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Article 10-11
NEWSRACKSections:
10-11-1 Purpose
10-11-2 Definitions
10-11-3 Newsracks Prohibited
10-11-4 Permit Required
10-11-5 Application for Permit
10-11-6 Conditions for Permit
10-11-7 Hold Harmless
10-11-8 Newsrack Identification Required
10-11-9 Location, Placement, and Number of Newsracks
10-11-10 Standards for Maintenance and Installation
10-11-11 Display of Certain Matter Prohibited
10-11-12 Violations
10-11-13 Appeals
10-11-14 Abandonment
10-11-1 Purpose
A. Purpose. The provisions and prohibitions hereinafter contained and enacted are in pursuance of and for the purpose of securing and promoting the public health, morals and general welfare of persons in the Town of Oro Valley in their use of public rights-of-ways through the regulation of placement, appearance, number, size and servicing of newsracks on the public rights-of-ways so as to:
1. Provide for pedestrian and driving safety and convenience;
2. Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic, including ingress to, or egress from, any place of business or from the street to the sidewalk;
3. Provide reasonable access for the use and maintenance of sidewalks, poles, posts, traffic signs and signals, hydrants, mailboxes and similar appurtenances, and access to locations used for public transportation purposes;
4. Reduce visual blight on the public rights-of-way, protect the aesthetics and value of surrounding properties, and protect the quiet of residential areas;
5. Reduce exposure of the town to personal injury or property damage claims and litigation; and
6. Protect the right to distribute information protected by the United States and Arizona Constitutions through the use of newsracks.
B. Preservation of Constitutional rights. It is not the intent of this Code in any way to discriminate against, regulate or interfere with the publication, circulation, distribution or dissemination of any printed material that is constitutionally protected.
(02-07, Added, 03/20/2002)
10-11-2 Definitions
As used in this Code, unless the content otherwise clearly indicates:
A. Block means one (1) side of a street between two (2) consecutive interacting streets.
B. Distributor means the person responsible for placing and maintaining a newsrack in a public right-of-way.
C. Explicit sexual acts means depictions of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sadism, masochism, or excretory functions in conjunction with sexual activity, masturbation, or lewd exhibition of genitals; whether any of the above conduct is depicted or described as being performed alone or between members of the same or opposite sex or between humans and animals, or other acts of sexual arousal involving any physical contact with a person’s genitals, pubic hair, perineum, anus or anal region.
D. Newsrack means 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.
E. Obscene means material which depicts or describes sexual conduct that is objectionable or offensive to accepted standards of decency which the average person, applying contemporary community standards would find, taken as a whole, appeals to prurient interests; or material which depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable State law, and taken as a whole, lacks serious literary, artistic, political or scientific value.
F. Parkway means the area between the sidewalk and the curb of any street, and where there is no sidewalk, the area between the edge of the roadway and the property line adjacent thereto. Parkway shall also include any area within a roadway that is not open to vehicular travel.
G. Person means any person or persons, or entity including, but not limited to, a corporation, partnership, unincorporated association or joint venture.
H. Pictorial material means any material suggesting or conveying a visual image, and includes, but is not limited to, a photograph, painting or drawing. Any pictorial material is "obscene" if all of the following apply:
1. The average person, applying contemporary community standards, would find that it appeals to prurient interests when the publication or material is considered as a whole; and
2. It depicts, describes or represents in a patently offensive manner, sexual behavior as defined in Section 1; and
3. It lacks serious literary, artistic, political or scientific value when the publication or material is considered as a whole.
I. Public Works Director refers to the Public Works Director or the designee of the Public Works Director.
J. Roadway means that portion of a street improved, designed, or ordinarily used for vehicular travel.
K. Sexual arousal, gratification or affront when used in this Code to state the purpose or effect of statements, words, pictures or illustrations means depictions of the following subjects or acts:
1. Sexual intercourse, oral copulation, anal intercourse, oral-anal contact, bestiality, direct physical stimulation of genitals, flagellation or torture in the context of a sexual relationship, or any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprolagnia, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or
2. Human genitals in a state of sexual stimulation, arousal, or tumescence; or
3. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejaculation; or
4. Fondling or touching of human genitals, pubic region, buttock, or female breast; or
5. Masochism, erotic or sexually-oriented torture, beating or the infliction of pain; or
6. Erotic or lewd touching, fondling or other contact with an animal by a human being; or
7. Human excretion, urination, menstruation, vaginal or anal irrigation.
L. Sexual behavior means the patently offensive representation, depiction or description of any of the following:
1. Ultimate sexual acts, actual or simulated, including vaginal intercourse between a male and a female, and anal intercourse, fellatio and cunnilingus between persons regardless of gender.
2. Masturbation, excretory functions and lewd exhibition of the genitals.
3. The actual or simulated infliction of pain by one individual upon another, or by an individual upon himself, for the purpose of the sexual gratification or release of either individual, as a result of flagellation, beating, striking or touching of an erogenous zone, including without limitation the thigh, genitals, buttock, pubic region, or, if such person is a female, a breast.
4. Ultimate sexual acts, actual or simulated, between a human being and an animal.
M. Sidewalk means any surface provided or the exclusive use of pedestrians.
N. Street means all the area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, alleys and sidewalks.
(02-07, Added, 03/20/2002)
10-11-3 Newsracks Prohibited
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 sidewalk or parkway:
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, roadside right-of-way public transportation purposes, or other governmental use;
3. When such newsrack unreasonably interfers with or impedes the flow of pedestrian or vehicular traffic, including parked or stopped vehicles; the ingress in 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 interfers 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 Code.
(02-07, Added, 03/20/2002)
10-11-4 Permit Required
It shall be unlawful for any person, firm or corporation to erect, place, maintain or operate on any public street or sidewalk, or in any other public street or sidewalk, or in any other public way or place, in the Town of Oro Valley any newsrack without first having obtained a permit from the Public Works Director specifying the exact location of such newsrack. One permit may be issued to include any number of newsracks, and shall be signed by the applicant.
(02-07, Added, 03/20/2002)
10-11-5 Application for Permit
A. Application for such permit shall be made, in writing, to the Public Works Director upon such form as shall be provided by him, and shall contain the name and address of the applicant, the proposed specific location of said newsrack, and shall be signed by the applicant.
B. From the above application information the Public Works Director shall approve the locations. He shall be guided therein solely by the standards and criteria set forth in this Code. In any case where the Public Works Director disapproves of a particular location, such disapproval shall be without prejudice to the registrant designating a different location or locations.
(02-07, Added, 03/20/2002)
10-11-6 Conditions for Permit
A. Permits shall be issued for the installation of a newsrack or newsracks without prior inspection of the location but such newsrack or newsracks and the installation, use or maintenance thereof shall be conditioned upon observance of the provisions of this Code. Permits shall be issued within twenty-four (24) hours (excluding Saturday, Sunday and legal holidays) after the application has been filed. A permit fee of ten dollars ($10.00) shall be required. This fee shall only cover the expense (including staff time) of processing the paperwork. The above fee is based on these expenses
B. Such permits shall be valid for three (3) years and shall be renewable pursuant to the procedure for original applications referred to in Section 10-11-5 and upon payment of the ten dollar ($10.00) permit fee.
(02-07, Added, 03/20/2002)
10-11-7 Hold Harmless
Every owner of a newsrack who places or maintains a newsrack on a public sidewalk or parkway in the Town of Oro Valley shall file a written statement with the Public Works Director in a form satisfactory to the Town Attorney, whereby such owner agrees to indemnify and hold harmless the Town, 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 Town of Oro Valley.
(02-07, Added, 03/20/2002)
10-11-8 Newsrack Identification Required
Every person who places or maintains a newsrack on the streets of the Town of Oro Valley shall have his permit number, name, address, and telephone number affixed to the newsrack in a place where such information may be easily seen. Prior to the designation of location by the Public Works Director under Section 10-11-9 herein, the registrant shall present evidence of compliance with this Section.
(02-07, Added, 03/20/2002)
10-11-9 Location, Placement, and Number of Newsracks
A. 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 following provisions of this Section:
1. No newsrack 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 public street.
2. No newsrack shall be chained, bolted, or otherwise attached to any fixture located in the public right-of-way, except to other newsracks.
3. Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than eight (8) feet along a curb, and a space of not less than three (3) feet shall separate each group of newsracks.
4. No newsrack shall be placed, installed, used or maintained:
a. Within five (5) feet of any marked crosswalk.
b. Within fifteen (15) feet of the curb return of any unmarked crosswalk.
c. Within five (5) feet of any fire hydrant, fire call box or other emergency facility.
d. Within five (5) feet of any driveway.
e. Within three (3) feet ahead or twenty-five (25) feet to the rear of any sign marking a designated bus stop.
f. Within five (5) feet of the outer end of any bus bench.
g. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six (6) feet.
h. Within three (3) feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping, or within three (3) feet of any display window or any building abutting the sidewalk or parkway or in such a manner as to impede or interfere with the reasonable use of such window for display purposes.
i. Within one hundred (100) feet of any other newsrack on the same side of the street in the same block containing the same issue or edition of the same publication.
j. On any access ramp for disabled persons.
k. Within three (3) feet of any pole for a street light, telephone poles, etc.
5. No more than eight (8) newsracks shall be located on any public right-of-way within a space of two hundred (200) feet in any direction within the same block of the same street; provided, however, that no more than sixteen (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 Public Works Director shall be guided solely by the following criteria:
a. First priority shall be daily publications (published five (5) or more days per week).
b. Second priority shall be publications published one (1) day per week.
c. Third priority shall be publications published one (1) day per week.
d. Fourth priority shall be publications published less than one (1) day per week.
(02-07, Added, 03/20/2002)
10-11-10 Standards for Maintenance and Installation
Any newsrack which in whole or in part rests upon, in or over any public sidewalk or parkway, shall comply with the following standards:
A. No newsrack shall exceed five (5) feet in height, three (3) inches in width, or two (2) feet in thickness.
B. 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.
C. 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.
D. 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 Code.
E. 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 served 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 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 discolorations; or, the opaque material should not have visible tears or openings;
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, dented or unduly misshapen.
(02-07, Added, 03/20/2002)
10-11-11 Display of Certain Matter Prohibited
Publications offered for sale from newsracks, placed or maintained on or projecting over the street or sidewalk, shall not be displayed or exhibited in a manner which exposes to public view from the street or sidewalk any of the following:
A. Any publication or material which exposes to public view any pictorial material that is obscene;
B. Any statements or words describing explicit sexual acts, sexual organs, or excrement where such statements or words have as their purpose or effect sexual interest and arousal, gratification or affront;
C. Any picture or illustration depicting explicit sexual acts as defined in this Code where such picture or illustration has as its purpose or effect sexual interest and arousal, gratification or affront; or
D. Any picture or illustration depecting explicit sexual acts as defined in this Code where such picture or illustration has as its purpose or effect sexual interest and arousal, gratification or affront.
(02-07, Added, 03/20/2002)
10-11-12 Violations
Upon determination by the Public Works Director that a newsrack has been installed, used or maintained in violation of the provisions of this Code, 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 properly correct the offending condition within five (5) days (excluding Saturdays, Sundays, and legal holidays) after the mailing date of the order or to appeal the order within three (3) days after its receipt shall result in the offending newsrack being summarily removed and processed as unclaimed property. If the offending newsrack is not properly identified as to owner under the provisions of Section 10-11-8 hereof, it shall be removed immediately and processed as unclaimed property. An impound fee, which shall be measured by the Town’s cost and expense of impounding, shall be assessed against each newsrack summarily removed. The Public Works Director shall cause inspection to be made of the corrected condition or of a newsrack reinstalled after removed under this Section. The distributor of said newsrack shall be charged an inspection fee for each newsrack so inspected. This charge shall be in addition to all other fees and charges required pursuant to this Code.
(02-07, Added, 03/20/2002)
10-11-13 Appeals
Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this Code may appeal and shall be appraised of his right to appeal to the Town’s Appeals Board. An appeal must be perfected within three (3) days after receipt of notice of any protested decision or action by filing with the Office of the Town Clerk a letter of appeal briefly stating therein the basis for such appeal. A hearing shall be held on a date not more than ten (10) days after receipt of the letter of appeal. The appellant shall be given at least five (5) days notice of the time and place of the hearing. The Appeals Board 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 Public Works Director should not be upheld. At the conclusion of the hearing, the Appeals Board shall make a final and conclusive decision. This decision shall be immediately appealable to a court of competent jurisdiction.
(02-07, Added, 03/20/2002)
10-11-14 Abandonment
In the event that a newsrack remains empty for a period of thirty (30) continuous days, the same shall be deemed abandoned, and may be treated in the manner as provided in Section 10-11-12 for newsracks in violation of the provisions of this Code.
(02-07, Added, 03/20/2002)
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