[Adopted 11-3-2003]
It is not the intent of this article to discriminate
against, regulate, or interfere with the publication, circulation,
distribution, or dissemination of any printed material which is constitutionally
protected. To that end, the content of any material distributed through
a newsrack shall not be used to form the basis for any action taken
to enforce the provisions of this article. The provisions set forth
in this article shall be construed strictly in accord with this intent.
A.
For the purposes of this article, the following words
and phrases shall have the meanings given herein. When not inconsistent
with the context, words used in the present tense include the future,
words in the plural include the singular and words in the singular
include the plural.
B.
BLOCK
DIRECTOR OF PUBLIC WORKS
DISTRIBUTOR
MAYOR
NEWSRACK
PERSON
PUBLIC RIGHT-OF-WAY
ROADWAY
SIDEWALK
STREET
As used in this article, the following terms shall
have the meanings indicated:
One side of a street between two consecutive intersecting
streets.
The head of the Middletown Department of Public Works or
his duly designated representative.
Any person responsible for the installation, operation or
maintenance of a newsrack in a public right-of-way.
The Mayor of Middletown or his duly designated representative.
Any self-service or coin-operated box, container, storage
unit or other dispenser installed, operated, or maintained for the
display and distribution or sale of newspapers, periodicals or other
printed matter.
An individual person, firm, corporation or other entity.
Any area owned and/or maintained by the Town of Middletown
or any other governmental entity, open for use of the public for vehicular
or pedestrian travel, including but not limited to roadways, sidewalks,
streets, alleys, public grounds or other rights-of-way.
That portion of a any street improved, designed, or ordinarily
used for vehicular travel, exclusive of the berm or shoulder.
Any portion of a street between the curbline and the adjacent
property line intended for the use of pedestrians, excluding parkways.
The entire area encompassed by a roadway and a sidewalk.
A.
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.
B.
No person shall install, use, or maintain any newsrack
which in whole or in part rests upon, in, or over any public right-of-way:
(1)
When such installation, use, or maintenance endangers
the safety of persons or property;
(2)
When such site or location is used for public utility
purposes, public transportation purposes, or other governmental use;
(3)
When such newsrack unreasonably interferes with or
impedes the flow of pedestrian or vehicular traffic, including, but
not limited to, parked or stopped vehicles; the ingress to 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;
(4)
When such newsrack interferes with the cleaning of
any sidewalk by the use of mechanical sidewalk cleaning machinery;
or
(5)
In any other manner inconsistent with or in violation
of the provisions of this article.
It shall be unlawful for any person, firm or
corporation to erect, place, maintain or operate, on any public right-of-way,
in the City of Middletown any newsrack without first having obtained
a permit from the Director of Public Works. One permit may be issued
to include any number of newsracks, and shall be signed by the applicant.
A.
Application for such permit shall be made, in writing,
to the Director of Public Works upon such form as shall be provided
to the applicant, and shall contain the name and business address
of the applicant, a telephone number or numbers at which the applicant
may be reached during normal business hours, and the proposed location
of said newsrack(s) and shall be signed by the applicant.
B.
A permittee may place additional newsracks at any location on any public right-of way in Middletown which complies with the provisions of this article by amending its permit to include the location of each such newsrack on a form to be prescribed by the Director of Public Works and by paying the fee set forth in § 262-51A.
A.
Such newsrack or newsracks and the installation, use
or maintenance thereof shall be conditioned upon observance of the
provisions of this article. Permits shall be issued or denied within
72 hours (excluding Saturday, Sundays and legal holidays) after the
application has been filed. A permit fee of $12 shall be required
for each proposed location.
[Amended 5-2-2013 by Ord. No. 11-13]
Every applicant for a permit to place a newsrack
on a public right-of-way in the City of Middletown shall file a written
statement with the Director of Public Works in a form satisfactory
to the General Counsel, 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 Middletown. Such statement shall also certify the newsrack
owner’s agreement that the City is not liable for any damage
to such newsracks.
Every person who places or maintains a newsrack
on a public right-of-way within the City of Middletown shall have
his permit number, name, address and telephone number affixed to the
newsrack in a place where such information may be easily seen before
placing said newsrack on the right-of-way.
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 provisions of this section:
A.
No newsrack shall be chained, bolted, or otherwise
attached to any fixture located in the public right-of-way, except
to other newsracks.
B.
Newsracks may be placed next to each other, provided
that no group of newsracks shall extend for a distance of more than
five feet along a curb, and a space of not less than three feet shall
separate each group of newsracks.
C.
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 five feet past, or 25 feet prior to, any sign
marking a designated bus stop, according to the direction of travel
on the roadway adjacent to the bus stop sign, except that a newsrack
may be placed immediately adjacent to the end of a bus shelter if
such placement shall not otherwise violate the requirements of this
article;
(6)
Within five feet of the end of any bus bench;
(7)
At any location whereby the clear sidewalk space for
the passageway of pedestrians is reduced to less than six feet in
width;
(8)
Upon or within five feet of any public area improved
with 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 manner as to impede or interfere with the reasonable use
of such window for display purposes;
(9)
Within 500 feet of any other newsrack on the same
side of the street containing the same issue or edition of the same
publication, within a business or industrial district;
(10)
Within any single-family residential zone except
with the written permission of the abutting property owner, and except
on a street designated as a major arterial street, minor arterial
street or collector street in the City of Middletown Plan of Conservation
and Development as that document may be adopted or amended from time
to time;
(11)
Within 1,500 feet of any other newsrack containing
the same issue or edition of the same publication, within any residential
district;
(12)
On any access ramp for disabled persons.
D.
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; 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 Director 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 two to four
days per week;
(3)
Third priority shall be publications one day per week.
(4)
Fourth priority shall be publications published intermittently
or less frequently than once per week.
[Amended 5-7-2007 by Ord. No. 05-07]
Any newsrack which in whole or in part rests
upon, in or over any public right-of-way shall comply with the following
standards:
A.
No newsracks shall exceed four feet in height, two
feet in width, or two feet in thickness.
C.
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.
D.
Each newsrack shall be made of metal and shall be
painted in a color scheme consisting of a dark background with white
lettering, contingent upon approval of the Director of Public Works
or his or her designee.
E.
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.
This subsection shall not apply to newsracks for publications offered
free of charge.
F.
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.
G.
Each newsrack shall be so weighted and balanced as
to prevent it from being tipped by the opening of its door, or by
the impact of snow cast by a passing snowplow.
H.
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 and graffiti 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.
(7)
It shall not contain any materials which predate the
current issue of the publication. Such material shall not be deposited
in any public trash receptacle owned by the City of Middletown and
shall not be deposited in any privately owned trash receptacle without
the permission of the owner or renter thereof. In the event that the
publication is manufactured from recyclable material, it shall be
discarded in an appropriate manner for that type of recyclable material.
I.
No newsrack shall contain or utilize any electrically
powered illumination or sound.
Upon determination by the Director 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 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 property identified as to owner under provisions of § 262-53 hereof, it shall be removed immediately and processed as unclaimed property pursuant to the provisions of this Code of Ordinances. 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 Director 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 $25 for each newsrack so inspected. This charge shall be in addition to any other fees and charges required under this article.
A.
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 apprised of his right to appeal to the Mayor
or the Mayor’s designee. An appeal must be perfected within
three days after receipt of notice of any protested decision or action
by filing with the Mayor or the Mayor’s designee a letter of
appeal briefly stating therein the basis for such appeal. Any elector
of the City wishing to appeal the decision of the Director of Public
Works to grant a permit for a newsrack placement, if he or she did
not receive written notice of said decision, shall be authorized to
submit such a letter of appeal within 10 days after the placement
of the newsrack in question. 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 10 days’ notice of the time and place
of the hearing. The Mayor or the Mayor’s designee 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 Director
of Public Works should not be upheld. At the conclusion of the hearing,
the Mayor or the Mayor’s designee shall make a final and conclusive
decision. This decision shall be immediately appealable to a court
of competent jurisdiction.
B.
Nothing contained in this article shall be interpreted
to limit or impair the exercise by the City of Middletown of its police
powers to remove any newsrack which presents a clear and present danger
of imminent personal injury or property damage to users of the public
rights-of-way.
This article shall apply to existing newsracks within the City of Middletown, except that the distributors thereof shall have 60 days within which to comply with its provisions or such additional time as may be allowed in the discretion of the Director of Public Works. Newsracks existing within single-family residential districts as of December 1, 2003, shall be permitted to remain in place, provided that their location shall be registered with the Director of Public Works in the manner prescribed by § 262-50 within 60 days following the effective date of this article.
In the event that a newsrack remains empty for a period of 90 continuous days, it shall be deemed abandoned, and may be treated in the manner as provided in § 262-56 for newsracks in violation of the provisions of this article.
If any section, subsection, sentence, clause,
or phrase of this article 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 article.
