Exh 8IAGENDA ITEM #8I
JUNE 13, 2005
CITY OF ATLANTIC BEACH
CITY COMMISSION STAFF REPORT
AGENDA ITEM: Summary of Winter Park (Florida) Newsrack Code
SUBMITTED BY: Sonya Doerr, AICP ~~
Community Development Director
DATE: June 6, 2005
BACKGROUND: As requested, I have reviewed Winter Park's Newsrack Code. My initial
comment is that this ordinance establishes a substantial amount of regulation that goes far
beyond simple location and placement of newsracks; but also addresses items such as obscenity,
type of racks permitted, impoundment of newsracks, etc... The City of Atlantic Beach now has
in place other ordinances to address issues such as obscenity, interference with pedestrian and
vehicular safety and code enforcement.
The Winter Park Code does, however, establish a specific type and brand of newsrack that must
be used within the City. While this would create conformity in appearance, the particular
newsrack that Winter Park has selected (photo attached) does not seem to have any particular
aesthetic advantage over the few newsracks that are currently placed in the COAB.
BUDGET: No budget issues.
RECOMMENDATION: Information only; no action required.
ATTACHMENTS: Winter Park Newsrack Code, and photocopy of required newsrack.
REVIEWED BY CITY MAN
June 13, 2005 regular meeting
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AGENDA ITEM #SI
JUNE 13, 2005
ARTICLE IV. NEWSRACK CODE*
*I:ditor's note: Ord. No. 2248, § 1, adopted March 24, 1998, amended art. IV in its
entirety to read as herein set out. Former art. IV, ~§ 90-81--90-91, 90-101--90-104,
pertained to similar subject matter and derived from Code 1960, §§ 24-26--24-37, 24-39--
24-41.
Cross references: Businesses, ch. 26.
DIVISION 1. GENERALLY
Sec. 90-81. Short title.
,.
This article may be cited as the "Winter Park Newsrack Code."
(Ord. No. 2248, § 1, 3-24-98) ~~
Sec. 90-82. Intent and purpose.
The city commission finds and declares that:
(1) Findings.
a. The uncontrolled placement and maintenance of newsracks in public rights-of--way
present 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.
b. Newsracks so located as to cause an inconvenience or danger to persons using
public rights-of--way, and unsightly newsracks located therein, constitute public
nuisances.
c. It is a matter of public necessity that the city 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.
d. 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.
e. The city commission 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 city
commission further finds that these strong and competing interests require a reasonable
accommodation which can only be satisfactorily achieved through the means of this
article which is designed to accommodate such interests regulating the time, place and
manner of using such newsracks.
AGENDA ITIJNI #SI
JUNE I3, Zoos
(2} 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 in their use of public rights-of-waythrough the
regulation of placement, appearance, number, size, and servicing of newsracks on the
public rights-of--way so as to:
a. Provide for pedestrian and driving safety and convenience;
b. 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;
c. 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;
d. Reduce visual blight on the public rights-of--way, protect the aesthetics and value of
surrounding properties, and protect the quiet of residential areas;
e. Reduce exposure of the city to personal injury or property damage claims and
litigation; and
f. Protect the right to distribute information protected by the federal and state ' "
constitutions through use of newsracks.
(3) Preservation of constitutional rights. It is not the intent of this article to in any way
discriminate against, regulate, or interfere with the publication, circulation, distribution,
or dissemination of any printed material that is constitutionally protected.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-83. Definitions.
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
Block means one side of a street between two consecutive intersecting streets.
Commercial handbill means any pamphlet, circular, brochure, handbill or other document
used solely to express the economic interests of the speaker or publisher or of the
audience to whom the material is directed.
Director of code enforcement refers to the director of code enforcement or his designee.
Distributor means the person responsible for placing and maintaining a newsrack in a
public right-of--way.
Explicit sexual acts means depictions of sexual intercourse, oral copulation, 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.
Newsrack means any type of unmanned device, whether aself-service or coin-operated
box, container, storage unit or other dispenser, installed, used or maintained for the
display, sale, or vending of or free distribution of newspapers or news periodicals or
commercial handbills.
AGIrNDA ITI;bI #3I
JUN1J 13, 2005
Newsrack enclosure means a structure provided by the city where newsracks must be
placed within the Park Avenue corridor.
ParkAvemre corridor means that area bounded by and including the public rights-of--way
of S~voope Avenue on the north, Interlachen Avenue on the east, Holt Avenue on the
south and New York Avenue on the west.
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, lacks serious
literary, artistic, political, or scientific value.
Parktivay 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 shall also include any area within a roadway that is not open to
vehicular travel.
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.
(2) It depicts, describes or represents in a patently offensive manner, sexual behavior
as defined in this section.
(3) It lacks serious literary, artistic, political or scientific value when the publication or
material is considered as a whole.
Roadtivay means that portion of a street improved, designed or ordinarily used for
vehicular travel.
Sexual arousal, gratification, or affront when used in this article 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, coprophagy, coprophilia, cunnilingus, fellatio,
necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty;
(2) Human genitals in a state of sexual stimulation, arousal, or tumescence;
(3) Use of human or animal masturbation, sodomy, oral copulation, coitus, ejaculation;
(4) Fondling or touching of human genitals, pubic region, buttock, or female breast;
(5) Masochism, erotic or sexually-oriented torture, beating or the infliction of pain;
(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:
AGENDA ITEM #8I
JUNE 13, 2005
(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 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 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.
(Ord. No. 2248, § 1, 3-24-98; Ord. No. 2318, § 1, 10-12-99; Ord. No. 2498-03, § 1, 1-28-
03)
Sec. 90-84. Violations. ` ~ ~'
(a) Upon determination by the director of code enforcement that a newsrack has been
installed, used or maintained in violation of this article, a notice to correct the offending
condition shall be issued to the distributor of the newsrack. Such notice shall be affixed to
the newsrack and a copy thereof shall be mailed by certified mail, return receipt
requested to the distributor at the address noted on the newsrack. The notice shall
specifically describe the offending condition, suggest actions necessary to correct the
condition and inform the distributor of the right to appeal.
(b) Failure to properly correct the offending condition within five days (excluding
Saturdays, Sundays and legal holidays) after the mailing date of the notice or to appeal
the notice of violation within three days after its receipt shall result in the offending
newsrack being summarily removed and processed as abandoned property.
(c) If the offending newsrack is not properly identified as to owner under the
provisions of this article, it shall be removed immediately and processed as abandoned
property.
(d) An impound fee, which shall be measured by the city's cost and expense of
impounding, shall be assessed against each newsrack summarily removed. The director
of code enforcement shall cause inspection to be made of the corrected condition of a
newsrack reinstalled after removal under this section. The distributor of the newsrack
shall be charged an inspection fee in the amount established by the city for each newsrack
so inspected, which charge shall be in addition to all other fees and charges required
under this article.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-85. Grievances and appeals.
Any person aggrieved by a finding, determination, notice, order or action taken under the
provisions of this article may appeal and shall be apprised of his right to appeal to the city
commission. An appeal must be perfected within three days after receipt of notice of any
protested decision or action by filing with the office of the city clerk a letter of appeal
briefly stating therein the basis for such appeal. A hearing shall be held on a date no more
AGENDA ITEbI #SI
JUNE 13, 2005
than 21 days after receipt of the letter of appeal. The appellant shall be given at least five
days' notice of the time and place of the hearing. The city commission shall give the
appellant and any other interested party a reasonable opportunity to be heard in order to
show cause why the determination of the director of code enforcement should not be
upheld. In all such cases, the burden of proof shall be upon the appellant to show there
was no substantial evidence to support the action taken by the director of code
enforcement. At the conclusion of the hearing, the city commission shall make a final and
conclusive determination.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-86. Abandonment.
If a newsrack remains empty for a period of 30 continuous days, the newsrack shall be
deemed abandoned and may be treated in the manner as provided in section 90-84 for
newsracks in violation of this article.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-87. Removal of attachments and restoration to legal condition. *'
If there is a violation of this article relative to restrictions upon attachments of a newsrack
to property other than that owned by the owner of the newsrack, to a fisted object or to
each other for which a notice pursuant to section 90-84 has been issued, any city
employee authorized by the director of code enforcement may, as an alternative to
removal under section 90-84, remove such attachment and remove such rack in order to
restore it to a legal condition.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-88. Interference with public safety, utilities, governmental use or traffic
prohibited.
(a) No person shall install, use, or maintain any newsrack which projects onto, into, or
which rests, wholly or in part, upon the roadway of any public street.
(b) No person shall install, use, or maintain any newsrack which in whole or in part
rests upon, in, or over any public sidewalk or pazkway:
(1) When such installation, use or maintenance endangers the safety of persons or
property;
(2) When such sites or location is used for public utility purposes, public transportation
purposes, or other governmental use;
(3) When such newsrack unreasonably interferes with or impedes the flow of
pedestrian or vehicular traffic, including parked or stopped vehicles; the ingress 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 neaz such location;
(4) When such newsrack interferes with the cleaning of any sidewalk by the use of
mechanical sidewalk cleaning machinery; or
(5) In any manner inconsistent with or in violation of the provisions of this article.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-89. Standards.
AGENDA ITEM #8I
JUNE 13, 2005
Any newsrack within the Park Avenue corridor beriveen Holt and Swoope Avenues
which rests, wholly or in part, upon, in or over any public sidewalk or parkway shall
comply with the following standards:
(1) All newsracks shall conform to the standards and specifications of those units
referred to in the newspaper trade as the "Sho Rack Model TK 80 or K 80" or equivalent.
(2) No newsrack shall be used for advertising signs or publicity purposes other than
that dealing with the display, sale or purchase of the newspaper, news periodical or
commercial handbill sold or distributed therein.
(3) Each coin-operated newsrack shall be equipped with acoin-return mechanism to
permit a person using the machine to secure an immediate refund if he is unable to
receive the paid-for publication. The coin-return mechanism shall be maintained in good
working order.
(4) Each newsrack shall have affixed to it, in a readily visible place to be seen by
anyone using the newsrack, 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 if a malfunction of the coin-return mechanism occurs or to give the ,
notices provided for in this article.
(5) Each newsrack shall be maintained in a neat and clean condition and in good repair
at all times. Newsracks shall be of a uniform, standard Sho Rack bronze brown color or
equivalent. Specifically, but without limiting the generality of this subsection, each
newsrack shall be serviced and maintained so that:
a. It is reasonably free of dirt and grease.
b. It is reasonably free of chipped, faded, peeling and cracked paint in the visible
painted areas thereof.
c. It is reasonably free of rust and corrosion in the visible unpainted metal areas
thereon.
d. 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.
e. The paper or cardboard parts or inserts thereof are reasonably free of tears, peeling
or fading.
f. The structural parts thereof are not broken or unduly misshapen.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-90. Location.
Any newsrack within the Park Avenue corridor between Holt and Swoope Avenues
which rests, wholly 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:
(1) No newsrack 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) Newsracks shall only be placed near a curb or adjacent to the wall of a building.
Newsracks placed near the curb shall be placed no less than six inches nor more than 24
inches from the edge of the curb. Newsracks placed adjacent to the wall of a building
shall be placed parallel to such wall and not more than six inches from the wall.
AGENDA ITEM #SI
JUNE 13, 2005
Newsracks placed at the curb shall face away from the street and shall be positioned at
the boundaries between parking spaces and not within the interior boundary of such
spaces.
(3) No newsrack shall be bolted or otherwise attached to any property or fixture not
owned by the owner of the newsrack or otherwise located in the public right-of--way,
except to other newsracks, without first having obtained the consent of the owner of such
property or fixture and the consent of the city.
(4) Newsracks may be attached to one another; however, no more than three newsracks
may be joined together in this manner. There shall be no more than two such groups of
racks or no more than six freestanding newsracks at any location. The placement of one
newsrack or grouping of up to three newsracks must be spaced at least 125 feet apart on
the same block. The placement of clusters of four to six newsracks must be spaced at
least 250 feet apart on the same block.
(5) No newsrack shall be placed, installed, used or maintained:
a. Within three feet of any marked crosswalk;
b. Within four feet of the curb return of any unmarked crosswalk;
c. Within five feet of any fire hydrant, fire call box, police call box or other emergency
facility;
d. On any portion of sidewalk of which the curb is painted yellow or red, indicating
that the painted area is a designated fire lane, safety zone or loading zone;
e. Within five feet of any driveway;
f. Within three feet ahead of and three feet to the rear of any sign marking a designated
bus stop;
g. Within five feet of the outer end of any bus bench;
h. At any location whereby the clear space for the passageway of pedestrians is
reduced to less than four feet;
i. On any public area improved with lawn, flowers, shrubs, trees or other landscaping,
or within three 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 purpose;
j. In any location within the confines of Central Park or on any sidewalks abutting or
adjacent to such park, except the northeast corner of the intersection of Park Avenue and
Morse Boulevard so long as the other provisions of this article are met;
k. Within 500 feet of any other newsrack on the same block (within the line of sight)
containing the same issue or edition of the same publication. The provisions contained in
this subsection shall not apply if compliance with this subsection would prohibit the
placement of newsracks for a distance of 500 feet on the same block within the line of
sight;
1. On any access ramp for disabled persons.
(6) In determining which newsracks shall be permitted to be located or to remain if
already in place, the director of code enforcement shall be guided solely by the following
criteria:
a. First priority shall be given to newsracks used for the sale of publications which
meet the requirements of F.S. §~ 50.011 and 50.031 as newspapers in which legal notices
and process maybe published for Orange County.
AGENDA ITI;~I #3I
JUNIJ 13, 2005
b. Second priority shall be given to newsracks used for the sale or distribution of daily
publications (those published on five or more days in a calendar week) which do not meet
the requirements of F.S. §§ 50.011 and 50.031 as newspapers in which legal notices and
process may be published for Orange County.
c. Third priority shall be given to newsracks used for the sale or distribution of weekly
publications (those published on at least one but less than five days in a calendar week)
which do not meet the requirements of F.S. §§ 50.011 and 50.031 as newspapers in which
legal notices and process may be published for Orange County.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-90.1. Location where newsrack enclosures are available.
(1) Any permitted newsrack within the Park Avenue corridor between Holt and
Swoope Avenues which rests, wholly 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 within city newsrack enclosures as indicated on the approved permit when
newsrack enclosures are put in place by the city in areas as determined by the director o£;
code enforcement. The number and location of city newsrack enclosures shall be ' ~''
determined by the city.
(2) In determining the placement of newsracks in the Park Avenue corridor, the
following criteria shall be used: Newsracks shall not be placed within 500 feet of any
other newsrack on the same block (within the line of sight) containing the same issue or
edition of the same publication. The provisions contained in this subsection shall not
apply if compliance with this subsection would prohibit the placement of newsracks for a
distance of 500 feet on the same block within the line of sight.
(Ord. No. 2318, § 2, 10-12-99)
Sec. 90-91. Display of certain matter prohibited.
Publications offered for sale or for free from newsracks placed or maintained on or
projecting over the street or sidewalk shall not be displayed or exhibited in a manner
which exposes to public view from the street or sidewalk any of the following:
(1) Any publication or material which exposes to public view any pictorial material
that is obscene;
(2) Any statement 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;
(3) 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;
(4) Any picture or illustration depicting explicit sexual acts as defined in this article
where such picture or illustration has as its purpose or effect sexual arousal, gratification,
or affront;
(5) Any pictorial material which depicts material defined as harmful to minors in F.S. §
347.012 and which is subject to the display regulations in F.S. § 847.0125.
(Ord. No. 2248, § 1, 3-24-98)
Secs. 90-92--90-100. Reserved.
AGENDA ITEM #~8I
JUNE 13, 2005
DIVISION 2. PERMIT
Sec. 90-101. Required.
It shall be unlawful for any person to erect, place, maintain or operate, on any public
street, sidewalk or other public way or place in the Park Avenue corridor between Holt
and Swoope Avenues of the city, any newsrack without having first obtained a permit
from the director of code enforcement specifying the exact location of such newsrack.
One permit may be issued to include any number of newsracks, shall be signed by the
applicant and shall meet the requirements set forth in this article.
(Ord. No. 2243, § 1, 3-24-98)
Sec. 90-102. Application.
(a) Application for a newsrack permit shall be made, in writing, to the director of code
enforcement upon such form as shall be provided by him and shall contain the name and
address of the applicant, the proposed specific location of the newsrack and shall be
signed by the applicant.
(b) From the above application information, the director of code enforcement shall
approve the locations. He shall be guided therein solely by the standards and criteria set
forth in this article. In any case where the director of code enforcement disapproves of a
particular location, such disapproval shall be without prejudice to the registrant
designating a different location or locations.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-103. Conditions for issuance; fees; duration.
(a) As an express condition of the acceptance of such newsrack permit, the permittee
thereby agrees to indemnify and save harmless the city, its officers and employees against
loss, liability or damages, including expenses and costs for bodily or personal injury, and
for property damages sustained by any person as a result of the installation, use or
maintenance of a newsrack within the Park Avenue corridor between Holt and Swoope
Avenues of the city.
(b) Permits shall be issued for the installation of a newsrack without prior inspection of
the location, but such newsrack and the installation, use or maintenance thereof shall be
conditioned upon observance of the provisions of this article and by such reasonable rules
and regulations as may be established by the director of code enforcement. Permits shall
be issued on a first come, first served basis within 48 hours (excluding Saturday, Sunday
and legal holidays) after the application has been filed. An annual permit fee in the
amount established by the city shall be required.
(c) Such permit shall be valid for one year and shall be renewable pursuant to the
procedure for original applications referred to in this section and upon payment of the
required permit fee.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-104. Newsrack identification.
Every person who places or maintains a newsrack on the streets of the city within the
Park Avenue corridor shall have his permit number, name, address, and telephone
' AGENDA ITEM #SI
JUNE 13, 2005
number affi:ced to the newsrack in a place where such information may be easily seen.
Prior to the designation of location by the director of code enforcement, the registrant
shall present evidence of compliance with this section.
(Ord. No. 2248, § 1, 3-24-98)
Sec. 90-105. Suspension or revocation.
In addition to the enforcement procedures provided in this article, the director of code
enforcement may suspend or revoke the newsrack permit for continued or repeated
violations or infractions of any provision of this article or of any rule, direction or
regulation of the director of code enforcement. Such revocation shall apply only to the
offending newsrack and not to any other permitted and nonoffending newsrack.
Suspension or revocation shall be mandatory for the third offense against this article.
(Ord. No. 2248, § 1, 3-24-98)
Secs. 90-106--90-125. Reserved.
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