ARTICLE XI: NEWSRACKS ON PUBLIC STREETS

A person may place and maintain a newsrack on a public street in accordance with the provisions of this article whether the newsrack will be used for the distribution of non-commercial or commercial speech, or both. The purpose of this article is not to regulate the content of any speech but to recognize that the use of public streets for public uses is always paramount and to provide a means for citizens to engage in speech through the use of newsracks placed on public streets, provided that such structures:

Do not by their placement, location, size, maintenance or other physical attributes create a hazard to persons or property;

Do not interfere with pedestrian or vehicular traffic;

Are kept neat, clean, and in good repair; and

Are actively used and not abandoned in place, thereby needlessly occupying public property to the exclusion of others or other uses.

Nothing contained in this article is intended to grant a license or property right in or to any public property.

(Ordinance 6615, sec. 1, adopted 5/21/13)

§ 33.121 Definitions.

As used in this article, unless the context requires a different meaning:

Block.

An area bounded by streets on all sides. If a street dead ends, the terminus of the dead-end street will be treated as an intersecting street.

Blockface.

The linear distance of lots along one side of a street between the two nearest intersecting streets. If a street dead ends, the terminus of the dead-end street will be treated as an intersecting street.

Crosswalk.

Has the meaning given that term in section 541.302 of the Texas Transportation Code, as amended.

§ 33.122 Newsracks in streets and on public property.

Director.

The director of code compliance or a person designated by the director.

(5)

Newsrack.

Any self-service or coin-operated container, rack, or structure used or maintained for the display, distribution, or sale of newspapers, periodicals, or other publications. Inasmuch as this article only applies to newsrack located on public property, a reference in this article to “newsrack” necessarily means a newsrack located on public property, not a newsrack located entirely on private property.

(6)

Non-vehicular right-of-way.

That portion of a street or highway that is not open or used for vehicular traffic.

(Ordinance 6615, sec. 1, adopted 5/21/13)

This article applies only to a street owned or controlled by the City. It does not authorize the placement of newsracks at any other location. A person who desires to install, operate or maintain a newsrack on other public property or on private property must obtain the consent of the governmental body that owns or controls that property or, in the case of private property, the owner of the private property.

Nothing contained in this article constitutes authorization to install, operate or maintain a newsrack on any portion of the state highway system or any interstate highway. The placement of any newsrack under the authority of this article is subject to the rights of the City (including public utilities and utility franchisees) to make changes to the grade, direction, width, path or closure of any street or highway within the City. No person who installs, operates, or maintains a newsrack pursuant to this article shall have any claim against the City for damages the person might suffer by reason of the installation, construction, reconstruction, operation, or maintenance of any public facility within, upon or over a street or highway within the City.

(Ordinance 6615, sec. 1, adopted 5/21/13)

§ 33.123 Conditions of use.

A person who installs, operates or maintains a newsrack shall permanently affix to the newsrack in legible characters within a space no less than three inches by four inches the name, address, working telephone number, and email address if any, of the owner or person in charge of the newsrack. A post office box number is not acceptable.

By installing, operating or maintaining a newsrack pursuant to this article, the owner and person in charge of the newsrack agree to defend, indemnify, and hold whole and harmless the City and its officers, agents, representatives or employees against any and all claims, lawsuits, judgments, costs, or expenses (including attorney’s fees) for bodily injury, property damage, or other harm arising out of, or in any way related to the placement, installation, operation or maintenance of the newsrack.

If the City is made a defendant in any cause of action, directly or indirectly, based upon the placement, installation, operation, or maintenance of any newsrack, the City may implead the owner or its successors and assigns.

§ 33.124 Standards for installation, operation, and maintenance.

The owner or person in charge of the newsrack shall, before installation of the newsrack, procure and keep in full force and effect at all times while the newsrack is located on public property commercial general liability insurance coverage (including, but not limited to, premises/operations, independent contractors, and contractual liability) insuring the City against any and all claims for damages to persons or property resulting from or arising out of the owner’s occupancy, maintenance, or use of public property, with minimum combined bodily injury (including death) and property damage limits of not less than $500,000.00 for each occurrence and $500,000.00 annual aggregate. The insurance policy must be written by an insurance company approved by the State of Texas and acceptable to the City and issued in a standard form approved by the Texas Department of Insurance. The policy must name the City and its officers and employees as additional insureds and shall provide for 30 days written notice to the director of cancellation, non-renewal, or material change in the insurance policy. The owner or person in charge of the newsrack shall provide proof of current coverage to the City upon reasonable request.

(E)

A newsrack may not be abandoned. A newsrack is presumed to be abandoned if the newsrack is empty of publications for more than thirty consecutive days. A newsrack is also presumed to be abandoned if the newsrack is empty of publications and does not have affixed to the newsrack indicia of ownership, such as the ownership information required by subsection (A).

(Ordinance 6615, sec. 1, adopted 5/21/13)

A newsrack shall not remain continuously empty of publications for more than 30 consecutive days.

A newsrack shall not display advertising other than logo or other trade information identifying the publication contained in an area not to exceed six inches high and 20 inches wide on the front, back, and sides of the newsrack, instructions for coin operation if any, and the identifying information required by section 33.123(A).

A newsrack shall be maintained in a neat and clean condition and in good repair such that:

The newsrack is reasonably free of dirt, grease, graffiti and similar extraneous markings, and accumulations of trash;

The newsrack is reasonably free of chipped, faded, peeling, and cracked paint in the visible painted areas;

The newsrack is reasonably free of rust and corrosion in the visible unpainted metal areas;

Any clear plastic or glass parts through which publications dispensed by the newsrack are viewed are unbroken and reasonably free of cracks, dents, blemishes, and discoloration;

(5)

Any paper or cardboard parts or inserts are reasonably free of tears, peeling, or fading;

(6)

No structural parts are broken or excessively misshapen;

(7)

A newsrack shall be of sufficient weight to prevent the newsrack from tipping over in a wind of thirty miles per hour or less;

(8)

A newsrack may not be anchored to the ground, sidewalk, trees, posts, poles, or streetscape furniture;

(9)

If the newsrack sells publications by requiring the payment of money at the newsrack, the newsrack shall be equipped means of providing a refund (such as a coin return) at the point of sale in the event of malfunction, which device shall be maintained in proper working order; and

(10)

A newsrack may only be installed, operated or maintained on the non-vehicular right-of-way of a street.

§ 33.125 Location requirements and restrictions.

A newsrack must be freestanding. The maximum height of a newsrack shall be fifty inches. The maximum width and depth of a newsrack shall be twenty-four inches.

(Ordinance 6615, sec. 1, adopted 5/21/13)

No newsrack may be located in a manner that:

Impairs or interferes with:

(a)

Pedestrian traffic;

(b)

The ability to fully open a door to any building;

(c)

The loading or unloading of passengers from a bus or light rail vehicle; or

(d)

Emergency ingress to or egress from a building or property by public safety or emergency services;

Obstructs the visibility of a fire hydrant, fire department inlet connection, fire protection system control valve, fire call box, police call box, traffic-control signal box, or other emergency or public facility so that the emergency or public facility cannot be clearly seen from a public street or roadway open to motor vehicular traffic or readily accessed;

Endangers the safety of persons or property;

Reduces the clear, unimpeded sidewalk width to less than five feet.

On each blockface, newsracks must be placed together in groups, with not more than four newsracks in each group. No newsrack may be located nearer the curb or pavement edge of a street than any other newsrack in the group. A distance of at least fifty feet must separate each group of newsracks located on the same blockface.

No more than two newsracks on any block may dispense the same publication, and only one newsrack on any blockface may dispense the same publication.

A newsrack may not be located within:

Any median or traffic island;

The minimum sight line area proscribed by section 33.66 of this Code;

The area contained within the projection of the width of a mid-block crosswalk to the back of an adjacent sidewalk;

The area contained within the projection of the width of a building’s doorway to the curb face or pavement edge of any public street open to vehicular traffic;

(5)

Two feet of a curb face or pavement edge of any public street open to motor vehicular traffic if the newsrack opens away from the curb face or pavement edge, except that if the curb face or pavement edge is adjacent to a designated no parking zone or area, then the newsrack may not be located within 1-1/2 feet of the curb face or pavement edge;

(6)

Three feet of:

(a)

Any mailbox, water feature, art, monument, planter, kiosk, trash receptacle, drinking fountain, streetscape bench, or parking meter;

(b)

A fire hydrant, fire department inlet connection, fire protection system control valve, fire call box, police call box, traffic-control signal box, or other emergency or public facility such as a manhole or conduit box; or

(c)

A bench, shelter, informational sign, or ticketing equipment of a light rail system;

(7)

Five feet of a curb face or pavement edge of a public street open to motor vehicular traffic if the newsrack opens towards the curb face or pavement edge;

(8)

Five feet of a bicycle rack, bus stop sign, bus stop bench, or bus stop shelter; or

(9)

15 feet of the centerline of rail of any light rail system track.

(Ordinance 6615, sec. 1, adopted 5/21/13)

§ 33.126 Compliance.

A newsrack that is not installed, operated or maintained in accordance with this article is subject to removal and disposal. If the director has reasonable cause to believe that a newsrack is not in compliance with the requirements of this article, the director shall send a notice of violation by personal service or by certified mail, return receipt requested, to the address of the owner or person in charge of the newsrack at the address provided on newsrack as required under section 33.123(A). The notice must state the violation or violations that constitute the basis for the proposed removal of the newsrack and suggest corrective action if applicable. If a newsrack fails to display the identifying information required by section 33.123(A), the director may deliver notice to the owner or person in charge of the newsrack by affixing a notice to the newsrack.

The owner or person in charge of the newsrack may request a hearing by submitting a written request for a hearing to the director within fifteen days of delivery of the notice. A written request for a hearing shall set forth the reason or reasons why the newsrack should not be removed. If a hearing is timely requested, the director shall promptly hold a hearing at which the director shall hear evidence and determine whether the newsrack complies with this article. If a hearing is not timely requested or if, at the hearing, it is determined that a newsrack is not in compliance with this article, the director may order the newsrack to be removed or otherwise brought into compliance. The decision of the director may be appealed to the city manager by filing with the city manager a written notice of appeal which shall set forth the reasons why the director’s decision should not be upheld. If the newsrack has not been removed or brought into compliance with this article within ten days after the date of the hearing or, if an appeal is filed, within ten days after the date of the city manager renders a decision, the City may remove the newsrack and recover the costs of notice, removal, and storage from the owner or person in charge of the newsrack.

The director may summarily remove or order a newsrack removed if it creates an imminent danger of personal injury or property damage or if the newsrack has been abandoned. Promptly following the summary removal, the director shall notify the owner or person in charge of the newsrack, if the owner or person in charge can be determined, of the removal, the reason for the removal, and the right to a post-removal hearing in accordance with the provisions of subsection (B). The owner or person in charge of the newsrack may recover any newsrack summarily removed upon reimbursement to the City for the costs of removal and storage. Any coins or publications contained in the newsrack will be returned to the owner or person in charge when the newsrack is returned. The owner or person in charge may return the newsrack to its original location upon correction of the violation unless the location constituted a violation.