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96-32 ORDINANCE NO. 96-32 AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA, ADOPTING NEWSRACK REGULATIONS; PROVIDING FOR THE PURPOSE AND SCOPE OF THE NEWSRACK ORDINANCE; PROVIDING FOR DEFINITIONS; PROHIBITING NEWSRACKS IN CERTAIN LOCATIONS AND UNDER CERTAIN CONDITIONS; REQUIRING A PERMIT TO MAINTAIN OR OPERATE A NEWSRACK; PROVIDING FOR AN APPLICATION FOR A NEWSRACK PERMIT AND PROVIDING CONDITIONS FOR ISSUANCE OF A NEWSRACK PERMIT; PROVIDING FOR A HOLD HARMLESS AGREEMENT WITH THE CITY OF AVENTURA; REQUIRING NEWSRACK IDENTIFICATION; REGULATING THE LOCATION, PLACEMENT AND NUMBER OF NEWSRACKS; PROVIDING FOR MAINTENANCE AND INSTALLATION OF NEWSRACKS; PROVIDING FOR THE DETERMINATION OF VIOLATIONS; PROVIDING FOR APPEALS; DETERMINING NEWSRACK ABANDONMENT; PROVIDING FOR SEVERABILITY; PROVIDING THAT ALL ORDINANCES OR PARTS OF ORDINANCES AND ALL RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH BE REPEALED TO THE EXTENT OF SUCH CONFLICT; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, 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; and WHEREAS, the installation and placement of Newsracks in public rights-of-way has resulted in concerns by the public and City officials with regard to the safety, convenience and aesthetics thereof; and WHEREAS, the City Council finds that there is a need to regulate and establish procedures regarding installation, placement and maintenance of Newsracks within the City; and WHEREAS, the City Council finds that such regulations and procedures governing Newsracks will serve to promote the health, safety and welfare of the citizens of Aventura, as well as the aesthetics of the City. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF AVENTURA, FLORIDA, AS FOLLOWS: Section 1. Purpose and Scope. The purpose of this Ordinance is to promote the public health, safety and welfare through the regulation of placement, type, appearance and servicing of Newsracks on public rights-of-way so as to: A. Provide for pedestrian and driving safety and convenience. B. Restrict unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into or egress from any residence or place of business, or from the street to the sidewalk by persons exiting or entering parked or standing vehicles. C. Provide reasonable access for the use and maintenance of poles, posts, traffic signs or signals, hydrants, mailboxes and access to locations used for public transportation purposes. D. Relocate and/or replace Newsracks which result in a visual blight and/or excessive space allocation on the public rights-of-way or which unreasonably detract from the aesthetics of store window displays, adjacent landscaping or other improvements, as well as to have abandoned Newsracks removed. E. Maintain and protect the values of surrounding properties and prevent damage to grass landscape right-of-way areas. F. Reduce unnecessary exposure of the public to personal injury or property damage. G. Maintain and preserve freedom of the press. Section 2. Definitions. As used in this ordinance, unless the context otherwise clearly indicates: A. Block means on (1) side of a street between two (2) consecutive interacting streets. B. Distributor means the person responsible for placing and maintaining a newsrack in a public right-of-way. C. Newsrack means 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. D. Parkway means the area between the sidewalk and the curb of any street, and where there is no sidewalk or curb, the area between the edge of the roadway and the nearest property line adjacent thereto. Parkway shall also include any area within a roadway that is not open to vehicular travel. E. Person means any person or persons, or entity including, but not limited to, a corporation. F. City Manager refers to the City Manager of the City of Aventura or the designee of the City Manager. G. Roadway means that portion of a street improved, designed, or ordinarily used for vehicular travel. H. Sidewalk means any surface provided for the exclusive use of pedestrians. I. Street means all the area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks. Section 3. Newsracks Prohibited. 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 sidewalk, right-of-way or parkway: (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 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; (4) when such Newsrack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery; or (5) in any manner inconsistent with or in violation of the provisions of this Ordinance. Section 4. Permit Required. 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 any Newsrack without first having obtained a permit from the City Manager 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. Section 5. Application for Permit. A. Application for such permit shall be made, in writing, to the City Manager upon such form as shall be provided by him, and shall contain the name, address, and phone number of the applicant, the proposed specific location of said Newsrack, and shall be signed by the applicant. B. From the above application information, the City Manager shall approve the locations. He shall be guided therein solely by the standards and criteria set forth in this Ordinance. In any case where the City Manager disapproves of a particular location, such disapproval shall be without prejudice to the applicant designating a different location or locations. Section 6. Conditions for Permit. 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 Ordinance. Permits shall be issued within five (5) days (excluding Saturdays, Sunday and legal holidays) after the application has been filed. A one-time permit fee of $25.00 shall be required for each newspaper publisher plus $10.00 per Newsrack. The above fees will be used to defray administrative expenses with relation to this Ordinance. Section 7. Hold Harmless. Every owner of a Newsrack who places or maintains a Newsrack on a public sidewalk or parkway in the City of Aventura shall file a written statement with the City Manager in a form satisfactory to the City Attorney, 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. This paragraph shall only be applicable to the same extent required by City for other public right-of-way permittees. Section 8. Newsrack Identification Required. Every person who places or maintains a Newsrack on the streets of the City of Aventura 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 City under Section 9 herein, the Distributor shall present evidence of compliance with this Section. Section 9. Location, Placement and Number of Newsracks. A. 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: (1) 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. (2) No Newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other Newsracks. (3) Newsracks may be placed next to each other, provided that no group of Newsracks shall extend for a distance of more than eight (8) feet along a curb, and a space of not less than three (3) feet shall separate each group of Newsracks. (4) No Newsrack shall be placed, installed, used or maintained: (i) Within five (5) feet of any marked crosswalk. (ii) Within fifteen (15) feet of the curb return of any unmarked crosswalk. (iii) Within ten (10)feet of any fire hydrant, fire call box, police call box or other emergency facility. (iv) Within ten (10) feet of any driveway. (v) Within five (5) feet of any bus bench or exterior of a bus shelter. (vi) Within twenty-five (25) feet of any bus bench or bus shelter when the space is available behind such bus bench or bus shelter. (vii) At any location whereby the clear space for the passageway of pedestrians is reduced to less than five (5) feet. (viii) Within three (3) feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping, or within three (3) 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. Notwithstanding this paragraph viii, a Newsrack may be placed on a swale area if set back from the road a distance of at least ~ of the width of the swale and positioned at a location which is at the furthest possible distance from the road_. (ix)Within one hundred (100) feet of any other Newsrack on the same side of the street in the same block containing only the same issue or edition of the same publication. (x) On any access ramp for disabled persons. (xi) Upon any swale area, unless permission to place the Newsrack on equivalent space on adjacent private property, in lieu of the swale area, is sought by the Distributor and not received from the property owner. (5) No more than six (6) Newsracks covering or extending more than a total of 192 lineal inches shall be located on any public right-of-way within a space of two hundred (200) feet in any direction within the same block of the same street; provided, however, that no more than twelve (12) Newsracks shall be allowed on any one block. B. The City Manager shall be guided by the following criteria of priorities in issuing permits whenever more than six (6) newsracks are proposed for any one location (two-hundred [200] foot space) or more than twelve (12) Newsracks are proposed for any one block: (1) First priority shall be daily publications (published five [5] or more days per week). (2) Second priority shall be publications published two (2) to four (4) days per week. (3) Third priority shall be publications published one (1) day per week. (4) Fourth priority shall be publications published less than one (1) day per week. Section 10. Standards for Maintenance and Installation. Any Newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway, shall comply with the following standards: A. No Newsrack shall exceed five (5) feet in height, thirty-two (32) inches in width, or two (2) feet in thickness. Additionally, no such newsrack shall have any external fixtures, attachments or other devices which provide or display additional publications. B. 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. C. Each coin-operated 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. D. 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, 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 Ordinance. E. Each Newsrack shall be maintained by the Distributor 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 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 l0 cracks, dents, blemishes and discoloration; (5) The paper or cardboard parts or inserts thereof are reasonably free of team, peeling or fading; and (6) The structural parts thereof are not broken or unduly misshapen. Section 11. Violations. Upon determination by the City Manager that a Newsrack has been installed, used or maintained in violation of the provisions of this Ordinance, 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 propedy correct the offending condition within ten (10) days (excluding Saturdays, Sundays, and legal holidays) after the mailing date of the order or to appeal the order within ten (10) days after its receipt shall result in the offending Newsrack being summarily removed and processed as unclaimed property. If the offending Newsrack is not propedy identified as to owner under the provisions of Section 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 City Manger 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 $10.00 inspection fee for each Newsrack so inspected. This charge shall be in addition to all other fees and charges required under this Ordinance. Section 12. Appeals. Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this Ordinance may appeal and shall be apprised of his right to appeal to the City's Special Master established pursuant to Ordinance No. 96-14. An appeal must be perfected within ten (10) days after receipt of notice of any protested decision or action by filing with the City Manger a letter of appeal briefly stating therein the basis for such appeal. Prompt judicial review of the Special Master's decision shall be provided pursuant to Sec. 15 of Ordinance No. 96-14. Section 13. Abandonment. In the event that a Newsrack remains empty for a period of thirty (30) continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided in Section 11 for Newsracks in violation of the provisions of this Ordinance. Section 14. Severability. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 15. Conflicts. All Ordinances or parts of Ordinances and all Resolutions or parts of Resolutions 12 in conflict herewith are repealed to the extent of such conflict. Section 16. Effective Date. This Ordinance shall be effective thirty days after adoption on second reading. The foregoing Ordinance was offered by Vice Mayor Rogers-Libert, who moved its adoption on first reading. The motion was seconded by Councilmember Holzberg, and upon being put to a vote, the vote was as follows: Councilmember Arthur Berger yes Councilmember Jay R. Beskin yes Councilmember Ken Cohen yes Councilmember Harry Holzberg yes Councilmember Jeffrey M. Perlow yes Vice Mayor Patricia Rogers-Libert yes Mayor Arthur I. Snyder yes The foregoing Ordinance was offered by Counciimember Rogers-Libert, who moved its adoption on second reading. The motion was seconded by Councilmember Pedow, and upon being put to a vote, the vote was as follows: Councilmember Jay R. Beskin yes Councilmember Ken Cohen yes Councilmember Harry Holzberg yes Councilmember Jeffrey M. Perlow yes Councilmember Patricia Rogers-Libert yes Vice Mayor Arthur Berger yes Mayor Arthur I. Snyder absent PASSED AND ADOPTED on first reading this 2"~ day of October, 1996. PASSED AND ADOPTED on second readi~ l~,/,~h~da.~ De/~/mber, 1996. ARTHUR I. SNYDEI~, MAYOR ATTEST: \ TERESA M. SMITH, CMC, CITY CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: