newsrack will be impounded; or (4) Impound any newsrack in accordance with the decision of any hearing requested pursuant to this Ordinance. -9- 114\or8\ne~srack.ehs\5.25.90 section 15. Hearinqs on Impoundment. (a) Any owner aggrieved by a decision under section 14 (a) (2) or (3) may request a hearing before the city Manager at any time within seven working days of the date of notice under section 14 (a) (2) or ( 3) . (b) A hearing shall be held, within seven working days of the request for a hearing. At the hearing, any person may present evidence or argument as to whether the newsrack should not be impounded or should be returned without payment of an impound fee. (c) The city Manager shall render a written decision within five working days after the close of the hearing. The decision of the city Manager shall be final. section 16. Return of Impounded Newsracks. (a) The owner may, at any time up to and including the 30th day after the impounding, and if a hearing is held concerning the newsrack at any time up to and including the 30th day after the written decision, obtain a return of the newsrack and its contents, upon paying an impound fee of $25.00 plus the reasonable additional cost, if any, of impounding the newsrack in excess of $25.00, unless such fee is waived. Section 17. OisDosal of Impounded Newsracks. -10- 114\orc\newsracK.ehs\5.25.90 If a hearing on the impounding of the newsrack is not timely requested or if the newsrack is not returned in accordance with the provisions of this ordinance, the city Engineer may sell or otherwise dispose of the newsrack, and its contents, and deposit the proceeds, if any, from any such sale or other disposition, and any moneys contained in said newsrack, in the city's general fund. section 18. postina and Effective Date. This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The city Clerk of the city of Dublin shall cause this Ordinance to be posted in at least three ( 3 ) public places in the city of Dublin in accordance with section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this day of , 1990, by the following vote: AYES: NOES: ABSENT: Mayor ATTEST: city Clerk -11- 114\orc\ne~srack,ehs\5.25.90 CITY OF DUBLIN 100 Civic Plaza Dublin, CA 94568 (415) 833-6630 NEWSRACK REGISTRATION FORM NAME: REGISTRATION NO. [Person responsible for installation, use & maintenance of newsrack] ADDRESS: DATE OF REGIS. COMPLETION PHONE: INSURANCE CARRIER(S): [Public Liability & Property Damage] POLICY NO. AMOUNT OF COVERAGE $ CERTIFICATE RECEIVED: EXPIRATION DATE: [Certificate naming the City as additional insured must be on file for registration to be ~alid.] LOCATION(S) PROPOSED: TYPE OF RACK (MODULAR, BOLTED TO SIDEWALK, FREESTANDING, ETC.) BY SIGNATURE BELOW, THE RESPONSIBLE PARTY/OWNER AGREES TO COMPLY WITH THE CONDITIONS OF CITY OF DUBLIN ORDINANCE -90 AND INSTALL NEWSRACK(S) ACCORDING TO THE DETAIL ATTACHED TO THIS FORM. THE RESPONSIBLE PARTY/OWNER FURTHER AGREES TO INDEMNIFY AND HOLD HARMLESS THE CITY OF DUBLIN, ITS OFFICERS AND EMPLOYEES, FROM ANY LOSS, LIABILITY, DAMAGE OR COST SUSTAINED BY ANY PERSON OR PROPERTY ARISING FROM THE INSTALLATION, OPERATION OR USE OF THE NEWSRACK(S) SUBJECT TO THIS REGISTRATION; PROVIDED, HOWEVER, THAT SUCH OBLIGATION TO DEFEND AND HOLD HARMLESS SHALL NOT EXTEND TO ANY LOSS, LIABILITY, DAMAGE OR COST RESULTING FROM THE ACTS, FAILURE TO ACT, OR PROPERTY OF A PERSON OTHER THAN THE NEWSRACK OWNER. SIGNATURE: DATE: Responsible Party/Owner APPROVED BY : DATE: 114\mísc\newsrack.ehs ~IEYERS. ~A VE, RIBACK & 'VEST MICHAEL P NAVE STEVEN R. MEYE.~S NATAL!!::::. E. "áEST EUZABETH f-' SILV::R MICHAEc S RI6ACK MOLLY T. TAMI MICHAEL F RODRIQUEZ KATHLEEN FAUBION =REDERICK S ETHERIDGE WENDY A. ~OB::RTS ~ PROFESSIONAL LAW CORPORA TION PENINSULA OFFICE GATEWAY PLAZA 777 DAVIS STREET. SUITE 300 SM" LEANDRO, CALIFORNIA 94577 (415) 35H300 FAX (415) 351-4481 1220 HOWARD AVE. SUlí¡: 250 BURLINGAME. CA 94010-"211 (4151348-7130 FAX (415) 3"2-0888 MARIN OFFICE 1202 GRANT AVE. SUI~E Õ NOVATO. CA 949"5 ("'5) 892-8879 MEMORANDUM REPI_Y TC San Leandro TO: City council DATE: May 25, 1990 FROM: Elizabeth H. Silver, Acting City Attorney RE: Ordinance Relating to Newsracks At the City Council meeting of May 14, 1990, the Council considered a proposed ordinance relating to the placement of newsracks. In light of comments and concerns raised during the public hearing on this ordinance, the Council continued the item to the June 11, 1990 meeting in order to allow the city Attorney to consider whether any changes to the ordinance are required or appropriate. We have accordingly reviewed the ordinance further and propose a few changes which are contained in a revised draft of the ordinance which is attached hereto. This memorandum discusses those proposed revisions and addresses the major concerns and issues raised regarding this ordinance at the May 14 I 1990 meeting. Initially, I offer the following general comments on the right of the city to regulate the placement and appearance of newsracks. Pursuant to its police powers, the city has broad power to enact and enforce regulations which are necessary to promote the public health, safety, and welfare. The police power, however, must often yield to rights guaranteed under the federal and state constitu- tions . with respect to cities' regulation of newsracks, the conflict is between a pUblisher's desire to exercise First Amend- ment rights of distribution and cities' efforts to regulate newsracks in order to protect the public health and aesthetic values. While municipal regulation of newsracks is within the power of the city, any such regulations must be carefully drawn to meet constitutional requirements. There has been signif icant litigation over the constitutionality of city regulation of news- racks providing guidance for drafters of such ordinances on several issues. There are, nevertheless, numerous issues relating to the regulation of newsracks which remain unsettled. The proposed TO: city council May 25, 1990 2 DATE: PAGE: ordinance attempts to comply with applicable case law and has been revised to address some of the major concerns raised at the public hearing. Following are specific provisions of the ordinance which have been revised or which were the subject of major comment at the public hearing. 1. Permit Requirement (Ordinance sections 2-6) One of the maj or concerns raised regarding the proposed ordinance relates to the permit requirements. While some permit requirements may present problems in that they create a "prior restraint" on speech, it would appear that a properly designed permit scheme will survive constitutional scrutiny. In Gluck v. Countv of Los Anqeles (1979) 93 Cal.App.3d 121, 155 Cal.Rptr, 435, the one California case which considered a permit scheme, the court upheld the County's permit system. Under that scheme, the County issued permits upon request without a fee and with no discretion on the part of local officials. In addition, the County required only one permit for each newsrack distributor, regardless of how many newsracks the distributor planned to deploy. 93 Cal.App. 3d at 140, n. 2. The scheme in the proposed ordinance for Dublin is patterned after Gluck in the foregoing respects. While courts in other states have found some permit/licensing schemes for newsracks invalid, a recent decision by the U. S. Supreme Court indicates that a properly drawn permit scheme should be valid. In the case of ci tv of Lakewood v. Plain Dealer PublishinG Co., u.s. , 108 S.ct. 2138, 100 L.Ed.2d 771 (1988), the Supreme Court held that a city may require periodic licensing of newsracks on public property, but must establish neutral criteria to ensure that licensing is not based on speech content and may not employ a licensing scheme which vests unbridled discretion in a government official to grant or deny the permit. In the citv of Lakewood case, the ordinance at issue gave the Mayor unlimited discretion to approve or deny the placement of newsracks on city property. The ordinance contained no standards upon which to base the permit decision, and the Mayor could condition a permit on any terms that he found to be "necessary and reasonable. II Newsrack permits had to be renewed annually, thus permitting the Mayor to base the continuing permit decision on past speech. The Court held that the absence of standards to control the mayor's discretion in his permit decisions constituted a prior restraint and made it difficult to distinguish between denials for legitimate reasons and denials based on content and viewpoints of the speech being considered. 108 S.ct. at 2147-2152. TO: DATE: PAGE: city council May 25, 1990 3 The deficiencies in the Lakewood ordinance are clearly not present in the proposed Dublin ordinance which does not place unfettered discretion in the City Engineer to grant or deny a newsrack permit. Under the proposed ordinance, if the applicant meets the specific standards prescribed by the ordinance, then the city Engineer must issue the permit. Moreover, it is undisputable that the proposed regulations are otherwise content-neutral. In light of the foregoing discussion, it appears that the permi t requirement contained In the proposed ordinance should withstand constitutional scrutiny. Another option, however, to avoid any possible claims of unlawful prior restraint would be to enact, in lieu of a permit requirement, a registration system which requires that a newsrack be registered within 24 hours of placement on public property. The city Engineer has concurred that this may be an advisable approach since it would eliminate any objections or challenges to a permit system, yet would accomplish the goals desired by the City. Accordingly, we have revised the newsrack ordinance to provide for a registration system while leaving all the substantive regulations intact. A few final points regarding the scope of the regulations should be made. There was some discussion at the previous council meeting as to whether or not the ordinance would also regulate purely commercial , give-away newspapers or other publications often placed in newsracks. The language of the ordinance has been clarified to provide that these latter publications are clearly included by the very terms of the regulations, and thus, would be treated in the same manner as any other publications found in newsracks. There is clearly no legal impediment to applying these regulations to such publications, and, in fact, we would advise treating them in the same manner as all other publications under the newsrack ordinance. Another issue raised was whether the regulation of the placement of newsracks was somehow improper because a similar scheme of regulation is not applicable to utility poles, mailboxes, etc., which are placed in the public rights of way. We do not believe that a "differential treatment" argument has any merit in this context since public utilities are subject to the encroachment permit requirements regulating their placement. Furthermore, it appears that there are "obvious differences" between "public services of a quasi-governmental nature" and publishers' newsracks justifying a different scheme of regulation for newsracks. On- street objects, such as bus shelters, telephone and electric wiring poles, and emergency phone boxes, are "essential to the public safety and welfare"; newsracks are not. (See ci tv of Lakewood, TO: DATE: PAGE: City council May 25, 1990 4 supra, 108 S.ct. at 2165, dissenting opinion.) Thus, a specific regulatory scheme for newsracks should not be invalid simply because it does not also apply to other objects on the public rights of way. 2. Insurance and Indemnification Requirements (Section 7) Several issues regarding the insurance and indemnification requirements contained in the proposed ordinance were raised. Our research indicates that no California court has ruled on such provisions, but courts in other jurisdictions have rejected them. Consequently, the insurance/indemnity issue remains unsettled. While such requirements for newspaper publishers do not appear to be per se unconstitutional, unless properly tailored, they may be subject to a successful challenge. Accordingly, if the insurance and indemnity requirements are to be retained in the proposed ordinance, several revisions to these requirements appear to be advisable. First of all, the ordinance should establish the amount of insurance to be required rather than leaving it to city official's discretion. In accordance with the City's standard insurance requirements, the ordinance has been revised to require insurance in an amount not less than $1 million. However, in order to avoid any challenge to the insurance requirements in cases where a newspaper publisher cannot afford or cannot otherwise obtain the required insurance and thereby claims that the insurance requirements unduly interfere with the distributor's ability to disseminate protected material, a waiver provision has been added to section 7 of the ordinance. That provision provides that if a newsrack owner presents credible evidence demonstrating an inability to comply with any of the insurance requirements, the city Manager or his designee shall waive the subject insurance requirement(s). with respect to the indemnity requirements, counsel for one of the affected newspapers proposed some alternate language for consideration. A review of that proposed language indicates that its effect is exactly the same as the indemnification clause contained in the prior version of the ordinance, and consequently, either language would adequately protect the City's interests. In the interests of cooperation, we have revised the indemnity clause contained in section 7 to reflect the additional language requested by counsel for the affected newspaper. TO: DATE: PAGE: city Council May 25/ 1990 5 3 . Location and Placement of Newsracks (Section 10) with respect to the provisions of the ordinance relating to the location and placement of newsracks, the only maj or issue raised by one of the distributors regarding these provisions was a desire for an exception to the placement regulations where a sidewalk is not large enough to permit placement as otherwise prescribed by the ordinance. In response, we see no legal requirement that such an exception be created. A newspaper distributor does not have the right to place a newsrack on any given sidewalk regardless of its size when safety concerns dictate otherwise. Moreover, since the location and placement restrictions clearly provide for adequate, alternative forums for communication on public property, the requested exception is not legally mandated and would appear to undermine the basic rationale of the location restrictions. 4. Permissible Types of Newsracks (Section 11) A concern raised by an affected newspaper distributor is the requirement for multi-unit configuration newsracks only (with limited exceptions) in the Central Business District (CBD). The contention apparently is that this requirement may constitute an unreasonable restriction in that it could interfere with a dis- tributor's ability to disseminate its protected material. While it is not entirely clear whether the city can mandate the use of multi-unit configuration newsracks only in the CBD purely for aesthetic reasons, it appears that it may do so for safety reasons. The City Engineer indicates that where four or more newsracks are located immediately adjacent to each other, there is more likeli- hood of the newsracks straying into the travelled portion of the sidewalk. Therefore, the ordinance provides for multi-unit configurations where there are four or more newsracks. 5. Newsrack Maintenance (Section 13) A few comments were made at the public hearing regarding the requirements for news rack maintenance. We have further reviewed the requirements in the ordinance in light of applicable case law and find them to be appropriate. (See Kash Enterprises, Inc. v. City of Los Anqeles (1977) 19 Cal.3d 294, 305, 138 Cal.Rptr. 53; Duffv v. city of Arcadia (1987) 195 Cal.App.3d 308, n.1, 243 Cal.Rptr. 87 (ordinance which requires that newsrack be kept neat and clean is valid, but requirement that a news rack by kept in an " attractive condi tion" presents consti tutional problems of vagueness and arbitrary application).) TO: DATE: PAGE: City Council May 25, 1990 6 6. Enforcement provisions (Sections 14-17) A constitutional newsrack ordinance must provide adequate procedural protections to guard against overzealous and arbitrary enforcement. The adequacy of enforcement procedures was examined in two California cases, and in accordance with these cases, we believe that the enforcement provisions contained in the proposed ordinance would be held valid. In Kash Enterprises, Inc. v. City of Los Anqeles (1977) 19 Cal.3d 294, 138 Cal.Rptr. 53, the California Supreme Court held that the enforcement provisions of a newsrack ordinance which authorized the seizure, retention and destruction of newsracks without affording the owner of the rack either a pre- or post- taking hearing, violated the owner' s rights to procedural due process and the public's first amendment rights. Id. at 309. In that case, the ordinance authorized a public officer to summarily remove any newsrack which he believed to be in violation of the ordinance I s requirements. The ordinance failed to afford the owner any hearing on the merits of the impoundment in violation of due process. Furthermore, the enforcement provisions were held defective in that they sanctioned immediate removal of newsracks for any violation whatsoever, rather than limiting its removal sanction to violations which actually created hazards for pedes- trians or motor vehicles. The court, however, did recognize that an ordinance could provide for the immediate seizure, without prior notice or hearing, of any newsrack that posed a danger to pedestrians or vehicles. Id. at 312-313. In Gluck v. County of Los Anqeles (1979) 93 cal.App.3d 121, 155 Cal.Rptr. 435, the court struck down the entire enforcement scheme of the County I s newsrack ordinance. The procedure was defective on two grounds. First, the owner was not entitled to hearing until after the rack was seized. Second, the procedure for a hearing was deemed "farcical" in that it left the owner with unfair choice of paying a $25 impoundment fee and recovering his property immediately, or contesting the fee, which allowed the County to delay a hearing for as long as 30 days. The court called this scheme "a transparent one to force payment of impound fees irrespective of the propriety of the seizure." Id. at 133-135. In the proposed Dublin ordinance, the deficiencies found in the Kash and Gluck cases do not exist. A pre-taking hearing is authorized in all cases, except where immediate removal and impoundment is necessary because the violation is creating a dangerous or hazardous condition which cannot be easily remedied by action of the City Engineer. (Section l4(a) (2).) In all other TO: DATE: PAGE: city council May 25, 1990 7 cases, a newsrack owner can avoid impoundment either by correcting the violation or by timely requesting a hearing. (Section 14 (a) (3) . ) An evidentiary hearing before the City Manager is afforded any owner upon request. (Section 15.) While there was some suggestion by one of the affected newspaper distributors that an appeal to the city council of the City Manager's determination should be required, such an appeal would not appear to be required in order to afford an owner due process. The owner would be entitled to seek judicial review of the City Manager's decision if aggrieved by that decision. Consequently, while the ordinance certainly could be revised to provide for an appeal to the city counci 1 if that is deemed desirable, such a procedure does not appear to be constitutionally required. Conclusion: If you have any questions regarding this memorandum or the revised ordinance, please let me know. I will be happy to advise you further on this matter at the June 11, 1990 meeting. Very truly yours, MEYERS, NAVE, RIBACK & WEST .'\ -,' / Cé:." d ·/é....~Z -::¿>u, Ä (-{., /_v . _ ~ '-" ~./" . Elizabeth H. Silver Acting city Attorney cc: Richard Ambrose, City Manager Lee Thompson, City Engineer