[Adopted 11-3-2003]
It is not the intent of this article to discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any printed material which is constitutionally protected. To that end, the content of any material distributed through a newsrack shall not be used to form the basis for any action taken to enforce the provisions of this article. The provisions set forth in this article shall be construed strictly in accord with this intent.
A. 
For the purposes of this article, the following words and phrases shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular and words in the singular include the plural.
B. 
As used in this article, the following terms shall have the meanings indicated:
BLOCK
One side of a street between two consecutive intersecting streets.
DIRECTOR OF PUBLIC WORKS
The head of the Middletown Department of Public Works or his duly designated representative.
DISTRIBUTOR
Any person responsible for the installation, operation or maintenance of a newsrack in a public right-of-way.
MAYOR
The Mayor of Middletown or his duly designated representative.
NEWSRACK
Any self-service or coin-operated box, container, storage unit or other dispenser installed, operated, or maintained for the display and distribution or sale of newspapers, periodicals or other printed matter.
PERSON
An individual person, firm, corporation or other entity.
PUBLIC RIGHT-OF-WAY
Any area owned and/or maintained by the Town of Middletown or any other governmental entity, open for use of the public for vehicular or pedestrian travel, including but not limited to roadways, sidewalks, streets, alleys, public grounds or other rights-of-way.
ROADWAY
That portion of a any street improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.
SIDEWALK
Any portion of a street between the curbline and the adjacent property line intended for the use of pedestrians, excluding parkways.
STREET
The entire area encompassed by a roadway and a sidewalk.
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 right-of-way:
(1) 
When such installation, use, or maintenance endangers the safety of persons or property;
(2) 
When such site 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, but not limited to, parked or stopped vehicles; the ingress to 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 near said location;
(4) 
When such newsrack interferes with the cleaning of any sidewalk by the use of mechanical sidewalk cleaning machinery; or
(5) 
In any other manner inconsistent with or in violation of the provisions of this article.
It shall be unlawful for any person, firm or corporation to erect, place, maintain or operate, on any public right-of-way, in the City of Middletown any newsrack without first having obtained a permit from the Director of Public Works. One permit may be issued to include any number of newsracks, and shall be signed by the applicant.
A. 
Application for such permit shall be made, in writing, to the Director of Public Works upon such form as shall be provided to the applicant, and shall contain the name and business address of the applicant, a telephone number or numbers at which the applicant may be reached during normal business hours, and the proposed location of said newsrack(s) and shall be signed by the applicant.
B. 
A permittee may place additional newsracks at any location on any public right-of way in Middletown which complies with the provisions of this article by amending its permit to include the location of each such newsrack on a form to be prescribed by the Director of Public Works and by paying the fee set forth in § 262-51A.
A. 
Such newsrack or newsracks and the installation, use or maintenance thereof shall be conditioned upon observance of the provisions of this article. Permits shall be issued or denied within 72 hours (excluding Saturday, Sundays and legal holidays) after the application has been filed. A permit fee of $12 shall be required for each proposed location.
B. 
Such permits shall be valid for three years and shall be renewable pursuant to the procedure for original applications referred to in § 262-50 and upon payment of the permit fee.
[Amended 5-2-2013 by Ord. No. 11-13]
Every applicant for a permit to place a newsrack on a public right-of-way in the City of Middletown shall file a written statement with the Director of Public Works in a form satisfactory to the General Counsel, whereby such owner agrees to indemnify and hold harmless the City, its officers, and employees from any loss, liability or damage, including expenses and costs, for bodily or personal injury, and for property damage sustained by any person as a result of the installation, use and/or maintenance of a newsrack within the City of Middletown. Such statement shall also certify the newsrack owner’s agreement that the City is not liable for any damage to such newsracks.
Every person who places or maintains a newsrack on a public right-of-way within the City of Middletown shall have his permit number, name, address and telephone number affixed to the newsrack in a place where such information may be easily seen before placing said newsrack on the right-of-way.
Any newsrack 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:
A. 
No newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks.
B. 
Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than five feet along a curb, and a space of not less than three feet shall separate each group of newsracks.
C. 
No newsrack shall be placed, installed, used or maintained:
(1) 
Within five feet of any marked crosswalk;
(2) 
Within 15 feet of the curb return of any unmarked crosswalk;
(3) 
Within five feet of any fire hydrant, fire call box, police call box or other emergency facility;
(4) 
Within five feet of any driveway;
(5) 
Within five feet past, or 25 feet prior to, any sign marking a designated bus stop, according to the direction of travel on the roadway adjacent to the bus stop sign, except that a newsrack may be placed immediately adjacent to the end of a bus shelter if such placement shall not otherwise violate the requirements of this article;
(6) 
Within five feet of the end of any bus bench;
(7) 
At any location whereby the clear sidewalk space for the passageway of pedestrians is reduced to less than six feet in width;
(8) 
Upon or within five feet of any public area improved with flowers, shrubs, trees or other landscaping, or within five feet of any display window of any building abutting the sidewalk or parkway or in such manner as to impede or interfere with the reasonable use of such window for display purposes;
(9) 
Within 500 feet of any other newsrack on the same side of the street containing the same issue or edition of the same publication, within a business or industrial district;
(10) 
Within any single-family residential zone except with the written permission of the abutting property owner, and except on a street designated as a major arterial street, minor arterial street or collector street in the City of Middletown Plan of Conservation and Development as that document may be adopted or amended from time to time;
(11) 
Within 1,500 feet of any other newsrack containing the same issue or edition of the same publication, within any residential district;
(12) 
On any access ramp for disabled persons.
D. 
No more than eight newsracks shall be located on any public right-of-way within a space of 200 feet in any direction within the same block; provided, however, that no more than 16 newsracks shall be allowed on any one block. In determining which newsracks shall be permitted to be located or to remain if already in place, the Director of Public Works shall be guided solely by the following criteria:
(1) 
First priority shall be daily publications (published five or more days per week);
(2) 
Second priority shall be publications two to four days per week;
(3) 
Third priority shall be publications one day per week.
(4) 
Fourth priority shall be publications published intermittently or less frequently than once per week.
[Amended 5-7-2007 by Ord. No. 05-07]
Any newsrack which in whole or in part rests upon, in or over any public right-of-way shall comply with the following standards:
A. 
No newsracks shall exceed four feet in height, two feet in width, or two feet in thickness.
B. 
The name of the publication being dispensed therein in accord with the following standards:
(1) 
On the front of the newsrack, the lettering size shall not exceed 1 3/4 inches in height.
(2) 
On the sides and back of the newsrack, the lettering size shall not exceed 2 1/2 inches in height.
C. 
No newsrack 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.
D. 
Each newsrack shall be made of metal and shall be painted in a color scheme consisting of a dark background with white lettering, contingent upon approval of the Director of Public Works or his or her designee.
E. 
Each newsrack shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event the person is unable to receive the paid for publication. The coin-return mechanism shall be maintained in good working order. This subsection shall not apply to newsracks for publications offered free of charge.
F. 
Each newsrack shall have affixed to it, in a readily visible place so as 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 in the event of a malfunction of the coin-return mechanism, or to give the notices provided for in this article.
G. 
Each newsrack shall be so weighted and balanced as to prevent it from being tipped by the opening of its door, or by the impact of snow cast by a passing snowplow.
H. 
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 so that:
(1) 
It is reasonably free of dirt and grease;
(2) 
It is reasonably free of chipped, faded, peeling and cracked paint and graffiti in the visible painted areas thereof;
(3) 
It is reasonably free of rust and corrosion in the visible unpainted metal areas thereon;
(4) 
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;
(5) 
The paper or cardboard parts or inserts thereof are reasonably free of tears, peeling, or fading; and
(6) 
The structural parts thereof are not broken or unduly misshapen.
(7) 
It shall not contain any materials which predate the current issue of the publication. Such material shall not be deposited in any public trash receptacle owned by the City of Middletown and shall not be deposited in any privately owned trash receptacle without the permission of the owner or renter thereof. In the event that the publication is manufactured from recyclable material, it shall be discarded in an appropriate manner for that type of recyclable material.
I. 
No newsrack shall contain or utilize any electrically powered illumination or sound.
Upon determination by the Director of Public Works that a newsrack has been installed, used or maintained in violation of the provisions of this article, an order to correct the offending condition shall be issued to the distributor of the newsrack. 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, suggest actions necessary to correct the condition, and inform the newsrack distributor of the right to appeal. Failure to correct the offending condition within five days (excluding Saturdays, Sundays, and legal holidays) after the mailing date of the order or to appeal the order within three days after its receipt shall result in the offending newsrack being summarily removed and processed as unclaimed property. If the offending newsrack is not property identified as to owner under provisions of § 262-53 hereof, it shall be removed immediately and processed as unclaimed property pursuant to the provisions of this Code of Ordinances. 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 Public Works shall cause inspection to be made of the corrected condition or of a newsrack reinstalled after removal under this section. The distributor of said newsrack shall be charged an inspection fee of $25 for each newsrack so inspected. This charge shall be in addition to any other fees and charges required under this article.
A. 
Any person or entity 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 Mayor or the Mayor’s designee. An appeal must be perfected within three days after receipt of notice of any protested decision or action by filing with the Mayor or the Mayor’s designee a letter of appeal briefly stating therein the basis for such appeal. Any elector of the City wishing to appeal the decision of the Director of Public Works to grant a permit for a newsrack placement, if he or she did not receive written notice of said decision, shall be authorized to submit such a letter of appeal within 10 days after the placement of the newsrack in question. A hearing shall be held on a date not more than 30 days after receipt of the letter of appeal. The appellant shall be given at least 10 days’ notice of the time and place of the hearing. The Mayor or the Mayor’s designee 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 Public Works should not be upheld. At the conclusion of the hearing, the Mayor or the Mayor’s designee shall make a final and conclusive decision. This decision shall be immediately appealable to a court of competent jurisdiction.
B. 
Nothing contained in this article shall be interpreted to limit or impair the exercise by the City of Middletown of its police powers to remove any newsrack which presents a clear and present danger of imminent personal injury or property damage to users of the public rights-of-way.
This article shall apply to existing newsracks within the City of Middletown, except that the distributors thereof shall have 60 days within which to comply with its provisions or such additional time as may be allowed in the discretion of the Director of Public Works. Newsracks existing within single-family residential districts as of December 1, 2003, shall be permitted to remain in place, provided that their location shall be registered with the Director of Public Works in the manner prescribed by § 262-50 within 60 days following the effective date of this article.
In the event that a newsrack remains empty for a period of 90 continuous days, it shall be deemed abandoned, and may be treated in the manner as provided in § 262-56 for newsracks in violation of the provisions of this article.
If any section, subsection, sentence, clause, or phrase of this article 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 article.