Loading...
HomeMy WebLinkAboutAM2008-01WS7 ITEM #/e FROM: BRUNO RUMBELOW, CITY MANAGERJ�—_ SCOTT WILLIAMS, DEVELOPMENT SERVICES DIRECTOR MEETING DATE: JANUARY 15, 2008 SUBJECT: WORKSHOP - DISCUSS POSSIBLE AMENDMENTS TO CHAPTER 20, STREETS, SIDEWALKS AND OTHER PUBLIC WAYS AND APPENDIX G, HISTORIC PRESERVATION REGULATING NEWSRACKS RECOMMENDATION: City Council to consider draft amendments to Section 20, Streets, Sidewalks and other Public Ways and Appendix G, Historic Preservation regulating newsracks and take any necessary action. BACKGROUND INFORMATION: Due to the proliferation of newsracks, staff has been requested to investigate methods of regulating them, to help reduce their effect on visual clutter, interference with pedestrian traffic, and other undesirable effects. Research revealed that several cities across the country have developed ordinances that regulate newsracks. The degree of regulation varies greatly, from simply requiring licenses, to complete bans of newsracks in certain areas. Many of these ordinances have resulted in legal action, and the judgments have typically been in favor of the City, except in cases where the ordinance has been selective in the types of publications it was intended to regulate (i.e. paid publications vs. free, or commercial vs. non-commercial). In 2007, the City of Dallas adopted an ordinance regulating newsracks. This ordinance established licensing procedures, regulated the condition and placement of newsracks, and established a lottery system for allocating locations of freestanding newsracks if there were more publications than available spaces. The Dallas ordinance also designated their Central Business District as a "multiple newsrack unit zone", making it mandatory that all publications be placed in modular units provided by the City. Staff has used the Dallas ordinance as a model for the proposed ordinance being presented to Council. The proposed ordinance applies to newsracks located on public rights-of-way throughout the City. It establishes criteria for the licensing of publishers who place newsracks in the rights-of-way, and establishes fees. The ordinance specifies the types of newsracks and provides specifications for advertising on the newsracks. The ordinance provides very specific criteria for the location of the newsracks, including the maximum number of racks in a group and the distance groups may be placed apart. Staff R:\AGENDA\01-15-08\newstands.memo.doc 1 01/09/08 3:00 PM is initially proposing that no more than eight newsracks be placed in a group, with at least 75 feet between groups. It is also being proposed that not more than one specific publication be placed on any blockface. The draft ordinance also provides for multiple newsrack unit zones. Staff has taken the liberty of proposing multiple unit newsrack zones for the following locations: 1. Any property with an Historic Landmark Subdistrict overlay. 2. The Grapevine Township District 3. Individual Historic Landmark Subdistrict or any property designated on the National Register of Historic Places. Freestanding newsracks shall not be placed within these zones; multiple newsrack units will be provided by the City in locations designated by the City within these zones. It is suggested by Staff that four modular newsrack units be placed along South Main Street; one 12 unit module and three eight unit modules. This would accommodate all of the publications located on South Main Street (between Northwest Highway and Dallas Road) as of January 2008. Staff has received a very rough estimate of approximately $15,000 for these units. Annual revenue from the application/licensing program is anticipated to be approximately $13,000. Therefore, the cost of the multiple newsrack units could be recovered in less than two years. Should Council wish to proceed with this proposal, Staff will incorporate any changes that Council desires and take the ordinance to the Historic Preservation Commission. The ordinance will be brought to a future public hearing. Staff will also set up meetings with publishers to receive their input regarding the program. Lastly, Staff will obtain more accurate cost estimates for the modular units prior to the public hearing. R:\AGENDA\01-15-08\newstands.memo.doc 2 01/09/08 3:00 PM AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS AMENDING CHAPTER 20 OF THE GRAPEVINE CODE OF ORDINANCES, STREETS, SIDEWALKS AND OTHER PUBLIC WAYS, AND APPENDIX G HISTORIC PRESERVATION, RELATIVE TO NEWSRACKS, PROVIDING AMENDMENTS TO SAME, REPEALING CONFLICTING ORDINANCES; PROVIDING A PURPOSE AND INTENT; DEFINING TERMS; REQUIRING A LICENSE TO OPERATE A NEWSRACK ON PUBLIC RIGHT-OF-WAY NOT OPEN TO VEHICULAR TRAFFIC; PROVIDING APPLICATION PROCEDURES AND FEES; PROVIDING LICENSE REQUIREMENTS, PROCEDURES, CONDITIONS, AND FEES; PROVIDING STANDARDS FOR INSTALLATION, OPERATION, AND MAINTENANCE OF NEWSRACKS; PROVIDING FOR THE LOCATION OF NEWSRACKS; PROVIDING DESIGN AND APPEARANCE STANDARDS FOR NEWSRACKS; PROVIDING FOR RESTORATION OF THE RIGHT-OF-WAY UPON TERMINATION OF A NEWSRACK LICENSE; PROVIDING FOR THE REMOVAL OF NEWSRACKS AND PUBLICATIONS FOR VIOLATIONS OF THIS ORDINANCE; PROVIDING FOR APPEALS; PROVIDING FOR THE DESIGNATION OF MULTIPLE NEWSRACK UNIT ZONES; DESIGNATING CERTAIN DISTRICTS AS MULTIPLE NEWSRACK UNIT ZONES; PROVIDING A PENALTY NOT TO EXCEED $500; PROVIDING A SAVING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council finds and declares that the design, installation, placement, and maintenance of newsracks located in the public right-of- way must be regulated in order to ensure safe and unobstructed passage of pedestrians over those portions of the public right-of-way not open to vehicular traffic; WHEREAS, the proliferation of unregulated newsracks can impede pedestrian traffic, including requirements for disability access and pose a significant hazard and inconvenience to pedestrians, abutting landowners, property, and vehicular traffic; and WHEREAS, the lack of uniform design and appearance standards for newsracks and other street furniture and streetscape creates visual clutter and blight and has a deleterious effect on the aesthetic quality of the city's public right-of-way in general; and WHEREAS, the city desires to create aesthetically pleasing and uniform functional design standards for streetscape within the city; and WHEREAS, the design, installation, placement, and maintenance of newsracks, as part of the streetscape furniture, must comply with setback requirements and be compatible in relationship to the proximity, design, and use of other existing or proposed street improvements and streetscape, including, but not limited to, signs, utility posts, parking meters, public transportation shelters and stop areas, benches, planters, traffic devices, loading zones, and landscaped areas; and WHEREAS, in order to further the city's stated interest and purposes set forth in this ordinance, as well as maintaining the integrity of designated Historic Districts, the city council also finds that it is necessary to designate some areas of the city as multiple newsrack unit zones; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That Chapter 20, Streets, Sidewalks and other Public Ways, of the Grapevine Code of Ordinances is hereby amended by the addition of a new Article V, Newsracks, to read as follows: ARTICLE V NEWSRACKS. SECTION 20-67 PURPOSE AND INTENT. This division applies to and regulates newsracks located on the public right-of- way within the city of Grapevine and provides administrative procedures for the grant of annual licenses regarding newsracks to be located on the public right -of way. This division also ensures that newsracks do not create a hazard to persons or property, do not interfere with pedestrian or vehicular traffic, and are kept neat, clean, and in good repair. SECTION 20-68 DEFINITIONS. In this division, unless the context requires a different definition: (a) BLOCK means an area bounded by streets on all sides. If a street deadends, the terminus of the dead-end street will be treated as an intersecting street. (b) BLOCKFACE means the linear distance of lots along one side of a street between the two nearest intersecting streets. If a street deadends, the terminus of the dead-end street will be treated as an intersecting street. 2 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (c) CROSSWALK has the meaning given that term in Section 541.302 of the Texas Transportation Code, as amended. (d) DIRECTOR means the director of Development Services, or a designee. (e) FREESTANDING NEWSRACK means a newsrack that is not a multiple newsrack unit or a part of a multiple newsrack unit. (f) LICENSE means permission granted under this division to a person to install, operate, or maintain a newsrack within the public right-of-way of the city for a specific period of time. (g) LICENSEE means the publisher, and any other person operating and maintaining a newsrack on behalf of a publisher, who is issued a license under this division to install, or maintain a newsrack within the public right- of-way of the city. (h) MULTIPLE NEWSRACK UNIT means a single structure containing more than one newsrack that is installed by the city in a multiple newsrack unit zone. (i) NEWSRACK means any self-service or coin-operated container, rack, or structure used or maintained for the display, distribution, or sale of newspapers, periodicals, or other publication. (j) PERSON MEANS an individual, assumed name entity, partnership, joint venture, association, corporation, or other legal entity. (k) PUBLISHER means any person who owns and/or distributes newspapers, periodicals, or other publications. (1) SPLIT -DOOR NEWSRACK means a freestanding newsrack or a newsrack space in a multiple newsrack unit that has been split into two separate distribution areas. SECTION 20-69 LICENSE REQUIRED. A person commits an offense if: (a) he installs, operates, or maintains a newsrack on any portion of a public right-of-way within the city that is open to vehicular traffic; or (b) without a license issued under this division, he installs, operates, or maintains a newsrack on a public right-of-way in the city that is not open to vehicular traffic. KI O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 SECTION 20-70 LICENSE APPLICATION; ISSUANCE OF LICENSE; (a) A person who desires to install, operate, or maintain a newsrack on a public right-of-way is not open to vehicular traffic, or who desires to place publications within a multiple newsrack unit shall submit an application for a newsrack license to the director on a form provided for that purpose. The applicant must be the person who will install, operate, or maintain the newsrack. The application must be verified and contain all of the following: (1) Name, address, telephone number, and signature of the applicant. If the applicant is a person other than the publisher, then the publisher must also sign the application, agreeing to be bound by the terms contained in the license. (2) Name, address and telephone number of the person the city may contact concerning installation, placement, operation, and maintenance of the applicant's newsracks, or space within a multiple newsrack unit. (3) Form of business of the applicant and, if the business is a corporation or association, a copy of the documents establishing the business. (4) Number of newsracks or spaces within multiple newsrack units the applicant wishes to install or operate in the city and a list indicating the proposed location (by blockface) of each newsrack, the name of the publication each newsrack will dispense, and whether the publication will be dispensed free or for a charge. (5) Dimensional measurements of each style of any freestanding newsracks to be installed, with drawing or photographs. (b) Following a review of the application, execution of the written agreement required under Section 20-71 payment of a nonrefundable $100.00 application processing fee, and payment of the annual fee for a newsrack license, the director shall, within 60 days following the date of receipt of an application for an initial license and within 30 days following the date of receipt of an application for a license renewal, issue a newsrack license to the applicant unless denial is required by Section 20-72, or unless there are no available newsrack spaces. In the event that no newsrack spaces are available, the application shall be kept on file and shall be eligible to be entered into a lottery in accordance with Section 20-75(b), until the date of its expiration. (c) Before any newsrack not authorized under a newsrack license may be installed, operated, or maintained on the public right-of-way, the licensee must make a written request to the director for the additional newsrack, and pay the required annual fee. rd O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (d) The director may (in accordance with procedures established by this division for the allocation of newsrack locations) approve changes to the location of a validly licensed newsrack, upon written request by a licensee, for no additional fee. An amendment that substantially changes the scope of a license (such as displaying, distributing, or selling in a newsrack a publication not specified in the license application for the newsrack) must be applied for in the same manner as the original license. (e) A licensee shall notify the director within 10 days of any changes in the address or telephone number of the publisher or of the person responsible for the installation, operation, or maintenance of the newsracks permitted under the license. (f) A license issued to one person may not be transferred to another person. A newsrack location assigned to one person or publication may not be transferred to another person or publication without following the procedures established by this division for the allocation of newsrack locations. A license may be transferred to a replacement newsrack at the same location, provided that the replacement newsrack is operated by the original licensee. (g) The $100.00 application fee need only be paid upon initial application, provided annual license is renewed in accordance with Section 20-74. SECTION 20-71 CONDITIONS OF A LICENSE AND ANNUAL FEES. (a) It is a condition of a license that the installation, operation, and maintenance of each newsrack be in accordance with this division. (b) Prior to the issuance of a license, the licensee shall execute a written agreement providing all of the following: (1) The licensee will defend, indemnify, and hold whole and harmless the City of Grapevine and its officers, agents, representatives, or employees against any and all claims, lawsuits, judgments, costs, or expenses (including attorney's fees) for bodily injury, property damage, or other harm arising out of, or in any way related to, the licensee's occupancy, maintenance, or use of the licensed area or the licensee's placement, installation, operation, or maintenance of any newsrack. (2) If the City of Grapevine is ever made a defendant in any cause of action, directly or indirectly, based upon the licensee's occupancy, maintenance, or use of the licensed area, or the licensee's placement, installation, operation, or maintenance of any newsrack, the city shall have the right, at its option, to implead the licensee and its successors and assigns. 5 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (3) The licensee will procure, prior to the issuance of a license, and keep in full force and effect at all times during the license term, commercial general liability insurance coverage (including, but not limited to, premises/operations, independent contractors, and contractual liability) protecting the City of Grapevine against any and all claims for damages to persons or property as a result of, or arising out of, the licensee's occupancy, maintenance, or use of the licensed area or the licensee's placement, installation, operation, or maintenance of any newsrack, with the minimum combined bodily injury (including death) and property damage limits of not less than $500,000 annual aggregate. The insurance policy must be written by an insurance company approved by the State of Texas and acceptable to the city and issued in a standard form approved by the Texas Department of Insurance. All provisions of the policy must be acceptable to the city and must name the city and its officers and employees as additional insured's and provide for 30 days written notice to the director of cancellation, non -renewal, or material change to the insurance policy. (4) The license is subject to the rights of the city, public utilities, and franchisees in and to the public right-of-way and the rights of the city to make changes to the grade of any street, sidewalk, or parkway, and the licensee will never make a claim against the city for damages it might suffer by reason of the installation, construction, reconstruction, operation, or maintenance of any public improvement, utility, or communication facility on the license area. (c) The annual license fee for a newsrack license is: (1) $75.00 for each freestanding newsrack located within a public right- of-way of the city; and (2) $150.00 for each newsrack space operated in a multiple newsrack unit, which amount includes rental of the newsrack space from the city. (d) A licensee shall pay the annual license fee for a newsrack license to the director. The payment must be made on or before the issuance of a license. All sums due under this section must be deposited by the city controller and are subject to a $20.00 fee for each dishonored check. Except as specifically provided otherwise in this division, no license fees will be prorated upon termination of any license. SECTION 20-72 DENIAL OR REVOCATION OF A LICENSE. (a) The director shall deny a newsrack license if the director determines that the applicant has: 6 O:Ordinances\2007CodeofOrd inanceD RAFT1-2008 (1) made a false statement of a material fact on an application for a newsrack license; (2) failed to provide the information requested on an application for a newsrack license; (3) failed to execute a written agreement in accordance with Section 20-71; (4) failed to pay the nonrefundable application fee or annual license fee at the time due; or (5) failed to comply with the requirements of this division or other applicable law. (b) The director shall revoke a newsrack license if the director determines that the licensee has: (1) made a false statement of a material fact on an application for a newsrack license; (2) failed to comply with the requirements of the newsrack license, the written agreement executed under Section 20-71 this division, or any other applicable law; (3) failed to maintain in full force and effect the insurance as required by this division; or (4) failed to pay any fees required by this division at the time due. SECTION 20-73 APPEAL FROM LICENSE DENIAL OR REVOCATION. (a) If the director denies the issuance or renewal of a license or revokes a license, the director shall send to the applicant or licensee written notice of the reason for denial, non -renewal or revocation and the right to an appeal, by certified mail, return receipt requested, or by personal delivery, If the certified mail is refused by the recipient, the notice may be sent by regular mail. (b) Upon receipt of written notice of the denial, nonrenewal, or revocation, the applicant or licensee whose application for a license or license renewal has been denied or whose license has been revoked has the right to an appeal to the city manager. (c) An appeal to the denial, revocation, or non renewal of a license shall be made in writing to the city manager. The filing of an appeal under this subsection stays the action of the director in revoking a license until a final decision is made by the city manager. A revocation upheld by the city manager is effective on the first midnight that is at least 24 hours after the city manager issues its decision. 7 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (d) An appeal to the state district court must be filed within 30 days after receipt of notice of the city managers decision. The applicant or licensee shall bear the burden of proof in court. SECTION 20-74 EXPIRATION AND RENEWAL OF A LICENSE. (a) A newsrack license expires and becomes invalid on December 31 of each year, unless sooner terminated by the director in accordance with this division or by city council ordinance in accordance with the city charter. A license shall apply for renewal of a newsrack license at least 30 days, but not more than 90 days, before expiration of the license. An application for renewal must be made in accordance with the procedures established in Section 20-70. (b) An existing licensee will be able to renew a license for the same newsrack locations until those newsrack locations are reallocated under a five-year lottery conducted under Section 20-75(a)(3), except that failure to timely renew a license in accordance with Subsection (a) of this section, or denial or revocation of a license, will result in the location for that newsrack being made available to other publishers. SECTION 20-75 ALLOCATION OF FREESTANDING NEWSRACK LOCATIONS. (a) Initial allocation. Before June 1, 2009, the director shall allocate locations for freestanding newsracks in accordance with the following procedures: (1) The director shall determine how many freestanding newsracks may be placed on a blockface in locations complying with this division. (2) The director shall determine how many freestanding newsracks are being lawfully operated on a particular blockface. A freestanding newsrack will be considered as being lawfully operated on the blockface if it is documented as being legally located on the blockface as of January 1, 2008. (3) If the number of lawfully -operated freestanding newsracks on the blockface exceeds the number of newsrack spaces allowed on the blockface under this division, the director shall conduct a lottery to determine the allocation of the newsrack spaces as follows: The director shall place in a pool the names of all publications dispensed in the freestanding newsracks that are being lawfully operated on the blockface. The directors shall draw from the pool a number of publication names equal to the number of newsrack spaces allowed under this division on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and continuing in a sequential manner. 8 O:Ordinances12007CodeofOrdinanceDRAFT1-2008 The publications whose names are drawn will be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number following the one assigned to the last publication allocated a newsrack space on the blockface. These remaining publications will be allocated a newsrack space on the blockface (in the order drawn) only if any of the other publications originally allocated a newsrack space on the blockface do not want the space or do not qualify for the space. The publisher of any publications that is not allocated a newsrack space on the blockface shall remove the newsrack containing that publication within 10 days after the date the lottery is conducted. (5) If the number of lawfully -operated freestanding newsracks on the blockface equals the number of newsrack spaces allowed on the blockface under this division, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated newsrack spaces under this paragraph shall select locations on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. (6) If the number of lawfully -operated freestanding newsracks on the blockface is less than the number of newsrack spaces allowed on the blockface under this division, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the existing publications allocated newsrack spaces under this paragraph shall select locations on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. The remaining newsrack spaces will be allocated through the lottery process described in Subsection (b) of this section. (b) Future allocation. After the initial allocation of newsrack locations under Subsection (a), whenever one or more freestanding newsrack spaces become available on a blockface, the director shall allocate the newsrack in accordance with the following procedures: (1) The director shall, by personal service or by regular United States mail, notify all publishers who have current valid license L O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 applications on file with the city, that a lottery will be held to allocate the available freestanding newsrack spaces. The notice must: a identify the number and location (by blockface) of the available newsrack spaces; b state the date, time, and location of the lottery; c state the date and time by which the director must receive all request to have publications entered in the lottery and the address at which the request must be received; and d state any other information the director determines necessary to conduct the lottery. (2) Any licensed applicant who has been notified and wishes to participate in the lottery shall submit a request in writing to the director. Such request shall be received by 12:00 noon on the day prior to the lottery. (3) The director shall place in a pool the names of all publications for which requests to participate in the lottery were timely received. The director shall draw from the pool a number of publication names equal to the number of newsrack spaces available on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and continuing in a sequential manner. The publications whose names are drawn will be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number following the one assigned to the last publication allocated a newsrack space on the blockface (in the order drawn) only if any of the other publications allocated a newsrack space on the blockface do not want the space or do not qualify for the space. (4) Random five-year lottery. Five years after the initial allocation of newsrack spaces on a blockface and every five years thereafter, the director shall reallocate the newsrack spaces in accordance with the lottery procedures established in Subsection (b) of this section. The publisher of any publication that is not allocated a newsrack space on the blockface shall remove the newsrack containing that publication within 10 days after the date the lottery is conducted. fir O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 SECTION 20-76 STANDARDS FOR INSTALLATION, OPERATION, AND MAINTENANCE OF NEWSRACKS. (a) Any newsrack that, in whole or part, rests on any public right-of-way within the city not open to vehicular traffic must: (1) comply with all applicable city ordinances and state and federal laws; and (2) not remain continuously empty of publications authorized under the newsrack license form more than 30 consecutive days. (b) In addition to meeting the requirements of Subsection (a), any freestanding newsrack that, in whole or part, rests on any public right-of- way within the city not open to vehicular traffic must meet all of the following standards: (1) Be one of the following designated newsrack models or an equivalent approved by the director: a Rak Systems, Inc. R-80 or Kaspar Inc./Sho Rack Model TK80, if the newsrack is coin-operated; or b Rak Systems Model C91 or Kaspar Inc./Sho-Rack Model 83, if the newsrack only dispenses free publications. In the event that these models are unavailable/discontinued, the director may authorize alternate models/manufacturers. (2) Not display advertising, except that a logo or other information identifying the publication and coin operation information may appear on a freestanding newsrack. This information must be contained in an area not to exceed six inches high and 20 inches wide on the front, back, and/or sides of the newsrack. (3) Be constructed of metal, not plastic, and be glossy dark forest green, as approved by the Historic Preservation Manager of the City of Grapevine. (4) Have a notice, not to exceed three inches high and five inches wide, in a readily visible place on the newsrack with the name of the distributor and a working telephone number of whom to call to report a malfunction or to obtain a refund if any coin return mechanism malfunctions. This separate notice is not required if the information required by this paragraph is included with the logo and information allowed under Paragraph (2) of this section. (5) Be maintained in a neat and clean condition and in good repair such that: O:Ordinances\2007C od e ofO rd i n a n ce D RA FT 1-20 08 a the newsrack is reasonably free of dirt and grease; b the newsrack is reasonably free of chipped, faded, peeling, and cracked paint in the visible painted areas; C the newsrack is reasonably free of rust and corrosion; d the newsrack is free of all graffiti; e free of all unauthorized stickers or other attachments. f any clear plastic or glass parts through which the publications are viewed are unbroken and reasonably free of cracks, dents, blemishes, and discoloration; g any paper or cardboard parts or inserts are reasonably free of tears, peeling, or fading; and h no structural parts are broken or excessively misshapen. (6) Be of sufficient weight, or be anchored in a manner approved by the director to a heavy metal plate of sufficient weight, to prevent tipping over of the newsrack. A freestanding newsrack may not be anchored to the ground, sidewalk, trees, posts, poles, or streetscape furniture. SECTION 20-77 LOCATIONAL REQUIREMENTS FOR NEWSRACKS. (a) No freestanding newsrack or multiple newsrack unit may be located in a manner that: (1) impairs or interferes with: a pedestrian traffic, including wheelchairs; b the ability to fully open a door to any building; C the loading or unloading of passengers from a bus or light rail vehicle; or d emergency access to a building or property by the police department, the fire department, or emergency medical services; (2) reduces the clear, unimpeded sidewalk width to less than four -feet at any point. (3) obstructs the visibility of a fire hydrant, fire department inlet connection, fire protection system control valve, fire call box, police call box, traffic control signal box, or other emergency facility so that the emergency facility cannot be clearly seen from a public street or roadway open to motor vehicular traffic; or (4) is determined by the director to endanger the safety of persons or property. O:Ordinances\2007codeofOrdinanceDRAFT1-2008 (b) On each blockface, freestanding newsracks must be placed together in groups, with not more than eight newsracks in each group. A distance of at least 75 feet must separate each group of freestanding newsracks located on the same blockface. (c) No more than four newsracks (whether freestanding newsracks or newsrack spaces in multiple newsrack units) on any block may dispense the same publication, and no more than one newsrack (whether freestanding newsracks or newsrack spaces in multiple newsrack units) on any blockface may dispense the same publication. The same publication may not be dispensed in more than one newsrack space in a multiple newsrack unit or in an attached grouping of multiple newsrack units. (d) A freestanding newsrack or a multiple newsrack unit may not be located within: (1) any median or traffic island; (2) a visibility triangle as determined by the city traffic engineer; (3) the area contained within the projection of the width of a crosswalk to the back of an adjacent sidewalk; (4) the area contained within the projection of the width of a building's doorway to the curb face or pavement edge of any public street or roadway open to motor vehicular traffic; (5) two feet of a curb face or pavement edge of any public street or roadway open to motor vehicular traffic if the newsrack opens away from the curb face or pavement edge, (6) three feet of; a any mailbox, water feature, art, monument, planter, kiosk, trash receptacle, drinking fountain, streetscape bench, or parking meter; b a fire hydrant, fire department inlet connection, fire protection system control valve, fire call box, police call box, traffic control signal box, or other emergency facility; or C a bench, shelter, informational sign, or ticketing equipment of a light rail system; (7) five feet of a curb face or pavement edge of any public street or roadway open to motor vehicular traffic if the newsrack opens towards the curb face or pavement edge; (8) six feet of a bicycle rack; (9) seven feet of bus stop sign, bus stop bench, or bus stop shelter; or (10) 15 feet of the centerline of rail of any light rail system track. 13 O:Ord inances12007CodeofOrd inance DRAFT1-2008 (11) A freestanding newsrack may not be located within a multiple newsrack unit zone or within 50 feet of a multiple newsrack unit zone. SECTION 20-78 DISPLAY AND DISTRIBUTION OF HARMFUL MATERIALS THROUGH NEWSRACKS. A licensee shall not knowingly display, distribute, or sell any harmful matter, as defined in Section 43.24(a)(2) of the Texas Penal Code, as amended, through any newsrack licensed under this division. SECTION 20-79 RESTORATION OF THE RIGHT-OF-WAY. Upon termination of a license, the licensee (or the director's designee, who shall assess any costs to the licensee) shall remove a freestanding newsrack and restore the right-of-way to its original condition in a manner satisfactory to the director. A licensee shall remain liable for all license fees from the time a license is issued until such time as all freestanding newsracks are removed, the license area is restored to its original condition, and the license is properly terminated. SECTION 20-80 REMOVAL OF NEWSRACKS AND PUBLICATIONS. (a) If the director determines that a freestanding newsrack is not in compliance with the requirements of this division or that a newsrack space in a multiple newsrack unit is not being operated in compliance with the requirements of this division, the director shall send a "Notice of Intent to Remove" by personal service or by certified mail, return receipt requested, to the licensee. The notice must state the violation or violations that constitute the basis for the proposed removal of the licensee's freestanding newsrack or the proposed removal of publications from the licensee's newsrack space in a multiple newsrack unit, whichever is applicable, and suggest corrective action if applicable. The notice must specify the date, time, and place for a hearing to be held before removal. (b) A hearing must be held not less than 10 days following service of notice, or if the recipient refuses to accept the notice, 10 days after notice has been sent out by regular mail. Prior to the hearing, the licensee may correct the violation or may file a written statement setting forth the reason or reasons why the newsrack or publications, whichever applies, should not be removed. At the hearing, the director or the director's designee shall hear evidence and determine whether the licensee's freestanding newsrack complies with this division or whether the licensee's newsrack space in a multiple newsrack unit is being operated in compliance with this division, whichever applies. If it is determined that a freestanding newsrack is not in compliance with this division, the newsrack must be removed by the licensee or otherwise brought into compliance. If it is 14 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 determined that a newsrack space in a multiple newsrack unit is not being operated in compliance with this division, the licensee shall remove all publications from the newsrack space or otherwise bring the operation of the newsrack space into compliance. The decision of the director may be appealed to the city manager in accordance with Subsection (e) of this section. If, within 10 days after the date of the hearing or, if an appeal is filed, within 10 days after the date of the city manager renders a decision, the licensee has not removed the freestanding newsrack or the publications, whichever applies, or otherwise come into compliance with this division, the city may remove the newsrack or the publications and recover the costs of removal and storage from the licensee. (c) The director may summarily remove or order any freestanding newsrack removed if it creates an imminent danger of personal injury or property damage. Promptly following the summary removal, the director shall notify the licensee by personal service or by certified mail, return receipt requested, of the removal, the reason for the removal, and the right to appeal the action to the city manager in accordance with Subsection (e). The licensee may recover any newsracks summarily removed upon reimbursement to the city for the costs of removal and storage. Any coins or publications contained in the newsrack will be returned to the licensee when the newsrack is returned. The licensee may return the freestanding newsrack to its original location upon correction of the violation (unless the location constituted a violation). (d) Any newsrack or publication not claimed with 10 days after removal by the city may be disposed of by the city as unclaimed property. (e) If the director orders removal of a freestanding newsrack or a publication under Subsection (b) or summarily removes a freestanding newsrack under Subsection (c), this action is final unless, within 10 days after the receipt of notice of the director's action, the affected licensee, publisher, or owner of the newsrack or publication, whichever applies, files with the city manager a written appeal. Within 15 days after the appeal is filed, the city manager or the city manager's designee shall consider all the evidence in support of and against the action appealed and render a decision sustaining, modifying, or reversing all or part of the director's action. The formal rules of evidence do not apply to an appeal hearing under this subsection, and the city manager or the city manager's designee shall make a ruling on the basis of a preponderance of the evidence presented at the hearing. The decision of the city manager is final as to administrative remedies. 15 O:Ordinances12007CodeofOrdinanceDRAFT1-2008 SECTION 20-81 MULTIPLE NEWSRACK UNIT ZONES. (a) The city council may, by ordinance, establish zones within the city where the exclusive use of multiple newsrack units is required. A request for a multiple newsrack unit zone may be initiated by a city council member. (b) Criteria that may be considered in establishing a multiple newsrack unit zone include, but are not limited to: (1) whether the proposed zone has historical significance; (2) whether there is extensive availability and use of public transportation services and facilities in the proposed zone; (3) whether there is a large amount of pedestrian traffic in the proposed zone; (4) whether there is a proliferation of freestanding newsracks in the proposed zone; (5) whether limited space is available for freestanding newsracks in the proposed zone; and (6) whether the proposed zone is located in a district area with an established urban or neighborhood character. (c) The following areas are hereby established by the city council as multiple newsrack unit zones: (1) Any property designated with a Historic Zoning Overlay District, the Grapevine Township District, individual landmark, or property designated on the National Register of Historic Places, including the adjacent right-of-way, shall hereby be designated as multiple newsrack zones. (d) Before an ordinance is adopted establishing any additional multiple newsrack unit zone, the director shall prepare a plan that includes: (1) the number and proposed locations of the multiple newsrack units to be installed in the proposed zone; (2) the design criteria for the multiple newsrack units to be installed in the proposed zone; and (3) the number and location of existing freestanding newsracks in the proposed zone. (e) After the plan is prepared, the director shall place on a city council agenda an item for council consideration of the proposed multiple newsrack unit zone. At least 10 days before the date of the council meeting at which the city council will consider the item, notice of the meeting must be sent by regular United States mail to: m O:Ordinances\2007CodeofOrdinanceDRAFTI -2008 (1) all publishers having current license application or current licenses with the city to operate newsracks in the public right-of-way; and (2) all owners of property located within 200 feet of the proposed multiple newsrack unit zone. (f) The notice required in Subsection (e) must include the date, time, and location of the council meeting and a brief summary of the proposed plan for the multiple newsrack unit zone. (g) After a multiple newsrack unit zone is established, the city may install and maintain multiple newsrack units in the zone, in locations determined by the director in conjunction with other city departments. A publisher shall only use a multiple newsrack unit provided by the city to dispense publications in a multiple newsrack unit zone, except that any freestanding newsrack lawfully operating on a blockface at the time the blockface is included in a multiple newsrack unit zone may continue to operate on the blockface until multiple newsrack units are actually installed on the blockface. (h) The director shall allocate newsrack spaces in multiple newsrack units in accordance with the following procedures: (1) Initial allocation. a The director shall determine how many newsrack spaces are available in multiple newsrack units placed on a blockface in compliance with this section. b The director shall determine how many freestanding newsracks are being lawfully operated on the blockface. A freestanding newsrack will be considered as being lawfully operated on the blockface if it is documented as being legally located as of January 1, 2008. c If the number of lawfully -operated freestanding newsracks on the blockface exceeds the number of newsrack spaces available in multiple newsrack units on the blockface, the director shall conduct a lottery to determine the allocation of the newsrack spaces as follows: The director shall place in a pool the names of all publications dispensed in the freestanding newsracks that are being lawfully operated on the blockface. The director shall draw from the pool a number of publications names equal to the number of newsrack spaces available in multiple newsrack units on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and continuing in a sequential manner. The 17 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 M e publications whose names are drawn will be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations in the multiple newsrack units on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number following the one assigned to the last publication allocated a newsrack space in a multiple newsrack unit on the blockface. These remaining publications will be allocated a newsrack space in a multiple newsrack unit on the blockface (in the order drawn) only if any of the other publications allocated a newsrack space do not want the space or do not qualify for the space. The publisher of any publication that is not allocated a newsrack space in a multiple newsrack unit on the blockface shall remove the newsrack containing that publication within 10 days after the date the lottery is conducted. If the number of lawfully -operated freestanding newsracks on the blockface equals the number of newsrack spaces available in multiple newsrack units on the blockface, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated newsrack spaces under this paragraph shall select locations in the multiple newsrack units on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. If the number of lawfully -operated freestanding newsracks on the blockface is less than the number of newsrack spaces available in multiple newsrack units on the blockface, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the existing publications allocated newsrack spaces under this paragraph shall select locations in a multiple newsrack unit on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. The remaining newsrack spaces will be im O:Ordi na nces\2007CodeofOrdi nanceDRAFT1-2008 allocated through the lottery process described in Section 20-81 (h)(2) future allocation. (2) Future allocation. a Whenever one or more newsrack spaces become available in a multiple newsrack unit on a blockface, the director shall, by personal service or by regular United States mail, notify all publishers who have current valid license applications on file with the city that a lottery will be held to allocate the available newsrack spaces. The notice must: 1 identify the number and location (by blockface) of the available newsrack spaces; 2 state the date, time, and location of the lottery; 3 state the date and time by which the director must receive all request to have publications entered in the lottery and the address at which the request must be received; and 4 state any other information the director determines necessary to conduct the lottery. b Any license applicant who has been notified and wishes to participated in the lottery shall submit a request in writing to the director, such request shall be received by 12:00 noon on the day prior to the lottery. c The director shall place in a pool the names of all publications for which request to participate in the lottery were timely received. The director shall draw from the pool a number of publication names equal to the number of newsrack spaces available in multiple newsrack units on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and continuing in a sequential manner. The publications whose names are drawn will be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations in a multiple newsrack unit on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number following the one assigned to the last publication allocated a newsrack space in a multiple newsrack unit on the blockface. These 19 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 remaining publications will be allocated a newsrack space in a multiple newsrack unit on the blockface (in the order drawn) only if any of the other publications originally allocated a newsrack space do not want the space or do not quality for the space. d Random five-year lottery. Five years after the initial allocation of newsrack spaces in a multiple newsrack unit on a blockface and every five years thereafter, the director shall reallocate the newsrack spaces in accordance with the lottery procedures established in Paragraph (2) of this subsection. The publisher of any publication that is not allocated a newsrack space in a multiple newsrack unit on a blockface shall remove any publications from any newsrack space on that blockface within 10 days after the date the lottery is conducted. (i) A publisher allocated a newsrack space in a multiple newsrack unit in a zone shall install and maintain any coin-operated lock it requires to be on its assigned newsrack. The locking device must be approved by the director and must not interfere with the use of the other newsracks in the multiple newsrack unit. SECTION 20-82 VIOLATIONS, PENALTY. (a) A person who installs, operates, or maintains a newsrack on a public right- of-way within the city in violation of this division or without a license issued under this division is guilty of an offense and, upon conviction, is subject to a fine not to exceed $500.00 for each day that the violation exists. (b) The penalties provided for in Subsection (1) are in addition to any other enforcement remedies that the city may have under this division, other city ordinances, and state law." Section 2. That Appendix G, Historic Preservation, of the Grapevine Code of Ordinances is hereby amended by the addition of a new Article I to include existing sections 1-13, and the addition of a new Article 11, Newsracks to read as follows: ARTICLE II, NEWSRACKS SECTION 14 PURPOSE AND INTENT. This division only applies to newsracks located on the public right-of-way within the city of Grapevine and provides administrative procedures for the grant of annual licenses regarding newsracks to be located on the public right -of way. This division regulates the placement of newsracks on the public right-of-way within the city. This division also ensures that newsracks do not create a hazard to persons or property, do 20 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 not interfere with pedestrian or vehicular traffic, and are kept neat, clean, and in good repair. SECTION 15 DEFINITIONS. In this division, unless the context requires a different definition: (a) BLOCK means an area bounded by streets on all sides. If a street deadends, the terminus of the dead-end street will be treated as an intersecting street. (b) BLOCKFACE means the linear distance of lots along one side of a street between the two nearest intersecting streets. If a street deadends, the terminus of the dead-end street will be treated as an intersecting street. (c) CROSSWALK has the meaning given that term in Section 541.302 of the Texas Transportation Code, as amended. (d) DIRECTOR means the director of Development Services, or a designee. (e) FREESTANDING NEWSRACK means a newsrack that is not a multiple newsrack unit or a part of a multiple newsrack unit. (f) LICENSE means permission granted under this division to a person to install, operate, or maintain a newsrack within the public right-of-way of the city for a specific period of time. (g) LICENSEE means the publisher, and any other person operating and maintaining a newsrack on behalf of a publisher, who is issued a license under this division to install, or maintain a newsrack within the public right- of-way of the city. (h) MULTIPLE NEWSRACK UNIT means a single structure containing more than one newsrack that is installed by the city in a multiple newsrack unit zone. (i) NEWSRACK means any self-service or coin-operated container, rack, or structure used or maintained for the display, distribution, or sale of newspapers, periodicals, or other publication. (j) PERSON MEANS an individual, assumed name entity, partnership, joint venture, association, corporation, or other legal entity. (k) PUBLISHER means any person who owns and/or distributes newspapers, periodicals, or other publications. 104 O:Ordinances\2007CodeofOrd inanceDRAFT1-2008 (1) SPLIT --DOOR NEWSRACK means a freestanding newsrack or a newsrack space in a multiple newsrack unit that has been split into two separate distribution areas. SECTION 16 LICENSE REQUIRED. A person commits an offense if: (a) he installs, operates, or maintains a newsrack on any portion of a public right-of-way within the city that is open to vehicular traffic; (b) without a license issued under this division, he installs, operates, or maintains a newsrack on a public right-of-way in the city that is not open to vehicular traffic; SECTION 17 LICENSE APPLICATION; ISSUANCE OF LICENSE. (a) A person who desires to install, operate, or maintain a newsrack on a public right-of-way which is not open to vehicular traffic, or who desires to place publications within a multiple newsrack unit shall submit an application for a newsrack license to the director on a form provided for that purpose. The applicant must be the person who will install, operate, or maintain the newsrack. The application must be verified and contain all of the following: (1) Name, address, telephone number, and signature of the applicant. If the applicant is a person other than the publisher, then the publisher must also sign the application, agreeing to be bound by the terms contained in the license. (2) Name, address and telephone number of the person the city may contact concerning installation, placement, operation, and maintenance of the applicant's newsracks or space within a multiple newsrack unit. (3) Form of business of the applicant and, if the business is a corporation or association, a copy of the documents establishing the business. (4) Number of newsracks or spaces within multiple newsrack units the applicant wishes to install or operate in the city and a list indicating the proposed location (by blockface) of each newsrack, the name of the publication each newsrack will dispense, and whether the publication will be dispensed free or for a charge. (5) Dimensional measurements of each style of any freestanding newsracks to be installed, with drawing or photographs. (b) Following a review of the application, execution of the written agreement required under Section 18 payment of a nonrefundable $100 application processing fee, and payment of the annual fee for a newsrack license, the iM O:Ordinances12007CodeofOrdinanceDRAFT1-2008 director shall, within 60 days following the date of receipt of an application for an initial license and within 30 days following the date of receipt of an application for a license renewal, issue a newsrack license to the applicant unless denial is required by Section 19, or unless there are no available newsrack spaces. In the event that no newsrack spaces are available, the application shall be kept on file until the date of its expiration, and shall be eligible to be entered into a lottery in accordance with Section 22 (b). (c) Before any newsrack not authorized under a newsrack license may be installed, operated, or maintained on the public right-of-way, the licensee must make a written request to the director for the additional newsrack, pay the required annual fee, and display a valid decal on the newsrack as required by this division. (d) The director may (in accordance with procedures established by this division for the allocation of newsrack locations) approve changes to the location of a validly licensed newsrack, upon written request by a licensee, for no additional fee. An amendment that substantially changes the scope of a license (such as displaying, distributing, or selling in a newsrack a publication not specified in the license application for the newsrack) must be applied for in the same manner as the original license. (e) A licensee shall notify the director within 10 days of any changes in the address or telephone number of the publisher or of the person responsible for the installation, operation, or maintenance of the newsracks permitted under the license. (f) A license issued to one person may not be transferred to another person. A newsrack location assigned to one person or publication may not be transferred to another person or publication without following the procedures established by this division for the allocation of newsrack locations. A license may be transferred to a replacement newsrack at the same location provided that the replacement newsrack is operated by the original licensee. (g) The $100.00 application fee need only be paid upon initial application, provided annual license is renewed in accordance with Section 21. SECTION 18 CONDITIONS OF A LICENSE AND ANNUAL FEES. (a) It is a condition of a license that the installation, operation, and maintenance of each newsrack be in accordance with this division. (b) Prior to the issuance of a license, the licensee shall execute a written agreement providing all of the following: 23 O:Ord inances\2007CodeofOrd i nance DRAFT 1-2008 (1) The licensee will defend, indemnify, and hold whole and harmless the City of Grapevine and its officers, agents, representatives, or employees against any and all claims, lawsuits, judgments, costs, or expenses (including attorney's fees) for bodily injury, property damage, or other harm arising out of, or in any way related to, the licensee's occupancy, maintenance, or use of the licensed area or the licensee's placement, installation, operation, or maintenance of any newsrack. (2) If the City of Grapevine is ever made a defendant in any cause of action, directly or indirectly, based upon the licensee's occupancy, maintenance, or use of the licensed area, or the licensee's placement, installation, operation, or maintenance of any newsrack, the city shall have the right, at its option, to implead the licensee and its successors and assigns. (3) The licensee will procure, prior to the issuance of a license, and keep in full force and effect at all times during the license term, commercial general liability insurance coverage (including, but not limited to, premises/operations, independent contractors, and contractual liability) protecting the City of Grapevine against any and all claims for damages to persons or property as a result of, or arising out of, the licensee's occupancy, maintenance, or use of the licensed area or the licensee's placement, installation, operation, or maintenance of any newsrack, with the minimum combined bodily injury (including death) and property damage limits of not less than $500,000 annual aggregate. The insurance policy must be written by an insurance company approved by the State of Texas and acceptable to the city and issued in a standard form approved by the Texas Department of Insurance. All provisions of the policy must be acceptable to the city and must name the city and its officers and employees as additional insured's and provide for 30 days written notice to the director of cancellation, non -renewal, or material change to the insurance policy. (4) The license is subject to the rights of the city, public utilities, and franchisees in and to the public right-of-way and the rights of the city to make changes to the grade of any street, sidewalk, or parkway, and the licensee will never make a claim against the city for damages it might suffer by reason of the installation, construction, reconstruction, operation, or maintenance of any public improvement, utility, or communication facility on the license area. (c) The annual license fee for a newsrack license is: (1) $75.00 for each freestanding newsrack located within a public right- of-way of the city; and O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (2) $150.00 for each newsrack space operated in a multiple newsrack unit, which amount includes rental of the newsrack space from the city. (d) A licensee shall pay the annual license fee for a newsrack license to the director. The payment must be made on or before the issuance of a license. All sums due under this section must be deposited by the city controller and are subject to a $20.00 fee for each dishonored check. Except as specifically provided otherwise in this division, no license fees will be prorated upon termination of any license. SECTION 19 DENIAL OR REVOCATION OF A LICENSE. (a) The director shall deny a newsrack license if the director determines that the applicant has: (1) made a false statement of a material fact on an application for a newsrack license; (2) failed to provide the information requested on an application for a newsrack license; (3) failed to execute a written agreement in accordance with Section 18; (4) failed to pay the nonrefundable application fee or annual license fee at the time due; or (5) failed to comply with the requirements of this division or other applicable law. (b) The director shall revoke a newsrack license if the director determines that the licensee has: (1) made a false statement of a material fact on an application for a newsrack license; (2) failed to comply with the requirements of the newsrack license, the written agreement executed under Section 18, this division, or any other applicable law; (3) failed to maintain in full force and effect the insurance as required by this division; or (4) failed to pay any fees required by this division at the time due. SECTION 20 APPEAL FROM LICENSE DENIAL OR REVOCATION. (a) If the director denies the issuance or renewal of a license or revokes a license, the director shall send to the applicant or licensee written notice of the reason for denial, non -renewal, or revocation and of the right to an appeal, by certified mail, return receipt requested. If the certified mail is refused by the recipient, the notice may be sent by regular mail KW O:Ord inances\2007CodeofOrdi nanceDRAFT1-2008 (b) Upon receipt of written notice of the denial, nonrenewal, or revocation, the applicant or licensee whose application for a license or license renewal has been denied or whose license has been revoked has the right to an appeal to the city manager. (c) An appeal to the denial, revocation, or non -renewal of a license shall be made in writing to the city manager. The filing of an appeal under this subsection stays the action of the director in revoking a license until a final decision is made by the city manager. A revocation upheld by the city manager is effective on the first midnight that is at least 24 hours after the city manager issues its decision. (d) An appeal to the state district court must be filed within 30 days after receipt of notice of the city managers decision. The applicant or licensee shall bear the burden of proof in court. SECTION 21 EXPIRATION AND RENEWAL OF A LICENSE. (a) A newsrack license expires and becomes invalid on December 31 of each year, unless sooner terminated by the director in accordance with this division or by city council ordinance in accordance with the city charter. A license shall apply for renewal of a newsrack license at least 30 days, but not more than 90 days, before expiration of the license. An application for renewal must be made in accordance with the procedures established in Section 17. (b) An existing licensee will be able to renew a license for the same newsrack locations until those newsrack locations are reallocated under a five-year lottery conducted under Section 22(b)(4), except that failure to timely renew a license in accordance with Subsection (a), or denial or revocation of a license, will result in the location for that newsrack being made available to other publishers. SECTION 22 ALLOCATION OF FREESTANDING NEWSRACK LOCATIONS. (a) Initial allocation. Before June 1, 2009, the director shall allocate locations for freestanding newsracks in accordance with the following procedures: (1) The director shall determine how many freestanding newsracks may be placed on a blockface in locations complying with this division. (2) The directors shall determine how many freestanding newsracks are being lawfully operated on a particular blockface. A freestanding newsrack will be considered as being lawfully operated if it is determined as being legally located on the blockface as of January 1, 2008. M O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (3) If the number of lawfully -operated freestanding newsracks on the blockface exceeds the number of newsrack spaces allowed on the blockface under this division, the director shall conduct a lottery to determine the allocation of the newsrack spaces as follows: (5) (6) The director shall place in a pool the names of all publications dispensed in the freestanding newsracks that are being lawfully operated on the blockface. If the same publication is being dispensed by more than one newsrack on the blockface, its name will be placed in the pool twice. The directors shall draw from the pool a number of publication names equal to the number of newsrack spaces allowed under this division on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and continuing in a sequential manner. The publications whose names are drawn will be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number following the one assigned to the last publication allocated a newsrack space on the blockface. These remaining publications will be allocated a newsrack space on the blockface (in the order drawn) only if any of the other publications originally allocated a newsrack space on the blockface do not want the space or do not qualify for the space. The publisher of any publications that is not allocated a newsrack space on the blockface shall remove the newsrack containing that publication within 10 days after the date the lottery is conducted. If the number of lawfully -operated freestanding newsracks on the blockface equals the number of newsrack spaces allowed on the blockface under this division, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated newsrack spaces under this paragraph shall select locations on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. If the number of lawfully -operated freestanding newsracks on the blockface is less than the number of newsrack spaces allowed on the blockface under this division, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the existing publications 27 O:O rd i n a n ces12007CodeofOrd i na n ce D RA FT 1-2008 allocated newsrack spaces under this paragraph shall select locations on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. The remaining newsrack spaces will be allocated through the lottery process described in Subsection (b) of this section. (b) Future allocation. After the initial allocation of newsrack locations under Subsection (a), whenever one or more freestanding newsrack spaces become available on a blockface, the director shall allocate the newsrack in accordance with the following procedures: (1) The director shall, by personal service or by regular United States mail, notify all publishers who have current, valid license applications on file with the city that a lottery will be held to allocate the available freestanding newsrack spaces. The notice must: a identify the number and location (by blockface) of the available newsrack spaces; b state the date, time, and location of the lottery; c state the date and time by which the director must receive all request to have publications entered in the lottery and the address at which the request must be received; and d state any other information the director determines necessary to conduct the lottery. (2) Any licensed applicant who has been notified and wishes to participate in the lottery shall submit a request in writing to the director. Such request shall be received by 12:00 noon on the day prior to the lottery. (3) The director shall place in a pool the names of all publications for which requests to participate in the lottery were timely received. The director shall draw from the pool a number of publication names equal to the number of newsrack spaces available on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and continuing in a sequential manner. The publications whose names are drawn will be allocated a newsrack space on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number 28 O:Ordinances\2007CodeofOrd i nance D RAFT1-2008 SECTION 23 (a) following the one assigned to the last publication allocated a newsrack space on the blockface (in the order drawn) only if any of the other publications allocated a newsrack space on the blockface do not want the space or do not qualify for the space. (4) Random five-year lottery. Five years after the initial allocation of newsrack spaces on a blockface and every five years thereafter, the director shall reallocate the newsrack spaces in accordance with the lottery procedures established in Subsection (b) of this section. The publisher of any publication that is not allocated a newsrack space on the blockface shall remove the newsrack containing that publication within 10 days after the date the lottery is conducted. STANDARDS FOR INSTALLATION, OPERATION, AND MAINTENANCE OF NEWSRACKS. Any newsrack that, in whole or part, rests on any public right-of-way within the city not open to vehicular traffic must: (1) comply with all applicable city ordinances and state and federal laws; and (2) not remain continuously empty of publications authorized under the newsrack license form more than 30 consecutive days. (b) In addition to meeting the requirements of Subsection (a), any freestanding newsrack that, in whole or part, rests on any public right-of- way within the city not open to vehicular traffic must meet all of the following standards: (1) Be one of the following designated newsrack models or an equivalent approved by the director: a Rak Systems, Inc. Model R-80 or Kaspar/Sho-Rack Model TK80, if the newsrack is coin-operated; or b Rak Systems, Inc. Model C91, or Kaspar Inc./Sho-Rack Model 83, if the newsrack only dispenses free publications. In the event that these models are unavailable/discontinued, the director may authorize alternate manufacturers/models. (2) Not display advertising, except that a logo or other information identifying the publication and coin operation information may appear on a freestanding newsrack. This information must be contained in an area not to exceed six inches high and 20 inches wide on the front, back, and/or sides of the newsrack. W O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (3) Be constructed of metal, not plastic, and be glossy dark forest green, as approved by the Historic Preservation Manager of the City of Grapevine. (4) Have a notice, not to exceed three inches high and five inches wide, in a readily visible place on the newsrack with the name of the distributor and a working telephone number of whom to call to report a malfunction or to obtain a refund if any coin return mechanism malfunctions. This separate notice is not required if the information required by this paragraph is included with the logo and information allowed under Paragraph (2) of this section. (5) Be maintained in a neat and clean condition and in good repair such that: a the newsrack is reasonably free of dirt and grease; b the newsrack is reasonably free of chipped, faded, peeling, and cracked paint in the visible painted areas; d the newsrack is reasonably free of rust and corrosion; d any clear plastic or glass parts through which the publications are viewed are unbroken and reasonably free of cracks, dents, blemishes, and discoloration; e any paper or cardboard parts or inserts are reasonably free of tears, peeling, or fading; and f no structural parts are broken or excessively misshapen. (6) Be of sufficient weight, or be anchored in a manner approved by the director to a heavy metal plate of sufficient weight, to prevent tipping over of the newsrack. A freestanding newsrack may not be anchored to the ground, sidewalk, trees, posts, poles, or streetscape furniture. SECTION 24 LOCATIONAL REQUIREMENTS FOR NEWSRACKS. (a) No freestanding newsrack or multiple newsrack unit may be located in a manner that: (1) impairs or interferes with: a pedestrian traffic, including wheelchairs; b the ability to fully open a door to any building; C the loading or unloading of passengers from a bus or light rail vehicle; or d emergency access to a building or property by the police department, the fire department, or emergency medical services; 9C O:Ordina n ces\2007CodeofOrd inanceDRAFT 1-2008 (2) reduces the clear, unimpeded sidewalk width to less than four -feet 4' at any point. (3) obstructs the visibility of a fire hydrant, fire department inlet connection, fire protection system control valve, fire call box, police call box, traffic control signal box, or other emergency facility so that the emergency facility cannot be clearly seen from a public street or roadway open to motor vehicular traffic; or (4) is determined by the director to endanger the safety of persons or property. (b) On each blockface, freestanding newsracks must be placed together in groups, with not more than eight newsracks in each group. A distance of at least 75 feet must separate each group of freestanding newsracks located on the same blockface. (c) No more than four newsracks (whether freestanding newsracks or newsrack spaces in multiple newsrack units) on any block may dispense the same publication, and no more than one newsrack (whether freestanding newsracks or newsrack spaces in multiple newsrack units) on any blockface may dispense the same publication. The same publication may not be dispensed in more than one newsrack space in a multiple newsrack unit or in an attached grouping of multiple newsrack units. (d) A freestanding newsrack or a multiple newsrack unit may not be located within: (1) any median or traffic island; (2) a visibility triangle as determined by the city traffic engineer; (3) the area contained within the projection of the width of a crosswalk to the back of an adjacent sidewalk; (4) the area contained within the projection of the width of a building's doorway to the curb face or pavement edge of any public street or roadway open to motor vehicular traffic; (5) two feet of a curb face or pavement edge of any public street or roadway open to motor vehicular traffic if the newsrack opens away from the curb face or pavement edge, (6) three feet of; a any mailbox, water feature, art, monument, planter, kiosk, trash receptacle, drinking fountain, streetscape bench, or parking meter; 31 O:Ord inances\2007CodeofOrdinanceDRAFT1-2008 b a fire hydrant, fire department inlet connection, fire protection system control valve, fire call box, police call box, traffic control signal box, or other emergency facility; or c a bench, shelter, informational sign, or ticketing equipment of a light rail system; (7) five feet of a curb face or pavement edge of any public street or roadway open to motor vehicular traffic if the newsrack opens towards the curb face or pavement edge; (8) six feet of a bicycle rack; (9) seven feet of bus stop sign, bus stop bench, or bus stop shelter; or (10) 15 feet of the centerline of rail of any light rail system track. (11) A freestanding newsrack may not be located within a multiple newsrack unit zone or within 50 feet of a multiple newsrack unit zone. SECTION 25 DISPLAY AND DISTRIBUTION OF HARMFUL MATERIALS THROUGH NEWSRACKS. A licensee shall not knowingly display, distribute, or sell any harmful matter, as defined in Section 43.24(a)(2) of the Texas Penal Code, as amended, through any newsrack licensed under this division. SECTION 26 RESTORATION OF THE RIGHT-OF-WAY. Upon termination of a license, the licensee (or the director's designee, who shall assess any costs to the licensee) shall remove a freestanding newsrack and restore the right-of-way to its original condition in a manner satisfactory to the director. A licensee shall remain liable for all license fees from the time a license is issued until such time as all freestanding newsracks are removed, the license area is restored to its original condition, and the license is properly terminated. SECTION 27 REMOVAL OF NEWSRACKS AND PUBLICATIONS. (a) If the director determines that a freestanding newsrack is not in compliance with the requirements of this division or that a newsrack space in a multiple newsrack unit is not being operated in compliance with the requirements of this division, the director shall send a "Notice of Intent to Remove" by personal service or by certified mail, return receipt requested, to the licensee. The notice must state the violation or violations that constitute the basis for the proposed removal of the licensee's freestanding newsrack or the proposed removal of publications from the licensee's newsrack space in a multiple newsrack unit, whichever is applicable, and suggest corrective action if applicable. The notice must specify the date, time, and place for a hearing to be held before removal. 32 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (b) A hearing must be held not less than 10 days following service of notice. Prior to the hearing, the licensee may correct the violation or may file a written statement setting forth the reason or reasons why the newsrack or publications, whichever applies, should not be removed. At the hearing, the director or the director's designee shall hear evidence and determine whether the licensee's freestanding newsrack complies with this division or whether the licensee's newsrack space in a multiple newsrack unit is being operated in compliance with this division, whichever applies. If it is determined that a freestanding newsrack is not in compliance with this division, the newsrack must be removed by the licensee or otherwise brought into compliance. If it is determined that a newsrack space in a multiple newsrack unit is not being operated in compliance with this division, the licensee shall remove all publications from the newsrack space or otherwise bring the operation of the newsrack space into compliance. The decision of the director may be appealed to the city manager in accordance with Subsection (e) of this section. If, within 10 days after the date of the hearing or, if an appeal is filed, within 10 days after the date of the city manager renders a decision, the licensee has not removed the freestanding newsrack or the publications, whichever applies, or otherwise come into compliance with this division, the city may remove the newsrack or the publications and recover the costs of removal and storage from the licensee. (c) The director may summarily remove or order any freestanding newsrack removed if it creates an imminent danger of personal injury or property damage. Promptly following the summary removal, the director shall notify the licensee by personal service or by certified mail, return receipt requested, of the removal, the reason for the removal, and the right to appeal the action to the city manager in accordance with Subsection (e). The licensee may recover any newsracks summarily removed upon reimbursement to the city for the costs of removal and storage. Any coins or publications contained in the newsrack will be returned to the licensee when the newsrack is returned. The licensee may return the freestanding newsrack to its original location upon correction of the violation (unless the location constituted a violation). (d) Any newsrack or publication not claimed with 10 days after removal by the city may be disposed of by the city as unclaimed property. (e) If the director orders removal of a freestanding newsrack or a publication under Subsection (b) or summarily removes a freestanding newsrack under Subsection (c), this action is final unless, within 10 days after the receipt of notice of the director's action, the affected licensee, publisher, or owner of the newsrack or publication, whichever applies, files with the city manager a written appeal. Within 15 days after the appeal is filed, the city manager or the city manager's designee shall consider all the evidence in 33 O:Ordinances12007CodeofOrdinanceDRAFT1-2008 support of and against the action appealed and render a decision sustaining, modifying, or reversing all or part of the director's action. The formal rules of evidence do not apply to an appeal hearing under this subsection, and the city manager or the city manager's designee shall make a ruling on the basis of a preponderance of the evidence presented at the hearing. The decision of the city manager is final as to administrative remedies. SECTION 28 MULTIPLE NEWSRACK UNIT ZONES. (a) The city council may, by ordinance, establish zones within the city where the exclusive use of multiple newsrack units is required. A request for a multiple newsrack unit zone may be initiated by a city council member. (b) Criteria that may be considered in establishing a multiple newsrack unit zone include, but are not limited to: (1) whether the proposed zone has historical significance. (2) whether there is extensive availability and use of public transportation services and facilities in the proposed zone; (3) whether there is a large amount of pedestrian traffic in the proposed zone; (4) whether there is a proliferation of freestanding newsracks in the proposed zone; (5) whether limited space is available for freestanding newsracks in the proposed zone; and (6) whether the proposed zone is located in a district area with an established urban or neighborhood character. (c) The following areas are hereby established by the city council as multiple newsrack unit zones: (1) Any property designated with a Historic Zoning Overlay District, the Grapevine Township District, individual landmark, or property designated on the National Register of Historic Places, including the adjacent right-of-way, shall hereby be designated as multiple newsrack zones. (d) Before an ordinance is adopted establishing any additional multiple newsrack unit zone, the director shall prepare a plan that includes: 34 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 (1) the number and proposed locations of the multiple newsrack units to be installed in the proposed zone; (2) the design criteria for the multiple newsrack units to be installed in the proposed zone; and (3) the number and location of existing freestanding newsracks in the proposed zone. (e) After the plan is prepared, the director shall place on a city council agenda an item for council consideration of the proposed multiple newsrack unit zone. At least 10 days before the date of the council meeting at which the city council will consider the item, notice of the meeting must be sent by regular United States mail to: (1) all publishers having current license applications or current licenses with the city to operate newsracks in the public right-of-way; and (2) all owners of property located within 200 feet of the proposed multiple newsrack unit zone. (f) The notice required in Subsection (e) must include the date, time, and location of the council meeting and a brief summary of the proposed plan for the multiple newsrack unit zone. (g) After a multiple newsrack unit zone is established, the city may install and maintain multiple newsrack units in the zone, in locations determined by the director in conjunction with other city departments. A publisher shall only use a multiple newsrack unit provided by the city to dispense publications in a multiple newsrack unit zone, except that any freestanding newsrack lawfully operating on a blockface at the time the blockface is included in a multiple newsrack unit zone may continue to operate on the blockface until multiple newsrack units are actually installed on the blockface. (h) The director shall allocate newsrack spaces in multiple newsrack units in accordance with the following procedures: (1) Initial allocation. a The director shall determine how many newsrack spaces are available in multiple newsrack units placed on a blockface in compliance with this section. b The director shall determine how many freestanding newsracks are being lawfully operated on the blockface. A freestanding newsrack will be considered as being lawfully operated on the blockface if it is documented as being legally located as of January 1, 2008. 35 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 C If the number of lawfully -operated freestanding newsracks on the blockface exceeds the number of newsrack spaces available in multiple newsrack units on the blockface, the director shall conduct a lottery to determine the allocation of the newsrack spaces as follows: The director shall place in a pool the names of all publications dispensed in the freestanding newsracks that are being lawfully operated on the blockface. The director shall draw from the pool a number of publications names equal to the number of newsrack spaces available in multiple newsrack units on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and continuing in a sequential manner. The publications whose names are drawn will be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations in the multiple newsrack units on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number following the one assigned to the last publication allocated a newsrack space in a multiple newsrack unit on the blockface. These remaining publications will be allocated a newsrack space in a multiple newsrack unit on the blockface (in the order drawn) only if any of the other publications allocated a newsrack space do not want the space or do not qualify for the space. The publisher of any publication that is not allocated a newsrack space in a multiple newsrack unit on the blockface shall remove the newsrack containing that publication within 10 days after the date the lottery is conducted. d If the number of lawfully -operated freestanding newsracks on the blockface equals the number of newsrack spaces available in multiple newsrack units on the blockface, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated newsrack spaces under this paragraph shall select locations in the multiple newsrack units on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. 36 O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 e If the number of lawfully -operated freestanding newsracks on the blockface is less than the number of newsrack spaces available in multiple newsrack units on the blockface, the publications dispensed in those lawfully -operated newsracks will each be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the existing publications allocated newsrack spaces under this paragraph shall select locations in a multiple newsrack unit on the blockface in the order in which their completed license applications are received by the director in compliance with this division, with the first received having first choice. The remaining newsrack spaces will be allocated through the lottery process described in Section 28(h)(2) (Future allocation). (2) Future allocation. a Whenever one or more newsrack spaces become available in a multiple newsrack unit on a blockface, the director shall, by personal service or by regular United States mail, notify all publishers who have current, valid license applications on file with the city that a lottery will be held to allocate the available newsrack spaces. The notice must: 1 identify the number and location (by blockface) of the available newsrack spaces; 2 state the date, time, and location of the lottery; 3 state the date and time by which the director must receive all request to have publications entered in the lottery and the address at which the request must be received; and 4 state any other information the director determines necessary to conduct the lottery. b Any license applicant who has been notified and wished to participate in the lottery shall submit a request in writing to the director. Such request shall be received by 12:00 noon on the day prior to the lottery. c The director shall place in a pool the names of all publications for which request to participate in the lottery were timely received. The director shall draw from the pool a number of publication names equal to the number of newsrack spaces available in multiple newsrack units on that blockface. The director shall assign numbers to the names, beginning with the Number 1 for the first -drawn name and 37 O:Ordinances�2007CodeofOrdinanceDRAFT1-2008 continuing in a sequential manner. The publications whose names are drawn will be allocated a newsrack space in a multiple newsrack unit on the blockface as long as compliance with this division is maintained. The publishers of the publications allocated a newsrack space through the lottery process will select locations in a multiple newsrack unit on the blockface in the order in which their publication names were drawn, with Number 1 having first choice. The director shall draw the remaining publication names from the pool and assign them a number, beginning with the number following the one assigned to the last publication allocated a newsrack space in a multiple newsrack unit on the blockface. These remaining publications will be allocated a newsrack space in a multiple newsrack unit on the blockface (in the order drawn) only if any of the other publications originally allocated a newsrack space do not want the space or do not quality for the space. d Random five-year lottery. Five years after the initial allocation of newsrack spaces in a multiple newsrack unit on a blockface and every five years thereafter, the director shall reallocate the newsrack spaces in accordance with the lottery procedures established in Paragraph (2) of this subsection. The publisher of any publication that is not allocated a newsrack space in a multiple newsrack unit on a blockface shall remove any publications from any newsrack space on that blockface within 10 days after the date the lottery is conducted. (i) A publisher allocated a newsrack space in a multiple newsrack unit in a zone shall install and maintain any coin-operated lock it requires to be on its assigned newsrack. The locking device must be approved by the director and must not interfere with the use of the other newsracks in the multiple newsrack unit. SECTION 29 VIOLATIONS; PENALTY. (a) A person who installs, operates, or maintains a newsrack on a public right- of-way within the city in violation of this division or without a license issued under this division is guilty of an offense and, upon conviction, is subject to a fine not to exceed $500.00 for each day that the violation exists. (b) The penalties provided for in Subsection (1) are in addition to any other enforcement remedies that the city may have under this division, other city ordinances, and state law." O:Ordinances\2007CodeofOrdinanceDRAFT1-2008 PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, on this the day of 2008. ATTEST: 39 O:Ordinances\2007CodeofOrdinanceDRAFT1 -2008 aXITEM FROM: BRUNO RUMBELOW, CITY MANAGER SCOTT WILLIAMS, DEVELOPMENT SERVICES DIRECTOR MEETING DATE: SEPTEMBER 16, 2008 SUBJECT: WORKSHOP - DISCUSS REGULATION OF NEWSRACKS Staff will conduct a workshop to discuss Chapter 20 Streets, Sidewalks and Other Public Ways relative to placement and regulation of freestanding newsracks. An amended ordinance will be considered for newsrack placement under New Business Item No. 14. R:\AGENDA\09-16-08\newsracks.wkmemo091608.doc 09110/08 11:44 AM ..w...d..�a.d�.. . , sem+ j+gP1 MEMO TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: BRUNO RUMBELOW, CITY MANAGER I SCOTT WILLIAMS, DEVELOPMENT SERVICES DIRECTOR SUBJECT: AMENDMENTS TO CHAPTER 20, STREETS, SIDEWALKS AND OTHER PUBLIC WAYS OF THE GRAPEVINE CODE OF ORDINANCES RECOMMENDATION: City Council to consider amendments to Chapter 20, Streets, Sidewalks and Other Public Ways of the Grapevine Code of Ordinances relative to Newsracks and take any necessary action. At the request of some members of City Council, a draft ordinance amendment was brought to City Council workshop on January 15, 2008 and March 4, 2008. The proposed ordinance was very complex regulating freestanding newsrack placement, color, and design, as well as establishing "Multiple Newsrack Zones" for historic districts. City Council chose to not move forward with the ordinance at that time. However, staff has been asked to bring this issue back before City Council, and has prepared a new draft ordinance that is much simpler. This proposed ordinance prohibits newsracks from public streets, sidewalks, alleys and City -owned property located within one hundred (100) feet of any property designated with a Historic Zoning Overlay District, Individual Landmark, the Grapevine Township District, or property designated on the National Register of Historic Places. The ordinance also provides for violation notification and removal procedures, as well as penalties. There are currently a minimum of 35 newsracks placed within the right-of-way on Main Street alone. Photos are attached showing some of these locations. Should City Council wish to adopt this ordinance, it will be effective immediately. Staff will place violation notices on all newsracks in the right-of-way or on City property, and if not removed by September 23, 2008, the racks will be removed by City crews. BOYLE & LOWRY, L.L.P. Attorneys and Counselors 4201 Wingren, Suite 108 Irving, Texas 75062 (972)650-7100 Fax (972)650-7105 DATE: September 10, 2008 TO: Bruno Rumbelow, City Manager FROM: Matthew Boyle, Assistant City Attorney RE: Proposed Newsrack Ordinance You have asked us to review the propriety and legality of regulating the location of newspaper boxes or newsracks within the City. The questions include whether or not the City has the legal authority to: 1) ban the location of newsracks City-wide; and 2) restrict the location of newsracks within the City's historic districts. Following a review of State and Federal law, we submit the following opinion. A. Can the City of Grapevine Ban Newsracks City -Wide? Newsrack regulations have generated much litigation in the past nationwide, and the primary concern relative to the prospect of regulating the placement of newsracks on public rights of way relates to First Amendment free speech rights. Public property such as City rights of way are generally treated as a public forum. Streets and parks "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions". Hague v. CIO, 307 U.S. 496, 515 (1939); see also United States v. Grace, 461 U.S. 171 (1983) (public sidewalks recognized as traditional public forum property). In public fora, the Supreme Court has held that regulations of the time, place, and manner of protected expression must be content -neutral, be narrowly tailored to serve a significant governmental interest, and allow for sufficient alternative channels of communication. Community for Creative Non -Violence v. Turner, 893 F.2d 1387, 1390 (D.C.Cir.1990) (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)). A City- wide ban on newsracks in the right of way must meet those standards, the most problematic of which is the requirement that the ban be narrowly tailored to serve a governmental interest. Such tailoring must result in the City's interest in the regulation outweighing the interest of the newspaper vendors. Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 800 (1985). Based on the applicable precedent, we conclude that an outright City-wide ban cannot meet these tests. When faced with directly analogous issues in the past, several courts have struck down the challenged regulation. Gold Coast Publications, Inc. v. Corrigan, 42 F3d 1336 (CAI 1 1994); Miller Newspapers, Inc. v. City of Keene, 546 F Supp 831 (D NH); Philadelphia News, Inc. v. Borough Council, Mayor, Manager & Director of Public Works of Borough of Swarthmore, 381 F Supp 228 (ED Pa). Accordingly, we recommend against a City-wide prohibition on newsracks. B. Can the City of Grapevine Ban Newsracks within the City's Historic Districts? In spite of the above -noted limitations regarding the regulation on newsracks, newsracks are not completely immune from regulation. Gold Coast Publications, Inc. v. Corrigan, 42 F3d 1336 (CAI 1 1994). However, the obligation to narrowly tailor the regulation to achieve a compelling governmental interest remains in effect. The City of Grapevine has been earnestly dedicated to preserving the historical and architectural integrity of its historic areas. This has been achieved through a combination of initiatives, including but not limited to Historic Overlay Zoning Districts, Historic Township demolition restrictions, Preservation grants, and Main Street preservation programs. Historic preservation has been previously established as a compelling governmental interest. Maher v. City of New Orleans, 516 F.2d 1051 (5t' Cir. 1975). Further, in Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, the First Circuit upheld a total ban on all "street furniture" in Boston's Historic Beacon Hill District. 100 F.3d 175 (Is' Cir. 1996). The court determined that because the Beacon Hill guideline affected a traditional public forum (public sidewalks) and constituted a content -neutral restriction on the time, place, and manner of expression, intermediate scrutiny was the appropriate standard: the guideline would only be upheld if it was "narrowly tailored to serve a significant governmental interest, and allow for reasonable alternative channels of communication." Id. at 182-83, 186. The court ultimately held that the Beacon Hill Commission's aesthetic interest in preserving the district's architectural and historic character served a "significant government interest," and it additionally found that the guideline was both narrowly tailored and allowed for sufficient alternative modes of distribution for the plaintiff publishers. Globe Newspaper Co., 100 F.3d at 187, 192, 194. In addition to the analogous cases cited above, the Federal District Court in Massachusetts has upheld a newspaper rack ban in Boston's Bay Area Architectural District. Hop Publ'ns, Inc. v. City of Boston, 334 F. Supp. 2d 35, 36-37 (D. Mass. 2004). These cases support a partial ban on newsracks in historic districts, and accordingly we conclude that a ban on newsracks in the City's historical districts would be constitutional. Conclusion While no ordinance is challenge -proof, we are charged to counsel the City to avoid obvious challenges and to ensure that if a challenge comes, the ordinance is best prepared to prevail. Based on the above and foregoing, a City-wide ban on newsracks is not tenable. However, a ban on newsracks in the City's historic districts is legally supported. Within those Historic areas (H -Overlay Districts, Historic Township, ...), it would be permissible to further limit the scope of the prohibition to a lesser included portion of those same areas. Thank you for your attention to this matter. In the event you have any questions or concerns, please do not hesitate to let me know. 2 October 1, 2008 Dear Property Owner, Resident or Merchant: On October 21, 2008, at 7:30 p.m. at City Hall, 200 S. Main Street, the Grapevine City Council will hold a Public Hearing to consider an ordinance regarding newsracks. (A newsrack is a machine that dispenses newspapers or other publications, either for a charge, or free). This proposed ordinance would prohibit newsracks in the right-of-way or on public property within 100 -feet of any Historic District, individual landmark, or the Grapevine Township District. The proposed ordinance will not affect newsracks on private property in any way. If you have any questions or would like to review the proposed ordinance, feel free to access the City's website at www.grapevinetexas.gov or contact me at (817) 410-3158. oS c rely, J. cott Williams D elopment Services Director/ B ilding Official DEVELOPMENT SERVICES DEPARTMENT O:SVV\LetterS12008\Ne sracks-Property0vmerNotice The City of Grapevine ® P.O. Box 95104 - Grapevine, Texas 76099 e (817) 410-3154 Fax (817) 410-3018 0 www.grapevinetexas.gov to U) m U) to 0) U) m 00 > t� 00 > Cl) M N _O M N N 00 O N i co NUN i co(° O (^O O 00 O OH OEx (NO � O CD O �% U) Opp p O IDD E O O O U mZ U (LpZr x� I- x(n L I- X i- _c V a ro c C °�J~� m c m X m .... xtn I- xC1400(n I- 1`• (0 X I- _ O C�Cn "O X 1- N 00� — n. X > O C O O > O C O O � `- 0) r 'C O N C (O 0) - O C O M 7 C O •O O C O C N m C f6 N t � 0 CD x C "m N a x N h C 0) co m t+ O c H M N C N C C> X >>•>�` C C >Clj�Cn 2.fn � CO•O� >� > x~T2 > OL 0)r2 m > QI-' O X_m (n m Cl) m o m O m W N CL O t` (n a) Cl Q1 COM m m � Cn 0 U) m m N U) 0) "It t� V E S m CL Co Q m L O N�N O O dUNC�MC7 N V O LL ° W I°o '>C N>MUMU' oO0 M 2 O m dOMC�rmMU<!•2f1. N O � O O.0 O (n C O C O � C m C U Z =3 O m CD m c U c c _ c c rn U) c 0 cu c c o o N m c p E �M M t- Nt� L Nt- r C�•N� (6O NN�a)cL O O� 0) O^ V t� OO G).r M OO d.- d N N 0)M N mh. co lam, O W V U) M "6N CM•d0 M r F- > ti C(''� N N r m W ` 0 W U U m OV0 N OD N � 00 t` <Y m - VM•' t` m N m N N U) E M VOD 7 �' M 7 0" c N a E m > ° m m N ON CO 00 ON—r m 00 0) i�W Or m W0 cu ,L (n OCn t.•, M, m0 mj OJW2 r mr mr ro h WUMQ'CO tom. •Cr O OM t� Or f -W h 0)r ZOD0IL O O O m In N O O O O CD M co c0 N N D) N 0) V n V M V M N V N to O M M M 0 O h t-- t-_ fl- O n N O O O d) V t� O r O r N M t- n V 0 N co t` O M M N N CO 000 CO h r- ((0 CO W 00 W VO• 00 0) W r P�- 17 00 U) V 17 V V N V to co N 00 N n t` � N r MO t` I- t-- n O ti 1 1 -- co CD 00 00 co rn rn rn 00 co 00 co 00 � OD 00 O U) N t� MN Cl) Cl) N M N D) (D Q7 co t" V M 0coV O O O N r W 0 co V 0) rN.• O) p0 N IrV Cl) 0M ' W 0 d• CO t-- N O r O r U) (D O r t` (O M O U) N h V N 00 00 CO OP * 0) 2 W M N N N N W V N N W N lf) � 00 00 O 0 O C t� t. 1� p r rl t.- tom- t.- I` h- Imo- h- t- tl h t` Z O c 00 co Co r CO U 0 m � � m �} c O a CL o ro o 0 a. SO Y Z M r", CD O y 'O o J O d d N x L m C U N C o@ m C m m C �� LC: M'(�'m m C C - m C m o ro C65 0 C m m C �'m N C 3 "m C C m L C C y C co co 0)N U) m V'�(D CU) CU7"(n():5 '(pco U)LmU) N to LL u) E(n ID u) Nu) (1)=(n i V Cl)C F-MMM�MrLM pN)N 2M �N E M N O M NN J co - M O CS -FOOc,) 0- co TPN•) U` co �M U) M=MW Oco >m+M aM(nM fl•V CL --t O M m h (O N M O O > O W m N O O O N (0 N@ M J (,0 X h C N C N O N t-- E h 0 jx j LL co U N O O O rO O N m Q. p G O (` m --0 N N V O oo)(9coi(Dd0�UUMvUn N X h O h (D h y y dto�O h Lo E� a 0 0 a� a rn� a ov �M c��0) o 0 Oj = N o O) m N O E r O(O m N 00 co �rf cM L h.c cM I— t0V C' ommna)tiai�m M co �.>>�.� �o W r M u) N m O) x~ O T -Q ap co o:_ h h N O h rn a'Z m a)m oo aa)) 0 co W co tom Oh m m V' r M o 0 a? o (O co M LOa.a"t cLbbo N00 O MM C N M h h h h h co U C 3 d > c o U @ a m m U c E U c N _o m fq ca _ (n () N N~ m O N a) N cC(R � 'NC Lc E 2 U) N z Cn p Un m (n 'mo co C U!) LL fl N ac r- (0 co M Z m cM d M m N M M aI h c �' h M M O O O � N O O O rO O O J co O YO h h N X h O h (D h Oh (O CO 000000 to OD Un��H �F-fn� X X U X NtM pM,. tfj I-- CO i`M( mm um ommna)tiai�m co 0x �.>>�.� 0 N�.> xo ._ 000xco x~ x �- x~ o:_ x~ rn a'Z m a)m oo aa)) m mm mm (_o m m tI N LOa.a"t cLbbo a0 C N N c N C d d a N N N �m - N o v) U) i LL IL c ca N . • NN U m wU oa °a c 2 oN (6 E c 0 cc cu im N mYN mi`vn —(Oi U) U U n0 22 M � N N r ti N N G 0 M M M co N 7 N r)' 7 h O T N N N N N t0 0 co h 00 h 00 h 00 h aa0o 000 ((D 00 00 00 coo a o 00 N 00 07 00 00 00 � m to 'V' d' V 000 N N N N h h co rn I- h t-_ f- N N N r. - N co co 00 00 00 OD co rn m rn E o CD m o U 07 W co 0 r 0 N OM co CO CCO� C NCDN 0 00 O N O� (h0 to i0 N(Op N 'C fca 03 O N Q) N (9 M m L N U N 00 00 CO m M c N 00 00 00 n 00 to N N "t N () p N —) ~ I— d' r h Q r N r d' ti R � .� :5 h h e L 04 m m> co co co ao 00 00 00 Oo co in c ,-°)c 0 C) E Y m U 0 0 N a) a) CL o U) _ d a L u) c4 U i a)�cca)�c��Ca�U'� 0 O N N cmc 0 c ,c N �c c (a 0 m c m '— m O m J Ca •— m a) (o E2 m o) m m o� UUn2U) m� c0�'S�'�� 0 c cU) a) U) N��2 cU) U) cu2¢2 0) U) -CO oUn L O, O N Q> O@ r N M 00- 0 Na)U) = h .m O 0) M I—cl':�7�'d'D V'i� V'Qc}•C�cl' d0 co -,f H"t N H m Q C m m m CL R O v a; 3 3 w Y }' N C 0o a) a0 v` a 'E O m N E = Z LO COCl)O m0 mtOp co Lo POO M Lo �(fl m(00 a) m0 NO O O GOO h ice- cto ch 4kh h ch 10mc00 ch ch, c� Cto C, 'D � h Cn~ (nom y x(nom J CL c ro m c '> ro O c '> L~ ro a) N m roc ro O c ro m trot '> m N m c`oc y m roc i m rocrocroc, Ln m m Cp m - m c Gq m to m m E LL O > m > Z m Z m > m > m > m > m > a> ._ > a> O ._ `> m n v(a a 0@ ,o �m .- n m n OCD (` p(1 n a (nm .- n ro ro .- .- 20 m N2 7U <l'U W U Mil -4- (D <!'iaMi7 Cl)CS Mit co co co(� (°D)Uchci N N c U 0 � ro ro a) w m ro c o `o U) N N ro c a) a) c$ .6 U ro ` E ro L] c c (E _ y O ca CUro _ .- ro .- U m i curo v m W N W N C7 ro m U C7 C� C7 a) .- (a O_ C U) c Cn - CO J -I-i c J : 'a_ m m _ m a) .c] Oi - O_ CA CA h h h h U') O) Cn m (C) CA Cf) CA U) O) (f) CA O M (D f Cn to N h N h O CA O CP N h N h N h N h N h N h 0 M O CO 19 00 C W m m (%) W 'd- co ccoo co Cb co co CID CoCo m aD N d• V' r1' cl' V 7 V�' V '7 V' V�' V• M ao Go co co 00 m w co co co 0o co ao co e0 c N N c N N N coE E CD meCl) m� O U �'_O _�E a 0 E h E c V' > tl) C6 =_(TL ("" Cc v.COW 0 O 'd Up CC> voi chh N 2 O h p >'CflNLL 0 F- c �NLL m M c ro h Cl CO p h CC7 (P M N r mW EM m �M.� E(n j amOW (n aM ro md'O 9) O N Nm�� m.� 3 >� ti r -- r to �L -c .c Cb O_ Q J N N =� cNGO SMO_ CA U .0 6 .- W �h co d' co � C> � U � (D V GO � (� <7' 'V'.00yM NC' 0 m �' U mMOoM m ? ��N ? roN('? f4N O >M O c a7 W N M "pp �n 00 3 Er ' m �r m a) oo r;h co h cLi�h c �r ' cr c 'I 0C) � LL � = j co co � co m ao CO Co co m co m m .c , rn c m ro a) LL O LL27 ro CO m > cuca U caro U LL V c aS 7 ro (n m � Z N C c m U) N m CD m z co c O (}c ro m �o ca aa) m 'CO �c J (a �c O (6 ocmc Z '@ _ .m a>iC O_ ro c c '> m CL c V 'm CD '(a m c N 'CB c '(p •O �G c 0'Sy V) ro� O s` o N m��' to Gc' m cu U Cn a > ¢M Cn C(O J U) Lco Cn cn (n LL U) c fn a- CO (n c 2 Gn O c� Nrt �, C!3 CL LL U)"5 co d• my Q� Qv O� �N my "O _N (cvvmv tT� M Qv O U" CT, mN 1-v�v(ANtU 't CN vSv October 15, 2008 Re: PUBLIC HEARING NOTICE Dear Property Owner, Resident or Merchant: You were previously notified of a Public Hearing to be held on October 21, 2008 at 7:30 p.m. at Grapevine City Hall, regarding regulation of newsracks. This meeting date has been changed. Please be advised that on November 18, 2008, at 7:30 p.m. at City Hall, 200 South Main Street, the Grapevine City Council will hold a Public Hearing to consider an ordinance regarding newsracks. (A newsrack is a machine that dispenses newspapers or other publications, either for a charge, or free). This proposed ordinance would prohibit newsracks in the right-of-way or on public property within 100 -feet of any Historic District, individual landmark, or the Grapevine Township District. The proposed ordinance will not affect newsracks on private property in any way. If you have any questions or would like to review the proposed ordinance, feel free to access the City's website at www.grapevinetexas.gov or contact me at (817) 410-3158. k Williams pment Services Director/ i Official DEVELOPMENT SERVICES DEPARTMENT O: SVJ\Letters\20491Glewsrs-Proper�yerNotice j e ity orr rap evine - P.O. Box 95104 - Grapevine, Texas 76099 - (817) 410-3154 Fax (817) 410-3018 - www.grapevinetexas.gov r E �r. • • • •'1 11'1 : ' •' ' r • FROM: BRUNO RUMBELOW, CITY MANAGER 10 - SCOTT WILLIAMS, DEVELOPMENT SERVICES DIRECTO MEETING DATE: NOVEMBER 18, 2008 SUBJECT: AMENDMENTS TO CHAPTER 20, STREETS, SIDEWALKS AND OTHER PUBLIC WAYS OF THE GRAPEVINE CODE OF ORDINANCES City Councilto consider proposed amendments to Chapter 20, Streets, Sidewalks and Other Public Ways of the Grapevine Code of Ordinances relative to Newsracks and take any necessary action. At the request of some members of City Council, a draft ordinance amendment regulating newsracks was brought to City Council workshop on January 15, 2008 and March 4, 2008. The proposed ordinance was very complex, regulating freestanding newsrack placement, color, and design, as well as establishing "Multiple Newsrack Zones" for historic districts. City Council chose to not move forward with the ordinance at that time. However, staff was asked to bring this issue back before City Council, and the revised draft ordinance is much simpler. This proposed ordinance prohibits newsracks from public streets, sidewalks, alleys and City -owned property located within one hundred (100) feet of any property designated with a Historic Zoning Overlay District, Individual Landmark, the Grapevine Township District, or property designated on the National Register of Historic Places. Newsracks placed on private property would not be affected in any way. The proposed ordinance also provides for violation notification and removal procedures, as well as penalties. After discussing this ordinance in workshop on September 16, 2008, City Council authorized staff to set a public hearing. There are currently approximately 20 newsracks placed within the right-of-way on Main Street alone. Photos are attached showing some of these locations. Should City Council wish to adopt this ordinance, it will be effective immediately. Staff will place violation notices on all newsracks in the right-of-way or on City property, and if not removed by November 27, 2008, the racks will be removed by City crews. RAIAGENDA111-18-08\AM08-01.4.doc ALLIANCEREGIONALNEWSPAPER 1W I October 10, 2008 Honorable Cou9znwoman Darlene Freed City Hall 200 S. Mai Texas 76051 Re: Proposed Newsrack Ordinance Dear Councilwoman Freed: We are writing to express our concern about the proposed Newsrack Ordinance which the Council will consider at a public hearing on October 21, 2008. The proposed Ordinance would prohibit all newspaper racks along Main Street or elsewhere within 100 feet of the Historical District unless located on private property. We believe that a complete prohibition of newsracks, even if it were legally permissible, would be an inappropriate over -reaction to the problems the draft ordinance intends to address. The preamble to the proposed Ordinance states that newsracks "must be regulated" to "ensure safe and unobstructed passage of pedestrians" and that "the lack of uniform design and appearance standards for newsracks ... creates visual clutter and blight." The proposed Ordinance, however, does not simply "regulate" newsracks in the affected areas. Rather, it completely prohibits newsracks and imposes a severe $500 per day criminal penalty for violation. If the Council believes that placement of newsracks causes a hazard to pedestrians, that can be remedied by regulating the location of the racks on the sidewalks. Similarly, if the Council is concerned about "visual clutter and blight," reasonable regulations concerning the appearance and maintenance of the newsracks would be an appropriate solution. The proposed Ordinance, however, is a complete ban on the dissemination of news and other information in one of the few areas of the city with heavy pedestrian traffic, which is neither warranted nor appropriate. Mayor and Members of the City Council Grapevine, Texas October 14, 2008 Page 2 Finally, we note that the proposed Ordinance would have the effect, presumably unintended, of allowing only one publication to be distributed from newsracks along Main Street. As you know, the Grapevine Sun maintains an office at 332 South Main Street and offers its newspapers from a rack on its property off of the public right-of-way. Presumably, therefore, the Grapevine Sun could continue to maintain its rack even if the proposed Ordinance were enacted, and this would have the unfair effect of making the Sun the only publication available at a newsrack on Main Street. We urge the Council to reject the proposed Ordinance as drafted, but we would be happy to discuss with you ways in which the safety and esthetic issues could be addressed without a complete prohibition on newsracks. Very truly yours, Art de la Torre Advertising Director Alliance Newspapers Charles D. Youn Executive Editor, Alliance Newspapers 141fidS>,&1) / >>> "Mike Brown" <mbrown@thegreensheet.com> 10/23/2008 10:24 AM >>> Hello Mr. Rumbelow, My name is Michael Brown with the Greensheet and we noticed the article in this Sunday's paper concerning the growing problem with outdoor racks on Grapevine's Main St. We would like to help in any way possible to maintain the clean look of the Historic Downtown Main Street. Please let us know of anything we can do to aid in the City's efforts. Grapevine has been very kind to us over the last 32 years so we are both obligated and committed to be available to meet and discuss possible options that would be favorable to all parties. I am offering a few suggestions that may help move forward a resolution concerning newsracks and the community. 1. Determine and identify the area being discussed 2. Survey which publications are currently using outside distribution methods in the area. 3. Identify problems or complaints from community concerning outside rack placement or appearances 4. Establish an outline of preferred outcomes/results with City Council members 5. Make contact with publications identified during survey and provide both an invitation to meet (pre-set time and location chosen by City) and an explanation as for meeting including as much information as possible. Please forward this to either the Mayor or the City Council if you think it may help. If a meeting is called, I look forward to representing the Greensheet. If I can be of any more assistance or offer ideas, please let me know. Sincerely, Michael Brown Greensheet is 1 tii n 214 853-6018 OFFICE 214 747-3478 WAREHOUSE 214 802-3797 CELL visit us at www.the rg eensheet.com ( hfp://www.thegreensheet.com/ ) williamt@haynesboone.com Direct Dial: 817/347.6625 November 11, 2008 A_fna 9-0 l l�k 22343.1 Matthew C. G. Boyle, Esq. Via E-mail: mcgboyle@boyle-lowry.com Boyle & Lowry and First Class Mail 4201 Wingren, Suite 108 Irving, Texas 75062 Re: Proposed Grapevine Newsrack Ordinance Dear Matthew: As I mentioned in our recent telephone conversation, we represent the Fort Worth Star - Telegram and the Grapevine Courier, and our clients are concerned about the impact the City of Grapevine's proposed newsrack ordinance would have on the dissemination of their newspapers. The preamble to the proposed ordinance posted on the City's website states that newsracks "must be regulated" to "ensure safe and unobstructed passage of pedestrians" and that "the lack of uniform design and appearance standards for newsracks ... creates visual clutter and blight." The proposed ordinance, however, does not "regulate" newsracks, nor does it implement "uniform design and appearance standards." Rather, it completely prohibits newsracks in the only area of the City with significant pedestrian traffic and imposes a severe $500 per day criminal penalty for violation. As you know, Courts have consistently recognized that the First Amendment protects the right to distribute newspapers in newsracks, and restrictions on newsracks are upheld only if they are content -neutral, narrowly tailored to serve a significant government interest, and allow for ample alternative channels of communication. Although the proposed Grapevine ordinance is content - neutral, I believe it fails to meet the other two criteria. I would commend to you for your consideration the Court's opinion in Chicago Newspaper Publishers Assn. v. City of Wheaton, 697 F. Supp. 1464 (N.D. Ill. 1988), a copy of which I have enclosed for your reference. In that case, a city enacted an ordinance which, like Grapevine's proposed ordinance, prohibited all newsracks in a particular portion of the City (residential areas). The Court found that the ordinance was "content neutral" but nevertheless concluded that the ordinance was not the "least restrictive means" of achieving the City's goals. The Court held that the City had not established that a total ban on newsracks in residential areas was necessary to ensure Haynes and Boone, LIP Attorneys and Counselors 201 Main Street, Suite 2200 Fort Worth, Texas 76102-3126 Phone: 817.347.6600 Fax: 817.347.6650 www.haynesboone.com i ole Matthew C. G. Boyle, Esq. November 11, 2008 Page 2 safety nor had it demonstrated how a newsrack on a residential street "destroys the `character' of the neighborhood any more than a mailbox, utility pole, fire hydrant, or traffic sign." The Court also concluded that the local newspapers affected by the ordinance had inadequate alternative means of distributing their product. 697 F. Supp. at 1469-70. We believe that the Grapevine ordinance, if enacted in the form of the proposal currently posted on the City's website, would face the same Constitutional deficiency. First, there are "lesser restrictive means" of achieving the City's goals of pedestrian safety and improved aesthetics. For example, if the Council believes that placement of newsracks causes a hazard to pedestrians, that concern can be remedied by regulating the location of the racks on the sidewalks. Similarly, if the Council is concerned about "visual clutter and blight," reasonable regulations concerning the appearance and maintenance of the newsracks would be an appropriate solution. The proposed ordinance, however, is a complete ban on the dissemination of news and other information in one of the few areas of the city with heavy pedestrian traffic, which is neither warranted nor appropriate. In addition, the ordinance would leave no alternative means for distribution of newspapers in the historic district. In our conversation, you mentioned that some private businesses might allow the sale of newspapers on their private property. The Court in City of Wheaton considered and rejected that argument, concluding that the "First Amendment does not allow a municipality to restrict speech on the grounds that private actors are willing to sponsor it," and noting the obvious fact that these private businesses could "close, relocate, or elect not to sell newspapers." 697 F. Supp. at 1470. Our clients have no desire to get into a legal dispute with the City, and we recognize the City's legitimate interests in promoting safety and aesthetics. However, Grapevine, like most cities, has had newsracks on its sidewalks for many years without adverse consequences, and we believe the concerns of the council can be addressed with a more narrowly drawn ordinance. We would be happy to discuss this with you at your convenience. Very truly yours, ---- Thomas J. Williams TJW:kma Enclosure F-262360 I .DOC 1464 697 FEDERAL SUPPLEMENT perform the same function and achieve the same result. Whether the elements of Air- tite's flooring system, viewed as a whole, operate in substantially the same way, and have substantially the same function and result as the system covered by Intersti- tial's patent is a question of fact. I111 The range of equivalents presents material fact issues relating to the nature of the industry. See Martin v. Barber, supra, 755 F.2d at 1568. With regard to a finding of equivalence, proof may be made through testimony of experts or others versed in the technology, by documents, including texts and treatises, and by disclo- sure of prior art. Graver Tank & Mfg. Co. v Linde Air Products Co., 339 U.S. at 608, 609, 70 S.Ct. at 856, 857, 94 L.Ed. 1097 (1950). The task of weighing such evi- dence belongs to the trier of fact. Id 339 U.S. at 611, 70 S.Ct. at 857. CONCLUSION Defendants' motion for summary judg- ment of noninfringement is granted as to literal infringement and denied as to in- fringement by equivalents. W O `IfEYNUM�R1tlSTEN CHICAGO NEWSPAPER PUBLISHERS ASSN., Chicago Tribune Co., an Illinois corporation, Chicago Sun -Times, Inc., a Delaware corporation, and Dow Jones & Company, Inc., Plaintiffs, V. CITY OF WHEATON, an Illinois municipality, Defendant. No. 87 C 0765. United States District Court, N.D. Illinois, E.D. Oct. 12, 1988. Newspaper publishers brought civil rights action challenging Illinois city's ordi- nance regulating placement of newsracks. On cross motion for summary judgment, the District Court, Hart, J., held that. (1) scheme for licensing newsracks gave city manager unguided discretion and was un- lawful prior restraint; (2) complete ban on newsracks in residential areas was invalid place and manner restriction; and (8) news- papers were not entitled to attorney fees for legal work needed to resist initial news - rack ordinance, which was amended in re- sponse to judicial decision. Plaintiffs motion granted in part and denied in part. 1. Constitutional Law 0-90.1(8) Ordinance giving city manager the au- thority to deny application for license to place newsrack on public street if that placement would cause health or safety hazard, interfere with public's right to use streets, thoroughfares, and sidewalks, im- pair traffic, or otherwise create hazardous condition imposed prior restraint on speech; determination involved was at least in part subjective and no standards were provided to guide city manager's judgment, and dis- cretion built into ordinance raised specter of content -based censorship. U.S.C.A. Const.Amends. 1, 5, 14, L Constitutional Law 41-90.1(8) Prior restraint imposed by Illinois city's ordinance regulating placement of newaracks was unconstitutional, in absence of adequate procedural safeguards; there was no time limit by which city council had to hear appeal from adverse licensing deci- sion by city manager, and ordinance did not clearly adopt that state's Administrative Reform Act or otherwise provide for judi- cial review. I11.S.H.A. ch. 110, A 3-102, U.S.C.A. Const.Amends. 1, 5, 14. 3. Constitutional Law 0*90.1(8) Zoning and Planning 0-72 Provision of city ordinance banning all newsracks in residential zoning districts was invalid place and manner restriction; though ordinance was content -neutral on its face, city did not demonstrate that it had adopted the least restrictive means CHICAGO NEWSPAPER PUBLISHERS v. CITY OF WHEATON 1465 Cite =W P.9upp. 1464 (NAM 1988) available to achieve goals of promoting mo- Edward J. Walsh, Jr., James H. Knippen for vehicle and pedestrian safety and main- II, Edward J. Walsh, Jr., Chtd., Wheaton, taining residential character of neighbor- Ill., for defendant. hoods, and availability of alternative chan- nels such as home delivery, commercial MEMORANDUM OPINION outlets, and newsboxes did not justify com- AND ORDER plete ban. U.S.C.A. Const.Amend, 1. HART, District Judge. 4. Constitutional Law 4x+90(1) First Amendment does not allow mu- nicipality to restrict speech on grounds that private actors are willing to sponsor it. U.S.C.A. Const.Amend. 1. b. Constitutional Law OP90.1(8) Ordinance provision for rental permit fee for newsracks, representing initial in- stallation fee and annual renewal fee, was unconstitutional, city did not know costs of administering program, and installation fee charged by city was higher than the few surrounding communities imposing such a charge. 6. Federal Civil Procedure X2481 Genuine issue of material fact, as to whether confiscated newsracks obstructed sidewalk and created imminent safety risk, precluded summary judgment on newspa- pers' constitutional claims arising from that confiscation. 7. Civil Rights 4-13.17(13) To prevail in settled civil rights case for purposes of attorney fee provision, fac- tual determination must be made that ac- tions taken by plaintiff are causally linked to relief obtained. 42 U.S.C.A. § 1988. 8. Civil Rights 4-13.17(13) Newspapers were not entitled to attor- ney fees as prevailing parties for legal work needed to resist city's original news - rack ordinance, which was amended in re- sponse to judicial decision, not letter writ- ten by newspapers' counsel. 42 U.S.C.A. § 1988. James A. Klenk, Alan J. Mandel, Sonnen- schein, Carlin, Nath & Rosenthal, Joseph P. Thornton, Chicago Tribune Co., Chicago, Ill., for plaintiffs. In our participatory democracy newspa- pers are not just an amenity. They are a vital means of providing information to citi- zens called upon to exercise an enlightened use of the ballot. Without the information provided by newspapers many citizens would be without the knowledge required for an intelligent electoral process. Ac- cordingly, the distribution of newspapers has always had First Amendment protec- tion. The methods of newspaper distribution are changing. For some, home delivery is either unavailable or too expensive. Street vendors are disappearing in all but central business areas, and newsracks are appear- ing as a substitute means of distribution. This case concerns issues arising out of the regulation or prohibition of newsracks on public streets in a suburban area. This is a challenge to an ordinance which regulates the placement of newsracks in Wheaton, Illinois. Plaintiffs attack the ordinance on its face as an abridgement of the rights under the First and Fourteenth Amendments, and under the Illinois Consti- tution. Defendant City of Wheaton re- sponds that the ordinance imposes valid time, place, and manner restrictions permit- ted under the First Amendment. Plaintiffs also claim that Wheaton officials confiscated newsracks without due process, in violation of the Fifth and Fourteenth Amendments. To this, Wheaton counters that the news - racks were confiscated because they posed a threat to driver and pedestrian safety. The parties have filed cross motions for summary judgment. For the reasons outlined below, the li- censing scheme is an invalid prior restraint. In addition, the complete ban on residential newsracks is an invalid place and manner restriction. 1466 697 FEDERAL SUPPLEMENT FACTS On April 7, 1986, defendant City of Wheaton, Illinois ("Wheaton") passed on ordinance regulating the placement of newspaper dispensing devices ("news - racks") on Wheaton city streets. This ordi- nance was similar to an ordinance passed in Lakewood, Ohio. Three months later, in July 1986, the Sixth Circuit ruled that sev- eral provisions of the Lakewood ordinance were unconstitutional. Plain Dealer Pub- lishing Co. v. City of Lakewood, 794 F.2d 1139 (6th Cir.1986), affd in part && re- manded, ---- U.S. —, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Six weeks after the Sixth Circuit decision, Wheaton amended its ordinance, deleting some of the lan- guage which proved fatal to the Lakewood ordinance.' In January 1987, plaintiff newspapers brought this § 1983 action in Illinois state court, alleging a violation of their rights under the First, Fifth, and Fourteenth Amendments to the U.S. Con- stitution, and under the Illinois Constitu- tion. Wheaton removed to this court. At the close of discovery, both sides moved for summary judgment. Because of the similarity between the Wheaton and Lakewood ordinances, this court deferred ruling on the motions until the Supreme Court decided Lakewood's appeal from the Sixth Circuit. In June of this year, the Supreme Court affirmed the Sixth Circuit. City of Lakewood v. Plain Dealer Publish- ing Co., — U.S. —, 108 S.Ct. 2138, 100 L.Ed.2d 771(1988). Both Wheaton and the newspapers then renewed their summary judgment motions. LEGAL PRINCIPLES It is beyond dispute that the First Amendment protects the right to distribute newspapers in newsracks. City of Lake- wood v. Plain Dealer Publishing Co., — U.S. --, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Gannett Satellite Info, Network, Inc. v. Metropolitan rransportation Au- thority, 745 F.2d 767, 777 (2d Cir.1984); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 673 (11th Cir. 1984). The degree of protection provided by the constitution depends "on the charac- ter of the property at issue." Perry Edu- cation Assn v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct, 948, 954, 74 L.Ed.2d 794 (1983). In this case, the "property at issue" is city streets in Whea- ton, Illinois. The Supreme Court has re- peatedly recognized public streets "as the archetype of a traditional public forum." Frisby v. Schultz, — U.S. —, 108 S.Ct. 2495, 2499, 101 L.Ed.2d 420 (1988). In these traditional public fora, govern- ment's authority to restrict speech is at its minimum. Time, place, and manner restric- tions are valid only if they are content -neu- tral, narrowly tailored to serve a signifi- cant government interest, and retain ample alternative channels of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 954. As an application of the requirement that re- strictions be narrowly tailored, a law can- not condition the free exercise of First Amendment rights on the unguided discre- tion of government officials. Lakewood, 108 S.Ct. at 2143; Shutilesworth v. Bir- mingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969) ("a law subjecting the exercise of First Amend- ment freedoms to the prior restraint of a license, without narrow, objective and def- inite standards to guide the licensing au- thority, is unconstitutional" (emphasis add- ed)); Staub v. City of Baxley, $55 U.S. 313, 321-22, 78 S.Ct. 277, 281-82, 2 L.Ed.2d 302 (1958). And finally, any licensing system which operates as a prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards de- signed to obviate the dangers of a censor- ship system." Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed. 2d 649 (1965); Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666,675 (11th Cir.1984). Against the backdrop of these legal prin- ciples, the court turns to a consideration of the Wheaton ordinance. DISCUSSION L Due Process—Prior Restraint Ill Plaintiffs attack the licensing scheme as an unlawful prior restraint. The t. The relevant portions of the Wheaton ordi• nance are reproduced in the Appendix. CHICAGO NEWSPAPER PUBLISHERS v. CITY OF WHEATON 1467 Cite as 647 F.$upp. 14" (NAIN. 1468) Supreme Court has often articulated the vices at an intersection where such elements of a prior restraint. First, the placement would not impair traffic right to engage in the protected speech or otherwise create a hazardous con - must require the prior approval of a dition.... government agent. Approval of the appli- Sec. 20-148(3Xe) (emphasis added). cation must depend on the agent's affirms The significance of the first passage is tive action. In addition, approval must not that, even if all other conditions are satis- be routinely granted but rather must require fied the city manager may still withhold a the exercise of the agent's judgment. Fi- permit if it is determined that the newsrack nally, the licensing scheme must empower creates a "health or safety hazard or inter - the agent to approve, deny or revoke a feres with the right of the public" to use license based on the content of the pro- the streets and sidewalks. In his deposi- posed communication. Southeastern Pro- tion the current city manager conceded motions, Ltd v Conrad, 420 U.S. 546, 554, that this was at least in part a subjective 95 S.Ct. 1289, 1244, 43 L.Ed.2d 448 (1976). determination, Rose dep. at 36, and Whea- The first two elements are plainly met ton has pointed to no standards which here: the ordinance requires an application guide his judgment. The second passage to the Wheaton city manager who must act requires essentially the same subjective de - on the application within ten days. Sec. termination and is equally flawed. 20-147(1); (3). Wheaton contends, how- Furthermore, the ordinance authorizes ever, that the remaining elements are ab- the city manager to revoke a permit for sent: approval is not discretionary, and the ,[v]iolation of any city ordinance," or for city manager has no express authority to ,[f]raud, misrepresentation, or any false deny an application based on the content of statement" in the application itself. Re - the applicant's paper. Wheaton is mistak- cently the Eleventh Circuit considered the en on both counts. constitutionality of an ordinance regulating First, the decision to issue a license is newsracks which contained similar provi- indeed discretionary. The ordinance lists a sions. Miami Herald, 734 F.2d at 673-74. number of conditions which the applicant As in this case, the city code before the must meet before a license can issue. court of appeals gave the municipality the Prominent among them are the following: authority to revoke newsrack permits for Newspaper dispensing devices shall be the violation of any city ordinance. Id placed adjacent and parallel to building The city commission was authorized "to walls not more than six inches (6") dis. adjudicate the rights of license applicants tant therefrom or near and parallel to the ... to determine if the applicant has violat- curb not less than eighteen inches (18") ed a provision" of the city code. This, the and not more than twenty-four inches court concluded, "necessarily involves the (24") distant from the curb at such loca- exercise of considerable discretion" and tions applied for and determined by was therefore improper under the First the city manager not to cause a health Amendment. Id. The same reasoning ap- or safety hazard or interfere with the plies here, and leads to the same conclu- right of the public to use of the streets, sion: the city manager determines whether throughfares, and sidewalks. a violation has occurred. And, since revo- Sec. 20-148(2) (emphasis added). cation is not automatic, the city manager No newspaper dispensing device shall be must next determine which violations war - placed, installed, located, used, or main- rant revocation. This is indeed "considem- tained: ble discretion" and cannot be squared with • • • • * the First Amendment. (e) Within five hundred feet (500') of In response, Wheaton contends that another newspaper dispensing device these provisions authorize only "limited dis- ..., except that the city manager may cretion" "reviewable by both common permit three (3) such dispensing de- sense and a reasonable man standard." 1468 697 FEDERAL SUPPLEMENT But the cases do not support a 'limited discretion" standard. Shuttlmworth, 394 U.S. at 150--51, 89 S.Ct. at 938 (law must provide "narrow, objective and definite standards to guide the licensing authori- ty...." (emphasis added)); Swearson v. Meyers, 455 F.Supp. 88, 91 (D.Kan.1978) (permit system must "leave no factors to be assessed, judgments to be made, or dis- cretion to be exercised.... Mhe decision to grant or deny the license application must be virtually a ministerial one.") quot- ed in Miami Herald, 734 F.2d at 675.= Furthermore, even if "health or safety haz- ard" were narrowed to mean a violation of the objective measurements in Sec. 20- 148(3), e.g. no newsracks less than fifteen feet from a fire hydrant, etc., the ordinance still vests the city manager with discretion- ary authority to revoke permits, as noted above. Finally, discussed infra, the ordi- nance does not provide for judicial review. The licensing decisions are discretionary. The next question in determining if the ordinance is a prior restraint is whether decisions are based on the content of the applicant's paper. Wheaton contends that decisions are content -neutral because the ordinance applies to all newsracks. But that misstates the inquiry. The Supreme Court has uniformly recognized that an act can be a prior restraint even though, by its terms, it does not favor one speaker over another. See, e.g., Southeastern Pro- motions, 420 U.S. at 558, 95 S.Ct. at 1246; Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. at 938-39; Staub, 355 U.S. at 321-22, 78 S.Ct. at 281-82. The question is not whether the ordi- nance expressly favors certain speakers (al- though that would also be improper), but whether the discretion built into the ordi- nance raises the specter of content -based 2. The opinion of the California Supreme Court in Kash Enterprises v. City of Lor Angeles is not to the contrary. 19 Cai.3d 294, 138 Cai.Rptr. 53, 562 P.2d 1302 (1977). One provision of the ordinance challenged in Kash stated that news - racks may not "unreasonably interfere with or impede the flow of pedestrian traffic." 138 Cal. Rptr. at 59, 562 P.2d at 1308. The court upheld this provision. The challenge, however, was that the language was vague and overbroad, and not that it vested discretion in government offi- censorship. Freedman v Maryland 380 U.S. at 58, 85 S.Ct. at 738; Miami Herald, 734 F.2d at 675; Fernandes v. Limmer, 663 F.2d 619, 627-28 (5th Cir.1981), cert denied, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed. 2d 1395 (1982); Rubin v. City of Berwyn, 558 F.Supp. 476, 480 (N.D.I11.1982), affil, 698 F.2d 1227 (7th Cir -1982). The ordi- nance does precisely that. In this respect, the Wheaton ordinance "is indistinguish- able in its censoring effect from the official actions consistently identified as prior re- straints in a long line of this court's deci- sions." Southeastern Promotions, 420 U.S. at 552, 95 S.Ct. at 1243 (collecting cases). "Only if we were to conclude that (distribution of newspapers) is unprotected by the First Amendment ... could we pos- sibly find no prior restraint here." Id. at 557, 95 S.Ct. at 1246; see also Miami Her- ald, 734 F.2d at 675. (2) The fact that the ordinance is a pri- or restraint does not end the inquiry. A prior restraint is not per se unconstitution- al. Bantam Books, Inc. a Sullivan, 372 U.S. 58, 70 n. 10, 83 S.Ct. 631, 639 n. 10, 9 L.Ed.2d 584 (1963). The next question is the adequacy of procedural safeguards. The ordinance must require that the li- censor grant or deny the permit within a specified, brief period, it must provide for prompt judicial review, and, if a license is denied or revoked, the burden must be on the licensor to institute judicial proceedings to prove that the material is unprotected. Southeastern Promotions, 420 U.S. at 560, 95 S.Ct. at 1247; Freedman, 380 U.S. at 58, 85 S.Ct. at 738. The necessary safeguards do not appear in this ordinance. Initially, though the law allows an applicant to appeal an adverse decision by the city manager to the Whea- cials. The holding today is the opposite. There is no inconsistency in the two holdings. lan- guage may be precise and clear, but still vest discretion in municipal authorities. See ACORN v. City of Tulsa, Okla., 835 F.2d 735, 741 (10th Cir.1987) (ordinance which permits mu- nicipality to decide which structures violate the law vests unguided discretion in government and is unconstitutional, even though language is not vague). CHICAGO NEWSPAPER PUBLISHERS v. CITY OF WHEATON 1469 ate as 697 F.supp. 1464 (N.D.111. 1468) ton City Council, there is no time limit by not change their status under the First which the city council must hear an appeal. Amendment. Frisby v. Schultz, — U.S. Thus the "right' to appeal is in fact discre- --, 108 S.Ct. 2495, 2499-2500, 101 L.Ed. tionary, and a permit application can "lan- 2d 420. Consequently, the ban on resi- guish indefinitely before the Council"—a dential newsracks must be examined under feature recently criticized by the Supreme the familiar standard: the restriction must Court when it struck down the Lakewood be content -neutral, it must be narrowly tai - ordinance. Lakewood, 108. S.Ct, at 2151. lored to serve a significant government in- te t d it uat leave o namp le alter - More importantly, the ordinance does not provide for judicial review of the adminis- trative decision to grant, deny, or revoke a permit. In Illinois, the Administrative Re- view Act is not applicable unless clearly adopted by the legislature which provided for the administrative decision. Ill.Rev. Stat. ch. 110, 3-102 (1988). Wilkins v. State Dept of Public Aid, 61 I11.2d 88, 280 N.E2d 706, 708 (1972); Sullivan v. Board Of Fire and Police Commissioners, 103 Il1.App.3d 167, 58 Il1.Dec. 604, 607, 430 N.E.2d 636, 639 (1981). Nowhere does this ordinance adopt that Act. In addition, there is no provision requiring Wheaton to institute judicial proceedings to prove the conduct is unprotected. These omissions are fatal to the licensing scheme' See Ball, Extra! Extra! Read All About & First Amendment Problemin the Regu- lation of Coin Operated Newspaper Vending Machines. 19 Colum.J.L. & Soc. Probs. 183, 202-204 (1985). II. Ban On Residential Newsraeks [31 Because the licensing scheme vests Wheaton officials with the unguided discre- tion to control the placement of newsmeks, and because the ordinance lacks the proce- dural safeguards to guard against abuse of that discretion, it is unconstitutional. How- ever, another provision of the ordinance bans all newsracks in residential zoning districts of Wheaton. Sec. 20-148(1). This, obviously, involves neither a prior applica- tion nor municipal discretion. In other words, validity of the residential ban is unaffected by the first part of this opinion. Plaintiffs challenge this provision as well. Residential streets are traditional public fora and their character as residential does 3. It may also be that the ten day waiting period before which the city manager must act is not sufficiently brief. The court does not reach the res , an m pe native channels of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 954. A. Content -Neutral The ban on residential newsracks applies equally to all newsracks and is therefore content -neutral on its face. See Gannett, 745 F.2d at 773; Miami Herald, 734 F.2d at 673-74; Providence Journal Co. v. City of Newport, 665 F.Supp. 107, 112 (D.R.I. 1987). Plaintiffs suggest otherwise, alleg- ing that Wheaton has not enforced the ban against the Wheaton Daily Journal. But that allegation challenges the ordinance as applied, and in their motion for summary judgment, plaintiffs adequately raise only facial challenges. B. Narrowly Tailored Wheaton must demonstrate that there is a significant relationship between the regu- lation and the governmental interest, and that the means employed are the least re- strictive available. City of Watseka v. Illi- nois Public Action Council, 796 F.2d 1547, 1554 (7th Cir.1986), affil, 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972 (1987). In enacting a total ban on residential news - racks, Wheaton has not demonstrated that they have adopted the least restrictive means available. Consequently, the total ban is unconstitutional. The object of the ordinance appears in the preamble. The ordinance is designed to promote "motor vehicle and pedestrian safety" and to maintain the "residential character of the Residential Zoning Dis- tricts." As to the former, Wheaton cannot claim that only a total ban will adequately provide for driver and pedestrian safety, since all other city streets are also potential sites for a newsrack. The ordinance per - issue. It is not clear, however, why inspecting the site for compliance with objective measure- ments easurements would require ten days. 1470 697 FEDERAL SUPPLEMENT mits newsracks in non-residential districts, provided they are properly placed (e.g. not within 15 feet of a fire hydrant, not within five feet of a marked crosswalk, etc.). The second goal of the ordinance is to preserve the "residential character" of Wheaton neighborhoods. Wheaton claims this goal reflects a concern for neighbor- hood aesthetics. Granted, neighborhood aesthetics are a significant government in- terest. Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806-07, 104 S.Ct, 2118, 2129-30, 80 L.Ed.2d 772 (1984). However, it does not follow that a complete ban is the least restrictive means of achieving the goal. Wheaton has not explained—much less demonstrated—how a newsrack on a resi- dential street destroys the "character" of the neighborhood any more than a mailbox, utility pole, fire hydrant, or traffic sign. As one court recently observed, "[i]f news - racks alone are banned and no further steps appear likely, 'the commitment of the city to improving its physical environment is placed in doubt."' Providence Journal Co. v. City of Newport, 665 F.Supp. 107, 115 (D.R.I.1987) (quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 531-32, 101 S.Ct. 2882, 2904-05, 69 L.Ed.2d 800 (1981) (Brennan, J., concurring)). See also Quadres, Content -Neutral Public Forum Regulations., The Rise of the Aesthetic State Interest, the Fall ofJudieial Scruti- ny, 37 Hastings L.J. 439, 474-780 (1986). Aesthetic judgments are "necessarily sub- jective," Metromedia, 463 U.S. at 510, 101 S.Ct. at 2894, and Wheaton cannot simply raise the banner of aesthetic interest, and then leave it to this court to determine not only how the ordinance advances those in- terests, but why a total ban is necessary. See Southern New Jersey Newspapers v. New Jersey, 642 F.Supp. 173, 186 (D.N.J. 1982); Quadres, supra at 466, 468-76. The burden is on Wheaton to show that the ordinance is narrowly tailored, and it has failed to carry that burden. C. Ample Alternative Channels Wheaton claims alternative channels are more than sufficient. It points to the avail- ability of home delivery, commercial out- lets, and "numerous newsboxes which are legally eligible for permits." These chan- nels are inadequate to justify a complete ban on residential newsracks. First, a person cannot selectively sub- scribe to home delivery of plaintiffs' pa- pers. The person who relies on newsracks to purchase an occasional paper must pay considerably more to subscribe to a particu- lar paper. And when alternative channels are not readily available, "the Court has shown special solicitude for forms of ex- pression that are much less expensive than feasible alternatives...." Taxpayers for Vincent, 466 U.S. at 812 n. 30, 104 S.Ct. at 2133 n. 30; Martin v. City of Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943). Furthermore, though plaintiff newspapers provide home delivery, the ordinance bans all newsracks in resi- dential districts. This includes the small, poorly funded press, without the resources to provide home delivery, but with the same claim to the protections of the First Amendment. l41 Moreover, the availability of private sellers is irrelevant. The First Amendment does not allow a municipality to restrict speech on the grounds that private actors are willing to sponsor it. See Providence Journal Co. v. City of Newport, 665 F.Supp. at 118. If this were the rule, then the rights safeguarded by the First Amend- ment would be in the hands of private businesses. In other words, if private sell- ers are an adequate alternative channel under the Constitution, then an ordinance which is constitutional today becomes un- constitutional tomorrow, when those sellers close, relocate, or elect not to sell newspa- pers. The protections of the First Amend- ment cannot be so transitory. Wheaton, however, relies on the opinion of the Sixth Circuit in Lakewood, which upheld a residential ban on newsracks. The Court of Appeals relied in part on the availability of commercial sellers. 794 F.2d at 1147. But unlike the situation in Lake- wood, where no residence was more than one-quarter mile from a newsrack, 794 F.2d at 1147, the parties here agree that some residential neighborhoods in Wheaton are a CHICAGO NEWSPAPER PUBLISHERS v. CITY OF WHEATON 1471 Cite ae 697 F.Supp. 1464 (NAHL 1918) full three miles from a newsrack. To this, (1941); Gannet4 745 F.2d at 774; For - Wheaton responds that several newsracks nades v. Limmer, 668 F.2d 619, 633 (5th are available in the area around Wheaton. Cir.1981), cert denied, 458 U.S. 1124, 103 But Wheaton cannot rely on other munici- S.Ct. 5, 73 L.Ed.2d 1395 (1982). palities to rescue them from the eonse- The administration of this ordinance is quences of an improperly drawn ordinance. somewhat convoluted. According to Whea- Cf. Schneider v. State, 308 U.S. 147, 163, ton, applications are submitted to the city 60 S.Ct. 146, 161, 84 L.Ed. 155 (1939) manager's secretary, who forwards it to ("[0]ne is not to have the exercise of his the city manager. He then sends his as - liberty of expression in appropriate places sistant to inspect the proposed site for con - abridged on the plea that it may be exer- formity with the ordinance. After the as- cised is some other place.") These neigh- sistant reports back, the city manager then boring municipalities have the same right approves or disapproves the application. as Wheaton to enact valid time, place, and The yearly renewal fee covers reinspection manner restrictions on the placement of costs. Annually, the city manager receives newsracks. These restrictions could well $65,500, his assistant roughly $26,000, and reduce the number of newsracks surround- his secretary $27,000. ing Wheaton. If Wheaton'a view of the law were correct, then the effect of the neighboring ordinance would be to imperil the constitutionality of the Wheaton ordi- nance. Wheaton cannot condition the exer- cise of First Amendment freedoms on events and conditions outside of Wheaton any more than it can rely on private sellers to guarantee the expression which Whea- ton has abridged. Valid place and manner restrictions on residential newsracks may well be different than those appropriate to commercial ar- eas, but Wheaton has not made a showing which justifies the total ban enacted in this ordinance. M. Rental Permit Fee [51 The holdings stated above are suffi- cient to invalidate the entire ordinance. That notwithstanding, to preserve judicial resources, and to guide Wheaton's subse- quent efforts, the court analyzes one other provision: § 20-148(4), the rental permit fee. Wheaton charges an initial fee of $25 per newsrack installed, as well as an annu- al renewal fee of $15 per newsrack. The newspapers challenge these fees as an un- constitutional tax on their First Amend- ment rights. Licensing fees are permissible, but a mu- nicipality can charge no more than the amount needed to cover administrative costs. Cox v. New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 766, 85 L.Ed. 1049 Wheaton claims that the time it takes to complete these tasks, performed by em- ployees at these salaries, justify the fee. But the newspapers note several undisput- ed points in the record which undermine Wheaton's claim. First, it is apparent that Wheaton does not know what it costs to administer the program. For instance, be- fore the vote on the ordinance one City Councilman asked the city "to take a look at all of our paper generation regarding the permits like this so ... in the future we'll actually know what it costs us.... [S]o when we do establish a fee, it would accurately reflected (sic) upon our actual costs. I don't think we really know...." The Councilman went on to speculate that a $25 fee "really isn't that far off . . . " but there is reason to doubt him. Before Wheaton passed the ordinance, the assist- ant city manager surveyed 27 communities in the area. He discovered that only two charged fees for newsracks. Of those two, one city charged $15 per newsrack, and the other $10. Based on that survey, the as- sistant recommended lowering the fee in Wheaton to either $10 or $15. In response, Wheaton says that the pro- cess is more expensive because it requires the time and attention of several employ- ees, including the city manager, who is relatively well paid. But this overlooks several things. Wheaton issues licenses for approximately 30 different activities. Rose deposition, 70. The only license 1472 697 FEDERAL SUPPLEMENT which receives the personal attention of the city manager is the newsrack license. Id. The rest are administered by either the city manager's assistant or his secretary. And the city manager conceded that his secre- tary was perfectly able to monitor the per- mit system for newsracks. In light of these points, the newspapers asked the cur- rent city manager why he had to adminis- ter this particular ordinance, and no other. He said that was "Olust the way we decid- ed to set it up." Id. at 71. Alternatively, he could have pointed out that the ordinance called upon him to make several discretionary determinations. But those provisions are invalid. Measuring compliance hardly requires the time and expertise of seniqr city officials. Wheaton is of course free to determine the duties of its employees and may leave the adminis- tration of this program with the city man- ager. But Wheaton is not free to enact and administer unconstitutional restrictions on speech and then charge those whose speech is restricted to pay for the time it took. IV. Other Issues 161 The remaining issues may be dealt with briefly. First, plaintiffs argue that when Wheaton confiscated Tribune and Sun -Times newsracks in March 1986, it deprived the newspapers of their rights under the First, Fifth, and Fourteenth Amendments. Wheaton admits confiscat- ing the boxes, but argues that the news - racks obstructed the sidewalk and created an imminent safety risk. Plaintiffs' motion for summary judgment is denied here. If the newsracks in fact created an imminent safety risk, Wheaton could summarily confiscate them. The Court has repeatedly upheld summary ad- ministrative action in emergency situations, and "deprivation of property to protect the public health and safety is 'Colne of the oldest examples' of permissible summary action." Hodel a Virginia Surface Min- ing & Reclamation Assn, 452 U.S. 264, 300, 101 S.Ct. 2552, 2373, 69 L.Ed.2d 1 (1981) (quoting Ewing u Mytinger & Cas- selberry, Inc., 339 U.S. 594, 599, 70 S.Ct. 870, 878, 94 L.Ed. 1088 (1950)). Wheaton claims that the newsraeks created an imme- diate risk, and plaintiffs offer nothing to the contrary. On this record, summary judgment is improper. [7, 81 Plaintiffs also claim they are enti- tled to attorney's fees for legal work need- ed to resist the initial newsrack ordinance passed by Wheaton. They argue that Wheaton amended the initial ordinance in response to a letter written by plaintiffs' counsel. This, they claim, makes them a prevailing party for the purposes of 1988. Plaintiffs' claim is denied. A party may prevail without formal judi- cial relief. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980); In re Burlington Northern, Inc. Employment Practices Litigation, 832 F.2d 422, 425 (7th Cir.1987). To prevail in a settled case, the actions taken by the plaintiff must be causally linked to the relief obtained. Burlington Northern, 832 F.2d at 425. The causal connection, how- ever, is a factual determination. I&; Han rington v. Devito, 656 F.2d 264, 267 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). Here, plaintiffs cannot establish the necessary causal connection, since Wheaton insists the ordinance was amended in response to the Sixth Circuit decision in Lakeuw & Wheaton's position is certainly tenable, since the original ordinance was so strik- ingly similar to the ordinance disapproved by the Sixth Circuit. In addition, the changes made by Wheaton correspond more closely to the opinion of the Sixth Circuit than to counsel's letter. For in- stance, counsel warned against the resi- dential ban. The Sixth Circuit upheld this ban, and the amended Wheaton ordinance included it. On a motion for summary judgment, disputed facts are resolved against the movant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988). Conse- quently, plaintiffs' motion for summary judgment on this point is denied. IT IS THEREFORE ORDERED that: (1) Plaintiffs' motion for summary judg- ment is granted in part and denied in part. CHICAGO NEWSPAPER PUBLISHERS Y. CITY OF WHEATON 1473 Cite as 697 F.Supp. 1464 (N.D.11L 1"8) (2) Defendant's motion for summary (3) Within ten (10) days of receipt of judgment is denied. an application for a permit, the city man- (3) A status hearing is set for November ager shall grant the application and issue 10, 1988 at 9:15 a.m. the permit provided that the conditions contained in Section 20-148 of this ordi- APPENDIX nance are, where applicable, complied with. In the event the terms and condi- ORDINANCE N0: E-3147 tions of Section 20-148, where applicable, are not complied with, the city manager AN ORDINANCE AMENDING THE shall, within ten (10) days of receipt of an WHEATON CITY CODE—VENDING application for a permit, deny the applica- AND NEWSPAPER DISPENSING tion, stating the reasons for such denial. DEVICES AND AMENDING ORDI. Sec. 20-148. Rental permit conditions. NANCE NO-E-3088 The newspaper dispensing device rent- Section 1: City of Wheaton Ordinance al permit shall be subject to, and granted No. E-3088, "AN ORDINANCE AMEND- upon, the following conditions, restric- ING THE WHEATON CITY CODE— tions, and requirements: VENDING AND NEWSPAPER DISPENS- (1) Newspaper dispensing devices shall ING DEVICES", is amended by deleting not be placed in the residential zoning the terms and provisions thereof in their districts of the city. entirety; and the Wheaton City Code is (2) Newspaper dispensing devices shall amended by adding and including therein be placed adjacent and parallel to build- the following: ing walls not more than six inches (6') distant therefrom, or near and parallel to "ARTICLE VII. VENDING AND the curb not less than eighteen inches NEWSPAPER DISPENSING (18') and not more than twenty-four DEVICES inches (24') distant from the curb at such See. 20-147. Newspaper dispensing de- locations applied for and determined by vices; application and permit. the city manager not to cause a health or (1) No newspaper dispensing device safety hazard or interfere with the right shall be placed or located within a public of the public to use of the streets, thor- or private right-of-way, along the streets, oughfares, and sidewalks. thoroughfares, or sidewalks within the (3) No newspaper dispensing device City of Wheaton unless a permit has shall be placed, installed, located, used, previously been issued therefor by the or maintained: city. The term 'newspaper dispensing a. Within fifteen feet (16') of any fire device', as used in this section, shall hydrant or other emergency facility; mean a mechanical, coin-operated con- b. Within fifteen feet (16') of any in- tainer, constructed of metal or other ma- tersecting driveway, alley, or street; terial of substantially equivalent c. Within five feet (5') of any marked strength and durability, not more than crosswalk; fifty inches (50') in height and not more d. At any location where the width of than twenty-five inches (25') in length paved clear space in any direction for and width. the passageway of pedestrians is re- (2) Applications for such permit may duced to less than five feet (5'); be made to, and on forms approved by, e. Within five hundred feet OW) of the city manager for rental permits al- another newspaper dispensing device lowing for the installation and placement containing the same newspaper or of newspaper dispensing devices within news periodical, except that the city, the public and private right-of-way, along manager may permit three (3) such the streets, thoroughfares, and sidewalks dispensing devices at an intersection within the city. where such placement would not im- 1474 697 FEDERAL SUPPLEMENT APPENDIX—Continued pair traffic or otherwise create a haz- ardous condition; L Any location where three (3) news- paper dispensing devices are already located; g. So as to be chained, or otherwise secured, to any tree, utility, or light pole, parking meter, traffic control post, street sign post, or other public property; h. On or within any median within any public or private right-of-way. 4. The permittee shall pay an initial rental permit fee of TWENTY-FIVE DOLLARS ($25.00) for each location where a newspaper dispensing device is installed. The initial rental permit fee shall be applicable to the initial license year, or part thereof. The permittee shall pay a renewal rental permit fee of FIFTEEN DOLLARS ($15.00) per year for each location where a newspaper dis- pensing device is installed. See. 20-149. Revocation of permits. Rental permits issued pursuant to this Article may be revoked by the city man- ager after notice and hearing for any of the following causes: (1) Fraud, misrepresentation, or any false statement contained in the applica- tion for permit; (2) Violation of any city ordinance, in- cluding the ordinance regulating such rental permit; (3) Violation of the terms of the rental permit granted to permittee. Notice of hearing of such revocation shall be given in writing to permittee stating the grounds of the complaint to- gether with the time and place of hearing and shall be mailed, postage prepaid, to the permittee to the address given in the rental permit application not less than five (5) days prior to the date set for hearing. The decision of the city manager in refusing to grant, or revoking, a rental permit shall be appealable. The permit- tee shall have the right to appeal the decision of the city manager to the city council. Such appeal shall be taken by filing a notice of appeal including a state- ment of the grounds for the appeal with the city clerk within ten (10) days after notice of the decision of the city manag- er. The city council shall set the time and place for hearing such appeal, and notice of such time and place shall be given in the same manner as specified herein. The city council shall have the power to reverse, affirm, or modify the decision of the city manager; and any such decision by the city counsel shall be final. Section 2. If any section, sub -section, clause, or phrase of this ordinance is for any reason held to be invalid or unconsti- tutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the re- maining portions of this ordinance." w O RttM OIRsPsn" Casell RANDLE, George Austin and Holmes Communications, Plaintiffs, V. LaSALLE TELECOMMUNICATIONS, INC., d/b/a Chicago Cable TV, Defendant. No. 86 C 3290. United States District Court, N.D. Illinois, E.D. Oct. 14, 1988. Minority enterprise which marketed ca- ble subscriptions for cable company and two of its employees brought § 1981 claims against cable company. On motions for summary judgment, the District Court, Za- gel, J., held that: (1) plaintiffs failed to demonstrate direct evidence of discrimina- tion; (2) minority enterprise was not coerced into laying off two black employees for two months on basis of discrimination; (3) assignment of neighborhoods for mar- keting arketing services was not done in a discrimi- _ _ -- — _. . _- (11/2�12008� Susan Batte -Fwd: FW--: news rack ban Page 1 From: Stephanie Rivera To: Batte, Susan; Scott Williams Date: 11/26/2008 9:48 AM Subject: Fwd: FW: news rack ban Wanted to make sure you have this for your files. >>> "Lee Newquist" <lee.newquist@fwweekly.com> 11/21/2008 11:58 AM >>> Grapevine City Council, Below is a note I sent to Darlene this morning. As stated below, I have never seen an action like this taken by a city or council and would have appreciated an opportunity to work on a solution vs this dramatic action toward newspapers and the press. I would appreciate some sort of response from members of the council with explanations on this action. As I've said below, I am considering my options to address this action and will be in touch with some other publishers to see how they would like to proceed. Needless to day, this was not handled properly by the council. Lee Lee Newquist Owner/Publisher Fort Worth Weekly 817-321-9779 From: Lee Newquist[mailto:lee. newquisL@fwweekly.com1 Sent: Friday, November 21, 2008 9:55 AM To: 'dfreed@grapevinetexas.gov' Subject: news rack ban Darlene, I read the article in the Star Telegram this morning about the complete ban on news boxes in the historic district of Grapevine. I have to say that in the 27 years that I've been in the free weekly news paper business, I have never seen such a blatant action against news boxes. I have worked with (11/26/2008) Susan Batte - Fwd: FW: news rack ban Page 2 cities all over the country to establish ways that papers and cities can work together to keep papers available to readers. I'm shocked that no one from the city or council even attempted to contact me about this matter and never gave me an opportunity to offers suggestions on ways we could work together on this matter. I worked closely with the city of Fort Worth on an ordinance that was recently put in place that works well for both the city and the publishers of papers. Why didn't Grapevine at least explore some options before voting on a complete ban? And why weren't we invited to comment? I have consulted with our legal team to determine our next step and will likely respond to the council's actions early next week. Regardless of what my plans are, the council should be ashamed of this type of behavior, especially towards the Weekly that has been a great supporter of Grapevine and the many events that take place there. Please feel free to share this note with your other council members. I appreciate your vote yesterday. Lee Lee Newquist Owner/Publisher Fort Worth Weekly 817-321-9779 www.fwweekly.com <http://www.fwweekly.com/> Page 1 of 1 Stephanie Rivera - HDGA voting From: "James A. Humphrey„<jimhumphrey(a,jamesahumphrey.com> To: <rsstewart@grapevinetexas.gov>, "Darlene F." <jfreedl @hotmail.com>, <mlease@structures- interiors.com>, "Shane Wilbanks" <swilbanks@grapevinetexas.gov>, "Sharron Spencer" <SMSSTX@earthlink.net>, <ccoy@grapevinetexas.gov>, "Bruno Rumbelow" <Brumbelow(7agrapevinetexas. gov> Date: 8/29/2008 11:43 AM Subject: HDGA voting Attachments: 23rd Tarrant.doc Greetings Mr. or Ms. City Council Member and Mr. City Manager, The purpose of this email is to officially inform the city council and the city manager concerning results of a vote last week by the Historic Downtown Grapevine Association concerning two issues, newspaper and magazine racks downtown and a proposal from the Dallas Fort Worth Toy Run. The voting results follow and the proposal from the Toy Run is attached as a word document. Voting Results -- Voting concluded end -of -day, Aug. 27, 2008 Oficial Ballots Cast; 41 Quorum Satisfied (If all votes not cast went 100% for any position, results would not change.) The Executive Committee thanks all our members for their courteous discussions and debate of these issues and especially those ofyou that followed your discussions with a vote. HDGA Official Ballot - 08/24/08. To establish an official HDGA position, the following statement will be used. The Historic Downtown Grapevine Association (HDGA) urges removal of all exterior newspaper and magazine racks (free or otherwise) from the historical footprint area of downtown Grapevine as being eyesores and safety hazards. Results: I agree - 33 1 do not agree - 6 Abstain - 2 In response to an official request from the Fort WorthlDallas Toy Run for HDGA to lead a lobbying effort with the chamber of commerce, the city, the city council and any other interested parties in support of the Toy Run's specific proposal presented to HDGA and distributed during the August 20, 2008, general meeting, my vote is: Results: Yes, HDGA should - 34 No, HDGA should not - 7 Abstain - 4 Thank you, James A. Humphrey President, HDGA file://CADocuments and Settings4sid1011\Local Settings\Temp\XPgrpwise\48B7DB9DGRPVNCHSCP... 8/29/2008