Number
051631
Version
SUBSTITUTE 2
Sponsor
ALD. DUDZIK, BAUMAN, BOHL, PUENTE AND WITKOWSKI
Title
A substitute ordinance relating to regulations for newspaper vending boxes.
Sections
81-78 rc
115-33.5 rc
Analysis
This ordinance establishes certain regulations for newspaper vending boxes currently licensed by code. The ordinance requires that a permit be displayed on the newspaper vending box with the designated location indicated on the permit. It prohibits moving a newspaper vending box from its approved location without applying for a transfer of location. The initial permit application and transfer of location application shall require the approval of both the local council member and the commissioner of public works. The local council member, commissioner of public works or the common council may deny the newspaper vending box permit application for various specified reasons. Newspaper content shall not be considered grounds for disapproval.
In addition, this ordinance empowers the department of public works to remove unlicensed newspaper vending boxes 10 working days after notice has been given to their owners. The department will then hold noncompliant vending boxes in a facility until the owners reclaim their boxes from the holding facility for a $35 fee per box. Unclaimed boxes shall be destroyed at regular intervals.
The ordinance also changes the permit fee from a biennial fee of $35 to an annual fee of $50.
This ordinance shall apply to any license granted or renewed on or after November 1, 2007.
Body
Whereas, The Common Council finds that newspaper vending boxes, when placed or maintained on the public right-of-way, absent some reasonable regulation, may be detrimental to the public health, safety and welfare by jeopardizing vehicular and pedestrian safety, blocking access to business entrances and generating litter; and
Whereas, The Common Council further finds that streets, sidewalks and the public right-of-way are historically associated with the sale and distribution of newspapers and other publications, and that access to and use of these areas for such purposes is not to be denied except where such use unreasonably interferes with the use of these areas by pedestrians and motorists, or where such use presents a hazard to persons or property; and
Whereas, In enacting legislation to regulate the time, place and manner of newspaper vending box installation on the public right-of-way, the Common Council intends to ensure a diversity of viewpoints consistent with the First Amendment of the United States Constitution, and to treat all paid and free newspapers and other lawful publications equally, regardless of their content; now, therefore
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 81-78 of the code is repealed and recreated to read:
81-78. Newspaper Vending Box Permit. 1. Each newspaper vending box permit shall be for a one-year period and shall expire on January 31 of each year, irrespective of the date of issuance.
2. The fee for each original permit shall be $50 for each newspaper vending box listed on the permit application.
3. If an applicant withdraws the application or is not issued a permit, 50% of the fee amount shall be returned to the applicant, and the rest shall be retained by the city to defray processing costs.
4. The fee for retrieving a newspaper vending box from the designated holding place shall be $35 per box.
5. There shall be no fee for a change of location required under s. 115-33.5-9-b.
6. The fee for the renewal of a permit shall be $35 for each newspaper vending box listed on the permit application.
7. The fee for transferring a newspaper box from one location to another location shall be $35.
8. There shall be a fee of $35 for replacing a sticker issued by the city clerk.
(See s. 115-33.5.)
Part 2. Section 115-33.5 of the code is repealed and recreated to read:
115-33.5. Newspaper Vending Boxes; Newspaper Vending Box Permits
1. DEFINITIONS. a. “Box” means newspaper vending box.
b. “Commissioner” means the commissioner of public works.
c. “Department” means the department of public works.
d. “Newspaper vending box” means any self-service or coin-operated box, container unit or dispenser installed, used or maintained for the display, distribution or sale of newspapers, periodicals or other publications.
e. “Public right-of-way” means any area which has been deeded or dedicated for public use by pedestrians or vehicles.
2. NEWSPAPER VENDING BOX PERMIT. Newspaper vending box permits for the installation and use of boxes on poles and other structures on public ways or public places may be granted by the common council pursuant to s. 66.0425, Wis. Stats. Such permits may be issued solely upon and subject to the conditions in sub. 8, and the content of the publication shall not be considered grounds for approval, disapproval, nonrenewal or revocation of the permits.
3. APPLICATION. a. No newspaper vending box may occupy the public right-of-way or public premises without obtaining and displaying a newspaper vending box permit. Application forms shall be available from the city clerk’s office. The fee specified in ch. 81 shall be paid upon submission of the application.
b. The applicant shall provide the following information on the application form:
b-1. The applicant’s name, address and telephone number.
b-2. The name of the paper to be distributed.
b-3. The frequency of the publication.
b-4. A diagram illustrating the dimensions of the newspaper box.
b-5. The name, address and telephone number of a contact person during normal business hours.
b-6. A statement that the placement of the box at a particular location will comply with the conditions specified in sub. 8.
b-7. A statement that the applicant agrees to comply with all of the requirements of this section.
b-8. The number of newspaper vending boxes for which the applicant is applying for.
c. The application shall be signed under oath by the applicant.
d. The application shall be accompanied by a bond and a certificate of insurance in the amounts and upon the terms given in s. 245-12-3-b.
e. The application shall be accompanied by a description of the exact location and the aldermanic district where the applicant wishes to place each newspaper vending box listed on the application.
4. APPROVAL. a. Upon receipt of a completed application, the city clerk shall submit the application for review to the commissioner and the common council member in whose district the newspaper vending box is to be permitted. After review by the commissioner, the common council member shall have 10 working days to review the application.
b. The commissioner, in consultation with the commissioner of neighborhood services, shall approve the newspaper vending box permit application unless the commissioner determines that one or more of the conditions specified in sub. 8 is not met, or unless the common council member in whose district the newspaper vending box is to be permitted opposes the issuance of the permit based on the failure to satisfy one or more of the conditions specified in sub. 8.
c. If approved, the application shall be transmitted to the common council for action in the same manner as are license applications considered by the common council.
d. The permit, in the form of a sticker, indicating the approved location, shall be displayed upon the box and shall be valid only for that location. Each newspaper box shall have affixed to it a sticker with the words "newspaper vending box" and the permit number stamped on it. The sticker shall be issued by the city clerk at the time the permit is issued. The city clerk shall issue stickers only to those applicants granted newspaper vending box permits.
5. INDEMNITY. Any person to whom a permit is issued under this section shall agree by the acceptance thereof to hold the city harmless and free from claims of any person that may arise from any negligence on the part of the applicant, agents, employes and subcontractors related to the construction, operation, maintenance, location, placement or removal of any newspaper vending box.
6. RENEWAL. Application for renewal of the license shall be made to the city clerk. The renewal application shall be forwarded to the commissioner of public works and the local common council member for review. If the applicant continues to meet all of the licensing qualifications, the application shall be forwarded to the common council for approval.
7. TRANSFER OF LOCATION. Transferring a box from one location to another shall require a change of location application and payment of a transfer fee as specified in s. 81-78. Applications shall be obtained from the city clerk’s office and upon completion and submission shall be forwarded by the city clerk to the local council member and the commissioner for review and approval based on the factors specified in sub. 8.
8. CONDITIONS. Newspaper vending boxes shall meet the following conditions:
a. Location.
a-1. Newspaper vending boxes shall be located at least 2 feet away from the face of the curb.
a-2. Newspaper vending boxes shall be located at least 3 feet away from any fire hydrant, callbox or other emergency structure.
a-3. Newspaper vending boxes shall be located at least 5 feet away from any driveway.
a-4. Newspaper vending boxes shall be located at least 3 feet away from any bus shelter or bench.
a-5. Newspaper vending boxes shall be located at least 3 feet away from any traffic sign or signal.
a-6. No newspaper vending box shall be located within that portion of the pedestrian area adjacent to a designated handicapped parking space or commercial loading zone.
a-7. No newspaper vending box shall be located where the paved pedestrian area does not extend to the curb, and the width of the continuous, undivided space for pedestrian travel would be reduced to less than 4 feet as a result of the placement of a newspaper vending box.
a-8. No newspaper vending box shall be located where the paved pedestrian area extends to the curb and the width of the continuous, undivided space for pedestrian travel would be reduced to less than 7 feet as a result of the placement of a newspaper vending box.
a-9. No newspaper vending box shall be located on the landscaped area of the public right-of-way between the curb and sidewalk wherein street trees are typically planted.
a-10. No newspaper vending box shall be located within, or within 2 feet of, the area bounded by the curb, the front entrance of a business establishment and 2 straight lines which extend from each outer edge of the entrance door frame to the curb and are perpendicular to the curb.
a-11. No newspaper vending box shall be located within 30 feet of a catch basin.
a-12. No more than 8 newspaper vending boxes shall be placed on any one city block.
b. Design and Placement. b-1. Freestanding newspaper vending boxes shall face away from the roadway, with the rear edge of each box being located on a line parallel to the curb. Each freestanding newspaper vending box shall be bolted to the sidewalk or pavement. In the event that such box is removed, the sidewalk or pavement shall be restored to a safe condition. No vending box that has been designed to be freestanding may be strapped or in any way attached to a city light pole or other city fixture.
b-2. Newspaper vending boxes that are not freestanding may be banded to aluminum and concrete poles. No newspaper box shall be banded to a steel street light pole. A newspaper vending box which is not freestanding may only be attached to a city-owned light pole which such pole is more than 20 feet in height. Such box shall be securely strapped to the pole so as to prevent movement of the box and shall be oriented so that customers can stand on paved sidewalk when accessing it. The top of the newspaper vending box shall not be more than 50 inches above grade. No more than 2 boxes may be strapped to any single pole. A newspaper vending box strapped to a light pole shall not obscure any traffic sign or reflector or in any way obstruct the visibility of such sign or reflector. Fastening straps shall be made of stainless steel and shall be painted to match the color of the affected light pole. No chains or cables may be used. A newspaper vending box may be attached to a pole owned by any other entity provided permission from such entity is presented to the city clerk at the time of permit application.
b-3. A newspaper vending box shall have doors which swing closed and latch after each opening.
b-4. A newspaper vending box shall not exceed 50 inches in height, 26 inches in width, and 20 inches in depth.
c. Maintenance. c-1. The permittee shall display the permit sticker that has been issued for a particular newspaper vending box at a specified location on the face of the box that is opposite the side of the box from which publications are dispensed.
c-2. Newspaper vending boxes shall be kept clean, graffiti-free and in proper working order at all times. A permittee shall clean, repair or remove graffiti within 5 working days of notification by the commissioner of the condition.
d. Bond and Insurance. The permittee shall comply with the bond and insurance requirements specified in sub. 3-d.
9. REMOVAL OF NEWSPAPER VENDING BOXES. a. When a box without a permit is discovered in the public right-of-way, the department is authorized to remove the box. Boxes may be transferred to a designated holding place as follows:
a-1. Notice shall be given prior to removal of the box whenever it is possible to identify the owner. The department shall notify the owner that if the box is not removed within 10 working days following mailing of the notice by first class mail to the owner's last known address, the department may relocate the box to a designated holding facility. The address of this facility will be included in any notification as well as the retrieval fee established in s. 81-78.
a-2. If, 10 working days following mailing of the notice by first class mail to the owner's last known address, the box has not been removed from the location, the department may relocate the box to the designated holding facility.
a-3. A box may be held at the facility until the box’s owner claims it for a fee that is established in s. 81-78 or until the department disposes of it. The department may dispose of boxes that have been held for 15 days or more at the designated holding facility.
b. When it is deemed necessary for the maintenance or improvement of the public right-of-way, including in situations where the public right-of-way is temporarily occupied by abutting land owners for the purpose of construction, demolition or other lawful purpose as set forth in ch. 115, and in cases of special privileges granted by the city pursuant to ch. 245, that a newspaper vending box with a valid permit be removed, the department is authorized to take the following steps toward removing the box:
b-1. The department shall notify the permittee in writing that within 10 working days following mailing of the notice by first class mail to the permittee’s last known address that the newspaper vending box shall either be removed or transferred to another location that has been specified by the department.
b-2. If the permittee fails to remove the box from the location after 10 working days following mailing of the notice to remove the box from the location or transfer the box to another location that has been specified by the department, the department may follow the same procedure specified in pars. a-2 and 3.
c. If the permittee fails to comply with any condition specified in sub. 8, the department may take the following steps to remove the box:
c-1. The department may order the permittee in writing to correct the violation within 10 working days following the mailing of the order by first class mail to the permittee’s last known address.
c-2. If the permittee fails to comply within the time allotted by the department, the department may follow the same procedure specified in pars. a-2 and a-3.
d. If the department removes a newspaper vending box pursuant to this subsection, the permittee shall not place a different box at the location from which the department removed the box.
10. APPEAL PROCEDURE. a. Denial or Non-renewal. If an application for a newspaper vending box permit is denied or not renewed, an applicant may upon written request to the city clerk appeal the decision of the commissioner or council member to the appropriate committee of the common council within 5 working days of the date on which the notice of denial was issued. A hearing of an appeal shall be conducted as set forth in s. 90-5-8-b. The committee may make a decision immediately following the hearing or on a later date. In making its decision committee members shall consider the factors set forth in sub. 8. Written notice of the committee’s decision shall be provided if the decision is made at a later date or if the applicant was not present. The decision of the committee shall be final, and the applicant shall have no right of appeal to the common council.
b. Appeal of Removal. If a permittee whose box has been ordered to be removed wishes to appeal the decision of the commissioner to remove the box pursuant to sub. 9, the permittee may upon written request to the city clerk appeal to the appropriate committee of the common council within 5 working days of the date on which the notice of denial was issued. A hearing of an appeal shall be conducted as set forth in s. 90-12-5-b. The committee may make a decision immediately following the hearing or on a later date. In making its decision committee members shall consider the factors set forth in sub. 8. Written notice of the committee’s decision shall be provided if the decision is made at a later date or if the applicant was not present. The decision of the committee shall be final, and the applicant shall have no right of appeal to the common council.
Part 3. This ordinance shall apply to any license granted or renewed on or after November 1, 2007.
LRB
APPROVED AS TO FORM
____________________________
Legislative Reference Bureau
Date: ______________________
ATTORNEY
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
____________________________
Office of the City Attorney
Date: ______________________
Department
Drafter
LRB06048-4
TWM/mbh
10/4/2006