[HISTORY: Adopted by the City Council of the City of Butler 6-27-2002 by Ord. No. 1520. Amendments noted where applicable.]
The City Council of the City of Butler finds and declares that:
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.
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 Butler 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.
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 in the comfortable enjoyment of life and property by the entire community.
The 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 Council further finds that these strong and competing interests require a reasonable accommodation which can only be satisfactorily achieved through the means of this chapter which is designed to accommodate such interests regulating the time, place and manner of using such newsracks.
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 City of Butler 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:
Provide for pedestrian and driving safety and convenience;
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;
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;
Reduce visual blight on the public rights-of-way, protect the aesthetics and value of surrounding properties, and protect the quiet of residential areas;
Reduce exposure of the City to personal injury or property damage claims and litigation; and
Protect the right to distribute information protected by the United States and Pennsylvania constitutions through use of newsracks.
Preservation of constitutional rights. It is not the intent of this chapter 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 chapter, unless the context otherwise clearly indicates:
- One side of a street between two consecutive intersecting streets.
- CODE ENFORCEMENT OFFICER
- Refers to the Code Enforcement Officer or the designee of the Code Enforcement Officer.
- 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 exhibition 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.
- Any self-service or coin-operated box, container, storage unit or other dispenser installed, used, or maintained for the display, distribution, and/or sale of newspapers, news periodicals, advertisements, brochures or magazines.
- Material which depicts or describes sexual conduct that is objectionable or offensive to accepted standards of decency which the average person, applying contemporary community standards would find, taken as a whole, appeals to prurient interests; or material which depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, and taken as a whole, lacks serious literary, artistic, political, or scientific value.
- 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.
- 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. Any pictorial material is obscene if all of the following apply:
- A. The average person, applying contemporary community standards, would find that it appeals to prurient interests when the publication or material is considered as a whole; and
- B. It depicts, describes or represents in a patently offensive manner, sexual behavior as defined in this section; and
- C. It lacks serious literary, artistic, political or scientific value when the publication or material is considered as a whole.
- That portion of a street improved, designed, or ordinarily used for vehicular travel.
- SEXUAL AROUSAL, GRATIFICATION OR AFFRONT
- When used in this chapter to state the purpose or effect of statements, words, pictures or illustrations, means depictions of the following subjects or acts:
- A. Sexual intercourse, oral copulation, anal intercourse, oral-anal contact, bestiality, direct physical stimulation of genitals, flagellation or torture in the context of a sexual relationship, or any of the following depicted sexually oriented acts or conduct: anilingus, buggery coprolagnia, coprohagy, coprophilia, cunnilingus, fellation, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or
- B. Human genitals in a state of sexual stimulation, arousal, or tumescence; or
- C. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejaculation; or
- D. Fondling or touching of human genitals, pubic region, buttock, or female breast; or
- E. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or
- F. Erotic or lewd touching, fondling or other contact with an animal by a human being; or
- G. Human excretion, urination, menstruation, vaginal or anal irrigation.
- SEXUAL BEHAVIOR
- The patently offensive representation, depiction or description of any of the following:
- A. Ultimate sexual acts, actual or simulated, including vaginal intercourse between a male and a female, and anal intercourse, fellatio and cunnilingus between persons regardless of gender.
- B. Masturbation, excretory functions and lewd exhibition of the genitals.
- C. 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, if such person is a female, a breast.
- D. Ultimate sexual acts, actual or simulated, between a human being and an animal.
- Any surface provided for the exclusive use of pedestrians.
- All the area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks.
No person shall install, use, or maintain any newsrack which projects onto, into, or which rests, wholly or in part, upon the roadway of any public street.
No person shall install, use, or maintain any newsrack which in whole or in part rests upon, in, or over any public sidewalk or parkway:
When such installation, use, or maintenance endangers the safety of persons or property;
When such site or location is used for public utility purposes, public transportation purposes, or other governmental use;
When such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including parked or stopped vehicles; the ingress in or egress from any residence or place of business; the use of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects permitted at or near said location;
When such newsrack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk-cleaning machinery; or
In any other manner inconsistent with or in violation of the provisions of this chapter.
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 Butler any newsrack in the area of the City lying north of Campbell Street, south of Penn Street, west of McKean Street and east of Washington Street, without first having obtained a permit from the Code Enforcement Officer 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.
Application for such permit shall be made in writing to the Code Enforcement Officer upon such form as shall be provided by him, and shall contain the name and address of the applicant, the proposed specific location of said newsrack, and shall be signed by the applicant.
From the above application information the Code Enforcement Officer shall approve the locations. He shall be guided therein solely by the standards and criteria set forth in this chapter. In any case where the Code Enforcement Officer disapproves of a particular location, such disapproval shall be without prejudice to the registrant designating a different location or locations.
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 24 hours (excluding Saturday, Sunday and legal holidays) after the application has been filed. A permit fee of $50 shall be required.
Every owner of a newsrack who places or maintains a newsrack on a public sidewalk or parkway in the City of Butler shall file a written statement with the Code Enforcement Officer in a form satisfactory to the City Solicitor, whereby such owner agrees to indemnify and hold harmless the City, 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 City of Butler.
Every person who places or maintains a newsrack on the streets of the City of Butler 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 Code Enforcement Officer under § 183-9 herein, the registrant shall present evidence of compliance with this section.
Any newsrack which rests in whole or in part upon 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:
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 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 more than two newsracks per group and not more than four newsracks per block, and a space of not less than 12 feet shall separate each group of newsracks.
No newsrack shall be placed, installed, used or maintained:
Within 25 feet of any intersection.
Within five feet of any bench or trash receptacle.
Within five feet of any fire hydrant, fire call box, police call box or other emergency facility.
Within five feet of any driveway.
Within five feet ahead or 25 feet to the rear of any sign marking a designated bus stop.
Within five feet of the outer end of any bus bench.
On any of the following alleys or areas:
Areas occupied by Diamond Park lying east of Main Street, west of Cedar Street, and between the West Diamond Street one-way streets abutting the park.
That portion of Main Street on which the Butler County Courthouse fronts.
Within five feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping, or within five 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.
On the same side of the street in the same block containing the same issue or edition of the same publication.
Within three feet of any curb line.
On any access ramp for disabled persons.
No more than four 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 Code Enforcement Officer shall be guided solely by the following criteria:
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 the person is unable to receive the paid-for publication. 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, 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 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 of 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; and
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:
Any publication or material which exposes to public view any pictorial material that is obscene;
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;
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
Any picture or illustration depicting explicit sexual acts as defined in this chapter where such picture or illustration has as its purpose or effect sexual arousal, gratification, or affront.
Upon determination by the Code Enforcement Officer that a newsrack has been installed, used or maintained in violation of the provisions of this chapter, 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 § 183-8 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 Code Enforcement Officer 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 a $10 inspection fee for each newsrack so inspected. This 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, order or action taken under the provisions of this chapter may appeal and shall be appraised of his right to appeal to the City 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 Community and Economic Development a letter of appeal briefly stating therein the basis for such appeal. A hearing shall be held on a date not 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 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 Code Enforcement Officer should not be upheld. At the conclusion of the hearing, the City 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 § 183-12 for newsracks in violation of the provisions of this chapter.