A. Removal: In the event that the traffic engineer, the police department or fire department determines that the location or operation of the newsrack constitutes an immediate physical threat to public safety or health, the newsrack may be removed by the city immediately without any prior notice or hearing. This provision shall not allow the removal of a newsrack or a publication based on the content of the material distributed in the newsrack.
B. Undocumented Content Of Newsracks That Is Not Explicit Or Sexual Or Erotic In Nature: In the event that any newsrack contains periodicals, newspapers or other printed material that has not been properly identified on the permit application as pertaining to a particular newsrack, the city may remove the publications or require the permittee to recertify the newsrack to include the periodical or written material content of said newsrack on the permit under section 7-17-9 of this chapter.
C. Undocumented Content Of Newsracks That Is Explicit, Erotic Or Sexual In Nature: In the event that any newsrack contains periodicals, newspapers or other printed material with lewd pictures, photos, drawings or illustrated depictions, such material may be removed immediately by city personnel without notice or hearing. For purposes of this section, lewdness means:
1. An act of sexual intercourse or sodomy;
2. The exposed male or female genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area;
3. An act of masturbation; or
4. Any other act of lewdness.
D. Notice And Hearing: In the event of the immediate removal of a newsrack or printed material under this section, the city shall contact the permittee's designated representative appearing on permittee's permit application as soon as reasonably possible and inform the representative of the removal and the reason(s) therefor. If requested by the representative, the city shall hold a hearing before a hearing officer to determine whether or not the removed newsrack constituted an immediate threat to the public's life, safety and/or health or whether the material was properly removed. If the hearing officer determines that the newsrack did not constitute such an immediate threat, the city shall immediately, at its own expense, replace the newsrack at its location. In the event that no immediate hearing is requested by the permittee's representative, a hearing shall be conducted, within five (5) business days of the emergency removal action, by a hearing officer in order to review ordinance compliance on the subject newsrack. In the event that the city determines that permittee is not in compliance with this chapter, then the city shall retain the newsrack, return it to the permittee, and recover the expense of removal from the owner.
E. Appeal: The permittee may appeal any decision or order to the mayor or the mayor's designee. Any appeal shall be filed in writing within ten (10) days of the decision and shall specify the basis for the appeal. The mayor shall consider the appeal based on the written submissions. The permittee shall not be entitled to replacement of the newsrack or any material removed by the city during the appeals process.
(Ord. 2012-41, 7-10-2012)