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HomeMy WebLinkAboutcclc.ag.07201994 COMMERCIAL CORE & LODGING COMMISSION REGULAR MEETING JULY 20, 1994 SISTER CITY MEETING ROOM 8:30 I. Roll Call & Public Comments II. Newsrack Ordinance Discussion City Attorney will be presen~ ~o answer questions. Issues: a) Placemen~ 1.e. locations throughout town. Use of planters and use of street space, no parking here to corner - historic rack type design b) color/signage c) council support d) ouscome e) Discussion of location and designs similar to Hawaii Jack Stanford took photos and they will be available f) After decisions CCLC should invite newspaper vendors to a public meeting. 9:30 III. On August 20th Children from Denver and Aspen Local Children would like ~o sing and dance for one hour on the mall near Guido's. There will be 10 to 20 students. There will not be a representative a~ this meeting. El~zabet_~h~r 9~5-~?q x345 9:45 IV. Komen Kids - pins for S15 - sale on the mall - card table. Nancy Peterson 925-3933 - June 22nd Committee pick a site. There will not be a representativea~ the meeting. 10:00 V. Adjourn CITY OF ASPEN City Attorney's Office 130 South Galena Aspen, Colorado 81611 (303) 920-5055 MEMORANDUM TO: Mayor and City Council FROM: John P. Wor;ester~7 THRU: Jed Caswal, '~)~.~ ~ I~f~' DATE: June 5, 1991 RE: Newsrack Ordinance The attached proposed ordinance relating to newsracks has been prepared for your consideration at the request of the Commercial Core and Lodging Commission. This memorandum attempts to summarize the background leading up m drafting the proposed ordinance and to explain some of the legal principals involved in drafting the ordinance. Background: Our files indicate that the City has attempted to manage the proliferation of newsracks since at least t978 when City Council authorized the purchase and installation of newsracks in certain designated sites within the Commercial Core area of the City. The plan was to replace all of the existing newsracks scattered throughout the commercial core and limit the placement of newsracks to ten (10) pre-designated sites~ and to have newspaper distributors voluntarily agree to limit their distribution through newsracks to these pre-designated sites. At that time there were seven (7) distributors that apparently agreed to the plane. The City pumhased the newsracks and at least some of the distributors reimbursed the City for the cost of the newsracks as well as the labor costs for their installation. The City has assumed the responsibility of maintaining the newsracks. Over the years the City has spent hundreds of dollars on purchasing newsracks, for replacement parts, and the cost of paint and labor. ~ The ten sites were: Main Post Office, Epicure, Bank of Aspen, Tom's Market, Grape and Grain, Rubey Park Bus Depot, Pomery Sports - North of Nell, Weinerstube, Village Pantry - Tom Thumb Bldg., and Aspen Square. 2 The seven newspapers were: The Glenwood Post, Wall Street Journal, Aspen Flyer, Aspen Times, Rocky Mountain News, The Denver Post, and The Weekly Newspaper. 1 Within a fairly short period of time after the agreement with the then existing distributors, "bandit" newsracks began to appear within the designated sites and in new sites. By 1988 the problem became so severe that an ordinance somewhat similar to th~ one under consideration here was drafted and presented to City Council. After the proposed ordinance passed first reading, it was tabled and never acted upon thereafter. Today, we still do not have a viable way of controlling the proliferation of newsracks. There are more than a dozen different newspapers being sold through newsracks in approximately twenty (20) different sites. The last survey of newsracks conducted by CCLC counted approximately 135 newsracks at these sites. The cost of maintaining many of the existing racks continues to fail on the City. Questions of legal liability for injuries sustained by the public remain unanswered. There is no established method for removing newsracks that appear tO be abandoned or that are located in inappropriate locations. The proposed ordinance attempts to address these problems and concerns. Legal Principles: There is no question that the use of newsracks as a means of distributing newspapers is a constitutionally protected activity. City of Lakewood v Plain DkalerI PUt;. Co., 486 U.S. 750 (1988). The right of the government to limit expressive activity in traditionally public fora, such as sidewalks, is "sharply cimumscribed" by first amendment considerations. Perry Education Ass'ri. v Perry Local Educators' Ass'm, 460 U.S. 37 (i983). However, a city may regulate the time, place and manner of communicative activity in a public forum, provided the regulation is content neutral, is narrowly tailored to serve a significant interest,: and leaves open ample alternative channels of communication. Id. Because the ordinance under consideration here applies to all newsracks and distributors, it is content neutral. Gannett Satellite Information Network v Pennsauken Twp., 709 F. Supp. 530, 536 (D.N.J. 1989). Moreover, the ordinance does not contain the constitutional infirmity which would create a prior restraint on speech.3 In granting a permit, the Director of Public Works does not have uncontrolled discretion, an opportunity to discriminate, nor any control over the content of speech. Rather, any sanctions or restraints occur only after one or more of the standards governing maintenance or location of the newsracks have been violatbd; and, then only after a due process hearing is made available. The language of the proposed ordinance has been narrowly tailored to primarily serve two significant interests of the City of Aspen: public safety and aesthetics. Public safety has been upheld as a significant governmental interest for purposes of judging the constitutionality of a newsrack ordinance. Jacobsen v Petersen, 728 F Supp 1415 (D.S.D~ 1990). Unquestionably, aesthetics plays a major role in the City of Aspen's interest in regulating the maintenance and placement of newsracks within the City limits. Courts have been willing to defer to a city's judgment on aesthetics if the city can show that it is "seriously and comprehensively addressing aesthetic concerns with respect to its environment", Gannett, supra, and that the ordinance ~ In Lakewood. supra, for example, the Supreme Court struck down a newsrack ordinance that gave the Mayor unfettered discretion in granting newsrack licenses. 2 "would have more than a negligible impact on aesthetics". Metromedia, Inc. v City of San Diego, 453 U.S. 490 (1981). Granted, neither of these requirements can be subject to reasonably objective standards. Nevertheless, the City of Aspen should not have any difficulty meeting these requirements. There has been some concern expressed by Bil Dunaway, publisher of the Times Daily, that the City of Aspen may not constitutionally require newspaper distributors to obtain a permit prior to placing newsracks in the public right-of-way. I think it is fair to state that his main concern is that any government that can require a permit can also deny a permit. As indicated previously, however, the ordinance under consideration does not grant the Director of Public Works unbridled discretion in issuing a newsrack permit. If the requirements and standards spelled out in the Ordinance are met, the permit must ~ssue. The Supreme Court has specifically held that a city "may require periodic licensing, and may even have special licensing procedures for conduct commonly associated with expression." Lakewood, supra. Not only can a city requtre newsracks to be licensed, but "fees that cover only administrative costs of the license are permissible." Jacobsen v Crivaro, 851 F.2d 1067 (8th Cir. 1988). Thus, not only is a city constitutionally authorized to require a permit, it may charge an administrative fee as well. The proposed City of Aspen Ordinance does not require the payment of a fee. It merely requLres distributors to obtain a permit for each newsrack placed in the public right-of-way. This is done only to ensure that all newsracks placed in the right-of-way are placed and maintained in conformity with the requirements and standards set forth in the Ordinance. Finally, it should be noted that violations of any provision of the proposed ordinance is not considered to be a criminal violation. The ability to impound newsmcks found to be in violation of the ordinance, subject to due process protections, should be sufficient to ensure compliance. In sure., I feel confident that should City Council vote to adopt this ordinance, it would pass constitutional muster under current legal princtples relating to freedom of the press and the regulation of newsracks. ORDINANCE NO, (Series of 1991) AN ORDINANCE MAKING IT UNLAWFUL TO PLACE, MAINTAIN OR OPERATE A NEWSRACK IN THE PUBLIC RIGHT-OF-WAY WITHOUT FIRST '0BTAI1VING A PERMIT AND REGULATING THE PLACEMENT OF NEWSRACKS IN PUBLIC RIGHT-OF-WAY, BY AMENDING CHAPTER 19 OF THE MUNICIPAL CODE OI:;~T~ C~Y OF ASPEN, COLORADO, BY ADDING ARTICLE IX, SECTION 19f185 THROUGH SECTION WHEREAS, a necessary predicate to freedom of speech and freedom of press is the freedom to disseminate ideas, information and newspapers in public places; and, WHEREAS, the distribution of newspapers through newsracks is protected under the Bill of Rights of the Constitution of the State of Colorado and under the First Amendment to the United States Constitution; and, WHEREAS, the protection of the right of the people to a free press is properly the subject of municipal regulation; and, WHEREAS, the freedom of newspaper publishers to decide where on public property they wish to place newsracks is properly the subject of municipal regulation; 'provided the regulation is content neutral, is tailored to serve significant municipal interests, and leave open ample alternative channels of communication; and, WHEREAS, there is a substantial governmental interest in promoting the aesthetic and environmental quality of life in both residential and commercial areas of the City of Aspen; and, WHEREAS, there is a substantial governmental interest in promoting the public health, safety, welfare and convenience by ensuring that persons may reasonably use the public streets, sidewalks, right-of-way, and other public property without interference with such use; and, WHEREAS, there is a substantial governmental interest in promoting the public health, safety and welfare by ensuring that newsracks placed in the public right-of-way do not create hazardous conditions; and, WHEREAS, newspaper vending within the public right-of-way and other public property can be accomplished without unreasonably interfering with the normal and reasonable use of these areas by the public; and, WH~i~EAS, the public health, safety, welfare and convenience require that: interference with vehicular, bicycle, wheelchair or pedestrian traffic be avoided; obstruction of sight distance and views of traffic signs and street-crossing pedestrians be eliminated; damage done to sidewalks be minimized and repaired; the good appearance of the public streets and grounds be maintained; trees and other landscaping be allowed to grow without disturbance; access to emergency and other public facilities be maintained; ingress and egress from properties adjoining the public rights-of-way be protected; the uniquely historic nature of certain structures within the City of Aspen be preserved; and, that the aesthetic beauty of the City of' AsPen be preserved and protected, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the Municipal Code of the City of Aspen, Colorado, is hereby amended by adding Article 9, Sections 19~185 through 19-198, which said Sections shall read as follows: "Sec. 19-185. Definitions. For purposes of this Article, unless otherwise apparent from the context, certain words and phrases used herein are defined as follows: (a) "Distributor" shall mean the person responsible for placing and maintaining a newsrack in a public righ~t-of-way. (b) "Newsrack"'means andy self-sexvice or coin-operated box, container, storage unit or other dispenser installed, used, or maintained for displaying and dispensing, for free or for sale, newspapers or other news periodicals. (c) "Director of Public Works" shall mean the Director of Public Works for the City of Aspen or his designee. Sec. 19-186. Permit Required. It shall be unlawful for any person, firm or corporation to erect, place, maintain or operate, on any public street, right-of-way or sidewalk, or in any other public way or city owned or operated .place or facility within the city limits of' the City of Aspen, any newsrack without first obtaining a permit from the Director of Public Works specifying the exact location of such newsrack. Sec. 19-187. Application for Permit. Application for permit shall be made with the Director of Public Works on prescribed forms containing the information required by Sections 19-188 and 19-189, and shall state with particularity the exact location of the newsrack. If a distributor applies for more than one newsrack permit, the information required by Sections 19-18~ and 19q89 may be provided by incorporating by reference to a previously filed application form that contains the required information. No fee or bond shall be required for the newsrack permit. Sec. 19-188. Content of Application Form. The newsrack permit application form shall state the name, address and telephone number of those responsible for placing and maintaining the newsrack subject to the permit. S¢c. 19-189. Insurance and Indemnification. As part of a registration under this Article, the applicant, or his/her authorized representative shall furnish to the City a certificate of insurance as proof that it has secured and paid for a policy of public insurance covering all public risks related to the use, maintenance, operation or location of a newsrack. The insurance shall be procured from a company authorized to do business in the State of Colorado. The amount of this insurance, without co-insurance dlauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen under the laws of the State of Colorado found at C.R.S. Section 24-10-101 er seq., as amended. The distributor shall provide and keep in force that policy of public)lability insurance during such time as it continues to locate any newsrack under the terms of this Article. The evidence of insurance filed with the City shall include a statement by the insurance carrier that thirty (30) days unconditional notice will be given to the City before any cancellation. If a distributor presents credible evidence demonstrating an inability to comply in good faith with any of the foregoing insurance requirements, the City Manager or his designee shall waive the subject insurance requirement(s). In addition, the applicant shall execute a written agreement to indemnify and hold harmless the City, its officers and employees, from any loss, liability, damage, or cost sustained by any person or property, to the extent any such loss, liability, damage or cost rises from the installation, operation, maintenance or lack. thereof, or use of such newsrack; provided, however, that such obligation to indemnify and hold harmless the City, its officers and employees shall not extend to any loss, liability, damage or cost resulting from the acts, failure to act, or property of a person other than the distributor. Section. 19-190..Term of Permit. The permit issued pursuant to this Article shall remain in effect until the newsrack is abandoned or impounded. Sec. 19-191. Registration Provisions Supercede Encroachment Regulations. · The provisions of this Article shall supercede the provisions of Section 19-5 relating to encroachments except to the extent specifically incorporated or referenced herein. The provisions of this Article shall not supercede Article III of this Chapter relating to excavations in the public right-of-way. Sec. 19~192. Identification. Every newsrack distributor shall permanently affix to each newsrack, in a readily visible place so as to be seen by anyone using the newsrack, a notice setting forth the current 4 name, address and telephone number of the distributor so that malfunctions may be reported; refunds secured in the event of a malfunction of the coin return mechanism; or to give the notices provided for in this Article. Section 19-193. Location and Placement of Newsracks. No newsmck shall be installed, used, or maintained in any location upon public property within the public right-of-way, or. within a public easement adjacent to streets where such installation, use, or maintenance endangers the safety of persons or property, or interferes with public utility, public transportation, or other government use, or unreasonably interferes with or impedes the flow of pedestrian, bicycle, Wheelchair, or vehicular traffic, the ingress into or egress from any residence, place of business, or any legally parked or stopped vehicle, or the use of traffic signs or signals, or hydrants. Without limitation of the foregoing, the following specific standards apply: (a) No newsrack shall be used or maintained which projects onto, into, or over any part of the roadway of any public street. (b) No newsrack shall be chained, bolted, or otherwise attached or affixed to any municipally-owned fixture, including, but not limited to, bicycle or ski racks, light posts, traffic control devices, or decorative railings and posts located in the public right-of-way. No newsrack shall be located so as to impede reasonable access to a bicylcle or ski rack located in the public right-of-way. Newsracks may be chained, bolted or otherwise attached to other newsracks or privately-owned fixtures so long as such placement otherwise complies with this Chapter and provided that permission for such connection has been obtained from the owner of the other newsracks or fixture. (c) Newsracks may be placed next to each other provided that no group of newsracks shall extend for a distance of more than ten (t0) feet along a curb, and a space of not less than three (3) feet shall separate each group of newsracks. The Director of Public Works may waive the three-foot separation requirement. Whenever it shall become necessary to create a three (3) foot space between newsracks to come into compliance with this subsection, the ten (10) foot distance shall be mea- sured from the newsrack that is most northerly of the grOup, and if all are equally northerly, then from the newsrack that is most westerly. (d) No newsrack shall be placed, installed, used or maintained: 1. Within three (3) feet of any marked crosswalk. 2. Within twelve (12) feet of any curb return. 3. Within five (5) feet of any fire hydrant, fire call box, police call box or other emergency facility. 4. Within five (5) feet of any driveway. 5. At any location whereby the clear space for the passageway of pedestrians is reduced to less than eight (8) feet unless such passageway is already restricted by the .placement of permanent utility pole or other similar permanent fixture and the attachment of the newsrack to that fixture or placement of the newsrack adjacent to that fixture will not reduce the remaining clear space available for pedestrian passage and the Director of Public Works approves the proposed placement. 6. Within eight (8) feet of or on any public area improved with flowers, shrubs, trees or other landscaping. 7. Within the limits of a handicap ramp. 8. Within the limits of the following public right-of-way: (a) The Aspen pedestrian mall. (b) The sidewalk adjoining any structure within the city limits that has been designated as an Historic Landmarkpursuant to Sec. 24-7-709 of the Municipal Code Of the City of Aspen; including, but not necessarily limited to, the Wheeler Opera House, the Hotel Jerome, the Pitkin County Court House, the Aspen Volunteer Fire Depart- ment, St. Mary's Church, and City Hall with the exception of City Hall along Hopkins Avenue. Sec. 19-194. Standards for Maintenance and Installation. 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 individual single-unit newsrack shall exceed fifty (50) inches in height, measured from street grade, thirty-two (32) inches in width, or two (2) feet in depth. The height and width limitations may be waived by the Director of Public Works for specific locations where line-of-sight or other safety considerations are not a factor. (b) The front panels of newsracks may be used to advertise the sale of the newspapers or periodicals sold therein. Newsracks may not be used for any other type of advertising. (c) Where applicable, 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 he is unable to receive the publication paid for. The coin return mechanism shall be maintained in good working order. (d) 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 new'rack 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 mst 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. (6) The structural parts thereof are not broken or unduly misshapen. (7) It is kept free of taped flyers. Sec. 19-195. City-owned and installed newsracks. The City may from time to time, in its sole discretion, purchase and install individual single unit or multi-unit newsracks or portions thereof to facilitate the installation of privately-owned newsracks in the public right-of-way or upon private property with the consent of the private property owner. Distributors may use City-owned newsracks or portions thereof; provided, however, that the distributor so utilizing a City-owned newsrack shall comply with all sections of this Article to the same extent as if the newsra~k x~as owned and installed by the distributor, including, but not necessarily limited to, the permit provisions of Sections 19-188 through 19-190, the indemnification provisions of Section 19-192, and the maintenance provisions of Section 19-194. In no 7 event shall a City-owned newsrack or portion thereof be moved without the express written approval of the Director of Public Works. Whenever a City-owned newsrack, or portion thereof, becomes available either through purchase, abandonment or otherwise, the Director of Public Works shall cause to be placed in the newsrack a clearly visible notice indicating that the newsrack shall become available for use on a date certain and application for its use can be made with the Director of Public works. If more than one distributor applies for the use of a particular City-owned newsmck, or portion thereof, the Director of Public Works shall choose a distributor by way of lottery. Sec. 19-196. Violations. Upon determination by the Direc~tor of Public Works that a newsrack has been installed, used or maintained in violation of the provisions of this Article, the Director of Public Works shall issue an order directed to ihe offending distributor requiring the correction of the offqnding condition within seven (7) days from the date of the order. Such order shall be telephoned to the distributor and confirmed by mailing a copy of the order to said distributor. The order shall specifically describe the offending condition and shall specify the action necessary to correct the condition. The failure of the distributor to correct the offending condition within seven (7) days (excluding Saturdays, Sundays, and legal holid- ay) after the mailing date of the order shall result in the offending newsrack being removed and processed as lost and confiscated property in accordance with Section 13-87 of this Code. If the offending newsrack is not properly identified as to ownership under the provisions of Section 19-192 hereof, it shall be removed immediately and processed as lost and confiscated property in according with Section 13-87 of this Code. Within seven (7) days of said notice the distributor may request an informal meeting with the Director of Public Works with regard to a resolution of the order referred ro herein in which case the informal meeting shall be held within five (5) working days from the date of said request and the appeal time referred to in Section 19-197 shall commence and begin to run as of the date of the informal meeting. Violations of any provision of this Article shall not constitute an offense subject to the general penalty provisions of Section 1-8 of the Municipal Code. Sec. 19-197..Appeals. Any person or entity aggrieved by a finding, determination, notice or action taken under the provisions of this Article may appeal and shall be appraised of his right to appeal to the City Council. An appeal must be perfected within seven (7) days after receipt of notice of any protested decision or action by filing with the D~rector of Public Works a letter of appeal briefly stating the~rein the basis for such appeal A hearing shall be held on a date no more than thirty (30) days after receipt of the letter of appeal. Appellant shall be given at least ten (10) days notice of the time and place of the hearing. The City Council shall give the appellgnt, 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 such hearing the appellant shall have the right to examine the evidence upon which the Director of Public Works Or designated agent acted, to cross examine any witnesses who may have appeared before him and to offer any evidence which may tend to show that the subject newsrack does not violate any provision of this Chapter. In all such cases, the burden of proof shall be upon the appel- lant to show that there was not evidence to support the action taken by the Director of Public Works. At the conclusion of the hearing, the City Council shall make a final and conclusive determination. The perfection of an appeal to the City Council shall stay the order for removal of any newsrack until the City Council makes its final determination unless said newsrack presents a clear and present danger of imminent personal injury or property damage. Nothing contained in this Chapter shall be interpreted to limit or impair the exercise by the City of its police power, in the event of an emergency, to remove any newsrack. Section 19-198. Abandonment. In the event a newsrack remains empty for a period of thirty (30) continuous days, or the distributor appears to have abandoned the newsmck by virtue of dated materials not having been replenished 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 19-196 for newsracks in violation of the provisions of this Chapter. Section 2 All newsracks resting 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, as of the effective date of this ordinance, shall be brought into compliance with the ten,ns of this ordinance including, but 9 not limited to, the permit provisions of Sections 19-187 through 19-190, the indemnification provision of Section 19-189, and the maintenance provision of Section 19~194 no later than thirty (30) days following adoption of this ordinance. Any newsrack not found to be in compliance with the requirements of this ordinance as of such date shall be subject to Section 19-196. Section 3 The City Council hereby finds, determines and declares that this ordinance is necessary and proper to provide for the safety, preserve the health, promote the prosperity, preserve the aesthetic beauty, improve the order, comfort and convenienc ~ of the City of Aspen and the in- habitants thereof. Section 4 Except as specifically amended hereby, the City of Aspen Municipal Code, and the various secondary codes adopted by reference therein, shall continue in full force and effect. Section 5 This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 6 If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. 10 A public hearing on the ordinance shall be held on the day of , 1991, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the day of ,1991. ~ling, Mayor ATTEST: Kathryn S. Koch, City Clerk FINALLY adopted, passed and approved this day of ..... ~ 1991. ~ L.~tirt/rrg, Mayor ATTEST: Kathryn S. Koch, City Clerk