[HISTORY: Adopted by the Common Council of the City of Albany 12-17-2001
by Ord. No. 5.12.00.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 375.
[1]
Editor's Note: This ordinance provided that it take effect 3-31-2002. This ordinance also provided that any newsrack on a sidewalk within the City of Albany prior to the effective date of this ordinance shall come into compliance with the provisions of Chapter 246 of the Code of the City of Albany on or before the effective date of such chapter.
The Common Council finds that the dissemination of newspapers and other
written material is in the public interest, and that governmental action with
respect to such dissemination must be consistent with the protection accorded
a free press by the First Amendment to the Constitution of the United States.
The Common Council further finds that the City of Albany has an important
interest in regulating the use of its streets in such a manner as to ensure
safety of the public, the safe unobstructed flow of pedestrian and vehicular
traffic and the protection of personal property from damage. The purpose of
this chapter is to accommodate these interests in a complementary and mutually
advantageous manner.
As used in this chapter, the following terms shall have the following
meanings, unless the context clearly requires otherwise:
The Commissioner of the Department of General Services, or his or
her designee.
That area of a sidewalk bounded by the extension of the lines of
crosswalk onto the sidewalk.
That area of the sidewalk bounded by the extension of the lines of
a crosswalk onto the sidewalk.
Any self-service or coin-operated box, container or other dispenser
installed, used or maintained for the display, sale or distribution of newspapers
or written matter to the general public.
A natural person, partnership, corporation, limited-liability company
or other association.
That portion of a street between the curblines or the lateral lines
of a roadway and the adjacent property lines, but not including the curb,
intended for the use of pedestrians.
It shall be unlawful for any person to place, install or maintain a
newsrack in the public right-of-way in the City of Albany unless such newsrack
is in compliance with the provisions of this chapter.
A.
Within 10 business days after the installation or relocation
of a newsrack subject to the provisions of this chapter, the owner or person
in control of such newsrack shall notify the Commissioner in writing, on forms
approved by the Commissioner, identifying:
A.
Each person who owns or controls a newsrack in the City
of Albany shall indemnify and hold harmless the City of Albany from any and
all losses, costs, damages, expenses, claims, judgments or liabilities that
the City may incur by reason of the placement, installation or maintenance
of such newsrack, except to the extent such damage results from the negligence
of the City. The Corporation Counsel shall not recommend the settlement of
any claim or lawsuit for which it is so indemnified without the approval of
the indemnitor.
B.
Each person who owns or controls a newsrack in the City
of Albany shall maintain a policy of general liability insurance for personal
injury or death with insurers authorized to do business in the State of New
York and in amounts of not less than $1,000,000/$3,000,000 and for property
damage in an amount no less than $100,000, naming the City of Albany, and
its departments, boards, officers, employees and agents, as additional insureds
from and against any and all losses, costs, damages, expenses, claims, judgments
or liabilities that result from or arise out of the installation and/or the
maintenance of any such newsrack. Should said policy be called upon to satisfy
any liability for damages covered by said policy, the policy must be of such
a nature that the original amount of coverage is restored after any payment
of damages by the policy. The City shall be provided with certificates of
insurance indicating such coverage.
A.
The maximum height of any newsrack containing a single
publication shall be 54 inches. The maximum width of any such newsrack shall
be 30 inches. The maximum depth of any such newsrack shall be 30 inches.
B.
No newsrack shall be used for advertising or promotional
purposes, other than advertising or promotion related to the newspaper or
written matter offered for distribution in such newsrack.
C.
Each newsrack used to sell newspapers or other written
matter shall be equipped with a coin return mechanism in good working order
so as to permit a person to secure a refund in the event that the newsrack
malfunctions.
D.
The owner or person in control of each newsrack shall
affix his or her name, address, and telephone number on the newsrack in a
readily visible location.
E.
So as not to cause injury to persons or damage property,
each newsrack shall be bolted to the sidewalk.
F.
Subject to the limitations in this chapter, newsracks:
(1)
Placed near a curb shall be placed so that the curbside
outermost edge of the newsrack is no less than 12 inches and no more than
18 inches from the edge of the curb; and
(2)
Placed parallel to the wall of a building shall be placed
with the front of the newsrack facing the roadway and the back of the newsrack
not more than six inches from the wall.
A newsrack placed in accordance with this chapter shall not be installed
or maintained:
A.
Within 15 feet of a fire hydrant;
B.
In any driveway or within five feet of any driveway;
C.
In any curb cut designed to facilitate street access
by disabled persons or within two feet of any such curb cut;
D.
Within any bus stop if such placement interferes with
the ingress or egress of any passengers;
E.
Within a corner quadrant or crosswalk area;
F.
On any surface where such installation or maintenance
will cause damage to or will interfere with the use of any pipes, vault areas
or telephone or electrical cables;
G.
In any park or on any sidewalk immediately contiguous
to a park where such sidewalk is an integral part of the park design;
H.
On any area of lawn, flowers, shrubs, trees or other
landscaping or in a manner that the use of the newsrack would cause damage
to such landscaping;
I.
Where such installation or maintenance endangers the
safety or security of persons or property;
J.
Near any bicycle rack if such placement interferes with
the use of such bicycle rack;
K.
Where the newsrack will unreasonably interfere with or
obstruct the flow of pedestrian or vehicular traffic on a public right-of-way;
or
L.
Where the newsrack causes, creates or constitutes a line-of-sight
problem or traffic hazard.
A.
Each newsrack shall be maintained in a clean and neat
condition and shall be kept in good repair.
B.
Any newsrack that has been damaged or vandalized shall
be repaired, replaced or removed by the owner or person in control within
10 days of receipt of notice of such damage or vandalism. If such newsrack
has been damaged or vandalized so as to constitute a danger to public safety,
it shall be made safe within 24 hours of notice of such condition or as soon
as thereafter possible.
C.
Any newsrack that is no longer used to disseminate newspapers
or other written matter shall be removed within 10 business days after such
cessation of use.
D.
Any damage to City property resulting from the placement,
installation, maintenance or removal of a newsrack shall be repaired promptly
by the owner or person in control of the newsrack to the reasonable satisfaction
of the Commissioner. If a newsrack is removed from its location on a City
sidewalk, the owner or person in control of the newsrack shall be responsible
for repairing the sidewalk and any other affected City property. A sidewalk
shall be restored to good and safe condition leaving no hole or projection
in the sidewalk.
A.
Whenever any newsrack is found to be in violation of
this chapter, the Commissioner shall cause a notice of violation to be attached
to such newsrack specifying the date and nature of the violation and shall
send written notification, via certified and first class mail, to the owner
or person in control of the newsrack. Such person shall, within 10 business
days from the date of notification via certified mail, either cause the violation
to be corrected or make a written request via certified mail to the Commissioner
for a hearing.
B.
Within two business days from the date on which the request
for a hearing is received, the Commissioner shall set a hearing date and shall
notify the requester by certified mail of the date, time and place of said
hearing. Said hearing shall occur within 10 business days of the date of receipt
of the request. At the time set for such hearing, or at the date to which
such hearing is continued, the Commissioner shall receive all evidence relevant
to the occurrence or nonoccurrence of the specified violation(s), the compliance
or noncompliance with any provisions of this chapter, and any other relevant
information. Such hearing need not be conducted according to technical rules
relating to evidence and witnesses. Oral evidence shall be taken only upon
oath or affirmation. Within five business days after the conclusion of the
hearing, the Commissioner shall find and determine, from the facts adduced
at said hearing, whether the newsrack violates this chapter. The decision
shall be in writing and shall contain findings of fact and a determination
of the issues presented. The Commissioner shall send to the requester, by
certified mail, a copy of his or her decision and order.
C.
If the owner or person in control of a newsrack that has been cited under Subsection A of this section does not correct the violation or request a hearing within the time provided in such subsection, the Commissioner, an authorized officer of any City agency or a police officer, is authorized to provide for the removal of such newsrack and the contents thereof to a place of safety. If such newsrack or the contents thereof are not claimed within 30 days after their removal, they shall be deemed to be abandoned property and may be either sold at public auction or otherwise disposed of. Newsracks and the contents thereof that are removed pursuant to this section shall be released to the owner or person lawfully entitled to possession upon payment of the costs for removal and storage and a civil forfeiture, in an amount of $125, or, if an action or proceeding for the violation is pending, upon the posting of a bond or other form of security acceptable to the Commissioner in an amount that will secure payment of such costs and any penalty that may be imposed hereunder.
[Amended 5-19-2008 by Ord. No. 25.42.08]
D.
The Commissioner may, upon due notice and an opportunity to be heard, serve an order upon the owner or other person in control of a newsrack requiring such person to remove or cause to be removed such newsrack within 10 business days of the issuance of such order where removal is required because the site or location at which such newsrack is placed is used or is to be used for public utility purposes, public transportation, or public safety purposes, or when such newsrack unreasonably interferes with construction activities in nearby or adjacent buildings, or if removal is required in connection with a street widening or other capital project or improvement. If such person does not remove such newsrack within 10 business days of the issuance of such order or request a hearing, the provisions contained in Subsection C of this section regarding alternatives for such removal, storage, abandonment, disposal and release shall apply.
E.
Where emergency circumstances exist and the Commissioner
gives notice to the owner or other person in control of a newsrack to remove
such newsrack, such person shall comply with such notice. For the purposes
of this subsection, emergency circumstances shall include, by way of example,
the emergency of obstructions in the public space for sidewalk repair or construction,
or an accident, fire or other comparable situation.
F.
If any owner or other person in control of a newsrack does not remove such newsrack when directed to do so by the Commissioner, in accordance with the provisions of Subsection E of this section, the Commissioner is authorized to provide for the removal of such newsrack to a place of safety, and unless an administrative proceeding brought pursuant to Subsection G of this section has terminated in favor of such owner or other person in control of such newsrack, such owner or other person in control of such newsrack may be charged the costs for removal and storage payable together with a civil forfeiture in the amount of $125 prior to the release of such newsrack and the contents thereof.
[Amended 5-19-2008 by Ord. No. 25.42.08]
G.
Upon written request, the Commissioner shall hold a hearing within five business days after the date of the removal of a newsrack pursuant to Subsection E or F of this section and shall render a determination within three business days after the conclusion of the hearing. The hearing shall take place under the provisions set forth in Subsection B of this section. If a determination is rendered at such hearing that emergency circumstances did not exist, such newsrack shall be replaced at such location by the Commissioner. If no hearing is requested or if the determination rendered at such hearing is that such emergency circumstances existed, such newsrack and the contents thereof shall be released to the owner or to the person lawfully entitled to possession upon payment of the costs of removal and storage and a civil forfeiture of $125. If no hearing request has been made and such newsrack or the contents thereof are not claimed within 30 days after the date of removal, or if the newsrack or the contents thereof are not claimed within 30 days after a hearing determination that emergency circumstances existed, such newsrack or the contents thereof shall be deemed abandoned and may either be sold at public auction or otherwise disposed of.
[Amended 5-19-2008 by Ord. No. 25.42.08]
H.
Addresses.
(1)
(2)
If the owner of a newsrack or person in control of such
newsrack shall have failed to provide an address on the newsrack or by submission
to the Commissioner, the Commissioner shall use reasonable effort to ascertain
the identity and address of the owner, and to give notice to such person,
but having done so, may take action as if proper notice had been given.
I.
The owner or person in control of a newsrack that has been the subject of a hearing pursuant to Subsection B or G of this section may, within 10 business days of the receipt of the copy of the Commissioner's decision and order, appeal such decision to the Board of Zoning Appeals (BZA), established in accordance with Article IV of Chapter 375 of this Code, by filing a notice of appeal to the BZA and by providing a copy of the notice of appeal to the Commissioner. An appeal shall set forth in writing specifically wherein the appellant believes there was an error or abuse of discretion on the part of the Commissioner. The Commissioner shall, within 10 business days, transmit a copy of its file, decision and order and response to the appeal, if any, to the BZA. The BZA shall, upon receipt of the material from the Commissioner, set the matter for public hearing by so notifying the appellant. Such public hearing shall be held de novo as if no hearing had been previously held.
J.
Nothing in the provisions of this section shall preclude
the immediate removal of a newsrack when otherwise authorized by law.
If any provision, section, subsection, paragraph, subparagraph, sentence
or clause of this chapter 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 chapter.
