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Memo - Newsrack Regulation/Ordinance Update # "' ADMINISTRATIVE SERVICES DEP ARTMENT . MEMORANDUM To: FROM: DATE: SUBJECT: Honorable Mayor and Members of the City Council Steve Stahmer, Assistant to the City Manager September 21,2001 Newsrack Regulation/Ordinance Update This discussion on newsrack regulation is intended to provide the Council with an update to Jim Genellie's presentation on May 29, 2001 and to obtain direction for staff in pursuing ~uch an ordinance. Current Conditions Currently, 24 newsracks are locatedon Mainstreet (or on cross streets where they intersect with Main) between 6th Ave. and 13th Ave. in downtown Hopkins. Twelve newsracks are located between 8th Ave. and 9th Ave. alone. In addition to for-sale publications such as the Star Tribune, Pioneer Press and the Wall Street Journal, many newsracks contain various free publications (e.g., Employment Weekly, Employment News, The Employment Guide, and AutoMart). Five newsracks containing the publication Employment Weekly can be found from approximately ih Ave. to 13th Ave. Of the 24 newsracks indicated above, nine are free employment guides. However, as Mr. Gennelie indicated during the May 29, 2001 Work Session, any attempt to discriminate between for-sale publications and these free publications would undoubtedly be challenged as unconstitutional, content-based regulation prohibited by the First Amendment. In addition to those found on Mainstreet, newsracks are present to a lesser extent throughout Hopkins. For example, at the intersection of Highway 7 and Hopkins Crossroad, a newsrack containing Employment News is located in the grass area of the northeast corner of the intersection. It is assumed that numerous other newsracks are located throughout the City on busy roads and at intersections and bus stops. Draft Ordinance for the Reaulation of Newspaper Dispensers A draft ordinance for the Regulation of Newspaper Dispensers is attached. The ordinance is based largely upon those of St. Paul and Woodbury. An initial draft of this ordinance was first presented by Jim Genellie at the May 29, 2001 Work Session. I have since added to the initial draft to include additional regulations and provisions designed to best fit Hopkins. Provisions currently contained in the draft ordinance include the following: 1. Before any newsrack may be installed, and at least every three (3) months thereafter, each newsrack owner shall submit to the director a master list specifying each newsrack location as well as the name, address and telephone numbers of each owner of the newsrack and the name of the newspaper or periodical it will dispense. 2. A fee may collected from newsrack owners to cover administrative costs associated with regulating dispensers. 3. Newsracks shall not be installed on the side toward residential property. 1 9/21/2001 . 4. No dispenser shall be plac d within five hundred (500) feet of another n wspap r dispensing device containing the same newspaper or periodical, except that the City Clerk may permit two such dispensing devices at an intersection where such placement would not impair traffic or otherwise create a hazardous situation. 5. No dispenser shall be located within ten (10) feet of utility, or government own d parks, light standards, trash receptacles, traffic signal control boxes, parking signage, mail boxes, water meters, gas meters, electrical pull boxes, catch basins and utility manhole covers or the Hopkins Center for the Arts and it's surrounding plaza. 6. No newsrack shall be in any way installed or attached to any traffic sign or signal, hydrant, United States Postal Service mailbox, or parking meter. 7. No dispenser shall be located within twenty (20) feet from any street intersection. No dispenser shall be located within ten (10) feet from any street and alley intersection. 8. Dispensers must be located on a concrete surface or other similar hard surface. No dispenser shall be located on any lawn or on or within twelve (12) inches of any area improved with a hedge, a boulevard garden, or flowers, or within three (3) feet of any tree. 9. No dispenser shall be located within one and one-half (1 1/2) feet from any window of any building abutting the sidewalk. 10. Additional provisions concerning the maximum size of newsracks and the proper maintenance and appearance of the dispensers are also included. Some of the above regulations and distances may need to be adjusted for practical and/or legal reasons. Leaal/Administative Issues It appears to be legal for the City to ban newspaper dispensers from in front of residential property as an appropriate time, place and manner restriction. Such a prohibition is included in the S1. Paul ordinance (the S1. Paul ordinance was developed through cooperation with the newspaper industry). Similarly, prohibiting the placement of newsracks from in front of the Arts Center also appears to be acceptable. The rewsrack ordinance for the City of Woodbury expressly prohibits dispensers from being placed on or near the city's Clocktower Plaza. Both of these issues, however, are questions for the City Attorney. I will attempt to discuss this question with Wynn Curtis when he returns to his office this coming Monday or Tuesday. Expected Impact of the Draft Ordinance It is expected that the ordinance, if adopted, would help to limit the number of newsracks that are concentrated in downtown Hopkins. The provision that "no dispenser shall be placed within five hundred (500) feet of another newspaper dispensing device containing the same newspaper or periodical" should ensure that fewer newsracks containing the same publication can be located in such a limited area. In other words, the provision should at the very least, spread out the locations of these dispensers so that they are not all concentrated in the same small area. However, there is no way to know whether distributors would decrease the number 2 9/21/2001 of newsracks they maintain in any section of Hopkins or if they would simply spread them out to comply with the ordinance. As currently written, the ordinance would also prevent the placement of newsracks in residential areas and in front of the Hopkins Center for the Arts. Again, this is subject to the opinion of the City Attorney, but based on the ordinances of Woodbury and St. Paul, it should be acceptable. Without knowing the exact distances between features - such as fire hydrants, intersections, alleys, trees, benches, street lights, windows, crosswalks - along every street, it is difficult to determine exactly which areas would be left available for the placement of newsracks if the draft ordinance were adopted. A detailed map of a few sample street blocks could be developed, indicating all relevant features and distances and those areas that would be off limits to newsracks under the current draft of the ordinance. Questions and Next SteDs Questions to consider: 1. Does the Council wish to pursue the regulation of newspaper dispensers? 2. Are there any other areas in which the Council would like to prohibit or allow the placement of newsracks? Next Steps: 1. An informational letter, describing the issue and indicating that Hopkins may begin regulating dispensers should be sent to all distributors that are currently known to maintain newsracks in Hopkins. This may mitigate the possibility of opposition to the ordinance and legal action that could conceivably be taken against the City. 2. Continue development of draft ordinance: a. Research legal issues with City Attorney. b. Work with Public Works Department to identify issues and determine required distances, etc. (Required distances may need to be adjusted.). c. Develop a map of a sample block indicating all relevant features and distances. d. Determine appropriate fees to be charged to distributors. 3 9/21/2001 MILLER, STEINER & CURTISS, P.A. PROFESSIONAL ASSOCIATION ATTORNEYS AT LAW JERRE A. MILLER JEREMY S. STEINER * WYNN CURTISS 400 NOR WEST BANK BUILDING 1011 FIRST STREET SOUTH HOPKINS, MINNESOTA 55343 · Real Property Law Specialist, certified by the Minnesota State Bar Association 612-938-7635 FAX 612-938-7670 MEMORANDUM DATE: January 25, 2000 TO: Jim Genellie FROM: Wynn Curtiss RE: Newspaper Dispenser Ordinance This Memo is in response to your December 15, 1999, Memorandum regarding the regulation of newspaper dispensers. This Memo attempts to answer each of the questions posed by YOll in your Memorandum. 1. Can the City ban newspaper dispensers entirely? The United States Supreme Court has. not ruled directly on the issue of whether a public authority can ban all newspaper dispensers from public locations. The Supreme Court has asked the question rhetorically, and at least one judge implied such a regulation might be acceptable. Most decisions, however, have emphasized the strict lill.utations on restricting forms of expression. In U.S. v. Grace, 461 U.S. 171 (1983), the L;:rited States Supreme Court stated that public . sidewalks are recognized as traditional . public forum property and, therefore, restricting communication on that property is subject to severe limitations. In Sentinel Communications Co. v. Watts. 936 F.2d 1189, 1196 (C.A. 111991), the 11th Circuit Court of Appeals stated, "There is no doubt that the right to distribute and circulate newspapers through the use of news racks is protected by the First Amendment." However, in Globe Newsvaver Comvanv. et. al. v. Beacon Hill Architectural Commission, (15t Cir 1996), the First Circuit Court of Appeals upheld a regulation imposed by the Beacon Hill Architectural Commission prohibiting all forms of newspaper dispensers on public property in the historic Beacon Hill district. The Court said the prohibition was content neutral and therefore subject to a lower level of scrutiny than a Cincinnati ordinance which had eliminated only dispensers distributing certain types of publications. The Court said the stated purpose of preserving aesthetics in the district justified the ordinance. Further, the Court noted that the district's special status was c:\fi1e\newsrack\memo.gen not determinative on the issue of ae~thetics, indicating that any public authority could rely on that rationale for regulating newsracks. The Court also noted that the Commission was not required to regulate size, location and appearance of newsracks as an alternative to banning them entirely. Finally, the Court noted that the newspapers had ample alternative channels of distributi.on, including private sources of distribution and newsracks in areas adj acent to the historical district. There is, therefore, an argument to be made that Hopkins could ban newspaper dispensers entirely. The issue, however, not been decided by the Supreme Court nor has the issue been addressed by the Eighth Circuit Court of Appeals, of which Minriesota is a part. 2. Can the City prohibit newsracks in certain locations? Yes. The City has legitimate safety and. aesthetic concerns that allow it to regulate the location of newsracks as well as the size, appearance and number. Such regulations, however, should be based on some objective evaluation of the safety and aesthetic concerns. For example, the distance a news rack is located from a street should be supported by information regarding whether the news rack obstructs sight lines closer to the street or blocks sidewalk traffic if located closer to the street. 3. Can Hopkins exclusively .own the newsracks and require their use? Yes. The City can, as an alternative to regulating the size, location, appearance and number of newsracks, own the newsracks and require newspaper distributors to use only those racks. One problem, however, is deciding which distributor is awarded the right to use which newsrack and whether there would be a limit on the number of newsracks anyone distributor could use. 4. Could Hopkins refuse to lease space in a city-owned newsrack to an "adult" publication? The first problem in answering that question is to define "adult" publication. It is likely Hopkins would have greater control over the distribution of visual forms of adult publications, 1hose . being actual depictions of adult material. However, "adult" publications that are primarily text-based might be more difficult to restrict. In either case, Hopkins probably would be required to treat the issue as it does adult bookstores and other adult entertainment sites. The controlling issue would be "secondary effects" from the adult site, whether it be a bookstore or a simple newsrack. The Courts have allowed cities to regulate the location and number of adult sites to control the secondary effects of those sites. The same considerations likely would apply with regard to the use of newsracks to distribute such materials. The other factor in Hopkins" s favor is the need to restrict access to adult material to prevent juveniles from obtaining it. Clearly, a free newsrack or even one which requires payment, will not c:\file\newsrack\memo.gen restrict a 15 year old from obtaining those materials. Again, that factor is likely to allow Hopkins some latitude in limiting the use of newsracks for distribution of adult publications. 5. Could Hopkins impose a per-dispenser fee? Yes. Hopkins has the authority to require a license. or permit to use the newsracks and has the authority to impose a fee for doing so. However, the fee, like all fees imposed by Hopkins, should be reasonably related to the costs associated with issuance of the license/permit and any costs anticipated for managing the newsracks and assuring compliance with any other regulations regarding the use of the newsracks. 6. Is there a definition of "newspaper" which would allow Hopkins to further control the use of news racks? Any attempt to define "newspaper" raises the issue of "content-based" regulation, to which the Courts apply the strictest level of scrutiny. The Supreme Court in City of Cincinnati v. Discovery Network. Inc. 507 U.S. 410 (1993) struck down .the city's elimination of newsracks containing certain types of publications. The Court said that, although the publications might be considered more "commercial" than regular newspapers, the effect of the newsracks was the same regardless of what was being distributed and such a content-based distinction did not justify the ordinance. Unless Hopkins could establish that the type of publication created a secondary effect which justified different treatment from other publications, the Court likely would strike down any restriction based on the content on the publication. Any attempt to defme a "newspaper," therefore, not only would be extremely difficult if not impossible, but such a content based distinction, without more, likely would not withstand court scrutiny. 7. Could Hopkins limit the number of newsracks? Yes. See response to Question No.2 above. I have not addressed any of the specific portions of the proposed Ordinance in this memorandum. If, after reviewing this document, you have questions regarding application of the . legal standards to the proposed Ordinance, please contact me. c:\file\newsrack\memo.gen Section 840 - Regulation of Newspaper Dispensers 840.01. Purpose and Intent. This ordinance is adopted for the purpose of protection the public health, safety, comfort, convenience and general welfare of the citizens of the City of Hopkins by regulating the placement of newspaper box dispensers on public property including streets, right-of-ways, sidewalks and trails within the City of Hopkins. 840.03. Definitions. Subdivision 1. Unless expressly stated, or the contents clearly indicates a different intention, the following terms shall, for the purpose of this ordinance have the meanings indicated in this section: Subd. 2. "Dispenser/Newspaper box" means any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the sale or distribution of newspapers, magazines, brochures, flyers, or other periodicals. Subd. 3. "Distributor/Custodian" shall mean the person or entity responsible for placing and maintaining a dispenser in a public street. Subd.4 840.05. Compliance Reauired. No distributor/custodian of any newspaper box dispenser shall carry on such dispensing or vending activity on the public streets, right-of-ways, sidewalks or trails of the City of Hopkins unless the provisions of this ordinance have been met. 840.07. Indemnitv. Subdivision 1. Each distributor/custodian shall also file a signed statement, indemnifying and holding harmless the City of Hopkins, its officers, and employees, from any loss or liability or damages, including expenses and costs, for bodily injury and property damages, including expenses and costs, for bodily injury and property damage sustained by any person as a result of the location, installation, use, maintenance, removal or storage of applicant's newsboxes within the City. The applicant shall submit a copy of the public liability insurance policy or certificate of insurance with coverage limits of at least $100,000. Subd. 2. Each distributor shall also file a signed statement holding harmless the .City of Hopkins, its officers and employees from any damage to the newspaper boxes as the result of routine City maintenance operations. 840. 09. Master list and corresDondina sticker or statement reauired. Subdivision 1. No person shall install a newsrack on or in the public right-of-way without first submitting to the City Clerk a master list that contains the location of each newsrack and the items described in section 131.40, and without first affixing to the newsrack a sticker or statement pursuant to section 131.90(E). Subd. 2. Submission of master list and other items. a. Duties of the Director. The director is responsible for fairly coordinating and administering the physical placement of newsracks as provided for in this chapter, for ensuring that the items described in this chapter are properly submitted, and for enforcing this chapter. b. Submissions. Before any newsrack may be installed, and at least every three (3) months thereafter, each newsrack owner shall submit to the director a master list, as well as any fee, hold harmless agreement, and certification required under this section. The master list shall specify each newsrack location in numerical order and shall contain the following information and attachments: (1) The name, address and telephone numbers of each owner of the newsrack and the name of the newspaper or periodical it will dispense.. (2) The name, address and telephone number of a responsible person whom the city may provide notice or contact at any time concerning the newsrack(s), which notice, if given, shall bind and be deemed actual notice to the owner(s) of the newsrack. (3) The specific location of each newsrack, listed individually and numerically, including any identifying information for the location, such as a corresponding street address and specific corner of an intersection, where applicable. (4) (4) Information that allows the director to easily determine whether each newsrack location contained in the list is: (1) a new location (relative to the most recent master list submitted), (2) an existing location (relative to the most recent master list submitted), or (3) that a newsrack location has been removed from the list. (5) The fee, if any, as established pursuant to section (6) A fully executed hold harmless agreement as required by this chapter. (7) A certification, signed by an individual with the requisite corporate or other power and authority to bind the applicant, which states that the applicant has reviewed, understands, and will comply with all requirements of this chapter, and that all information contained in the master list is truthful, accurate, complete and up-to-date. c. Issuance of certificate of compliance. Upon a finding by the director that the applicant and all owners of the newsrack are in compliance with the provisions of this chapter for; (1) The proposed newsrack location, and (2) all other existing newsrack locations, the director shall cause to be issued a certificate of compliance. Such issuance shall be made within fifteen (15) working days of the city's receipt of the completed application. d. Denial of certificate of compliance. If a certificate of compliance for one or more newsrack locations applied for shall be denied, the applicant shall receive notice of the denial in writing within fifteen (15) working days of the city's receipt of the completed application. The applicant shall be advised of the specific cause of each such denial by the director. The applicant may amend the application and reapply for the same location, or apply for a substitute alternative location, subject to a five dollar ($5.00) reprocessing fee for the first reapplication. An subse uent rea lications shall be subject to the standard application fee. e. Additional certificate of compliance. If, at any time after initial application for a certificate of compliance to install a newsrack, an owner wishes to install additional newsracks at additional locations, then subsections (C) and (0) above are to be repeated in accordance with the provisions of this chapter. f. Lapse of unused certificates. Any certificate of compliance not used to install a newsrack within thirty (30) days from the date of issuance shall be void and automatically deemed revoked, and the owner's newsrack shall not be installed at that location 840.11. Placement Reauirements. All newspaper box dispensers placed on public property shall comply with all applicable provisions of this code as follows: a. Subject to the prohibitions of this chapter, newsracks may be installed on public sidewalks and public pedestrian areas. b. Newsracks may not be installed in any public right-of-way which is used regularly or intended to be used by motor vehicle traffic. No dispenser shall project 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. c. Dispenser shall be constructed of metal or other material of substantially equivalent strength and durability, not more than fifty (50) inches in height and not more than thirty-two (32) inches in length and width. d. All dispensers must be set back no less than eighteen (18) inches and no more than two (2) feet from the curbs, except that newsracks may also be installed, subject to the prohibitions of this chapter, near the wall of a building if the closest edge to the building is placed parallel to and not more than six (6) inches from the wall. e. Newsracks shall not be installed on the side toward residential property. f. Every newsrack shall be installed so as to open toward the sidewalk. Newsracks placed near the curb may not open toward the street. g. All dispensers shall be securely anchored or weighted so as to not be easily tipped over, blown over or improperly removed. h. No newsrack shall be in any way installed or attached to any traffic sign or signal, hydrant, United States Postal Service mailbox, or parking meter. i. No dispenser shall be located within fifteen (15) feet of any fire hydrant or other emergency facility. j. No dispenser shall be chained, bolted or otherwise fastened to any City owned property without permission of the City Clerk. k. No dispenser shall be located within five (5) feet of any marked crosswalk. I. No dispenser shall be located within twenty (20) feet from any street intersection. No dispenser shall be located within ten (10) feet from any street and alley intersection. m. Dispensers must be located on a concrete surface or other similar hard surface. No dispenser shall be located on any lawn or on or within twelve (12) inches of any area improved with a hedge, a boulevard garden, or flowers, or within three (3) feet of any tree. n. No dispenser shall be placed within five hundred (500) feet of another newspaper dispensing device containing the same newspaper or periodical, except that the City Clerk may permit two such dispensing devices at an intersection where such placement would not impair traffic or otherwise create a hazardous situation. o. No dispenser shall be located within one and one-half (1 1/2) feet from any 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 purpose, unless permission has been obtained from the party having legal authority over the window, or within four (4) feet of a building entrance. p. No dispenser shall be located within ten (10) feet of utility, or government owned parks, light standards, trash receptacles, traffic signal control boxes, parking signage, mail boxes, water meters, gas meters, electrical pull boxes, catch basins and utility manhole covers or the Hopkins Center for the Arts and it's surrounding plaza. q. No dispenser shall be located within three (3) feet of any bus bench, bus shelter, or plaza bench. No dispenser shall be located within five (5) feet ahead of, and twenty-five (25) feet to the rear of any official public transit bus sign marking a designated bus stop, measured along the edge of pavement. r. No dispenser shall be placed, installed, used or maintained at any location whereby the clear space for the passageway of pedestrians is reduced to less than five (5) feet unless such passageway is already restricted by a permanent fixture and the placement of the newsrack will not reduce the remaining passageway. s. No dispenser shall be located where the newsrack interferes with or hinders city removal of snow, ice, and debris from the roadway or sidewalk. 840.12. Other Newsrack Dispenser Provisions. In addition to the placement requirements of Section 840.11 above, all newspaper box dispensers placed on public property shall comply with the following provisions: a. The distributor/custodian shall maintain the device in good working order and in a safe and clean condition and keep the immediate area free from litter and debris caused by its activities. b. Each newsrack which receives coins shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event he or she is unable to receive the publication paid for. The coin-return mechanism shall be maintained in good working order. c. The distributor/custodian shall not use the devise for advertising signs or publicity purposes other than those directly related to the display, sale or purchase of the newspaper or periodical sold within. d. Each newsrack shall have stenciled or otherwise permanently affixed to it in a readily visible place a notice setting forth the name and address of the owner of or the responsible person for the newsrack and the telephone number to call the owner or the responsible person or to report a malfunction, or to secure a refund in the event of a malfunction of the coin-return mechanism, or to give the notice provided for in this chapter. e. 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 newsrack shall be serviced and maintained, or replaced if necessary, 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 free of graffiti or other writing or pictures added without the permission of the owner; (4) it is reasonably free of rust and corrosion in the visible metal areas thereof; (5) 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; (6) the structural and solid parts thereof are not broken, do not contain holes (other than vent holes as part of the design of the newsrack), and are not unduly misshapen; (7) the dispensing portion of each box shall be fully enclosed and weatherproof so as to keep publications dry and free of snow and dirt; (8) all surfaces shall be of sturdy impact resistant materials; and, (9) it shall contain no sharp corners or sharp protrusions. f. The distributor/custodian, upon removal of the newspaper box dispenser, shall restore the public property it occupied to the same conditions as when the device was initially installed. 840.13. Abandonment. In the event a newsrack remains empty or unattended for a period of ten (10) days, the newsrack is deemed abandoned and may be treated in the manner as provided in section 840.17 for newsracks in violation of the provisions of this section. 840.15. Identification reauired. Every distributor or custodian who places or maintains a dispenser in the City shall have his name, address and telephone number affixed thereto in a place where such information may be easily seen. If the person or custodian is a corporation, then the name, address, and the telephone number of the distributor, or an individual who can relate the name of the distributor, must be affixed in a place where such information can be easily seen. 840.17. Removal of Dispensers. Subdivision 1. If any dispenser is not properly identified as to the owner or custodian thereof, a copy of section 840.15 (the identification requirement) shall be sent by certified mail, return receipt requested, to the publisher of the publication sold in the dispenser, and a copy of said section will be posted on said dispenser. Subd. 2. If any dispenser is improperly identified, or is installed, used or maintained in violation of any other provisions of this article, an order to correct the offending condition shall be sent by certified mail, return receipt requested, to the owner or custodian of such dispenser. Such order shall specifically describe the offending condition and recommend actions necessary to correct. Subd. 3. If within ten (10) working days after themailingofnotice.adispenser is not properly identified or the offending condition is not corrected, or the owner or custodian has not requested a hearing before the City Clerk or designated representative, the offending dispenser and its contents shall be removed and stored in a convenient location by the City Clerk. The City Council shall establish by resolution a removal and storage fee. Subd. 4. Upon failure of the owner or custodian to claim a dispenser within thirty (30) days after notice of such removal, said dispenser and its contents shall be processed as unclaimed property, and disposed of, pursuant to the applicable provisions of the law. When a dispenser has been removed and processed as unclaimed property, the owner or custodian shall be charged a processing fee as established by City Council resolution, in addition to the removal and storage fee, before the dispenser may be released. First Reading Second Reading Date of Publication Effective Date