HomeMy WebLinkAboutordinance.council.024-91
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ORDINANCE NO. ~
(Senes of 1991)
AN ORDINANCE MAKING IT UNLAWFUL TO PLACE, MAINTAIN OR OPERATE A
NEWSRACK IN THE PUBLIC RIGHT -OF- WAY WITHOUT FIRST OBTAINING A PERMIT
AND REGULATING THE PLACEMENT OF NEWSRACKS IN PUBLIC RIGHT-OF-WAY,
BY AMENDING CHAPTER 19 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN,
COLORADO, BY ADDING ARTICLE IX, SECTION 19-185 THROUGH SECTION 19-198
WHEREAS, a necessary pred1cate to freedom of speech and freedom of press IS the
freedom to dlssemmate Ideas, information and newspapers In publIc places; and,
WHEREAS, the distnbution 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
Uruted States Constitution; and,
WHEREAS, the protection of the right of the people to a free press is properly the
subject of muruClpal regulal1on; and,
WHEREAS, the freedom of newspaper publIshers to decide where on public property
they wish to place newsracks is properly the subject of mumclpal regulation; provided the
regulation is content neutral, is tailored to serve slgniiicant muruclpal mterests, and leave open
ample alternative channels of communical1on; and,
WHEREAS, there IS a substantial governmental interest in promoting the aesthel1c and
environmental quality of hie in both resldenl1al and commercial areas of the City of Aspen; and,
WHEREAS, there is a substantial governmental mterest m 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,
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WHEREAS, there is a substantial govemmenta1lllterest in promot1llg the publIc health,
safety and welfare by ensunng that newsracks placed III the publIc nght-of-way do not create
hazardous conditions, and,
WHEREAS, newspaper vendlllg within the public right-of-way and other public property
can be accomplished Wlthout unreasonably interfering Wlth the normal and reasonable use of
these areas by the public; and,
WHEREAS, the public health, safety, welfare and convernence require that: interference
With vehicular, bicycle, whee1charr or pedestnan traffic be aVOIded; obstruchon of sight distance
and Vlews of traffic SignS and street-crossmg pedestrians be elmunated, damage done to
Sldewalks be mirulTIlZed and reparred; the good appearance of the public streets and grounds be
mamtained; trees and other landscaping be allowed to grow without disturbance, access to
emergency and other public facilities be mamtamed; Illgress and egress from properties adjoirung
the public rights-of-way be protected; the uniquely lustonc nature of certain structures witlun
the City of Aspen be preserved; and, that the aesthehc 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 addlllg
Article 9, Sechons 19-185 through 19-198, wluch said Sections shall read as follows:
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"Sec. 19-185 Defini1lons
For purposes of tlus Artlc1e, unless otherwIse apparent from the context, cerlaln words
and phrases used herelll are defined as follows'
(a) "Dlstnbutor" shall mean the person responsIble for placing and maintaining a
newsrack III a publIc right-of-way.
(b) "Newsrack" means any self-semce or coin-operated box, container, storage unit
or other dIspenser lllStalled, used, or mallllallled for d.1sp1aymg and d.1spenSlllg,
for free or for sale, newspapers or other news penodlca1s.
(c) "Director of Public Works" shall mean the DlIector of PublIc Works for the CIty
of Aspen or Ius desJ.gnee.
Sec. 19-186 Pernut R~UlIed.
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It shall be unlawful for any person, firm or corpora1lon to erect, place, mallllalll 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 Wltlun the CIty 1muts of the CIty of Aspen, any
newsrack without first obtairung a pernut from the Director of Public Works specifying
the exact location of such newsrack.
Sec, 19-187 Application for Pernut.
ApplicatlOn for pernut shall be made with the Director of Public Works on prescnbed
forms conlallung the rnforma1lon requlIed by Sec1lons 19-188 and 19-189, and shall state
with particu1anty the exact location of the newsrack If a distributor applies for more
than one newsrack permit, the informa1lon requlIed by Sec1lons 19-188 and 19-189 may
be prOVIded by incorporatlng by reference to a prevlOusly filed applicahon form that
conlallls the required informa1lon, No fee or bond shall be required for the newsrack
pernut.
Sec. 19-188 Content of Applica1lon Form
The newsrack permit application form shall state the name, address and telephone
number of those responsible for placing and mallltairung the newsrack subject to the per-
nut.
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Sec 19-189. Jnsurance And Jndemrufical10n
As part of a reglstranon under t1us ArtIcle, the applIcant, or lus/her authonzed
representative shall furrush to the City a cerl1ficate of insurance as proof that it has
secured and paid for a polIcy of publIc Insurance covenng all public risks related to the
use, mamtenance, operanon 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 clauses, shall not be less than the maximum liability that
can be unposed upon the City of Aspen under the laws of the State of Colorado found
at C R.S. Secb.on 24-10-101 et seq., as amended. The dlstnbutor shall provide and keep
in force that policy of publIc lIability Insurance dunng such time as It contmues 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
nonce will be given to the City before any cancellahon, If a distributor presents credible
evidence demonstrating an inability to comply in good falth with any of the foregoing
insurance requlIements, the City Manager or his designee shall Walve the subject
insurance requlIement(s).
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In addlnon, 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
suslalned 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
resu1tmg from the acts, fa1lure to act, or property of a person other than the dlstnbutor.
Section 19-190 Term of Pernut.
The pennit issued pursuant to t1us Article shall remain in effect until the newsrack is
abandoned or impounded.
Sec. 19-191 Reiistrahon Provisions Supercede Encroachment Re~ulations.
The proviSIOns of this Article shall supercede the provisions of Section 19-5 relating to
encroachments except to the extent specillca11y incorporated or referenced herein. The
proviSIOns of t1us Article shall not supercede Article ill of tlus Chapter relating to
excavations in the publIc right-of-way,
Sec. 19-192. Idenbficahon,
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Every newsrack dlstnbutor 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
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name, address and telephone number of the d.Jstnbutor so that malfuncoons may be
reported; refunds secured in the event of a malfunction of the com return mechanism,
or to gwe the notices provIded for m this ArtIcle.
Section 19-193 Location ~nd Placement of Newsrach.
No newsrack shall be inst.a1led, used, or mamla1ned in any location upon publIc property
WIthin the public right-of-way, or WIthin a public easement adjacent to streets where such
inst.a1lation, use, or maintenance endangers the safety of persons or property, or
mterferes with public u1:1l1ty, publIc transportation, or other government use, or unreason-
ably interferes WIth or unpedes 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 mamla1ned whIch projects onto, mto, or over any
part of the roadway of any publIc street
(b)
No newsrack shall be chamed, bolted, or otherwise attached or affixed to any
mumclpally-owned fixture, includmg, but not lImited to, bIcycle or skI racks,
lIght posts, traffic control devices, or decoral1ve railings and posts located m the
publIc nght-of-way No newsrack shall be located so as to Impede reasonable
access to a bicylcle or skI rack located in the publIc nght-of-way. Newsracks may
be chamed, bolted or otherwIse attached to other newsracks or pnvately-owned
fixtures so long as such placement otherwise complies WIth !!us Chapter and
provided that penrusslOn for such connection has been obtained from the owner
of the other newsracks or fixture.
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(c) Newsracks may be placed next to each other proVIded that no group of newsra-
cks shall extend for a distance of more than ten (10) 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 mto complIance with thIS subsectIOn, the ten (10) foot distance
shall be measured 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, mst.a1led, used or mainla1ned'
1. Within three (3) feet of any marked crosswalk.
2.
WIthin twelve (12) feet of any curb return,
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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 pedestnans
is reduced to less than elght (8) feet unless such passageway lS already
restricted by the placement of permanent ublity pole or other slm1.lar
permanent fixture and the attachment of the newsrack to that fixture or
placement of the newsrack adjacent to that fixture will not reduce the
remairung clear space available for pedestrian passage and the DlIector of
Public Works approves the proposed placement.
6. Wlthm elght (8) feet of or on any publIc area improved WIth flowers,
shrubs, trees or other landscaping.
7. WithIn the limIts of a hanchcap ramp.
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(a)
The Aspen pedestnan mall.
(b) The sidewalk adjoming any structure WIthin the city lImIts that has
been designated as an Historic Landmark pursuant to Sec. 24-7-
709 of the Municipal Code of the Clty of Aspen; inc1ud.1ng, but
not necessarily limited to, the Wheeler Opera House, the Hotel
Jerome, the Pltkin County Court House, the Aspen Volunteer FlIe
Department, St Mary's Church, and Clty Hall with the exception
of Clty Hall along Hoplons Avenue.
Sec. 19-194 Standards for MRmtenance and Installation
Any news rack which in whole or in part rests upon, in or over any public right-of-way
shall comply WIth the following standards:
(a) No mdiYldual smgle-unit news rack shall exceed fifty (50) inches in height,
measured from street grade, th1Ily-two (32) mches in width, or two (2) feet m
depth. The helght and wldth limitations may be Walved by the DlIector of Public
Works for spec1fic local1ons where line-of-sight or other safety conslderal1ons are
not a factor
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(b)
The front panels of newsracks may be used to advertise the sale of the newspa-
pers or penodica1s sold therell1. Newsracks may not be used for any other type
of advemsing
(c) Where applicable, each newsrack shall be equipped with a COin return mechanism
to permit a person USll1g the machme to secure an lmmed1ate refund m the event
he IS unable to receive the publIcation pald for. The coin return mechanism shall
be malIltalned in good working order
(d) Each newsrack shall be malJ1talned in a neat and clean conchtion and ll1 good
reparr at all hmes Spec1fica11y, but WIthout lIlTI1hng the generalIty of the
foregOlng, each newsrack shall be servIced and malIltamed so that:
(1) It IS reasonably free of dirt and grease,
(2) It is reasonably free of chipped, faded, peeling, and cracked paint ll1 the
visible painted areas thereof.
(3) It IS reasonably free of rust and corrosion in the visible unpainted metal
areas thereon.
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(4)
The clear plasl:1c or glass parts thereof, if any, through which the
publIcations therem are vIewed are unbroken and reasonably free of
cracks, dents, b1enushes and dlsco10ral:1on.
(5) The paper or cardboard parts or ll1serts thereof are reasonably free of
tears, peeling or fadll1g.
(6) The structural parts thereof are not broken or unduly nusshapen.
(7) It IS kept free of taped flyers
Sec. 19-195. City-owned and ll1st"lled newsracks.
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The CIty may from l1me to l1me, in Its sole discretion, purchase and installll1diVldual
sll1g1e urnt or mu1ti-urnt newsracks or pomons thereof to facilitate the ll1stallahon of
privately-owned newsracks in the public right-of-way or upon private property with the
consent of the private property owner. Dlstnbutors may use City-owned newsracks or
portions thereof; provIded, however, that the dlstnbutor so utilizing a City-owned
newsrack shall comply WIth all sechons of this Article to the same extent as if the
newsrack was owned and ll1stalled by the dlstnbutor, includmg, but not necessarily
lInuted to, the permit provlSlons of Sections 19-188 through 19-190, the indemrnii.cation
provIsions of Section 19-192, and the maintenance proVlslons of Section 19-194. In no
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event shall a Clty-owned newsrack or portion thereof be moved without the express
wntten approval of the Director of Public Works.
Whenever a CIty-owned newsrack, or portion thereof, becomes ava1lab1e eIther through
purchase, abandonment or otherwIse, the Director of PublIc Works shall cause to be
placed in the newsrack a clearly Vlslb1e notIce mdlcatmg that the newsrack shall become
available for use on a date cerla1n and applIcatIon for its use can be made Wlth the
DlIector of Public works If more than one distributor applies for the use of a particular
Clty-owned newsrack, or portion thereof, the Director of PublIc Works shall choose a
dlstnbutor by way of lottery.
Sec. 19-196. Vio1atlons
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Upon detemunation by the Director of Public Works that a newsrack has been installed,
used or maintained 111 violation of the provisions of this Article, the DlIector of PublIc
Works shall Issue an order dlIected to the offend.1ng d.1stnbutor requinng the correchon
of the offend.1ng condition within seven (7) days from the date of the order Such order
shall be telephoned to the distributor and confinned by mailing a copy of the order to
sald dlstnbutor, The order shall spec1fically descnbe the offending condItion and shall
specIfy the actlon necessary to correct the condltlon The failure of the dIstributor to
correct the offending condition Within seven (7) days (excluding Saturdays, Sundays, and
legal holIday) after the mailing date of the order shall result in the offending newsrack
be1l1g removed and processed as lost and confiscated property 111 accordance WIth Sectlon
13-87 of this Code, If the offend1l1g 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 111 according with Sectlon 13-87 of this Code
Witlun seven (7) days of sald notlce the dlstnbutor may request an 1l1forrnal meetlng with
the Director of PublIc Works Wlth regard to a resolutIon of the order referred to herelI1
111 which case the informal meeting shall be held within five (5) working days from the
date of sald request and the appeal tune referred to in Sectlon 19-197 shall commence
and beg1l1 to run as of the date of the informal meetlng.
Violations of any provlSlon of tlus Article shall not constItute an offense subject to the
general penalty proVIsions of Section 1-8 of the Municipal Code.
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Sec 19-197. Appeals.
Any person or entity aggrieved by a findlllg, detenrunatlon, nouce or aCTIon taken under
the provlSlons of tJus Artlcle may appeal and shall be appraISed of his right to appeal to
the Clty Council An appeal must be perfected within seven (7) days after recelpt of
notice of any protested declSlon or action by filing Wlth the DlIector of PublIc Works a
letter of appeal bnefly stating therelll the baSls for such appeal A heanng 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 tune and place of the heanng The Clty
Council shall glVe the appellant, and any other Interested party, a reasonable opportunity
to be heard, III order to show cause why the determinaTIon of the DlIector of Public
Works should not be upheld At such heanng the appellant shall have the right to
examine the eVldence upon wluch the DlIector of PublIc Works or deslgnated agent
acted, to cross exanune any wltnesses who may have appeared before lum and to offer
any eVldence wluch may tend to show that the subject newsrack does not VIolate any
provision of tlus 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 heanng, the Clty Council shall make a final and
conc1uslve determination
The perfection of an appeal to the City Council shall stay the order for removal of any
newsrack unbl the Clty Council makes lts final detenrunaTIon unless Sald newsrack
presents a clear and present danger of lmrrunent personal lllJury or property damage,
Nothing conlalned in this Chapter shall be interpreted to linut or impair the exerClse by
the Clty of its police power, m the event of an emergency, to remove any newsrack
Sectlon 19-198. Abandonment.
In the event a newsrack remains empty for a period of thirty (30) contumous days, or the
dlstnbutor appears to have abandoned the newsrack by vlrtue of dated matenals not
having been replenished for a period of thirty (30) contllluous days, the same shall be
deemed abandoned and may be treated in the manner as provided in Section 19-196 for
newsracks in v101atlon of the provlSlons of this Chapter.
Secl10n 2
All newsracks restlllg in whole or in part upon or on any portion of a publIc nght-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 terms of this ordinance includmg,
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but not llInited to, the pernut proVlS1ons of Sechons 19-187 through 19-190, the lIIdemnification
provision of Sechon 19-189, and the maintenance provIsion of Section 19-194 no later than thirty
(30) days followlIIg adoption of tlus ordlIlance 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.
Sechon 3
The CIty Council hereby finds, detennines and declares that this ordlIlance is necessary
and proper to proVlde for the safety, preserve the health, promote the prosperity, preserve the
aesthel:1c beauty, improve the order, comfort and convemence of the CIty of Aspen and the 1II-
habitants thereof
Sechon 4
Except as specifically amended hereby, the City of Aspen Municipal Code, and the
various secondary codes adopted by reference therelIl, shall conllnue in full force and effect.
Secl:1on 5
ThIs ordlIlance shall not have any effect on eXIsting lil1gation and shall not operate as an
abatement of any acb.on or proceedlIlg now pending under or by virtue of the ordlIlances
repealed or amended as herelIl provided, and the same shall be construed and concluded under
such prior ordinances.
Section 6
If any secl:1on, subsection, sentence, clause, phrase or portIOn of this ordlIlance IS for any
reason held lIIvalid or unconshtutional in a court of competent junsdiction, such porllon shall
be deemed a separate, distinct and independent provision and shall not affect the vahdity of the
remairung portions thereof.
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A public hearing on the ord.1nance shall be held on the _ day of
1991,111 the C1ly CounCll 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.
Wtlltam L StJrhng, Mayor
ATIEST.
Kathryn S Koch, City Clerk
FINALLY adopted, passed and approved this
, 1991.
day of
William L. StJrhng, Mayor
ATTEST:
Kathryn S, Koch, City Clerk
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CITY OF ASPEN
City Attomey's Office
130 South Galena
Aspen. Colorado 81611
(303) 920-5055
MEMORANDUM
DATE:
Mayor and City Council
John P. worcester~
.led Caswall '(j~ to I s(q \
June 5, 1991
TO:
FROM:
THRU:
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 to 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 Qf newsracks since at
least 1978 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 sitesl 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 plan2. The City purchased 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.
I 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.
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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 the 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 prolifern.tion 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 maintl,lining many of the existing racks continues to fall 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 Dealer Pub. Co., 486 U.S. 750
(1988). The right of the government t(;) limit expressive activity in traditionally public fora, such
as sidewalks, is "sharply circumscribed" by first amendment considerations. Perry Education
Ass'n. v Perry Local Educators' Ass'n., 460 U.S. 37 (1983). 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.NJ, 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 violated; 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
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aesthetic concerns with respect to its environment", Gannett, supra, and that the ordinance
3 In Lakewood, supra, for example, the Supreme Court struck down a newsrack ordinance that gave the Mayor
unfettered discretion in granting newsrack licenses.
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"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 issue. 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 require
newsracks to be liceliSed, 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 requires
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 newsracks found to be in violation
of the ordinance, subject to due process protections, should be sufficient to ensure compliance.
In sum, I feel confident that should City Council vote to adopt this ordinance, it wOl.lld pass
constitutional muster under current legal principles relating to freedom of the press and the
regulatioll of newsracks.
newsracl.mem
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