(a) Upon a determination by the director that a newsrack has been installed, used or maintained in violation of the provisions of this article, the director shall attached a notice tag to the newsrack specifying the date and nature of the violation, and shall email or fax to the permittee a copy of the violation describing the offense and the date the newsrack was tagged for the violation. If no email or fax address is available, notice to the permittee shall be in writing, sent by first class mail, return receipt requested, to the address indicated on the permit application. Every notice shall indicate the name and address of the city employee to contact to contest the violation and/or seizure of the newsrack and language explaining the right of the permittee to appeal. Permittee shall have ten business days from the date on which the tag was attached, notice was emailed, faxed or mailing date to either correct the violation or request a hearing pursuant to this section.
(b) A newsrack may be tagged for any violation of any requirement of this article, including but not limited to the following:
(1) Where its installation, use or maintenance interferes with the use of poles, posts, traffic signs or signals, hydrants, mailboxes or other objects legally permitted;
(2) When such newsrack does not have a name, address and telephone number affixed in a place where such information may be easily seen and the designee of such newsrack cannot be otherwise identified;
(3) When a newsrack is found in the public right-of-way which does not have a visible city issued decal present indicating the correct permit number of the newsrack or the newsrack has no valid permit at all; and
(4) When a newsrack is found in the public right-of-way which is not maintained in a neat and clean condition and in good repair, in accordance with this article.
(c) If a hearing is requested, city staff will not remove the non compliant newsrack until a final determination by the city manager. However, if a newsrack installed within the city right-of-way has no visible evidence that it has been properly permitted (no city issued decal, no visible contact information for the owner or no other evidence that would indicate that a valid permit for the newsrack had been issued) city staff may confiscate the offending newsrack and follow the procedures in this section below. There is hereby created a presumption that any newsrack within the city’s right-of-way that does not have a city decal, or visible identification and contact information for the owner of the newsrack, has been installed without a valid permit.
(d) The department may seize and remove a newsrack which remains in violation of this section:
(1) Ten business days after the email, fax or mailing date of the notice if the permittee fails to correct the violation or file an appeal; or
(2) Ten business days after the email, fax or mailing date of the written decision on appeal upholding the director’s determination that the newsrack is in violation of this section.
(e) Impoundment.
(1) General. Notwithstanding the director’s right to tag newsracks in violation of this article, the director may impound any newsrack:
a. When the newsrack poses an immediate danger to persons or vehicles;
b. Where its installation, use or maintenance endangers the safety of persons or property;
c. When pursuant to subsections (a) and (d) above, a tag has been attached to a newsrack and a written notice, such as fax, letter or email has been sent to the owner, operator or responsible person for the newsrack;
d. When a hearing and appeal, if filed, have resulted in a final determination that the violation(s) specified on the tag attached to such newsrack has in fact occurred, and the designee has failed to correct such violation(s) within ten business days from the date of said determination;
e. When a request for a hearing or appeal has been withdrawn. Such request shall be deemed withdrawn, either by actual withdrawal or by the failure of the designee to fully comply with this article;
f. When such newsrack has been abandoned; and
g. When such newsrack has been installed on the city’s right-of-way without first applying for and receiving a permit as required by this code.
(2) Impoundment procedures.
a. Within 48 hours after removal of any newsrack, the city shall notify the owner in writing, fax or email of the removal and the reason for removal where ownership information is posted on the newsrack either through the city decal or the required owner contact information. If ownership information is not readily available because there is no city decal, or ownership identification information posted on the newsrack, or no newspaper or periodical in the newsrack with contact information, the city shall make every reasonable effort to comply with the notification. When notification is possible, the notice shall also inform the owner of the right to request, either in writing or in person, within ten business days of the date of the postmark of such written notice, a hearing by the city manager or his or her designee to determine whether such removal was proper.
b. If a newsrack is installed or maintained in such a place or manner as to impose an immediate and serious danger to persons or property, the director will first make a reasonable attempt to contact the distributor of the newsrack and request immediate relocation or removal. If the distributor or his or her representative is unable to be contacted or does not respond to appropriate notification, the director may seize the newsrack pursuant to this subsection (e) only if it is impractical for the city to remedy the violation by moving the newsrack to another location on the street, sidewalk or other right-of-way without mechanical assistance. If the newsrack is seized pursuant to this section, the director shall notify the distributor and the permittee of the seizure in writing by first class mail to the address indicated on the permit application.
c. Seized newsracks shall be retained by the city for a period of at least 30 days following the seizure. An impound fee to cover the city’s cost and expense of impounding shall be assessed against each publication vending box seized and removed. The distributor or representative may recover the newsrack at any time while in the city’s possession upon payment of the impound fee.
d. Return of impounded newsracks. Any newsrack, together with its contents, which has been impounded pursuant to this section, shall be returned to the permittee:
1. Upon receipt of an impound fee as determined herein; or
2. Upon a determination after hearing by the city manager, or his or her designee that the newsrack should not have been impounded and should be returned to the permittee.
e. In the event a hearing has not been requested within the time permitted following the impoundment of any newsrack, an impound fee shall be imposed upon the permittee and shall be paid before the impounded newsrack is returned.
f. The fees herein shall be determined and adopted by the city by ordinance in order to collect sufficient money to defer the complete cost of the city’s newsrack permitting and enforcement program as set forth in this code. The fees shall be adjusted from time to time by the city to reflect any change in the cost of permitting and enforcement. At no time shall the fees adopted by the city recover more than the actual cost of the program.
(3) Sale or disposal after impoundment. The department may sell or otherwise dispose of any newsrack, together with its contents, and retain the proceeds, pursuant to Texas law, from any such sale or other disposition, and any moneys contained in said newsrack at the time of its impoundment, provided that either:
a. No hearing has been requested within the time permitted; or
b. A hearing and an appeal, if filed, have resulted in a final determination that said newsrack was properly impounded, and fees assessed have not been received within 30 days from the date of the final determination.
(f) Appeals.
(1) Request for hearing. Any newsrack permittee may file a written request with the department for a hearing, in person or by certified mail, for the purpose of demonstrating that a newsrack should not have been impounded, or that a violation as specified on the tag attached to a newsrack has not in fact occurred.
(2) Appeal. An appeal must be perfected within ten business days after the mailing date of the notice by filing with the office of the city manager a letter of appeal briefly stating therein the basis of such appeal. Any action by the city with respect to the alleged violation shall be stayed pending the city manger’s decision, except pursuant to subsections (e)(1)a. and b. above.
(3) Notice of hearing. Within two working days from the date on which the request for hearing is received, the Department shall set a hearing date and shall notify the designee by certified mail of the date, time and place of said hearing. Said hearing shall occur within ten working days of the date of mailing the notice unless the person requesting the hearing wishes to have the hearing at a later date, and both parties agree on the date. The city manager may designate an assistant city manager to hear any appeal.
(4) Conduct of hearing. At the time set for such hearing, or at the date to which such hearing is continued, the city manager or his or her designee shall receive all evidence relevant to the occurrence or non-occurrence of the specified violation(s), the compliance or noncompliance with any of the provisions of this subsection (f), and any other relevant information. The hearing shall be informal and need not be conducted according to technical rules relating to evidence and witnesses, but the city manager shall give the parties a reasonable opportunity to be heard and oral and written evidence may be presented by either the distributor and/or representative or the city to show cause why the determination of the director should be overturned or upheld.
(5) Decision after hearing. The city manager shall give oral notice of the decision immediately after the hearing and written notice of the decision within five business days after the hearing. The decision of the city manager or his or her designee shall be in writing and shall contain findings of fact, a determination of the issues presented, and the amount of the fee, if any, to be imposed. The determination of the city manager shall be final, but may be appealed to a court of competent jurisdiction.
(Ord. 17529, § 1, passed 5-1-2007, eff. 9-1-2007)