(a) If the director determines that a freestanding newsrack is not in compliance with the requirements of this division or that a newsrack space in a multiple newsrack unit is not being operated in compliance with the requirements of this division, the director shall send a “Notice of Intent to Remove” by personal service or by certified mail, return receipt requested, to the licensee. The notice must state the violation or violations that constitute the basis for the proposed removal of the licensee’s freestanding newsrack or the proposed removal of publications from the licensee’s newsrack space in a multiple newsrack unit, whichever is applicable, and suggest corrective action if applicable. The notice must specify the date, time, and place for a hearing to be held before removal.
(b) The hearing must be held not less than 10 days following service of notice. Prior to the hearing, the licensee may correct the violation or may file a written statement setting forth the reason or reasons why the newsrack or publications, whichever applies, should not be removed. At the hearing, the director or the director’s designee shall hear evidence and determine whether the licensee’s freestanding newsrack complies with this division or whether the licensee’s newsrack space in a multiple newsrack unit is being operated in compliance with this division, whichever applies. If it is determined that a freestanding newsrack is not in compliance with this division, the newsrack must be removed by the licensee or otherwise brought into compliance. If it is determined that a newsrack space in a multiple newsrack unit is not being operated in compliance with this division, the licensee shall remove all publications from the newsrack space or otherwise bring the operation of the newsrack space into compliance. The decision of the director may be appealed to the city manager in accordance with Subsection (e) of this section. If, within 10 days after the date of the hearing or, if an appeal is filed, within 10 days after the date of the city manager renders a decision, the licensee has not removed the freestanding newsrack or the publications, whichever applies, or otherwise come into compliance with this division, the city may remove the newsrack or the publications and recover the costs of removal and storage from the licensee.
(c) The director may summarily remove or order any freestanding newsrack removed if it creates an imminent danger of personal injury or property damage. Promptly following the summary removal, the director shall notify the licensee by personal service or by certified mail, return receipt requested, of the removal, the reason for the removal, and the right to appeal the action to the city manager in accordance with Subsection (e). The licensee may recover any newsracks summarily removed upon reimbursement to the city for the costs of removal and storage. Any coins or publications contained in the newsrack will be returned to the licensee when the newsrack is returned. The licensee may return the freestanding newsrack to its original location upon correction of the violation (unless the location constituted a violation).
(d) Any newsrack or publication not claimed within 10 days after removal by the city may be disposed of by the city as unclaimed property.
(e) If the director orders removal of a freestanding newsrack or a publication under Subsection (b) or summarily removes a freestanding newsrack under Subsection (c), this action is final unless, within 10 days after the receipt of notice of the director’s action, the affected licensee, publisher, or owner of the newsrack or publication, whichever applies, files with the city manager a written appeal. Within 15 days after the appeal is filed, the city manager or the city manager’s designee shall consider all the evidence in support of and against the action appealed and render a decision sustaining, modifying, or reversing all or part of the director’s action. The formal rules of evidence do not apply to an appeal hearing under this subsection, and the city manager or the city manager’s designee shall make a ruling on the basis of a preponderance of the evidence presented at the hearing. The decision of the city manager is final as to administrative remedies. (Ord. Nos. 26809; 27201)