[HISTORY: Adopted by the City Council of the City of Newburgh 7-11-1983. Amendments noted where applicable.]
The City Council of the City of Newburgh finds and declares that:
The uncontrolled placement 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.
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.
It is a matter of public necessity that the City of Newburgh 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.
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 City of Newburgh in their use of public rights-of-way.
As used in this chapter, the following terms shall have the meanings indicated:
- CITY MANAGER and CHIEF OF POLICE
- Includes their designated representatives.
- The person responsible for placing and maintaining a newsrack in a public right-of-way.
- 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.
- The showing with less than a fully opaque covering of the genitals, pubic hair, buttocks, natal cleft, perineum, anus or anal region of any person, other than a child under the age of puberty, or any portion of the breast at or below the areola thereof of any female person, other than a child under the age of puberty, or the depiction of covered male genitals in a discernibly turgid state.
- The work in which representations appear, taken as a whole, appeals to the prurient interest and patently depicts or portrays the prohibited sexually explicit material in a manner which, taken as a whole, lacks serious literary, artistic, political or scientific value.
- 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 adjacent thereto. "Parkway" shall also include any area with a roadway which is not open to vehicular travel.
- PICTORIAL MATERIAL
- Any material suggesting or conveying a visual image and includes but is not limited to a photograph, painting or drawing.
- That portion of a street improved, designed or ordinarily used for vehicular travel.
- SEXUALLY EXPLICIT MATERIAL
- Any pictorial material depicting human sexual intercourse, human or animal masturbation, bestiality, oral intercourse, anal intercourse, human-animal intercourse, excretory functions, homosexual acts, direct physical stimulation or touching of unclothed genitals or pubic areas of the human male or female, flagellation or torture by or upon a person in the context of a sexual relationship or sexual stimulation. The material shall be judged without regard to any covering which may be affixed or printed over the material in order to obscure genital areas in a depiction otherwise falling within the definition of these subsections. Works of art or of anthropological significance are not included within this definition.
- Any surface provided for the exclusive use of pedestrians.
- All that 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 City of Newburgh any newsrack without first having obtained a permit from the City Clerk specifying the exact location of such rack(s). One permit may be issued to include any number of newsracks and shall be signed by the applicant.
Application for such permit shall be made in writing to the City Clerk upon such form as shall be provided by him and shall contain the name and address of the applicant and the proposed specific location of said newsrack and shall be signed by the applicant.
[Amended 6-13-1988 by L.L. No. 4-1988]
As an express condition of the acceptance of such permit, the permittee thereby agrees to indemnify and save harmless the City, its 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 person as the result of the installation, use or maintenance of a newsrack within the City of Newburgh.
Permits 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 thereof shall be conditioned upon observance of the provisions of this chapter. Permits shall be issued within five business days after the application has been filed. An annual permit fee as set forth in Chapter 163, Fees, of this Code is required.
Any newsrack which, in whole or in part, rests upon, in or over any public sidewalk or parkway shall comply with the following standards:
No newsrack shall exceed five feet in height, 30 inches in width or two feet in thickness.
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.
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 that he is unable to receive the publication paid for. The coin-return mechanism shall be maintained in good working order.
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 of the coin-return mechanism or to give the notice provided for in this chapter.
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:
It is reasonably free from dirt and grease.
It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas thereof.
It is reasonably free of rust and corrosion in the visible unpainted metal areas thereon.
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.
The paper or cardboard parts or inserts thereof are reasonably free of tears, peeling or fading.
The structural parts thereof are not broken or unduly misshapen.
It shall be unlawful for any person to place or maintain any publication or material in newsracks which exposes to public view any pictorial material which depicts or appears to depict nudity or offensive sexually explicit material.
Any newsrack which rests in whole or in part upon or on any portion of a public right-of-way shall be located in accordance with the provisions of this section:
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.
No newsrack shall be permitted to rest upon, in or over any public sidewalk or parkway when such installation, use or maintenance endangers the safety of persons or property or when such site or location is used for public utility purposes, public transportation purposes or other governmental use or when such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including any legally marked or stopped vehicles, the ingress to or egress from any residence or place of business or the use of poles, posts, traffic signs or signals, hydrants, mailboxes or other objects permitted at or near said location.
No newsrack shall be chained, bolted or otherwise attached to any fixture located in the public right-of-way, except to other newsracks.
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.
No newsrack shall be placed, installed, used or maintained:
Within three feet of any marked crosswalk.
Within 12 feet of the curb return of any unmarked crosswalk.
Within five feet of any fire hydrant, fire call box, police call box or other emergency facility.
Within five feet of any driveway.
Within three feet ahead or 15 feet to the rear of any sign marking a designated bus stop.
Within three feet of the outer end of any bus bench.
At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet.
Within three feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping.
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.
[Amended 6-13-1988 by L.L. No. 4-1988]
Upon determination by the Chief of Police that a newsrack has been installed, used or maintained in violation of the provisions of this chapter, 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 confirmed to the distributor by mailing a copy of the order by certified mail, return receipt requested. The order shall specifically describe the offending condition and suggest actions necessary to correct the condition. Failure to properly correct the offending condition within three days, excluding Saturdays, Sundays and legal holidays, after the mailing date of the order shall result in the offending newsrack's being summarily removed. If the offending newsrack is not properly identified as to owner under provisions of § 209-6D hereof, it shall be removed immediately and processed as unclaimed property. The Chief of Police 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 as set forth in Chapter 163, Fees, of this Code for each newsrack so inspected, which charge shall be in addition to all other fees and charges required under this chapter.
Any person or entity aggrieved by a finding, determination, notice or action taken under the provisions of this chapter may appeal and shall be apprised of his right to appeal to the City Manager. 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 Chief of Police a letter of appeal briefly stating therein the basis for such appeal. A hearing shall be held on a date no more than 10 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 City Manager 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 of Police should not be upheld. In all such cases, the burden of proof shall be upon the appellant to show that there was no substantial evidence to support the action taken by the Chief of Police. Within five business days of the conclusion of the hearing, the City Manager shall make a final and conclusive determination.
In addition to the enforcement procedures provided in § 209-8 of this chapter, it shall be within the power and discretion of the Chief of Police to suspend or revoke the permit for continued or repeated violation or infractions of any provisions of this chapter or of any rule, direction or regulation of the Chief of Police. Suspension or revocation shall be mandatory for the third offense against § 209-8 of this chapter.
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 § 209-8 for newsracks in violation of the provisions of this chapter.
[Amended 9-28-1998 by Ord. No. 12-98]
In addition to all enforcement procedures provided herein, any person who shall violate any of the provisions of this chapter or fail to comply therewith or who shall violate or fail to comply with any order made thereunder shall be punished as provided in § 1-12 for violation of this chapter of the Code of Ordinances of the City of Newburgh.
The imposition of one penalty for any violation shall not excuse the violation or permit it to continue, and all such persons shall be required to correct or remedy such violations or defects. Each day that prohibited conditions exist shall constitute a separate offense.
The application of the above penalty shall not be held to prevent the enforced removal of prohibited conditions.