§ 34-37. Impoundment of newsracks; right to hearing.

(a)

When impoundment permitted. The director may seize and remove a newsrack if:

(1)

The newsrack is abandoned;

(2)

The newsrack poses an immediate danger to persons or vehicles and:

a.

The director first has made a reasonable attempt to contact the permittee of the newsrack and request immediate relocation or removal; or

b.

The permittee is unable to be contacted or does not respond to appropriate notification and the newsrack cannot be moved by the director to another location on the street, sidewalk, or other right-of-way without mechanical assistance;

(3)

The newsrack has been installed, placed, or maintained on the city's right-of-way without a valid permit. 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 is presumed to have been installed without a valid permit; or

(4)

A notice tag has been attached to the newsrack for violation of this article, notice has been given to the permittee as required by subsection 34-38(a), and one (1) of the following has occurred:

a.

The noticed violation has not been remedied within ten (10) business days of notice and no appeal hearing has been requested;

b.

A hearing of an appeal has resulted in a final determination that the violation specified in the notice tag in fact occurred and was not remedied within ten (10) business days of notice and ten (10) business days has passed since the final determination; or

c.

A request for an appeal hearing has been withdrawn or the permittee does not appear for the hearing.

(b)

Impoundment procedure.

(1)

Notice of impoundment. Within forty-eight (48) hours after removal of any newsrack, the director shall deliver written notice of impoundment by first class mail, return receipt requested, to the permittee and publisher or distributor, if different from the permittee. The notice shall inform the permittee of the reason for removal, the right to appeal the impoundment to the city manager within ten (10) business days of delivery of the notice, and the process for reclaiming the newsrack within thirty (30) days of notice. If the contact information for the permittee is not readily available because there is no permit application, 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.

(2)

Impoundment fee. Seized newsracks shall be retained by the director for a period of at least thirty (30) days following the newsrack's seizure. A removal fee of twenty-five dollars ($25.00) and a storage fee of five dollars ($5.00) per day (impoundment fee), to a maximum combined removal and storage fee of one hundred dollars ($100.00), 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.

(3)

Return of impounded newsracks. Any newsrack, together with its contents, which has been impounded pursuant to this section, shall be returned to the permittee:

a.

Upon payment to the director of the impound fee; or

b.

Upon a determination after hearing by the city manager or his designee pursuant to section 34-39 that the newsrack should not have been impounded and should be returned to the permittee.

(c)

Sale or disposal after impoundment. The director 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 monies contained in said newsrack at the time of its impoundment, provided that either:

(1)

No appeal hearing has been requested within the time permitted; or

(2)

Upon hearing of a timely filed appeal, the city manager or his designee has made a final determination that said newsrack was properly impounded, and fees assessed have not been received within thirty (30) days from the date of the final determination.

(Ord. No. 2009-9129, § 2, 10-22-09)