O88-29 ORDINANCE NO. 88~
AN ORDINANCE OF THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA,
PROVIDING FOR SHORT TITLE; PROVIDING FOR
RULES OF CONSTRUCTION; PROVIDING FOR
DEFINITIONS; PROVIDING FOR AUTHORITY AND
LEGISLATIVE INTENT; PROVIDING FOR
STANDARDS FOR MAINTENANCE AND
INSTALLATION; PROVIDING FOR LOCATION AND
PLACEMENT; PROVIDING FOR NEWSRACKS
LOCATED ON PRIVATE PROPERTY; PROVIDING
FOR ABANDONMENT; PROVIDING FOR
ENFORCEMENT OF NEWSRACK VIOLATIONS;
PROVIDING AUTHORITY TO CODIFY; PROVIDING
A CONFLICTS CLAUSE; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING AN
EFFECTIVE DATE AND FOR OTHER PURPOSES.
WHEREAS~, the City Commission of the City of Boynton
Beach, Florida now finds and determines that it is in the
best interests of the citizens of Boynton Beach to establish
a comprehensive set of regulations applicable to newsracks
on the public right-of-way and other public and private
property; and
WHEREAS, the purpose of this Ordinance is to advance
and improve safety and aesthetics by controlling the number,
size, construction, placement and appearance of newsracks
without restricting the free dispersal of information
guaranteed by the Constitution of the United States and the
State of Florida; and
WHEREAS, the City has adopted a comprehensive approach
to land use regulation to protect property.values, the
public and the environment pursuant to Chapter 163, Florida
Statutes; and
WHEREA~, the unregulated location and placement of
newsracks in, on, around and about the public rights-of-way,
sidewalks and bike paths would'frustrate the Cities land use
objectives; and
WHEREAS, the City in no way or manner seeks to restrain
or abridge the constitutional rights afforded by the First
Amendment to the United States Constitution and/or Article
I, Section 4 of the Florida Constitution by virtue of the
enactment of this ordinance; and
WHEREAS, more specifically the purpose of this
Ordinance is to promote the public peace, health, safety and
general welfare by regulating the placement, appearance,
servicing and insuring of newsracks, so as to protect
against the dangers of impairing or distracting the vision
of motorists and pedestrians; the hazards of unreasonably
interfering with the use of public property for its intended
purpose; unduly restricting access to the use of poles,
posts, traffic signs or signals, hydrants, mail boxes or
locations used for transportation purposes; unsightly
structures; neglectful servicing of newsracks resulting in
visual blight on public property and detracting from the
aesthetics of store window displays, adjacent landscaping
and other improvements; reduction in value of surrounding
property; unnecessary exposure of the City to personal
injury or property damage claims, or suits; and public
display of harmful or offensive materials.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1:. Short Title.
This Ordinance shall be known and cited hereinafter as
the "Newsrack Ordinance."
Section 2: Rules of Construction.
For the purposes of administration and enforcement of
this ordinance, unless otherwise stated in this ordinance,
the following rules of construction shall apply to the text
of this ordinance.
(1) In case of any difference of meaning or
implication between the text of this ordinance and any
caption, illustration, summary table, or illustrative table,
the text shall control.
(2) The word "shall" is always mandatory and not
discretionary; the word "may" is permissive.
(3) Words used in the present tense shall include the
future and words used in the singular number shall include
the plural, and the plural the singular, unless the context
clearly indicates the contrary.
(4) The phrase "used for" includes "arrange for",
"designed for", "maintained for" or "occupied for".
( 5 ) The word "person" includes an individual,
corporation, a partnership, an incorporated association, or
any other similar legal entity.
(6) Unless the context clearly indicates the contrary,
where a regulation involves two (2) or more items,
conditions, provisions, or events connected by the
conjunction "and", "or", or "either...or", the conjunction
shall be interpreted as follows:
(a) "And" indicates that all the connected terms,
conditions, provisions, or events shall
apply.
(b) "Or" indicates that the connected items,
conditions provisions, or events may apply
singly or in any combination.
(c) "Either or" indicates that the connected
items, conditions, provisions or events shall
singly but not in combination.
(7) The word "includes" shall limit a term to the
specified example, but is intended to extend its meaning to
all other instances or circumstances or like kind or
character.
Section 3: Definitions
A. Advertising Circular: Any publication that
contains only advertising and no news reports.
B. Bike Path: That portion of a right-of-way
improved, designed, or ordinarily used for bicycle traffic.
C. Distributor: The person responsible for placing
and maintaining the newsrack, the owner of the newsrack, or
the publisher of the newspaper, news periodical or
advertising circular vended therein.
D. Newsrack: Any self-service or coin-operated box,
container, storage unit or other dispenser located, placed,
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installed, used, or maintained for the display, sale, or
distribution of newspapers or other news periodicals or
advertising circulars.
E. Right-of-way: That area dedicated to public use
or otherwise owned by a public agency for public street
purposes and shall include, but not be limited to, roadways,
swales, bike paths and sidewalks.
Roadway: That portion of the right-of-way
designed, or ordinarily used for vehicular
improved,
traffic.
G.
Sidewalk: Any surface within a right-of-way
provided for the primary use of pedestrians.
H. Swale: Any area within a right-of-way which is
not either a bike path, sidewalk, or roadway. The term
shall also include any area within a roadway which is not
open to vehicular traffic.
Section 4: Authority and Legislative Intent.
This ordinance is adopted pursuant to the authority
granted to municipalities under Article VIII, Section 2,
Florida Constitution, and Chapter 166, Florida Statutes.
This ordinance is intended solely to further the public's
health, safety and general welfare by insuring that
newsracks are located so as to protect both pedestrians and
the operators of motor vehicles and bicycles and is in no
way intended to regulate or obstruct the free flow of
information by the "press" or other print media.
Section 5. Standards for maintenance, installation,
location and placement.
Any newsrack located in whole or in part within the
City limits of the City of Boynton Beach shall comply with
the following standards:
(1) No Newsrack shall be used for advertising signs or
publicity purposes other than to state the name of the
newspaper or news periodical sold therein.
(2) Each newsrack shall be maintained in a clean, neat
and attractive condition and in good repair at all times.
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(3) Each newsrack shall have affixed to it in a
readily visible place, the name, address and telephone
number of the distributor of the newsrack.
(4) No newsrack shall be used or maintained if it
projects unto, into or over, any part or any road-way or
bicycle path or which rests wholly or in part upon or over
any portion of any road-way or bicycle path.
(5) No person shall install, use or maintain any
newsrack which in whole or in part, rests upon, in or over
any public right-of-way or other public property which such
installation, use or maintenance endangers the safety of
persons or property or when such site or location is used
for public utility purposes, public transportation purposes,
or other government use, or when such newsrack interferes
with or impedes the flow of pedestrian or vehicular traffic,
the ingress into or egress from any residence, place of
business, or any legally parked or stopped vehicle or the
use of poles, posts, traffic signs, or signals, hydrants,
mail boxes or other objects permitted at or near said
location when such newsrack interferes with the maintenance
of any sidewalk or swale by the use of mechanical machinery
or when such newsracks interfere with the ordinary use of
public property.
(6) No newsrack
maintained swale when
shall be permitted in any City
placement of said newspaper rack
interferes with the maintenance or integrity of the swale.
(7) No newsrack shall exceed fifty-four inches (54")
in height, twenty seven inches (27") in width or eighteen
inches (18") in depth.
(8) Newsracks placed adjacent to a wall of a building
shall be placed parallel to such wall and not more than six
inches (6") from the wall.
(9) No newsrack may be chained, bolted or otherwise
attached to any fixture located in the right-of-way when
such chaining, bolting or other attachment substantially
increases dangers to the safety of persons or property.
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(10) No newsrack shall be chained, bolted or otherwise
attached to any property or to any permanently fixed object
not owned by the owner of the newsrack unless the consent of
the owner of such property or object is obtained, in
writing.
(11) Newsracks may be placed, chained or otherwise
attached to one another, however, no more than three (3)
newsracks may be joined or placed together in this manner
and a space of no less than eighteen inches (18") shall
separate each group of three racks so attached.
(12) No newsrack or group of attached newsracks allowed
under subsection (11) of this Section shall weigh in the
aggregate in excess of 125 pounds when empty.
(13) No newsrack shall be placed, installed, used or
maintained:
a.
b.
Within three feet of any marked crosswalk.
Within 15 feet of the curb return of any
unmarked crosswalk.
c. Within 3 feet of any fire hydrant, fire
call-box or other emergency facility.
d. Within 3 feet of any driveway.
e. Within 15 feet of any sign marking a
designated bus stop.
f. At any location whereby the clear space for
the passageway of pedestrians is reduced to less than 6
feet.
(14.) No more than one (1) newsrack containing the
same issue or edition or the same publication shall be
located within the same block, or one thousand (1,000) feet,
whichever is the lesser distance, on the same side of the
street. Provided, however, a distributor may locate
newsracks in excess of this limitation by demonstrating a
public need for the excess newsracks. A public need may be
established by the following method, but such method is not
exclusive. After notice to the City, the distributor may
monitor the sales activity of the newspaper at a particular
location for a period of one (1) month. If, during that one
month test period, the distributor can demonstrate that the
average circulation from that newsrack equals or exceeds
seventy-five percent (75%) of the capacity of the newsrack,
then a public need is established and an additional newsrack
may be placed at the location. Provided, further, this
limitation shall not apply in any area that is predominately
developed for business or commercial purposes.
(15.) The placement of all newsracks in this City
shall comply with all local and state handicap accessibility
regulations.
Section 6. Liability and Hold Harmless.
The owner of each newspaper rack shall execute a
document approved as to form by the City Attorney agreeing
to hold the City, its officers, employees and agents free
and harmless from any claim, demand or judgment in favor of
any person arising out of the location of any newsrack
located upon, in or over a public right-of-way or other
public property and deposit with the City Manager a
certificate of insurance evidencing that a liability
insurance policy in minimum amounts set by the City
Commission has been issued, naming the City as an additional
insured and containing a provision that the policy cannot be
cancelled, except upon five (5) days written notice to the
City of the fact of such cancellation. If such insurance is
cancelled at any time during the time the newsrack is
installed or maintained on public property, said newsrack
shall be removed in accordance with the provisions of this
Ordinance.
Section 7. Newsracks located on private property.
Any newsrack located totally on private property shall
also be subject to and comply with the provisions of this
Ordinance contained in Section 5 (1), (2) and (3).
Distributor shall receive written permission of property
owner for placement of newsracks on private property.
Section 8. Abandonment.
In the event a newsrack remains empty for a period of
thirty (30) continuous days, it shall be deemed abandoned
and may be treated in the manner as provided in Section 9
in violation of the provisions of this
for newsrack
Ordinance.
Section 9.
Enforcement of newsrack violations.
1. Upon the determination of the City Manager or his
designee that a newsrack has been installed, used or
maintained in violation of the provisions of this Ordinance,
a notice of violation pursuant to Chapter 2, Article V of
the Code of Ordinances of the City of Boynton Beach may be
issued to the distributor of the newsrack. In addition, a
the notice shall be posted on the offending
Failure to properly correct the offending
condition within thirty (30) days after the mailing date of
the notice shall entitle the City to remove the offending
newsrack. If the offending newsrack is not properly
identified as to the distributor under provisions of Section
5(3) hereof and the distributor is not otherwise known, a
notice of violation may be posted thereon and if the
offending condition is not corrected within thirty (30)
days, it shall be removed by the City. Any newsrack removed
herein shall be stored by the City at the distributor's
expense for a period of ninety (90) days. The newsrack
shall be released to the distributor upon a proper showing
of ownership and payment of all storage charges. In the
event the newsrack is not claimed within the ninety (90) day
period, the newsrack may be sold at public auction and the
proceeds applied first to storage charges and then paid to
the City. At least ten (10) days prior to the auction the
City Clerk shall publish a description of the newsrack, the
location from which it was removed and a notice of the
auction in a newspaper of general circulation in the City
and shall provide the distributor, if it has been properly
identified on the newspaper rack, pursuant to Section 5(3)
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copy of
newsrack.
2.
or if otherwise known, with written notice of the auction by
certified mail, return receipt requested.
3. In the event a newsrack distributor has been
ordered by the Code Enforcement Board to correct a violation
of this Ordinance, the removal of the newsrack shall be
stayed pending final disposition of an appeal, if any, to
the Circuit Court as provided for in the Code Enforcement
Board Ordinance and Chapter 162, Florida State Statutes.
4. In the event of an emergency, such as a severe
storm, in which the newsrack may become a dangerous
instrumentality by virtue of the natural forces of
catastrophe, all newsracks which are not securely bolted
down must be removed by the owners thereof upon notification
by the City that such an emergency is expected in the City
of Boynton Beach area. If the newsrack is not removed by
the owner thereof, the City may remove said newsrack
pursuant to Section 9.
Section 10. Special authority is hereby given to
codify this Ordinance.
Section 11. Repeals of Laws in Conflict.
That all ordinances or parts of ordinances in conflict
herewith be and the same are hereby repealed.
Section 12: Should any section or provision of this
ordinance or portion hereof, any paragraph, sentence, or
word be declared by a court of competent jurisdiction to be
invalid, such decision shall not affect the remainder of
this ordinance.
Section 13: This ordinance shall become effective
immediately upon passage, however, newsrack shall not be
required to be in compliance witk this Ordinance until
ninety (90) days following the effective date. This period
of time is provided to give an opportunity to the owners of
the newsrack to comply with the requirements hereof.
FIRST READING this /~day of /~ ,
1988.
SECOND, FINAL READING and PASSAGE this
~~ , 1988.
day of
ATTEST
city ~
(Corporate Seal)
CITY OF BOYNTON BEACH, FLORIDA
Commissioner
Commiss loner
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