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HomeMy WebLinkAbout79-07 Amending the Regulation of Vending Machines on the Public Right of WayORDINANCE N0. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA AMENDING CHAPTER VI OF TITLE 11 OF THE COSTA MESA MUNICIPAL CODE CONCERNING THE REGULATION OF VENDING MACHINES ON THE PUBLIC RIGHT OF WAY. THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: The City Council of the City of Costa Mesa hereby finds and declares as follows: THAT this Council had previously, adopted Ordinance No. 75-22 (Codified as Costa Mesa Municipal Code §11-100 et seq.) to regulate the placement and contents of vending machines on the public rights-of-way in the City of Costa Mesa. THAT since the adoption of said ordinance certain changes in the applicable laws have occurred as well as new facts brought to light by experience under the prior ordinance that necessitate revising said regulations. THAT there continues to be a need to"weigh and balance the rights and guarantees of freedom of speech and press afforded all our citizens under our Federal and State Constitutions with the right of the City of Costa Mesa to regulate the use of public rights-of-way for the health, safety and welfare of the general public. THAT as to the contents of such vending machines, specifically publications, the laws of the State of California preempt and prevent local regulation thereof but in all other respects the City of Costa Mesa intends to exercise its fullest authority herein. THAT the public rights-of-way exist for the use of all persons and may not be subject to appropriation or unreasonable use by any one person or group under the banner of exercising the rights''- of freedom of the press and speech. -1- . THAT the modern marketing and distribution methods used for publications and other goods on the public rights-of-way are no longer limited to an insignificant space and their pro- liferation and location may, and does, interfere with the rights of the traveling public. THAT, when too many vending machines are concentrated in one area without any regulation over their location as to each other and to other objects and areas used by travelers, they constitute a public nuisance subject to abatement. THAT the past and present use of portable vending machines has created unreasonable problems in fixing their locations within acceptable standards and the enforcement thereof as well as creating visual blight which detracts from the aesthetics of the streetscape and adjacent businesses and improvements. THAT only those vending machines that comply with the provisions of this chapter shall be authorized upon the public rights-of-way. THAT, accordingly, the regulation as to number, size, style or model, location and manner of placement in any one location upon the public rights-of-way as hereinafter set forth is for the general health, safety and welfare of the public. NOW, THEREFORE, Chapter VI of Title 11 of the Costa Mesa Municipal Code is hereby amended to read as follows: SECTION 2: CHAPTER VI REGULATION OF VENDING MACHINES ON THE PUBLIC RIGHTS -OF -WAX ARTICLE I GENERAL PROVISIONS. §11-100 Purpose and Findings The City Council finds that the present marketing methods used for newspapers, magazines and other goods upon rights-of-way by means of easily movable, individual, free-standing, vending machines poses hazards to the traveling public, interferes with the property rights of adjacent owners and with other -2- legitimate users of the right-of-way, causes visual blight and detracts from the aesthetics of adjacent uses, and results in an unnecessary degree of exposure of the City to liability claims. The City Council hereby intends to regulate and control such conditions by declaring them to be a public nuisance, and to provide for their abatement and for procedures for notice, hearing and appeal where applicable. X11-101 Definitions. The words and terms used in this Chapter shall have the following meanings, notwithstanding other laws or inter- pretations, unless a contrary intent is clearly indicated. (1) Content: the material located inside a vending machine, whether a publication or goods, for purposes of sale or distribution to members of the general public. (2) Custodian: the owner of a vending machine. (3) Director: the Director of Public Services Department of the City of Costa Mesa or his authorized designee. (4) Display Window: any window located or utilized so as to exhibit or make a presentation of merchandise; or any window located or utilized so as to give evidence to the general public of the interior of a business establishment. (5) Goods: all goods, wares and merchandise, other than publications, intended for sale or distribution to members of the general public. (6) Laterally: the mode of measuring dis- tances herein by using the curbline or edge of a street as the plane of reference and measuring horizontally along that plane. (7) Permanent Vending Machine: a vending machine that is affixed to the ground, sidewalk`or,improvements upon the right-of-way by bolts or poles and not readily movable. (8) Person: an individual, -firm, partner- ship, corporation or other legal entity. (9) Physical Location: the spatial re.la- tionship of an object with other objects. -3- (10) Portable Vending Machine: a vending machine that is readily movable from place to place. (11) Publications: all newspapers, magazines. or other printed matter with words or pictures, howsoever pre- pared or reproduced, that are intended for sale or distribution to members of the general public. (12) Right of Way: shall have the allinclusive meaning pertaining to public highways, streets, roads, sidewalks, etc. dedicated to and intended for use of the traveling public whether vehicular or pedestrian located within the City of Costa Mesa. (13) Sidewalk: that portion of the right of way used and intended for pedestrian travel whether paved or unpaved. (14) Street: that portion of the right of way used and intended for vehicular travel and generally bounded by curbs, (15) Vending Machine: any mechanical device the operation of which depends upon the insertion of a coin or other thing representative of value in the denomination of five cents ($.05) or more and which dispenses or vends a product, service, or exchange of equal value, other than telephone ser- vice furnished under public utility tariffs. The term shall not be construed to include any equipment used by a financial institution for the purpose of facilitating financial trans- actions, whether such equipment is located on the premises of the financial institution or at a location remote therefrom. 511-102 Placement Permit Required. (a) Any custodian seeking to place, main- tain or install vending machines upon any right-of-way within the City shall obtain a placement permit as herein provided. only one such permit shall be required for a custodian and it shall be valid for all locations within the City approved for use by said custodian. -4- (b) Applications for said permit, in the form approved by the Director, shall set forth the information as to identity of custodian, the proposed locations for the vending machines, the nature of the contents (i.e. whether re- newed daily, weekly, monthly, etc.) and, if newspapers, whether same has been adjudicated to be a newspaper of general circulation for this area pursuant to the provisions of the California Government Code §6020 to 66027. (c) The application shall contain a provi- sion by which the custodian agrees by signing the application that if the permit is granted he will indemnify and hold harmless, protect, and defend the City, its elective and appointive boards, officers, agents, and employees from and against any and all claims, costs, expenses,.or damages of any nature (including attorney's fees), by reason of injury sustained by any person, including death at any time resulting therefrom, or by reason of loss, loss of use of, injury to, or destruction of property, including consequential damages of any nature resulting there- from, arising out of the placement or maintaining of any vending machine by custodian within the right-of-way. (d) All custodians shall pay a fee to the City when applying for a placement permit. The fees received shall be used to pay for the processing of the applications, inspect- ing the proposed sites for the vending machines, and any other expenses related to the administration of this Chapter. The City Council shall as often as it deems appropriate establish a schedule of fees for this purpose by Resolution. (e) The Director shall, after reviewing an application and determining that the custodian has complied with the requirements of this Chapter, issue the placement permit. The decision of the Director shall be final, unless appealed as herein provided. §11-103 Information Required. Every custodian of a vending machine located upon the right-of-way shall comply fully with the provisions of the -5- California Business and Professions Code §17570, by affixing to each such vending machine his name and address in_a place where it may be seen by anyone using the machine. §11-104 Business License Required. Every custodian of a vending machine located upon the right-of-way.must comply with the provisions of Costa Mesa Municipal Code, Licenses and Businesses Regulations, Title 9, §9-102. §11-105 Insurance Required. Every custodian of a vending machine located upon the right-of-way shall secure and maintain a policy of public liability insurance for injuries to persons or property proxi- mately arising out of accidents attributable to the placement of any of his vending machines upon the right-of-way. Said policy shall provide insurance coverage of at least One Hundred Thousand ($100,000.00) Dollars for injury or death to any one person, Three Hundred Thousand ($300,000.00) Dollars for injury or death arising from any one accident or occurrence, and Ten Thousand ($10,000.00) Dollars for property damage. The policy of insurance so provided shall contain a contractual liability provision covering the liability assumed•by the custodian by the terms of his placement permit and shall contain ---a provision that such policy may not be cancelled or modified except after thirty (30) days notice in writing given to the City.Clerk of the City of Costa Mesa. Certificates evidencing the said insurance shall be filed with the City -Clerk of the City of Costa Mesa after approval of the City Attorney. §11=106 Advertising Prohibited. No vending machine shall be used for advertising signs or publicity purposes -other than dealing with their dis- play, sale, or purchase or the publications or goods therein contained. §11-107 Maintenance. Every custodian shall maintain his vending machines in a clean, neat, and attractive condition and in good repair at all times. X11-108 Reserved. 511-109 Reserved. ARTICLE II REGULATION OF TYPE OR MODEL OF VENDING MACHINE PERMITTED X11-110 Portable Vending Machines Prohibited. 1. No portable vending machine shall be placed, installed or maintained upon the right-of-way. 2. Any portable vending machine existing as of the effective date of this Chapter may be amortized for a period of 120 days. Any such machine remaining thereafter shall be abated as herein provided. 511-111: Reserved. X11-112 Permanent Vending Machines Permitted. 1. Only permanent vending machines placed and maintained in compliance with the provisions of this Chapter shall be permitted upon the right-of-way. 2. The style or model of said machines shall be as nearly uniform as possible in all locations within the City. 3. The specifications of said machines shall be as follows: a) Height: T b) width: c) Length: d) Material: 57 ' e) Color: §11-113 Costs and Relocation. 1. The costs of installation, maintenance, replacement, removal, and relocation of vending machines shall be -7- at the sole expense of the custodians thereof. Upon removal of any machine its custodian shall at his sole expense cause the right-of-way to be repaired to a condition in conformity.to the surrounding area (except if removal is required under subdivision (2) below). Upon failure of the custodian to make such repairs, the work may be done by City and charged to the custodian. 2. In the event of necessity to remove ma- chines from any location due to changes, repairs, or other construction in the right-of-way by City, the Director shall give written notice of not less than 60 days to the custodians thereof to remove said machines and the custodians shall remove their machines by the end of said 60 days. Any removed machines can be replaced at the same location after completion of the construction if the site still meets the requirements of this Chapter, or,.if the custodian desires, the machines can be.relo- cated to a new location established in compliance with this Chapter. X11-114 Reserved. §11-115 Reserved. ARTICLE III ESTABLISHMENT OF GENERAL LOCATIONS 511-116 General Placement.Provisions. 1. Vending machines shall be placed only upon sidewalks adjacent to the curb or the street right-of-way line. Machines placed adjacent to the curb shall be placed so that the portion thereof which is closest to the edge of the curb or its vertical extension shall be more than eighteen (18) inches but less than twenty-four (24) inches from said edge or its vertical extension. Machines placed adjacent to the street right-of-way line shall be placed parallel to such line with no portion of the machine being more than 28 inches from the line. 2. The provisions of this Chapter shall only apply to those vending machines placed on the right-of-way. ME 3.- In determining the general -location of said machines the Director shall eo.risult with the custodians of such"machines.to.fix and establish such locations consistent with the needs of.said custodians and the provisions of this Chapter. 4. In the event .there is not sufficient space to accomodate all the vending machines sought by,�custodians. to be placed" -at any one location without violating the standards set forth in this Chapter, the Director shall.give priority to custodians as follows: a) First priority shall be given to vending machines used for -the sale of'publications which have been adjudicated to be newspapers of general circulation in Orange County;, pursuant to ,the provisions of. the California Government Code, §6020 to -6027. b) Second priority shall be given to vending machines used for sale of daily publications (those pub- lished on five or more:.days in`a calendar -week), which have not been adjudicated to be newspapers of.general circulation in Orange County. c), Third..:priority shall'be given to vending machines used for the,sale of -.weekly publications (those published on at least one, but less than five, days in a calendar week) which have not -been adjudicated to be newspapers -.of general circulation in Orange County. d) Fourth priority shall be.given to all other vending machines on the basis of first -come -first-served. §11-117 Reserved. X11-118 Reserved. §11:-119 Reserved. ARTICLE IV SPECIFIC.PHYSICAL LOCATION STANDARDS 911-120 Specific Physical Location Standards. No vending. machine shall be placed, -installed, or. -maintained upon the right-of-way in violation of the following physical location standards: -9- 1. Within five (5) feet laterally of any marked crosswalk within a street not at a street intersection; 2. Within fifteen (15) feet laterally of the curb return of any marked or unmarked crosswalk at a street intersection; any fire hydrant; 3. Within fifteen (15) feet laterally of 4. Within five (5) feet laterally of any driveway intersecting a sidewalk; 5. Within five (5) feet laterally of light standards, trash receptacles, traffic signal control boxes, public safety control boxes, mailboxes, water meters, gas meters, electrical pull boxes, catch basins, and sewer manhole covers. 6. Within five (5) feet laterally or adjacent to any curb painted yellow or white for the purpose of regulating parking; 7. Affixed or fastened to utility poles or other private property lawfully located within the right-of-way; 8. At any location whereby the cross space of the passageway on the sidewalk is reduced to less than thirty- six (36) inches; 9.' Within three hundred (300) feet laterally of any other such machine containin4 the same edition of the same publication; 10. Adjacent to any curb painted red for mark- ing a designated bus stop; 11. Within five (5) feet laterally of any display window of any building or structure on adjacent property; 12. Within three (3) feet laterally of the imaginery lines that would be formed by extending the width of the entrance to a structure along lines perpendicular to the edge of the curb or its vertical extension; -10- trail. 13. Within any area designated as a bike - 14. Notwithstanding any other subdivision of this section, no person shall install, use or maintain any vending machine ubere placement endangers the safety of persons or property or unreasonably interferes with the public's use of any right-of-way. 511-121 Reserved. §11-122 Reserved: ARTICLE V ENFORCEMENT, ABATEMENT, APPEAL AND SEVERABILITY PROVISIONS §11-123 Penal Violations. Any custodian violating the provisions of this Chap- ter shall be subject to prosecution for a misdemeanor or infraction as provided in §1-33 of this Code. §11-124 Nuisance Abatement. 1. Any vending machine located, placed, main- tained,or not removed in violation of the provisions of this Chapter is a public nuisance and may be abated as herein provided, notwithstanding the criminal penalties herein. 2. The Director shall cause a tag to be af- fixed to any vending machine found to be in violation and send written notice to the custodian of said machine --(as reflected in the City's records or on the machine itself) specifying the viola- tion and the date, time and place of abatement hearing, and abatement procedures. 3. Within thirty (30) days from the date of such written notice, the Director shall hold an abatement hearing. The hearing shall be conducted informally as an adminis- trative hearing for the purpose of determining if the provisions of this Chapter have been violated. ;::The written decision of the Director shall be final subject to appeal as herein provided. 4. If the decision is to abate said vending machine, the Director shall make a written record of same and abate said machine by impounding and disposing of the machine as herein provided. -11, - 5. The Director may sell or otherwise dispose of any vending machine so impounded, together with its contents, including money, pursuant to California Government Code §§50050 to 50055 and other applicable laws when the decision to abate and impound has become final. 511-125 Reserved. X11-126 Appeal. Any interested person may appeal any decision or action made by the Director pursuant to his authority under this Chapter by complying with the provisions of Chapter IX of Title 2 of this Code. §11-127 Severability. If any section, division, sentence, clause, phrase, or portion of this Chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter. X11-128 Reserved. X11-129 Reserved. SECTION 3: This Ordinance shall take effect and be in full force and effect thirty (30) days from and after its passage, and before the expiration of fifteen (15) days after its passage, shall be published once in the Orange Coast Daily Pilot, a news- paper of general circulation printed and published in the City of Costa Mesa, together with the names of the members of the City Council voting for and against the same. PASSED AND ADOPTED this /k day of'. 1979. ATTEST: Ci y Clerk of the City o Costa Mesa APPROVED AS TO FORM: n 'MAYOR OF THE CITY OF C STA MESA ity Attorney-s,Office -12- a STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF COSTA MESA ) I, EILEEN P. PHINNEY, City Clerk and ex -officio Clerk of the City Council of the City of Costa Mesa, hereby certify that the above and foregoing Ordinance No. 79"17 was introduced and considered section by section at a regular meeting of said City Council held on the 41 S* day of , 1979 and thereafter passed and adopted as �7 a�whole at/ja re lar meeting of said City Council held on the f{.0 day 1979 by the following roll call vote:' AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: IN WITNESS WHEREOF, I have hereby set my hand an affixed the Seal of the City of Costa Mesa this 5f4- day of , 1979. City Clerk and ex-officioerk of the City Council of th City of Costa Mesa- _13-