HomeMy WebLinkAbout2004-OR-22
Ordinance No. 2004-OR- 22
BEFORE THE COMMON COUNCIL
FOR THE CITY OF JEFFERSONVILLE
STATE OF INDIANA
AN ORDINANCE REGULATING NEWSRACKS
AND PRIVATE PACKAGE DELIVERY BOXES
Section 1. Intent and Purpose
The Common Council of the City of Jeffersonville, Indiana ~finds and declares
that:
(a) Findings:
(1)
The uncontrolled placement and maintenance of newsracks o_[r
private package delivery box 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.
(2)
Newsracks or private packa.qe delivery box so located as to
cause an inconvenience or danger to persons using public
rights-of-way, and unsightly newsracks or private packa.qe
delivery boxes located therein, constitute public nuisances.
(3)
It is a matter of public necessity that the City of Jeffersonville
protect children and unconsenting adults in and on its public
streets, sidewalks, transportation facilities and other public
rights-of-way from viewing public displays of offensive sexual
material. Such displays are thrust indiscriminately upon
unwilling audiences of adults and children and constitute
assaults upon individual privacy.
(4)
These factors constitute an unreasonable interference with and
obstruction of the use of public rights-of-way, constitute an
unwarranted invasion of individual privacy, are injurious to
health, offensive to the senses, and constitute such an
obstruction of the free use of property as to interfere in the
comfortable enjoyment of life and property by the entire
community.
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(s)
The Council recognizes, however, that the use of such rights-of-
way is so historically associated with the sale and distribution of
newspapers and publications that access to those areas for
such purposes should not be absolutely denied. The Council
further finds that these strong and competing interests require a
reasonable accommodation which can only be satisfactorily
achieved through the means of this Ordinance which is
designed to accommodate such interests regulating the time;
place and manner of using such newsracks or private package
delivery boxes.
(b) Purpose: The provisions and prohibitions hereinafter
contained and enacted are in pursuance of and for the purpose
of securing and promoting the public health, morals, and
general welfare of persons in the City of Jeffersonville in their
use of public rights-of-way through the regulation of placement,
appearance, number, size, and servicing of newsracks o_r
private package delivery boxes on the public rights-of-way so as
to:
(1)
Provide for pedestrian and driving safety and
convenience;
(2)
Ensure no unreasonable interference with the flow of
pedestrian or vehicular traffic, including ingress to, or
egress from, any place of business or from the street to
the sidewalk;
(3)
Provide reasonable access for the use and maintenance
of sidewalks, poles, posts, traffic signs and signals,
hydrants, mailboxes, and similar appurtenances, and
access to locations used for public transportation
purposes.
(4)
Reduce visual blight on the public rights-of-way, protect
the aesthetics and value of surrounding properties, and
protect the quiet of residential areas;
(5)
Reduce exposure of the City to personal injury or
property damage claims and litigation; and
(6)
Protect the right to distribute information protected by the
United States and the Indiana State Constitution through
use of newsracks.
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(c) Preservation of Constitutional Rights. It is not the intent
of this Ordinance to in any way discriminate against, regulate, or
interfere with the publication, circulation, distribution, or
dissemination of any printed material that is constitutionally
protected.
Section 2. Definitions
As used in this Ordinance, unless the context otherwise clearly indicates:
(a) Block means one (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)
Explicit sexual acts means depiction of sexual intercourse, oral
copulation, and anal intercourse, oral-anal copulation, bestiality,
sadism, masochism, or excretory functions in conjunction with
sexual activity, masturbation, or lewd exhibition of genitals; whether
any of the above conduct is depicted or described as being
performed alone or betWeen members of the same or opposite sex
or betWeen humans and animals, or other acts of sexual arousal
involving any physical contact with a person's genitals, pubic hair,
perineum, anus or anal region.
(d)
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.
(e)
Obscene means material which depicts or describes sexual
conduct that is objectionable or offensive to accepted standards of
decency which the average person, applying contemporary
community standards would find, taken as a whole, appeals to
prurient interests; or material which depicts or describes, in a
patently offensive way, sexual conduct specifically defined by
applicable State law, and taken as a whole, appeals to prurient
interests; or material which depicts or describes, in a patently
offensive way, sexual conduct specifically defined by applicable
State law, and taken as a whole, lacks serious literary, artistic,
political, or scientific value.
(f)
Parkway means the area betWeen the sidewalk and the curb of any
street, and where there is no sidewalk, the area betWeen the edge
of the roadway and the property line adjacent thereto. Parkway
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(g)
(h)
(i)
(J)
(k)
shall also include any area within a roadway that is not open to
vehicular traffic.
Person means any person or persons, or entity including, but not
limited to, a corporation, partnership, unincorporated association or
joint venture.
Pictorial material means any material suggesting or conveying a
visual image, and includes, but is not limited to, a photograph,
painting or drawing. Any pictorial material is "obscene" if all of the
following apply:
(1)
The average person, applying contemporary community
standards, would find that it appeals to prurient interests
when the publication or material is considered as a whole;
and
(2)
It depicts, describes or represents in a patently offensive
manner, sexual behavior as defined in Section 2 (c); and
(3)
It lacks serious literary, artistic, political or scientific value
when the publication or material is considered as a whole.
Building Commissioner refers to the Building Commissioner or
the designee of the Building Commissioner.
Roadway means that portion of a street improved, designed, or
ordinarily used for vehicular travel.
Sexual arousal, gratification or affront when used in this
Ordinance to state the purpose or effect of statements, words,
pictures or illustrations means depictions of the following subjects
or acts:
(1)
Sexual intercourse, oral copulation, anal intercourse, oral-
anal contact, bestiality, direct physical stimulation of genitals,
flagellation or torture in the context of a sexual relationship,
or any of the following depicted sexually oriented acts or
conduct; anilingus, buggery, coprolagnia, coprephagy,
coprophilia, cunnilingus, fellatio, necrophilia, pederasty,
pedophilia, piquerism, sapphism, zooerasty; or
(2)
Human genitals in a state of sexual stimulation, arousal, or
tumescence; or
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(i)
(m)
(n)
(3)
Use of human or animal masturbation, sodomy, oral
copUlation, coitus, ejaculation; or
(4)
Fondling or touching of human genitals, pubic region,
buttock, or female breast; or
(5)
Masochism, erotic or sexually-oriented torture, beating or the
infliction of pain; or
(6)
Erotic or lewd touching, fondling or other contact with an
animal by a human being; or
(7)
Human excretion, urination, menstruation, vaginal or anal
irrigation.
Sexual behavior means the patently offensive representation,
depiction or description of any of the following:
(1)
Ultimate sexual acts, actual or simulated, including vaginal
intercourse between a male and a female, and anal
intercourse, fellatio and cunnilingus between persons
regardless of gender.
(2)
Masturbation, excretory functions and lewd exhibition of the
genitals.
(3)
The actual or simulated infliction of pain by one individual
upon another, or by an individual upon himself, for the
purpose of the sexual gratification or release of either
individual, as a result, as a result of flagellation, beating,
striking or touching of an erogenous zone, including without
limitation the thigh, genitals, buttock, pubic region, or, if such
person is a female, a breast.
(4)
Ultimate sexual acts, actual or simulated, between a human
being and an animal.
Sidewalk means any surface provided for the exclusive use of
pedestrians.
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.
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(o) Private Package Delivery Box means all for profit private delivery
service collection boxes and/or containers intended for the purpose
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of co ect ng packages such as mail.
Section 3. Newsracks Prohibited
(a)
No person shall install, use, or maintain any newsrack or private
package delivery box which projects onto, into, or which rests, wholly
or in part, upon the roadway of any public street.
No person shall install, use or maintain any newsrack or private
package delivery box which in whole or part rests upon, in, or over any
public sidewalk 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, other governmental use;
(3)
when such newsrack or private package delivery box
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 or private package delivery box
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 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 of Jeffersonville any newsrack or private package delivery box without
first having obtained a permit from the Building Commissioner specifying the
exact location of such newsrack or private package delivery box. One permit
may be issued to include any number of newsracks or private package delivery
boxes/and shall be signed by the applicant.
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Section 5. Application for Permit
(a)
Application for such permit shall be made in writing, to the Building
Commissioner upon such form as shall be provided by the Building
Commissioner, and shall contain the name and address of the
applicant, the proposed specific location of said newsrack, or private
package delivery box and shall be signed by the applicant.
(b)
From the above application information the Building Commissioner
shall approve the locations. The Building Commissioner shall be
guided therein solely by the standards and criteria set forth in this
Ordinance. In any case where the Building Commissioner disapproves
of a particular location, such disapproval shall be without prejudice to
the registrant designating a different location or locations.
Section 6. Conditions for Permit
(a)
Permits shall be issued for the installation of a newsrack, private
package delivery box or newsracks, private package delivery boxes
without prior inspection of the location but such newsrack, private
package delivery box or newsracks, private package delivery boxes
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) (excluding Saturday, Sunday and legal holidays)
after the application has been filed. A permit fee of $10.00 dollars per
year per box shall be required.
(b)
Such permits shall be valid for one (1} year and shall be renewable
pursuant to the procedure for original applications referred to in
Section 5 and upon payment of the $10.00 dollar permit fee.
(c)
All permits expire June 30 each year regardless of when said permit is
issued.
(d)
All newsracks or private package delivery boxes shall display on the
front of said newsrack or box a decal to be issued annually by the
Building Commissioner indicating the permit.
Section 7. Newsrack Identification Required
Every person who places or maintains a newsrack or private package delivery
box on the streets of the City of Jeffersonville shall have his permit number,
name, address, and telephone number affixed to the newsrack or private
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package delivery box in a place where such information may be easily seen.
Prior to the designation of location by the Building Commissioner under Section 9
herein, the registrant shall present evidence of compliance with this Section.
Section 8. Location, Placement, and Number of Newsracks
(a)
Any newsrack or private package delivery box 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.
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(1) No newsrack or private package delivery box 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 or private package delivery box shall be chained,
bolted, or otherwise attached to any fixture located in the public
right-of-way, except to other newsracks or private package delivery
boxes.
(3) Newsracks or private package delivery boxes may be placed next
to each other, provided that no group of newsracks or private
package delivery boxes 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 or private package
delivery boxes.
(4) No newsrack or private package delivery box 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.
Within five (5) feet of any fire hydrant, fire call box, police call
box or other emergency facility.
(iv) Within five (5) feet of any driveway.
(v)
Within three (3) feet ahead or twenty-five (25) feet to the rear of
any sign marking a designated bus stop.
(vi) Within five (5) feet of the outer end of any bus bench.
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(vii) At any location whereby the clear space for the passageway of
pedestrians is reduced to less than six (6) 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.
(ix)
Within one hundred (100) feet of any other newsrack or private
package delivery box on the same side of the street in the same
block containing the same issue or edition of the same
publication.
(x) On any access ramp for disabled persons.
(5) No more than six (6) newsracks or private package delivery boxes
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 or private package deliver,/boxes shall be allowed on
any one block. In determining which newsracks or private package
delivery boxes shall be permitted to be located or to remain if
already in place, the Building Commissioner shall be guided soley
by the following criteria:
First priority shall be daily publications (published five (5) or
more days per week).
(ii)
Second priority shall be publications published two (2) to four (4)
days per week.
Third priority shall be publications published one (1) day per
week.
(iv) Fourth priority shall be private package delivery boxes.
Section 9. Standards for Maintenance and Installation
Any newsrack or private package delivery box which in whole or in part rests
upon, in or over any public sidewalk or parkway, shall comply with the following
standards:
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(a)
(b)
No newsrack or private package delivery box shall exceed five (5) feet
in height, thirty (30) inches in width, or two (2) feet in thickness.
No newsrack or private package delivery box 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 newsrack or private package delivery box shall have affixed to it
in a readily visible place so as to be seen by anyone using the
newsrack or private package delivery box, 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 Ordinance.
(d)
Each newsrack or private package delivery box 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 o_r
private package delivery box 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 cracks, dents, blemishes and disclorations;
(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.
Section 10. Display of Certain Matter Prohibited
Publication offered for sale from newsfacks placed or maintained on or projecting
over the street or sidewalk shall not be displayed or exhibited in a manner which
expose to public view from the street or sidewalk any of the following:
(a)
Any publication or material which exposes to public view any pictorial
material that is obscene;
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(b)
Any statements or words describing explicit sexual acts, sexual
organs, or excrement where such statements or words have as their
purpose or effect sexual arousal, gratification, or affront;
(c)
Any picture or illustration of a person's genitals, pubic hair, perineum,
anus, or anal region where such picture or illustration has as its
purpose or effect sexual arousal, gratification, or affront; or
(d)
Any picture or illustration depicting explicit sexual acts as defined in
this Ordinance where such picture or illustration has as its purpose or
effect sexual arousal, gratification, or affront.
Section 1t. Violations
Upon determination by the Building Commissioner that a newsrack or private
package delivery box 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 or private package box delivery operator of the right to appeal. Failure
to properly correct the offending condition within five (5) days (excluding
Saturdays, Sundays, and legal holidays) after the mailing date of the order or to
appeal the order within three (3) days after its receipt shall result in the offending
newsrack or private package delivery box being summarily removed and
processed as unclaimed property. If the offending newsrack or private package
delivery box is not properly 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 or private package
delivery box summarily removed. The Building Commissioner shall cause
inspection to be made of the corrected condition or of a newsrack or private
package delivery box reinstalled after the removal under this Section. The
distributor of said newsrack or the operator of said private package delivery box
shall be charged a $50.00 dollar inspection fee for each newsrack or private
package delivery box 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 appraised
of this right to appeal to the Board of Public Works and Safety. An appeal must
be perfected within three (,3) days (excluding Saturday, Sunday, and legal
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holidays) after receipt of notice of any protected decision or action by filing with
the City Attorney a letter of appeal briefly stating therein the basis for such
appeal. A hearing shall be held on a date not more than ten (10) days after
receipt of the letter of appeal. The appellant shall be given at least five (5) days
notice of the time and place of the hearing. The Board of Public Works and
Safety shall give the appellant, and any other interested party, a reasonable
opportunity to be hard, in order to show cause why the determination of the
Building Commissioner should not be upheld. At the conclusion of the hearing,
the Board of Public Works and Safety shall make a final and conclusive decision.
This decision shall be immediately appealable to a court of competent
jurisdiction.
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 12 for newsracks in violation of the provisions of this
Ordinance.
Section 14. Severability
If any section, subsection, sentence, clause, or phrase of this Ordinance 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 Ordinance.
IT IS HEREBY FURTHER ORDAINED that the Clerk and Treasurer of the City of
Jeffersonville must cause notice of the passage of this Ordinance to be published
in the Jeffersonville Evening News within thirty (30) days of its adoption.
This Ordinance shall be in full force and effect from and after its passage
and approval.
Passed this c~] day of ~/~'~ .,~
ATTEST:
Peggy ~
Clerk and Treasurer
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This Ordinance
~z,~ , 2004.
Presented by me as Clerk a~d Treasurer to the Mayor of said City of
Jeffersonville this .~t'~L day of ~/~,~/ , 2004 at ,¢~.',30 f, m.
~
Pe~oy Wq~l~¥
Clerk a n ,d~e r
approved and si s q-~/ day of
Robert L. Wai~', Jr., Mayor
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