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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. Page 1 of 13 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 t5 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (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. Page 2 of 13 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (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 Page 3 of 13 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (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 Page 4 of 13 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 (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. Page 5 of 13 5 (o) Private Package Delivery Box means all for profit private delivery service collection boxes and/or containers intended for the purpose 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 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. Page 6 of 13 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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 Page 7 of 13 7 1 2 3 4 5 6 7 8 9 10 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. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (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. Page 8 of 13 8 1 2 3 4 5 6 7 8 9 10 1I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 (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: Page 9 of 13 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (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; Page 10 of 13 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 (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 Page 11 of 13 I1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 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 Page 12 of 13 12 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 10 11 12 13 14 15 16 17 Page 13 of 13 13