[HISTORY: Adopted by ordinance 6-14-1993. Amendments noted where applicable.]
A.
The uncontrolled placement of News racks in public right-of-way presents
an inconvenience and danger to the safety and welfare of persons using
such right-of-way, including pedestrians, persons entering and leaving
vehicles and buildings and persons performing essential utility, traffic
control and emergency services.
B.
News racks so located as to cause an inconvenience or danger to persons
using public right-of-way, and unsightly News racks located therein,
constitute public nuisances.
C.
It is a matter of public necessity that the City of Moscow Mills
Board of Aldermen protect children and unconsenting adults in and
on its public streets, sidewalks, transportation facilities and other
public right-of-way from viewing such 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.
The provisions and prohibitions hereinafter contained and enacted
are in pursuance of and for the purpose of securing and promotion
the public health, morals and general welfare of persons in the City
of Moscow Mills in their use or public right-of-ways.
As used in this chapter, the following terms shall have the
meanings indicated:
The person responsible for placing and maintaining a news
rack in a public right-of-way.
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.
The showing with less than a fully opaque covering of the
genitals, pubic hair, buttocks, natal cleft, perineum, anus, or anal
region of any person, other than a child under the age of puberty,
or the depiction of covered make genitals in a discernible turgid
state.
That the work in which the representations appear, taken
as a whole, appeals to the prurient interest and patently depicts
or portrays the prohibited sexually explicit material in a manner
which taken as a whole lacks serious literary, artistic, political
or scientific value.
That area between the sidewalls and the curb of any street,
and where there is not a sidewalk that area between the edge of the
roadway and property line adjacent thereto. Parkway shall also include
any area within roadway which is not pen to vehicular travel.
Any material suggesting or conveying a visual image and includes,
but is not limited to, a photograph, painting or drawing.
That portion of a street improved, designed, or ordinarily
used for vehicular travel.
Any pictorial material depicting human sexual intercourse,
human or animal masturbation, bestiality, oral intercourse, anal intercourse,
human-animal intercourse, excretory functions, homosexual acts, direct
physical stimulation or touching of unclothed genitals or pubic areas
of the human male or female, flagellation or torture by or upon a
person in the context of a sexual relationship or equal stimulation.
The material shall be judged without regard to any covering which
may be affixed or printed over the material in order to obscure genital
areas in a depiction otherwise falling within the definition of these
subsections. Works of art or anthropological significance are not
included within the definition of this subsection.
Any surface provided for the exclusive use of pedestrians.
All that area dedicated to public use for public street purpose
and shall include, but not be limited to, roadways, parkways, alleys
and sidewalks, private streets or driveways.
It shall be unlawful for any person firm or corporation to erect,
place maintain or operate on any street or sidewalk or in any other
public way or place in the City of Moscow Mills any news rack without
first having obtained a permit from the City development Administrator
specifying the exact location of such rack(s). One permit may be issued
to include any number of news racks and shall be signed by the applicant.
Application for such permit shall be made in writing to the
City development administrator, upon such form as shall be provided
by the City, and shall contain the name and address of the applicant,
the proposed specific location of said news rack(s), and shall be
signed by the applicant.
A.
As an express condition of the acceptance of such permit, the permittee
thereby agrees to indemnify and save harmless the City of Moscow Mills,
its officers, directors, and employees against any loss or liability
or damage including expenses and costs for bodily or personal injury,
and for property damage sustained by any person as the result of the
installation, use, or maintenance of a news rack with the City of
Moscow Mills, including any loss which may occur from routine City
maintenance and operations.
B.
Permits shall be issued for the installation of news rack or news
racks without prior inspection of the location but such news rack
or news racks and the installation use or maintenance thereof shall
be conditioned upon observance of the provisions of this chapter and
such reasonable rule and regulations as may be established by the
City Development Administrator. Permits shall be issued within three
business days after the application has been filed. An annual permit
fee of $50 is required.
C.
Such permits shall be valid for one year and shall be renewable pursuant
to the procedure for original applications referred to in Section
97.830 above, and upon payment of the $50 permit fee.
A.
Any news rack which in whole or in part rests upon, in or over any
public sidewalk or parkway, shall comply with the following standards:
1.
No news rack shall exceed four feet in height, 30 inches in width,
or two feet in thickness.
2.
No news rack 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.
3.
Each news rack shall be equipped with a coin-return mechanism to
permit a person using the machine to secure an immediate refund in
the event he is unable to receive the publication paid for. The coin-return
mechanism shall be maintained in good working order.
4.
Each news rack shall have affixed to it in a readily visible place
so as to be seen by anyone using the news rack a notice setting for
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 division.
5.
Each news rack 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 news rack shall be serviced
and maintained so that:
a.
It is reasonable free of dirt and grease.
b.
It is reasonable 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
publication therein are viewed are unbroken and reasonably free of
cracks, dents, blemishes and discoloration.
e.
The paper or cardboard parts of inserts thereof are reasonably free
of tears, peeling or fading.
f.
The structural parts thereof are not broken or unduly misshapen.
6.
It shall be unlawful for any person to place or maintain any publication
or material in News racks which exposes to public view and pictorial
material which depicts or appears to depict nudity or offensive sexually
explicit material.
A.
Any News rack 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 provisions of this section.
1.
No News rack 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 pubic street, private street, or drive. All News racks shall
be placed on a paved surface, secured, anchored or bolted to the ground
so as to avoid tipping.
2.
No News rack shall be permitted to rest upon, in or over any public
sidewalk or parkway, when 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 purposed of
other governmental use, or when such News rack unreasonably interferes
with or impedes the flow of pedestrian or vehicular traffic including
any legally marked or stopped vehicle, the ingress into or egress
from any residence or place of business, or the use of poles, posts,
traffic signs or signals, hydrants, mailbox or other objects permitted
at or near said location.
3.
No News rack shall be chained, bolted, or otherwise attached to any
fixture located in the public right-of-way, except to other News racks.
4.
News racks may be places next to each other, providing that no group
of News racks shall extend for a distance of more than eight feet
along a curb, and a space of not less than 500 feet shall separate
each group of News racks.
5.
No News rack shall be placed, installed, used or maintained:
a.
Within three feet of any marked crosswalk;
b.
Within 12 feet of the curb return of any unmarked crosswalk;
c.
Within 10 feet of any fire hydrant, fire call box, police call box,
or other emergency facility;
d.
Within 25 feet of any driveway;
e.
Within three feet ahead or 15 feet to the rear of any sign marking
a designated bus stop;
f.
Within three feet of the outer end of any bus bench;
g.
At any location whereby the clear space for the passageway of pedestrians
is reduces to less than six feet;
h.
Within three feet of, or on, any public area improved with lawn,
flowers, shrubs, trees or other landscaping;
i.
Within 500 feet of any other News rack on the same side of the street
in the same block containing the same issue or edition of the same
publication'
j.
Shall be restricted in areas other than (HC) Highway Commercial (CB)
Community Business (PD) Planned Development (LI) Light Industrial,
and (OP) Office Park zoning districts; and
k.
Not less than 10 feet from any curb.
Upon determination by the City Development Administrator that
a News rack has been installed, used or maintained in violation of
the provisions of this chapter, an order to correct the offending
condition will be issued to the distributor of the News rack. 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 and suggests
actions necessary to correct the condition. Failure to properly correct
the offending condition within three days (excluding Saturdays, and
Sundays, and legal holidays) after the mailing date of the order shall
result in the offending News rack being summarily removed and processed
as unclaimed property. The City Development Administrator shall cause
inspection to be made of the corrected condition or of a News rack
reinstalled after removal under this section. The distributor of said
News rack shall be charged $10 inspection fee for each News rack so
inspected which charge shall be additional to all other fees and charges
required under this chapter.
Any person or entity aggrieved by a finding, determination,
notice or action taken under the provisions of this ordinance may
appeal and shall be appraised of his right to appeal to the Board
of Adjustment. 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 at the next regular
scheduled meeting of the Board of Adjustment, after giving 15 days'
public notice of said hearing, and after receipt of the letter of
appeal. Appellant shall be given at least five days notice of the
time and place of the hearing. The Board of Adjustment 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 City
Development Administrator should not be upheld. In all such cases,
the burden of proof shall be upon the appellant to show that there
was no substantial evidence to support the action of the City Development
Administrator. A the conclusion of the hearing the Board of Adjustment
shall make a final conclusive determination.
In addition to the enforcement procedures provided in this chapter
it shall be within the power and discretion of the City development
Administrator to suspend or revoke the permit for continued or repeated
violation of infractions of any provision of this ordinance or any
rule, direction or regulation of the City Development Administrator.
Suspension or revocation shall be mandatory for the third offense.
In the event a news rack remains empty for a period of 10 publication
dates, or 30 continuous days, which ever is less, the same shall be
deemed abandoned, and may be treated in the manner provided in § 97.870
for news racks in violation of the provisions of this chapter.
