The Mayor and Council of the Borough of Garwood
finds and declares that:
A. Findings.
(1) The uncontrolled placement and maintenance of newsracks
in public rights-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.
(2) Newsracks so located as to cause an inconvenience
or danger to persons using public rights-of-way, and unsightly newsracks
located therein, constitute public nuisances.
(3) It is a matter of public necessity that the Borough
of Garwood protect children and unconsenting adults in and on its
public streets, sidewalks, transportation facilities and other public
rights-of-way from viewing public displays of offensive sexual material.
Such displays are thrust indiscriminately upon unwilling audiences
of adults and children and constitute assaults upon individual privacy.
(4) These factors constitute an unreasonable interference
with and obstruction of the use of public rights-of-way, constitute
an unwarranted invasion of individual privacy, are injurious to health,
offensive to the senses, and constitute such an obstruction of the
free use of property as to interfere with the comfortable enjoyment
of life and property by the entire community.
(5) The Mayor and Council recognizes, however, that the
use of such rights-of-way is so historically associated with the sale
and distribution of newspapers and publications that access to those
areas for such purposes should not be absolutely denied. The Mayor
and Council further finds that these strong and competing interests
require a reasonable accommodation, which can only be satisfactorily
achieved through the means of this article, which is designed to accommodate
such interests regulating the time, place and manner of using such
newsracks.
B. Purpose. The provisions and prohibitions hereinafter
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 Borough of Garwood in their use of public rights-of-way through
the regulation of placement, appearance, number, size, and servicing
of newsracks on the public rights-of-way so as to:
(1) Provide for pedestrian and driving safety and convenience;
(2) Ensure no unreasonable interference with the flow
of pedestrian or vehicular traffic, including ingress to, or egress
from, any place of business or from the street to the sidewalk;
(3) Provide reasonable access for the use and maintenance
of sidewalks, poles, posts, traffic signs and signals, hydrants, mailboxes,
and similar appurtenances, and access to locations used for public
transportation purposes;
(4) Reduce visual blight on the public rights-of-way,
protect the aesthetics and value of surrounding properties, and protect
the quiet of residential areas;
(5) Reduce exposure of the Borough to personal injury
or property damage claims and litigation; and
(6) Protect the right to distribute information protected
by the United States and New Jersey Constitutions through use of newsracks.
C. Preservation of constitutional rights. It is not the
intent of this article to in any way discriminate against, regulate,
or interfere with the publication, circulation, distribution, or dissemination
of any printed material that is constitutionally protected.
As used in this article, unless the context
otherwise clearly indicates, the following terms shall have the meanings
indicated:
BLOCK
One side of a street between two consecutive interacting
streets.
DISTRIBUTOR
The person responsible for placing and maintaining a newsrack
in a public right-of-way.
EXPLICIT SEXUAL ACTS
Depictions of sexual intercourse, oral copulation, anal intercourse,
oral-anal copulation, bestiality, sadism, masochism, or excretory
functions in conjunction with sexual activity, masturbation, or lewd
exhibitions of genitals; whether any of the above conduct is depicted
or described as being performed alone or between members of the same
or opposite sex or between humans and animals, or other acts of sexual
arousal involving any physical contact with a person's genitals, pubic
hair, perineum, anus or anal region.
NEWSRACK
Any self-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.
OBSCENE
"Obscene material" as defined in N.J.S.A. 2C:34-3.
PARKWAY
The area between the sidewalk and the curb of any street,
and where there is no sidewalk, the area between the edge of the roadway
and the property line adjacent thereto. "Parkway" shall also include
any area within a roadway that is not open to vehicular travel.
PERSON
Any person or persons or entity, including, but not limited
to, a corporation, partnership, unincorporated association or joint
venture.
PICTORIAL MATERIAL
Any material suggesting or conveying a visual image, and
includes, but is not limited to, a photograph, painting or drawing.
ROADWAY
That portion of a street improved, designed, or ordinarily
used for vehicular travel.
SEXUAL AROUSAL, GRATIFICATION OR AFFRONT
"Specified sexual activity" as defined in N.J.S.A. 2C:34-3,
when used in this article to state the purpose or effect of statements,
words, pictures or illustrations.
SEXUAL BEHAVIOR
"Specified sexual activity" as defined in N.J.S.A. 2C:34-3.
SIDEWALK
Any surface provided for the exclusive use of pedestrians.
STREET
All the area dedicated to public use for public street purposes
and shall include, but not be limited to, roadways, parkways, alleys
and sidewalks.
It shall be unlawful 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 Borough of
Garwood any newsrack without first having obtained a permit from the
Superintendent of Public Works specifying the exact location of such
newsrack. One permit may be issued to include any number of newsracks,
and shall be signed by the applicant.
Every owner of a newsrack who places or maintains
a newsrack on a public sidewalk or parkway in the Borough of Garwood
shall file a written statement with the Superintendent of Public Works
in a form satisfactory to the Borough Attorney, whereby such owner
agrees to indemnify and hold harmless the Borough, its officers, and
employees, from any loss, liability, or damage, including expenses
and costs, for bodily or personal injury, and for property damage
sustained by any person as a result of the installation, use and/or
maintenance of a newsrack within the Borough of Garwood.
Every person who places or maintains a newsrack on the streets of the Borough of Garwood shall have his permit number, name, address, and telephone number affixed to the newsrack in a place where such information may be easily seen. Prior to the designation of location by the Superintendent of Public Works under §
146-44 herein, the registrant shall present evidence of compliance with this section.
Any newsrack which rests in whole or in part
upon, in or on any portion of a public right-of-way or which projects
onto, into, or over any part of a public right-of-way shall be located
in accordance with the following provisions of this section:
A. No newsrack shall be used or maintained which projects
onto, into, or over any part of the roadway of any public street,
or which rests, wholly or in part, upon, along, or over any portion
of the roadway of any public street.
B. No newsrack shall be chained, bolted, 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 feet along a curb, and a space of not less than three feet shall
separate each group of newsracks.
D. No newsrack shall be placed, installed, used or maintained:
(1) Within five feet of any marked crosswalk.
(2) Within 15 feet of the curb return of any unmarked
crosswalk.
(3) Within five feet of any fire hydrant, fire call box,
police call box or other emergency facility.
(4) Within five feet of any driveway.
(5) Within three feet ahead or 25 feet to the rear of
any sign marking a designated bus stop.
(6) Within five 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 feet.
(8) Within three feet of or on any public area improved
with lawn, flowers, shrubs, trees or other landscaping, or within
three feet of any display window of any building abutting the sidewalk
or parkway or in such a manner as to impede or interfere with the
reasonable use of such window for display purposes.
(9) Within 100 feet of any other newsrack on the same
side of the street in the same block containing the same issue or
edition of the same publication.
(10)
On any access ramp for disabled persons.
E. No more than eight newsracks shall be located on any
public right-of-way within a space of 200 feet in any direction within
the same block of the same street; provided, however, that no more
than 16 newsracks shall be allowed on any one block. In determining
which newsracks shall be permitted to be located or to remain if already
in place, the Superintendent of Public Works shall be guided solely
by the following criteria:
(1) First priority shall be daily publications (published
five or more days per week).
(2) Second priority shall be publications published two
to four days per week.
(3) Third priority shall be publications published one
day per week.
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 feet in height, 30 inches
in width, or two feet in thickness.
B. No newsrack shall be used for advertising signs or
publicity purposes other than those 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 the person is unable to receive the paid for publication.
The coin-return mechanism 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 malfunction of the coin-return
mechanism, or to give the notices provided for in this article.
E. Each newsrack shall be maintained in a neat and clean
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 free 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 rust 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 free of cracks, dents, blemishes and discoloration;
(5) The paper or cardboard parts or inserts thereof are
reasonably free of tears, peeling or fading; and
(6) The structural parts thereof are not broken or unduly
misshapen.
Publications offered for sale from newsracks
placed or maintained on or projecting over the street or sidewalk
shall not be displayed or exhibited in a manner which exposes to public
view from the street or sidewalk any of the following:
A. Any publication or material which exposes to public
view any pictorial material that is obscene;
B. Any statements or words describing explicit sexual
acts, sexual organs, or excrement where such statements or words have
as their purpose or effect sexual arousal, gratification, or affront;
C. Any picture or illustration of a person's genitals,
pubic hair, perineum, anus, or anal region where such picture or illustration
has as its purpose or effect sexual arousal, gratification, or affront;
or
D. Any picture or illustration depicting explicit sexual
acts as defined in this article where such picture or illustration
has as its purpose or effect sexual arousal, gratification, or affront.
Upon determination by the Superintendent of Public Works that a newsrack has been installed, used or maintained in violation of the provisions of this article, an order to correct the offending condition shall be issued to the distributor of the newsrack. Such order shall be telephoned to the distributor and confirmed 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 days (excluding Saturdays, Sundays, and legal holidays) after the mailing date of the order or to appeal the order within three 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 the provisions of §
146-43 hereof, it shall be removed immediately and processed as unclaimed property. An impound fee, which shall be measured by the Borough's cost and expense of impounding, shall be assessed against each newsrack summarily removed. The Superintendent of Public Works shall cause inspection to be made of the corrected condition or of a newsrack reinstalled after removal under this section. The distributor of said newsrack shall be charged an inspection fee of $50 for each newsrack so inspected. This charge shall be in addition to all other fees and charges required under this article.
Any person or entity aggrieved by a finding,
determination, notice, order or action taken under the provisions
of this article may appeal and shall be appraised of his right to
appeal to the Mayor and Council. An appeal must be perfected within
three days after receipt of notice of any protested decision or action
by filing with the Office of the Borough Clerk and the Superintendent
of Public Works a letter of appeal briefly stating therein the basis
for such appeal. A hearing shall be held on a date not more than 30
days after receipt of the letter of appeal. The appellant shall be
given at least five days' notice of the time and place of the hearing.
The Mayor and Council 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 Superintendent of Public Works should
not be upheld. At the conclusion of the hearing, the Mayor and Council
shall make a final and conclusive decision. This decision shall be
immediately appealable to a court of competent jurisdiction.
In the event that a newsrack remains empty for a period of 30 continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided in §
146-47 for newsracks in violation of the provisions of this article.