[HISTORY: Adopted by the Common Council of the City of Albany 12-17-2001 by Ord. No. 5.12.00. Amendments noted where applicable.]
Zoning — See Ch. 375.
Editor's Note: This ordinance provided that it take effect 3-31-2002. This ordinance also provided that any newsrack on a sidewalk within the City of Albany prior to the effective date of this ordinance shall come into compliance with the provisions of Chapter 246 of the Code of the City of Albany on or before the effective date of such chapter.
The Common Council finds that the dissemination of newspapers and other written material is in the public interest, and that governmental action with respect to such dissemination must be consistent with the protection accorded a free press by the First Amendment to the Constitution of the United States. The Common Council further finds that the City of Albany has an important interest in regulating the use of its streets in such a manner as to ensure safety of the public, the safe unobstructed flow of pedestrian and vehicular traffic and the protection of personal property from damage. The purpose of this chapter is to accommodate these interests in a complementary and mutually advantageous manner.
As used in this chapter, the following terms shall have the following meanings, unless the context clearly requires otherwise:
- The Commissioner of the Department of General Services, or his or her designee.
- CORNER QUADRANT AREA
- That area of a sidewalk bounded by the extension of the lines of crosswalk onto the sidewalk.
- CROSSWALK AREA
- That area of the sidewalk bounded by the extension of the lines of a crosswalk onto the sidewalk.
- Any self-service or coin-operated box, container or other dispenser installed, used or maintained for the display, sale or distribution of newspapers or written matter to the general public.
- A natural person, partnership, corporation, limited-liability company or other association.
- That portion of a street between the curblines or the lateral lines of a roadway and the adjacent property lines, but not including the curb, intended for the use of pedestrians.
It shall be unlawful for any person to place, install or maintain a newsrack in the public right-of-way in the City of Albany unless such newsrack is in compliance with the provisions of this chapter.
Within 10 business days after the installation or relocation of a newsrack subject to the provisions of this chapter, the owner or person in control of such newsrack shall notify the Commissioner in writing, on forms approved by the Commissioner, identifying:
Each person who owns or controls a newsrack in the City of Albany shall indemnify and hold harmless the City of Albany from any and all losses, costs, damages, expenses, claims, judgments or liabilities that the City may incur by reason of the placement, installation or maintenance of such newsrack, except to the extent such damage results from the negligence of the City. The Corporation Counsel shall not recommend the settlement of any claim or lawsuit for which it is so indemnified without the approval of the indemnitor.
Each person who owns or controls a newsrack in the City of Albany shall maintain a policy of general liability insurance for personal injury or death with insurers authorized to do business in the State of New York and in amounts of not less than $1,000,000/$3,000,000 and for property damage in an amount no less than $100,000, naming the City of Albany, and its departments, boards, officers, employees and agents, as additional insureds from and against any and all losses, costs, damages, expenses, claims, judgments or liabilities that result from or arise out of the installation and/or the maintenance of any such newsrack. Should said policy be called upon to satisfy any liability for damages covered by said policy, the policy must be of such a nature that the original amount of coverage is restored after any payment of damages by the policy. The City shall be provided with certificates of insurance indicating such coverage.
The maximum height of any newsrack containing a single publication shall be 54 inches. The maximum width of any such newsrack shall be 30 inches. The maximum depth of any such newsrack shall be 30 inches.
No newsrack shall be used for advertising or promotional purposes, other than advertising or promotion related to the newspaper or written matter offered for distribution in such newsrack.
Each newsrack used to sell newspapers or other written matter shall be equipped with a coin return mechanism in good working order so as to permit a person to secure a refund in the event that the newsrack malfunctions.
The owner or person in control of each newsrack shall affix his or her name, address, and telephone number on the newsrack in a readily visible location.
So as not to cause injury to persons or damage property, each newsrack shall be bolted to the sidewalk.
Subject to the limitations in this chapter, newsracks:
Placed near a curb shall be placed so that the curbside outermost edge of the newsrack is no less than 12 inches and no more than 18 inches from the edge of the curb; and
Placed parallel to the wall of a building shall be placed with the front of the newsrack facing the roadway and the back of the newsrack not more than six inches from the wall.
A newsrack placed in accordance with this chapter shall not be installed or maintained:
Within 15 feet of a fire hydrant;
In any driveway or within five feet of any driveway;
In any curb cut designed to facilitate street access by disabled persons or within two feet of any such curb cut;
Within any bus stop if such placement interferes with the ingress or egress of any passengers;
Within a corner quadrant or crosswalk area;
On any surface where such installation or maintenance will cause damage to or will interfere with the use of any pipes, vault areas or telephone or electrical cables;
In any park or on any sidewalk immediately contiguous to a park where such sidewalk is an integral part of the park design;
On any area of lawn, flowers, shrubs, trees or other landscaping or in a manner that the use of the newsrack would cause damage to such landscaping;
Where such installation or maintenance endangers the safety or security of persons or property;
Near any bicycle rack if such placement interferes with the use of such bicycle rack;
Where the newsrack will unreasonably interfere with or obstruct the flow of pedestrian or vehicular traffic on a public right-of-way; or
Where the newsrack causes, creates or constitutes a line-of-sight problem or traffic hazard.
Each newsrack shall be maintained in a clean and neat condition and shall be kept in good repair.
Any newsrack that has been damaged or vandalized shall be repaired, replaced or removed by the owner or person in control within 10 days of receipt of notice of such damage or vandalism. If such newsrack has been damaged or vandalized so as to constitute a danger to public safety, it shall be made safe within 24 hours of notice of such condition or as soon as thereafter possible.
Any newsrack that is no longer used to disseminate newspapers or other written matter shall be removed within 10 business days after such cessation of use.
Any damage to City property resulting from the placement, installation, maintenance or removal of a newsrack shall be repaired promptly by the owner or person in control of the newsrack to the reasonable satisfaction of the Commissioner. If a newsrack is removed from its location on a City sidewalk, the owner or person in control of the newsrack shall be responsible for repairing the sidewalk and any other affected City property. A sidewalk shall be restored to good and safe condition leaving no hole or projection in the sidewalk.
Whenever any newsrack is found to be in violation of this chapter, the Commissioner shall cause a notice of violation to be attached to such newsrack specifying the date and nature of the violation and shall send written notification, via certified and first class mail, to the owner or person in control of the newsrack. Such person shall, within 10 business days from the date of notification via certified mail, either cause the violation to be corrected or make a written request via certified mail to the Commissioner for a hearing.
Within two business days from the date on which the request for a hearing is received, the Commissioner shall set a hearing date and shall notify the requester by certified mail of the date, time and place of said hearing. Said hearing shall occur within 10 business days of the date of receipt of the request. At the time set for such hearing, or at the date to which such hearing is continued, the Commissioner shall receive all evidence relevant to the occurrence or nonoccurrence of the specified violation(s), the compliance or noncompliance with any provisions of this chapter, and any other relevant information. Such hearing need not be conducted according to technical rules relating to evidence and witnesses. Oral evidence shall be taken only upon oath or affirmation. Within five business days after the conclusion of the hearing, the Commissioner shall find and determine, from the facts adduced at said hearing, whether the newsrack violates this chapter. The decision shall be in writing and shall contain findings of fact and a determination of the issues presented. The Commissioner shall send to the requester, by certified mail, a copy of his or her decision and order.
If the owner or person in control of a newsrack that has been cited under Subsection A of this section does not correct the violation or request a hearing within the time provided in such subsection, the Commissioner, an authorized officer of any City agency or a police officer, is authorized to provide for the removal of such newsrack and the contents thereof to a place of safety. If such newsrack or the contents thereof are not claimed within 30 days after their removal, they shall be deemed to be abandoned property and may be either sold at public auction or otherwise disposed of. Newsracks and the contents thereof that are removed pursuant to this section shall be released to the owner or person lawfully entitled to possession upon payment of the costs for removal and storage and a civil forfeiture, in an amount of $125, or, if an action or proceeding for the violation is pending, upon the posting of a bond or other form of security acceptable to the Commissioner in an amount that will secure payment of such costs and any penalty that may be imposed hereunder.
[Amended 5-19-2008 by Ord. No. 25.42.08]
The Commissioner may, upon due notice and an opportunity to be heard, serve an order upon the owner or other person in control of a newsrack requiring such person to remove or cause to be removed such newsrack within 10 business days of the issuance of such order where removal is required because the site or location at which such newsrack is placed is used or is to be used for public utility purposes, public transportation, or public safety purposes, or when such newsrack unreasonably interferes with construction activities in nearby or adjacent buildings, or if removal is required in connection with a street widening or other capital project or improvement. If such person does not remove such newsrack within 10 business days of the issuance of such order or request a hearing, the provisions contained in Subsection C of this section regarding alternatives for such removal, storage, abandonment, disposal and release shall apply.
Where emergency circumstances exist and the Commissioner gives notice to the owner or other person in control of a newsrack to remove such newsrack, such person shall comply with such notice. For the purposes of this subsection, emergency circumstances shall include, by way of example, the emergency of obstructions in the public space for sidewalk repair or construction, or an accident, fire or other comparable situation.
If any owner or other person in control of a newsrack does not remove such newsrack when directed to do so by the Commissioner, in accordance with the provisions of Subsection E of this section, the Commissioner is authorized to provide for the removal of such newsrack to a place of safety, and unless an administrative proceeding brought pursuant to Subsection G of this section has terminated in favor of such owner or other person in control of such newsrack, such owner or other person in control of such newsrack may be charged the costs for removal and storage payable together with a civil forfeiture in the amount of $125 prior to the release of such newsrack and the contents thereof.
[Amended 5-19-2008 by Ord. No. 25.42.08]
Upon written request, the Commissioner shall hold a hearing within five business days after the date of the removal of a newsrack pursuant to Subsection E or F of this section and shall render a determination within three business days after the conclusion of the hearing. The hearing shall take place under the provisions set forth in Subsection B of this section. If a determination is rendered at such hearing that emergency circumstances did not exist, such newsrack shall be replaced at such location by the Commissioner. If no hearing is requested or if the determination rendered at such hearing is that such emergency circumstances existed, such newsrack and the contents thereof shall be released to the owner or to the person lawfully entitled to possession upon payment of the costs of removal and storage and a civil forfeiture of $125. If no hearing request has been made and such newsrack or the contents thereof are not claimed within 30 days after the date of removal, or if the newsrack or the contents thereof are not claimed within 30 days after a hearing determination that emergency circumstances existed, such newsrack or the contents thereof shall be deemed abandoned and may either be sold at public auction or otherwise disposed of.
[Amended 5-19-2008 by Ord. No. 25.42.08]
In giving any notice required under this section, except as otherwise provided by law, the Commissioner:
Shall provide such notice by first class mail.
If the owner of a newsrack or person in control of such newsrack shall have failed to provide an address on the newsrack or by submission to the Commissioner, the Commissioner shall use reasonable effort to ascertain the identity and address of the owner, and to give notice to such person, but having done so, may take action as if proper notice had been given.
The owner or person in control of a newsrack that has been the subject of a hearing pursuant to Subsection B or G of this section may, within 10 business days of the receipt of the copy of the Commissioner's decision and order, appeal such decision to the Board of Zoning Appeals (BZA), established in accordance with Article IV of Chapter 375 of this Code, by filing a notice of appeal to the BZA and by providing a copy of the notice of appeal to the Commissioner. An appeal shall set forth in writing specifically wherein the appellant believes there was an error or abuse of discretion on the part of the Commissioner. The Commissioner shall, within 10 business days, transmit a copy of its file, decision and order and response to the appeal, if any, to the BZA. The BZA shall, upon receipt of the material from the Commissioner, set the matter for public hearing by so notifying the appellant. Such public hearing shall be held de novo as if no hearing had been previously held.
Nothing in the provisions of this section shall preclude the immediate removal of a newsrack when otherwise authorized by law.
If any provision, section, subsection, paragraph, subparagraph, sentence or clause of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter.