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OR 91-521 Placement of newsracks & permits for newsracks AN ORDINANCE OF THE CITY OF COPPELL, TEXAS ORDINANCE No. 91521 AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, REGULATING THE PLACEMENT OF NEWSRACKS WITHIN THE PUBLIC RIGHTS-OF-WAY OF THE CITY; PROVIDING FOR PERMITtING OF NEWSRACKS WITHIN THE CITY; PROVIDING FOR AN APPEAL PROCESS; PROVIDING A SAVINGS CLAUSE; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING PENALTIES FOR VIOLATION OF THIS ORDINANCE NOT TO EXCEED THE SUM OF $500.00 FOR EACH OFFENSE; EXCEPT WHERE A DIFFERENT PENALTY HAS BEEN ESTABLISHED BY STATE LAW FOR SUCH OFFENSE, THE PENALTY SHAI.I. BE THAT AFIXED BY STATE LAW, AND FOR ANY OFFENSE WHICH IS A VIOLATION OF ANY PROVISION THAT GOVERNS FIRE SAFETY, ZONING, PUBLIC HEALTH, AND SANITATION OR DUMPING OF REFUSE AS THAT TERM IS DEFINED BY SECTION 2.09 OF THE TEXAS LITTER ABATEMENT ACT, ARTICLE 4477-9(a), VERNON'S ANNOTATED CIVIL STATUES, AS AMENDED. THE PENALTY SHALL BE A FINE NOT TO EXCEED THE SUM OF $2,000.00 FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: SECTION 1. INTFMT AND PURPOSE. The City Council of the City of Copper finds and declares that: A. The uncontrolled placement of newsracks in public fights-of-way presents an inconvenience and danger to the safety and welfare of persons using such rights of way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services. B. Newsracks so located as to cause an inconvenience or danger to persons using public fights-of-way, and unsightly newsracks located therein, constitute public nuisances. C. It is a matter of public necessity that the City of Coppell protect children and unconsenting adults in and on its public streets, sidewalks, transportation facffities and other public fights-of-way from viewing such public displays of offensive sexual matefial. Such displays are fixrust indiscdminately upon unwilling and/ences of adults and children and constitute assaults upon individual privacy. D. The provisions and prohibitions here'mafter contained and enacted are in pursuance of and for the purpose contained and enacted are in pursuance of and for the purpose of securing and promoting the public health, morals, and general welfare of persons in the City of Coppeli in their use of public rights-of-way. SEUHON 2. DEFINITIONS, A. Distributor shall mean the person responsible for placing and maintaining a newsrack in a public right-of-way. B. Newsrack means any serf-service or coin-operated box, container, storage unit or other dispenser installed, used, or maintained for the display and sale of newspapers or other news periodicals. C. Parkway means that area between the sidewalks and the curb of any street, and where there is no sidewalk that area between the edge of the roadway and property line adjacem thereto. Parkway shall also include any area within a roadway that is not open to vehicular travel. D. Roadway means that portion of a street improved, designed, or ordinarily used for vehicular travel. E. Sidewalk means all that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks. F. Pictorial Material means any material suggesting or conveying visual image, and includes, but is not limited to, a photograph, painting or drawing. G. Any pictorial material is "obscene" if all of the foliowing apply: 1. The average person, applying contemporary community standards, would find that it appeals to the prufiem interest when the publication or material is considered as a whole; and REGULATING THE PLA~ OF NEWSRACKS - Page 2 2. It depicts, describes or represents in a patently offensive manner, sexual behavior as defined in Section 2.H. 3. It lacks serious literary, artistic, political or scientific value when the publication or material is considered as a whole. H. Sexual behavior means the patently offensive representation, depiction or description of any of the following: 1. Ukimate sexual acts, normal or perverted, actual or simulated, including without lLmitation, vaginal intercourse between a male and a female, and anal intercourse, fellatio and curmiHngus between persons regardless of sex. 2. Masturbation, excretory functions and lewd exhibition of the genitals. 3. The actual or simulated infliction of pain by one individual upon another, or by an individual upon himself, for the purpose of the sexual gratification or release of either individual, as a result of flagellation, beating, striking or touching of an erogenous zone, including without limitation the thigh, genitals, buttock, pubic region, or, ff such person is a female, a breast. 4. Ultimate sexual acts, actual or simulated, between a human being and an SECTION 3. PERMIT REQUIRED. It shall be unlad for any person, firm or corporation to erect, place, maintain or operate, on any public street or sidewalk, or in any other public way or place, in the City of Copper any newsrack without first having obtained a permit from the Chief Building Official specifying the exact location of such rack(s). One permit may be issued to include any number of newsrack, and shall be signed by the applicant. SECTION 4. APPLICATION FOR PERMIT. Application for such permit shall be made, in writing, to the Chief Building Official upon such form as shall be provided by him, and shall comain the name and address of the applicant, the proposed specific location of said newsrack, and shall be signed by the applicant. REGULATING THE PLACEMENT OF NEWSRACKS - Page 3 SECTION 5. CONDFHONS FOR PERMIT. A. As an express condition of the acceptance of such permit, the permittee thereby agrees to indemnify and save harmless the City, it's officers, directors, and employees against any loss or liability or damage, including expenses and costs for bodily or personal injury, and for property damage sustained by any personas the restfit of the installation, use, or maintenance of a newsrack within the City of CoppeH. B. Pennlts shall be issued for the installation of a newsrack or newsracks without prior inspection of the location but such newsrack or newsracks and the installation, use or maintenance shall be conditioned upon observance of the provisions of this Ordinance. Permits shall be issued within twenty-four (24) hours (excluding Saturday and Sanday and legal holidays) after the application has been filed. A permit fee of $10.00 is required. C. Such permits shall be valid for three years and shall be renewable pursuant to the procedure for original applications referred to in Section 4 and upon payment of the $10.00 penrAt fee. D. Stickers showing the permit number shall be issued with the permit and must be displayed on the front of each newsrack at all times. SEL'HON 6. STANDARDS FOR MAINTENANCE AND INSTAI.I.ATION, Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway, shall comply with the following standards: A. No newsrack shall exceed five (5) feet in height, thirty (30) inches in width, or two (2) feet in thickness. B. No newsrack shall be used for advertising signs or publicity purposes other than that dealing with the display, sale, or purchase of the newspaper or news periodical sold therein. C. Each newsrack shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event he is unable to receive the publication paid for. The coin-return mecharfisms shall be maintained in good working order. D. Each newsrack shall have affixed to it in a readily visible place so as to be seen by anyone using the newsrack a notice setting forth the name and address of the distributor and the telephone number of a working telephone service to call to report a malfunction, or to secure a refund in the event of a mallunction of the coin-return mechanism, or to give the notices provided for in this ordinance. REGULATING THE PLACEMENT OF NEWSRACKS - Page 4 E. Each newsrack shall be maintained in a neat and dean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that: 1. It is reasonably flee of dirt and grease. 2. It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas thereof. 3. It is reasonably free of rest and corrosion in the visible unpainted metal areas thereon. 4. The clear plastic or glass parts thereof, if any, through which the publications therein are viewed are unbroken and reasonably flee of cracks, dents, blemishes and discoloration. 5. The paper or cardboard parts or inserts thereof are reasonably free of tears, peeling or fading. 6. The structural parts thereof are not broken or unduly misshapen. SECTION 7- DISPLAY OF OBSCENE MATERIAL. It shall be unlawful for any person to knowingly place or maintain any publication or material in newsracks which exposes to public view any pictorial material that is obscene. SECT[ON 8. LOCATION AND PLACEMENT OF NEWSRACK. Any newsrack which rests in whole or in part upon, or on any portion of a public tight- of-way or which projects onto, into, or over any pan of a public tight-of-way shall be located in accordance with the provisions of this Section: A. No newsrack shall be used or maintained which projects onto, into, or over any pan of the roadway of any public street, or which rests, wholly or in pan upon, along, or over any portion of the roadway of any public street. B. No newsrack shall be chained, bored, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks. C. Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than eight (8) feet along a curb, and a space of not less than three (3) feet shall separate each group of newsracks. REGULATING THE PLACEMENT OF NEWSRACKS - Page 5 D. No newsrack shall be placed, installed, used or maintained: 1. Within three (3) feet of any marked crosswalk. 2. Within twelve (12) feet of the curb return of any unmarked crosswalk. 3. Within five (5) feet of any fire hydrant, fire call box, police call box or other emergency facility. 4. Within five (5) feet of any driveway. 5. Within three (3) feet ahead or fifteen (15) feet to the rear of any sign marking a designated bus stop. 6. Within three (3) feet of the outer end of any bus bench. 7. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six (6) feet. 8. Within three (3) feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping. 9. Within one thousand (1000) feet of any other newsrack containing the same issue or edition of the same publication. 10. On any handicap access ramp. SEL'I'ION 9. VIOLATIONS OF ORDINANCE. Upon determination by the Chief Building Official that a newsrack has been installed, used or maintained in violation of the provisions of this Ordinance, an order to correct the offending condition will be issued to the distributor of the newsrack. Such order shall be telephoned to the distributor and continned by mailing a copy of the order by certified mail return receipt requested. The order shall specifically describe the offending condition, suggest actions necessary to correct the condition, and inform the newsrack distributor of the right to appeal. Failure to properly correct the offending condition within five (5) days (excluding Saturdays, Sundays, and legal holidays) after the mailing date of the order or to appeal the order within three (3) days after its receipt shall result in the offending newsrack being summarily removed and processed as unclaimed property. If the offending newsrack is not properly identified as to owner under provisions of Section 5 hereof, it shall be removed immediately and processed as unclaimed property. An impound fee, which shall be measured by the City's cost and expense of impounding, shall be assessed against each newsrack summarily removed. The Chief Building Official shall cause inspection to he made of the corrected condition or of a newsrack reinstailed after removal under this Section. The REGULATING THE PLACEMENT OF NEWSRACICS - Page 6 distributor of said newsrack shall be charged a ($10.00) inspection fee for each newsrack so inspected. This charge shall be in addition to all other fees and charges required under this Ordinance. SECTION 10. APPEALS. Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this Ordinance may appeal and shall be appraised of his right to appeal to the (Appeal Board). An appeal must be perfected within three (3) days after receipt of notice of any protested decision or action by filing with the office of the Chief Building Official a letter of appeal briefly stating therein the basis for such appeal. A hearing shall be held on a date no more than ten (10) days after receipt of the letter of appeal. Appellant shall be given at least five (5) days notice of the time and place of the hearing. The Appeal Board shall give the appellant, and any other interested party, a reasonable opportunity to be heard, in order to show cause why the determination of the Chief Building Official should not be upheld. At the conclusion of the heming, the decision shall be immediately appealable to a court of competent jurisdiction. SECTION 11. CHIRP BUILDING OFFICIAL'S DESIGNATED REPRESENTATIVE. "Chief Building Official" as used in this Ordinance shall include his designated representative. SECTION 12. ABANDONMENT. In the event a newsrack remains empty for a period of thirty (30) continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided in Section 9 for newsracks in violation of the provisions of this Ordinance. SEL'IION 13. REPF-a-I-ING. All ordinances, or parts of ordinances, inconsistent or in conflict with the provisions of this ordinance are hereby repealed. SECTION 14. SEVERABIHTY CLAUSE. If any article, paragraph, or subdivision, clause of provision of this ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this ordinance as a whole or any part or provision thereof, other than the part so decided to be invalid or unconstitutional. REGULATING THE pLACF. R4ENT OF NEWtSRACKS - Page 7 SEt.;I'ION 15. PENALTY CLAUSE, Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished by a penalty of fine not to exceed the sum of Five Hundred Dollars ($500.00) for each offense; except where a different penalty has been established by state law for such offense, the penalty shall be that fixed by state law, and for any offense which is a violation of any provision that governs fire safety, zoning, public health and sanitation or dumping of refuse as that term is defined by Section 2.09 of the Texas Litter Abatement Act, Article 4477-9a, Vemon's Annotated Civil Statutes, as mended, the penalty shall be a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) for each offense, and each and every day such offense is continued shall constitute a new and separate offense. SECTION 16. EFFECTIVE DATE. This ordinance shall take effect immediately from and after its passage and publication of its caption, as the law in such cases provides. DULY PASSED AND ADOPTED by the City Council of the City of Coppell, Texas this the 27th day of August, 1991. APPROVED Mark Wolfe MAYOR ATTEST: Dorothy Timmons CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY REGULATING ]lIE PLACF. MENT OF NEWSRACKS - Page 8