HomeMy WebLinkAboutItem 10 - Chapter 20 Amendments �G �n��� �: __/�
MEMO TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BRUNO RUMBELOW, CITY MANAGER��
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
RECOMMENDATION:
City Council to 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.
BACKGROUND INFORMATION:
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.
R:WGENDA\11-18-081AM08-01.4.doc
1
ALLIANCE REGIONAL NEWSPAPERS
October 10, 2008
Honarable Cou woman Darlene Freed
City Hall
200 S. Ma� St
Grapevi e, 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 GYapevine 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 Charles D. Youn
Advertising Director Executive Editor,
Alliance Newspapers Alliance Newspapers
�.w.�__�..��_ __.:�.w��..
- ��.,<,..��.,n}�� ,... .. �_ ,. ,,f_ ..
������� C
»> "Mike Brown" <mbrown(c�theqreensheet.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 iden#ify#he 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 Circulation
214 853-6018 OFFICE
214 747-3478 WAREHOUSE
214 802-3797 CELL
visit us at www.theqreensheet.com ( http://www.theqreensheet.com/ )
�
1464 697 FEDERAL SUPPLEMENT
perform the same function and achieve the nance regulating placement of newsracke.
same result Whether the elements of Air- On croas motion for aummary judgment,
tite'a ilooring aystem, viewed aa a whole, the District Court, Hart, J., held thak (I}
operate in subatantially tfie same way,and acheme for liceaaing neweracka gave city
have aubstantially the same function and manager unguided discretion snd waa un-
tesult as the ayatem covered by Interati- tawful prior reatraint; (2)complete ban oa
tial's patent is a question of fact. newaracks in residential sreae waa invalid
[ll] The range of equivalents presenffi p�ce and manner reatriction; and(3)newa-
material fact ieaues relating to the nature ��� were not entitled to attoraey fees
of the industry. See dfartin v. Barber, for legal work aeeded to resist initial news-
aupra,76b F2d at 1668. With regard to a �k ordinance, which was amended in re-
�nding of equivalence,proof may be made sponae to judicial deciaioa.
thmugh teatimoay of experta or othera p����'s motion granted in psrt and
versed in the technology, by documents, deaied in part.
including texts and treatises,and by disclo-
eure of prior art. Graver Tank&Mjg. Co. 1. Conetitutiona! I.aw �90.1(8)
u Linde Air Producta Co.,339 U.S.at 608,
609, 70 S.Ct. at 856, 857, 94 L.Ed. 1097 Ordinance giving aty manager the su-
(1950). The task of weighing such evi- �ority to deny application for license to
dence beloags to the trier of fac� !d 339 Place newsrack oa publ� street if that
U.S. at 611, 70 S.C� at 857. placement would cause health or safety
hazard, interfere with pubGc'a right to use
CONCLUSION 8��� �oroughfares. aad sidewalka, im-
Defendants' motion for summary judg- ���rc, or otherwise create hazardous
meat of noninfria ement is �ndition impoaed prior restraint on speech;
g �°� � t0 determination involved was at leaat in part �
literal infringement and denied as to in- $ubjective and no atandarda were pmvided
fringement 6y equivalents. �gu�de city manage�'s judgment,and die-
cretion built into ordiasnce raised apecter
O EIfl'NUNtttSKffN oi tontentrbssed Censorehip. U.S.CA.
� ConskAmende. 1, 6, 14.
2. Conetitutionaf LsN �90.1(8)
Prior restraint impoaed by Illinois
city'a ozdinance regulating placement of
CHICAGO NEWSPAPER PUBLISHERS neweracks was uacoaatitutional,in abaence
A3SN..Chieago'Mbune Co.,sn Illinois oi adequate procedursl safeguaida; there
corporation, Chicaso Sun-Timee, Ina. was no time timit by which city couacil had
a Delaware corporation, and Dow to hear appeal fmm adverse liceosing deci-
Jonee & Compsny, IncM PlsintlHe, sion by city rnansger,snd ordinance did not
o, clearty adopt that state's Administrative
CITY OF WHEATON, sn Illinois �form Act or otherwiae provide for judi-
municipality, Defendan�. ��1 review. I11.S.H.A. ch. 110, A 3-102;
U.S.C.A. CoaskAmends. i, S, 14.
No. 87 C 076b.
3. Constitutional La�v �90.1(8)
United Statea District Court, �n(n� snd Planning �T2
N.D. IUinois, E.D. provision of city ordinance banning all
Oc� 12, 1988. newsracka in residential soaing diatricta
was iavalid place and meaner reatriction;
though ordiaance was conten�neutral on
Newspaper publishers bmught civil ita face, city did not demonatrate that it
righta action challenging Illinoia city'a ordi- had adopted the least reatrictive meana
�
CHICAGO NEWSPAPER PUBLISHERS v. CITY OF WHEATON 1465
cu...�r F.s�p,. ��cxa.m.�9est
availabie to achieve goals of promoting mo- Edward J. Walsh,Jr.,James H. Knippen
tor vehicle and pedestrian aafety and main- II, Edward J. Walsh, Jr., Chtd., Wheaton,
taining residential character of neighbor- Ill., for defendant
hoods, aad avalab7ity of alternative chan-
nels such as home delivery, commercial MEMORANDUM OPINION
outleta,and newaboxes did not justify com- AND ORDER
plete ban. U.S.C.A. Cons�Amend. 1. _
HART, Diatrict Judge.
4. Constitutional I.aw a�90(1) In onr participatory democracy newapa-
F�rst Amendment dces not allow mu- �� are not just an amenity. They are a
nicipality to restrict apeech on grounds that ��means of pmvidiag information to citi-
private ectors are willing to sponsor it zens called upon ta exereise an enlightened
U.S.C.A. Coas�Amend. 1. uae of the ballot Without the information
b. Conatitutional Lsw �90.1(8) p��ded by newspapera many citizens
Ordinance proviaion for rental permit �'ould be withont the knowledge required
fee for newaracks, representing initiai in- for an intelligent electoral process. Ac-
atallation fee and annual renewal fee.was cordingly, the distribution of newspapers
�u►constitutional; city did not know coata of has always had FSrst Amendment protec-
adminiatering pmgram,and installation fee tion.
charged by city was higher than the few The methods of newapaper distnbution
surrounding communities impoaing sach a are changing. For aome, home delivery is
charge. either unavailable or too expenaive. Street
6. Federal Civil Procedure �2481 vendors are disappearing in all but central
buainess areas, and newsracks are appear-
Genuine iasue of material fact, as to �ng as a substitute means of distribution.
whether confiscated newaracka obstructed �ia case concerns issues arising out of the
' ` sidewalk and created imminent gafety risk, ����n or prohibition of newsracka on
precluded aummary judgment on newspa- Qublic etreets in a suburban area.
pera' constitutional claims arising from
that confiacation. This is a challenge to an ordinance which
regulates the placement of newaracks in
7. Civtl Itighta 4�13.17i13) Wheaton, Illinois. Plaintiffa attack the
To preveil in settled civil righta case ordinance on ite face as an abridgement of
for purpoaes of attorney fee provision,fac- the rights under the F'irst and Fourteenth
tual determination muat be rnade that aa Amendments,and under the IDinoia Consti-
tiona taken by plaintiff are causally linked tution. Defendant City of Wheaton re-
to relief obtained. 42 U.S.C.A. § 1988. sponda that the ordinance imposes valid
time,place,and manner restrictions permi�
S. CivU Righta �+13.17(13) ted under the Ftirst Amendmen� Plaintiffs
Newapapers were not entitled to attor- also claim that Wheaton officials confiscated
ney fees as prevailing partiea for legal newaracks without due process,ia violation
work needed to reaist city's original news- of the Fyfth and Fourteenth Amendmenta.
rack ordinattce, which was amended in re- To this, Wheaton counters that the newa-
aponae to judicial decision, not letter wri� racka were confiacated because they posed
ten by newspapera' counael. 42 U.S.C.A. a threat to driver and pedestrian safety.
§ 1988. The parties have filed cross motions for
summary judgmeak
For the reasons outlined below, the li-
James A.Klenk,Alan J.Mandel�$�onnen- cenaing acheme is an invalid prior reatraink
schein,Carlin,Nath&Rosenthal,Joaeph P. In addition,the complete ban on residential
Thomton, Chicago Tribune Co., Chicago, newsracka ie an invalid place and manner
Ill., for plaintiffa. reatriction.
, �,
1466 697 FEDERAL SUPPLEMENT
FACTS by the cona#itution dependa"on the charac-
On April 7, 1986, defendant City of �r of the property at iasue." Perrb Edu-
Wheaton, Illinois ("Wheaton") pasaed on cation Axr'n v. Perry Locad Educators'
ordinance regulating the placemeat of Aas'n, 460 U.S. S7, 44, 103 S.C� 948, 954,
newspaper dispensing devices ("newa- �4 L.Ed2d 794 (1983). In this case, the
racks")on Wheaton city atreets. This ordi- ``ProPerty at iasue"is city atreeta in Whea-
nance was aimilar to an ordinance passed in tOn, I16nois. The Supeeme Court has re-
Lakewood, Ohio. Three montha Iater, in ���y �Og"'� Public streeta "as the
July 1986, the Sixth Circuit ruled that sev �hetype of a traditional public forum."
eral provisions of the Lakewood ordinance Frisby u Schultz, —U.S.—, 108 S.Ct
were unconstitutional. Plain Dealer Pub- �96, 2499, 101 L.Ed.2d 420 (1988).
liahiny Co. v. City ojLakewood 794 F.Zd In these traditional public fora, govern-
1139 (6th Cir.1986), affd in part & re- ment's authority to restrict apeech is at its
manded—U.S.—, 108 S.C� 2138, 100 ��um. 1time,place,and manner restric-
L.Ed.2d 771 (1988). Six weeks after the �na are valid only if they are conten�neu-
Sixth Circuit decision, WheatAn amended ��, narrowly tailored to serve a signif'r
ita ordinance, deleting aome of the lan- �t government interest,and retain ample
guage which pmved fatal ta the I.akewood elternative channela of comraunication.
ordinance.' In January 1987, plaintiff Perry,460 U.S.at 45,lOS S.Ck at 954. As
newapapers brought this § 1983 action in an application of the requirement that re-
Illinois state court, aUeging a violation of 8�ctions be narrowly tailored, a law can-
their rights under the Ftirst, F1'fth, and not condition the free exerciae of Ftirst
Fourteenth Ameadments to the U.S. Con- Amendment rights on the unguided discre-
stitution, and under the Illinoia Constitu- don of government officials. Lakewood
tion. Wheaton removed to t,hia cour� 108 S.CL at 2143; Shuttleawortic u Bir-
mingha�n, 394 U.3. 149, 150-51, 89 S.C� �,.�,,,
At the close of discovery, both sidea g35, ggg, 22 I,,Ed,2d 162 (1969) ("a Iaw
moved for aummary judgmen� Because of aubjecting the exercise of flrst Amend-
the similarity between the Wheaton and ment freedoma to the pcior restraint of a
Lakewood ordinances, this coart deferred license,without narrow, objective and def-
ruling on the motione until the Supreme inite ata�ndarda to puide the licenaing au-
Court decided Lakewood's appesl from the thority, ia unconstitutionaP'(emphasis add-
Sixth Circuit In June of this year, the ed)}; Staub v Cit�of Baxled/,35b U.S.313,
Supreme Court affirmed the Sixth Circuik 321-22,78 S.Ct 277,281-82, 2 I..Ed.2d 302
City ojLakewood u Plain Deater Publish• t1958). Md finally, any licensing ayatem
iny Co., —U.S. —, 108 S.Ct. 2138, 100 which operates as a prior restraint"avoids
L.Ed.2d?71(1988). Both Wheaton and the ���tutional infirmity only if it takes
newspapers then renewed their aummary Place under procedural safeguards de-
judgment moGons, aigned to obviate the dangers of a censor-
ahip system." Freedman u Marylana�
LEGAL PRINCIPLES 380 U.S.51,b8, 85 S.Ct.734,789, 13 L.Ed.
It ia beyond dispute that the F�rst � �9 (1965); Miami XeTald Pu6. Co. v.
Amendment protects the right to distribute �ty ojHallandale�434 F.Zd 666,676(llth
newspapers in newaracks. City of Lake- Cir.1984).
wood v. Plain Dealer FubliaAi�rcg Co., — Against the backdrop of tt►eae legal prin-
U.S.---, 108 S.Ct. 2138, 100 L.Ed.2d 771 �P�es,the court turns to a conaideration of
(1988); Gannett Sat�llite I�{fo. Networl� �'e Wheaton ordinance.
Inc. v. Metropolitan Trnnsportalion Au- DISCUSSION
thority, ?45 F.2d 767, 777 (Zd Cir.1984);
Miami Xerald Publiahiny Co. v. City of 1 Due Proceae�P'+'for Iteatmint
Nallandala, 734 F.2d 666, 673 (llth Cir. [1] Plaintiffa attack the liceoaing
1984). The degree of protection prnvided scheme aa sn unlawtul prior reatraink The
1. The relevant port(ons of the Wheaton ordi- nance are rcproduced in the Appendix.
��
�.�.�. __ _
CHICAGO NEWSPAPER PUBLISHER3 v. CITY OF WHEATON 1467
au..6s�r p.s�. ��(r►.n.m.�s�tl
Supreme Court has often artaculated the vicea at an interaection wkere such
elements of a prior restraint. First, the placement would not impair traff'tc
right to eagage in the protected speech or otherwise create a hazardous con-
must require the prior approval of a dition....
govemment agent Approval of the appli- g�, ZO-148(3xe) (emphasis added).
cation must depend on the agent's affirma- �e significance of the firat passage is
tive action. In addition,approval must not �� even if all other conditions are satis-
be routinely granted but rather must require fied the city manager may sa'll withhold a
the exerciae of the agent's judgmeat Fi- ��t i!it ia determined that the newarack
naily, the licensing acheme muat empower ���g a`���or safety hazard or inter
the agent to approve, deny or revoke a ferea with the right of the pubtic" to use
licenae based on the content of the pro- �e streets snd aidewalka. In his deposi-
poaed communication. SoutheasEern Pro- �on, �� ��nt city manager coaceded
motiona,Ltd u Conrad 420 U.S.546,bb4, �t this was at least in part a eubjective
95 S.Ct 1239, 1244, 43 L.Ed.2d 448 (1976y. determination, Roae dep. at 36, and Whea-
The first two elements are plainly met �n has pointed to no ataadacds which
here: the ordiaance requires an application gnide his jndgmen� The second paasage
to the Wheaton city manager who muat act requires esaentially the same subjective de�
on the application within ten days. Sec. termination and is equally flawed.
20-147(1); (3). Wheaton contenda, how- ��ermore, the ordiaance suthorizes
ever, that the remaiaing elements are ab- �e �ty ��ager to revoke a permit for
sea� approval ia not discretionary,and the ��v]iolation of aay city ordinance, or for
city manager has no expresa suthority to �����ud, misrepresentation, or any false
,
deny an application based on the coatent of e��ment" in the application itse}f. Re-
the applicant's paper. Wheaton is mistak- cently the Eleventh Circuit conaidered the
en on both counts. �����nality of an ordinance regulating
e�- Ftirst, the decision to isaue a Gcense is newaracica which eontaiued aim�7ar provi-
indeed discretionary. The ordinance lists a sions. Miami Herald, 784 F.2d at 673-?4.
number of eonditions which the applicant � � �ia case, the eity code before the
must meet before a license can issue. ro�of appeala gave the municipality the
Prominent among them are the following: �uthority to revoke newarack permits for
Newapaper dispensing devices ahall be �e ��qon of any aty ordinance. Id
piaced adjacent and parallel to bu7ding �e city commisaion was authorized "to
walls not more than aix inchea (6") dis• adjudicate the rig6ts ot licenae applicants
tant therefrom or near aad parallel to the ,,, �determine if the applicant has violat-
curb abt lesa thatt eighteen inches (18") ed a p��,isioa"of the city code. This, the
and not more than twenty-four u►ches �urt concluded, "neceassrily involves the
(24'7 distant frnm the curb at suck loca- exerciae of considerable discretion" and
tiona applied for and determined by was therefore improper under the �rst
the city manay�r aoE to cauae a kealth Amendmen� td The same reaeoning ap-
or safety liaza�rd or inte�rfere wit1+, tice p��ea here, and leada to the eame conclu-
right of the public to uae oj the atreets, $;on: the city manager determines whether
throughfarea, and aidewulks. a violation haa occun�ed. And, since revo-
Sec. 20-148(2) (emphaais added). cation is not automatic, the city manager
No newspaper dispenaing device ahall be muat ne�ct determine which viola'ons war-
placed, installed, located, used, or maia- raat revoeation. This is indeed"conaidera-
�n�; ble discretion"and cannot be aquared with
. • • • • • the �tirat Amendment
(e) Within five hundred feet (500') of In response, Wheaton contends that
snother newapaper dispenaing device Lheae provisions suthorize only"limited dis-
...,exeept that the city manager may cretion" "revie�vable by both common
permit three (3) such dispenaing d� senae and a reasonable man standard."
�
1468 697 FEDERAL SUPPLEMENT
But the cases do not support a "limited cenaorship. Freedma.n v. bfarylanc� 380
discretion" etandard. Shuttlesroorth. 394 U.S.at 68,85 S.Cw at 738; Miami Hernld,
U.S. at 150-61, 89 S.Ct at 938 (law must 734 F.2d at 67b; Fernandea v. Limaner,
provide "narrow, objeclive and dafinite 663 F.Zd 619, 627-28 (5th Cir.1981), cer�
stancfarda to gvide the licensing suthori- deniid 468 U.S.1124,103 S.C�.5,73 L.Ed.
ty...." (emphasis added)}; Sweamon v. 2d 1395(1982); Rubin v City ojBeru�y�t,
Meyera, 455 F.Supp. 88, 91 (D.Kan.19T8) 6b3 F.Supp. 476, 480 (N.D.I11.1982), affd,
(permit syatem must '7eave no factors to 698 F.2d 1227 (7th Cir.1982j. The ordi-
be assessed,judgments to be made,or dis• nance dces precisely tha� In thia reapect,
cretion to be exercised.... ['1�he decision the Wheaton ordinance "is iadistinguish-
to grant or deny the licenae application able in ita cenaoring effect fmm the official
must be virtually a ministerial one."}quot- actions consiatently identi�ed sa prior re-
ed in Miami Hemld, 734 F.2d at 675.' straints in e long line of thia court's deci-
F�rthermore,even if"health or eafety haz- aiona." Southeaatern Promotion� 420
ard" were narrowed to mean a vioiation of U,$, at 552, 95 S.Ct. st 1243 (collecting
the objective measurements in Sec. 20- �es). "Only if we were to conciude that
148(3), e.g. no newsracks kss than fifteen (diatributioa of newspapera]is unprotected
feet from a fire hydrent,etc.,the ordinance by the Ftirst Amendment ... could we pos-
still vests the city manager with discretion- 8�bly fmd no prior reatraint here." Id at
ary authority to revoke permita, as aoted �7�95 S.Ct at 1246; aee alao Miami Her-
above. finally, discussed infra„ tfie ordi- a�d 7g4 F.2d et 675.
nance doea not provide for judicial review.
The licensing decisions are discredonary. [2] The fact that the ordinance is a pri-
The next question in determining if the or restraint dces aot end the inquiry. A
ordinance is a prior restraint ia whether prior restraint is not per ae unconstitutioo-
decisiona are based on the coatent of the al. Bantam Booka, Inc. v. Sullivan, 372
applicant's paper. Wheaton contends that U.S.58,70 n. 10, 83 S.C�.631, 639 n. 10, 9
decisions are content-neutra! because the L-Fd•Zd b84 (1963). The next quesdon is
ordinance applies to all newsracka. But the adequacy of procedural safeguards.
that misstatea the inquiry. The Supreme The ordinance must require that the li-
Court has uniformly recognized that an act censor grant or deny the permit within a
can be a prior restraint even though,by its specified, brief period, it muat provide for
terms, it doea not favor one apeaker over prompt judicial review, and, if a licease is
another. See, e.g., Southuut�rn Pm- denied or revoked, the burden must be on
motiona, 420 U.S. at 5b8, 9b S.C�at 1246; the licenaor to institute judicial proceediAga
Shuttleswort�, 394 U.S,at 150-b1,89 S.C� to prnve that the material is unprotected.
at 938-39; Staub, 355 U.S. at 521-22, 78 South�aatern Promotio�,420 U.S.at 660,
S.Ck at 281-82. 95 S.C� at 1247; Freedman, 380 U.S. at
The question is not whether the ordi- �� 85 S.C� at 738.
nance expressly favors certain speakera(al- The neceasary safeguards do not appear
though that would alao be improper), but in this ocdii►ance. Initially, though the law
whether the diacretion bnilt into the ordi- allows an applicant to sppeal an adverse
nance raises the speeter of content based decision by the city manager to the Whea-
2. The opinion of the Glifornia Supreme Court cisls. The holdfag today is the opposite. There
in Kask Entap►�ru v.City o/Lor AnatJa is not is no inrnnsiscenry in the two holdings. Un-
to the contrary. 19 Cal.3d 294,IlE Ca1.Rptr.S3, gusge may be preeix �nd cleu, but ctip vat
562 P.2d 1302 (1977). One pmvision of the discretion in municipel autho�itia. Su
ordinanee ehallenged in Xash stated that aews- �Cp�/y,�yry o/rutsa okta,8)S F.2d 733,741
rxTcs may not`unnawnably interfere with or (lOth Cir.1987) (ordinance which permiu mu-
impede the flow of pedettrian trafRa" t38 Cal. �cipslity to decide which struceures vtolate the
Rptr.�t 59,S62 P.2d at ISOB. 7'he court upheld �aw vau unguided dtscredon in government
this provision. The challenge, however, was and ts unconstitutional,ever►though lan�ua�e is
t6at the laagwge wu vaQue and overbroad,snd not vague).
nor that it vested discretion in government offi-
CHICAGO NEWSPAPEK PUBLISHER9 v. CITY OF WHEATON 1469
pb u 697 F.Bupp. 1164(N.D.Ill.19lE)
ton City Counc9l, there is ao time limit hy aot change their etatua under the F'irat
which the city council must hear an appeal. Amendmenk Friaby v Schultz, — U.S.
Thus the"right"to appeal is in fact discre- —, 108 S.Ct. 2495, ?A99-2500, 101 L.Ed.
tianary, and a permit application can '9an- 2d 420. Conaequently, the ban on resi-
guiah inde�initely before the Counc7"—a dential newsracke muat be examined under
feature recently criticized by the Supreme the familiar atandard: the restrictiom m�st
Court when it struck down the Lakewood be oontent�neutral,it must be asrrowly tai-
ordinance. La,kewood. 108.S.Ct at 2161. bred to serve s aignificant government ia-
More importantly,the ordinance doea not �ree� end it muat leave open ample alter-
provide for judicial review of the adminia- AB�ve channels of communication. Pcrry,
trative decision to grant,deny,or revoke a 460 U.S. at 46, 103 S.Ct. at 954.
permi� In Illinois, the Admiaistradve Re- A. Conten6-Neutral
view Act is not spplicable unlese clearly The ban on residential newsracks appliea
adopted by the legislature which provided equally to all newsracks and is therefore
for the administrative decisiop. IA.Rev. content-neutrsl on its face. See Gannet�
Stat. ch. 110, 3-102 (1988). Wilkins v. 74b F.2d at 775; Miami Herald, 734 F.2d
State DepG of Pu6lic Aid 61 lU.2d 88,280 at 673-74; Providence,lournal Co. v. City
N.E:2d 706,708(1972); Sullivan v. Board oj Newport, 665 F.Supp. 107, 112 (D.R.I.
of l�'ire and Pollce Commissio�ura, 103 1987). Plaintiffs suggeat otherwise, alleg-
Il].App.3d 167, 58 Il}.Dec. 604, 607, 430 ing that Wheaton has not enforced the ban
N.E.2d 636,639(1981). Nowl�ere does thia againet the Wheaton Daily�ouritaG But
ordinance adopt that Act, In addition, thst allegation challenges the ordinance as
there ia no provision requiring Wheaton to applied, snd in their motion for summary
inatitute judicial proceedings to pmve the judgment, plaintiffs adequately raise only
. conduct is unprotected. These omisaions facia! challenges.
are fatal to the licensing acheme.= See B. Narrowly Tailored
_�� Ball, Ext�+a! Extra! Read All About I�• �yy,eaton muet demonstrate that there is
Firat Amendme�ct Pr+nblema in the Regu- a eignificant relatioaship between the regu-
lation of Coin Operated Newapaper �ation and the governmental interest, a�nd
Vending Machines. 19 Colum.J.I.. dc Soc. �at the meana employed are the least re-
Probs. 183, 20�-204 (198b). atrictive ava�'Iable. City oj Watsaka u Illi-
II. Ban On Besid.ential Newaraeka n0� �61ie Aetion Counci� 796 F2d
164T, 1664 (7th Cir.1986), ajj"d 479 U.S.
[3] Becauae the licensing scheme vesta 1048, 107 S.G't. 919, 93 L.Ed.2d 972(198T).
Wheaton officials with the unguided discre- In enacting a total ban on resideatial news-
tion to control the placement of newarecks, racks, Wheaton has not demooatrated that
and because the ordinance lacka the proce- they have adopted the least reatrktive
dural safeguarda to guaid againet abuse of ineana available. Coneequentiy, the tAtal
that discretion,it is uneonstitutional. How- ban is unconatitutional.
ever, another pmvision oi the ordinance �e object of the ordinance appeara in
bans aA newsracks ia residential zoning �e preamble. The ordinance is designed
diatricta of Wheaton. Sec.20-148(1). This, � p�mote "motor vehicle and pedeatrian
obvioualy, involves neither a prior applica- gafety" and to maintain the "residential
tion nor municipal discretion. In other character of the R,eaidential Zoning Dis-
worda, validity of the reaidential ban is ����� ���e former,Wheatfln cannot
unaffected by the first part of thia opinion. ��8��et only a total ban Rn71 adequately
Plaintiffe chalienge this provision se well. pro�de for driver attd pedestrian safety,
R,esidential etreets are traditioaal public since all other city atreete sre elso potential
fora and their character es residential dces sites for a aewsrack. The ordinance per-
3. it may also be that the tea day waitinQ period iuua It is not clear,howtver,why inspecting
before w6Ich the city manager must act is not the site Eor corapltance with objedive measvre-
sufftctently brieE Tt�e court does not reath t!u meats would require ten days.
.�:._
1470 697 FEDERAL SUPPLEMEN'P
mits newsracks in non-residential districts, lets, and "numeroua newsboxes which are
provided they are properly placed(e.g. not legally eligible for permits." These chan-
within 15 feet of a ftre hydrant,not within nels are inadequate to juatify a complete
five feet of a marked crosawalk, etc.). ban on residentisl newaracks.
The second goal of the otdinance is to Fyrst, a person cannot selectively eu�
preserve the "residential character" of scn'be to home delivery of plaintiffa' pa-
Wheaton neighbochoods. Wheaton claims pers. The person who reGes on newsracks
this gosl reftecta a concem for neighbor- to purchase an occasional paper muat pay
hood sesthetics. Granted, neighborhood conaiderably more to aubscribe to a particu-
aesthetics are a significant government in- lar paper. And when alternative channels
teres� Members oj the City Council of are not readily avsilable, "the Court has
Los Anyeles v. Tazpay�ra jor Virece�tt, 466 shown apecial solicitude for forms of ex-
U.S. 789, 806-47, 104 S.Ct 2118, 2129-30, p�$sion that are much less expensive than
80 L.Ed.2d ?72 (1984). However, it dces feasibie alternativea...." Taxpayers for
not follow that a complete ban is the least V=��,466 U.S.at 812 n.80, 104 S.C�at
restrictive means of achieving the goal. 2133 n. 30; Martin v. City oj Struthera,
Wh¢atan has not explained—much lesa 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87
demoaetrated—how a aewsrack on a resi- LEd. 1313 (1943). F�rthertnore, th6ugh
dential street destroys the "character" of plaintiff newapapers provide home delivery,
the neighborhood any more than a mailbox, the ordiaance bana all newsracks in resi-
utility pole, fire hydrant, or traffic sign. dential districts. This includes the amall,
As one court recently observed, "[i]f news- P�rly funded press,without the resources
racka alone are banned aad no further � Provide home delivery, but with the
steps appear likely,'the commitment of the �me claim to the protections of the Firat
city to impmving its physical environment Amendmen�
is placed in doub�"' Providersce Journal [4] Moreover,the availability oi private ""�"'
Co. u City oj Newport, 665 F.Supp. 107, sellere ia irrelevan� The Ftirat Amendment
115(D.R.I.1987)(quoting Metromedia,Ina does aot sllow a municipality to reatrict
� v. City ojSan Diego, 453 U.S.490,b31-32, 8p�h on the grounds that private actors
101 S.Ct. 2882, 2904-05, 69 L.Ed.2d 800 are willing to sponaor it See Providenee
(1981)(Brennan,J., concumng)). See also �ournal Co. u Cit� oj Nexrport, 665
Quadres, Content-Neutml Publie Forum F.Supp.at 118. If thia were the rule,then
Regutatio»s: The Rise oj tJie Aatltetic the rights eafeguarded by the�rst Amend-
State Intereat, tlee Fall ojJudicial Scruti- ment would be in the hands of private
�ny, 37 Hastings L.J. 439, 474-780 (1986�• businesaes. In other words,if private seli-
Aeathetic judgments are "necessarily sub- ers are an adequate altemative channel
jective," Metro»tedia, 463 U.S. at 610, 101 under the Constitution, then an ordinance
S.Ck at 2894, and Wheaton cat►not aimply vvhich ia conatitutionai today becomes un-
raise the banner of aeathetic intereat, and �nstitutional tomorrow,when those sellera
then leave it to this coutt to determiae not close, relocate, or elect not to sell newapa-
only how the ordinance advancea those in- pers, The protections of the Ftirst Amend-
tereats, but why a total ban is necesaarq. ment cannot be so transitory.
See Southern New Jeraey NewJpapera v. �eaton, however, relies on the opinion
New Jeraey, 642 F.Supp. 173, 186 (DN.J. of the Sixth Circuit in Lakewooc� which
1982); Quadrea,supra at 466,468-76. The upheld a residential ban on neweracks.
. burden is on Wheaton to ahow that the �e Court of Appeals relied in part on the
ordinance is narrowly tailored, and it haa availability of commereial sellera. 994 F.2d
failed to carry that burden. gt 1147. But unlike the situation in Lake-
C. Ample Alternative Channela woo� where no residence waa more thaa
Wheaton claima alternative channela are one�quarter mile from a newarack,794 F.2d
more than sufrcient It points to the avail- at 1147, the partiea here agree that some
ability of home delivery, commercial out- residential neighborhoods in Wheaton are a
CHICAGO NEW9PAPER PUBLISHER9 v. CITY OF WHEATON j4'JI
pb v f97 F�Supp.t461(1VD.II1.19�6)
full three milea from a newarack. To this, (1941); Gannett, 745 F.2d at 774; Fer�
Wheaton responds that eeveral neweracka nadut u Limmrx, 663 F.2d 619, 633 (bth
are available in the area aronnd Wheaton. Cic.1981), cer� deniec� 458 U.S. 1124, 103
But Wheaton cannot rely on other munici- S.Ck 6, 73 L.Ed2d iS9b (1982).
palitiea to rescue them from the conee- �e ��1e��n of thie ordinauce is
quences of an improperly drawn ordinance. Bomewhat convoluted. According ta Whea-
Cf. Schneider u State, 308 U.S. 147, 163, �p� app�ha,� � submitted to the city
60 S.Ct 146, 161, 84 L.Ed. 156 (2939) �anager's aecretary, who forwarda it to
("[O]ne ia not to have the exereise of hie �e city manager. He then senda his es-
liberty of expression in appropriate placea 8��t��p�the proposed site for con-
abridged on the plea that it may be exea� formity with the ordinance. After the as-
cised is some other place.") These neigh- B��L�po�back,the city tnanager then
boring municipalities have the eame right approves or diaapproves the application.
as Wheaton to eaact valid time,place, and �e yearly renewal fee covers reinspeetion
manner reatrictions on the p�acement of coata. Anaually,the city manager receives
newerscks. Theae reatrictiona could well $65,600, his assistant mughiy E26,000, and
reduce the number of newsracks snrronnd- � Becretary $27,000.
ing Wheaton. If Wheaton's view of the p�}�eaton claima that th,e time it takes to
law were correct, then the effect of the camplete theae taska, performed by em-
neighboring ordinance wouid be to imperil ployees at these salaries, justify the fee.
the constitutionality of the Wheaton ordi- But the newspapers note several undisput�
nance. Wheatoa cannot conditioa the exer- � ��� � �e record which undermine
cise of �rst Amendment freedoms on ���n's claim. F�rst,it is apparent that
events and conditioas outside of Wheaton �eaton doea not know what it coeta to
any more than it can rely on private setlers �m��r the program. For instance,be-
to guarantee the expreasion which Whea- fore the vote on the ordinance one City
ton has abridged. Counclman asked the city "to take a look
� Valid place and manner reatrictions on at all of our paper generation regarding
residential newsracks may well be different the permita Gke this ao ... in the future
than those appropriate to commercial ar- we'il actuaqy know what it costs us....
eas, but Wheatoa has not made a ahowing [S]o when we do eetablish a fee, it would
which jnatifies the total ban enacted in this accurately reflected (sic) upon our actual
ordinance. costs. I don't think we really know...."
The Councilman went on to speculate
III. Rental Perrnit Fee that a E�f�"�aily ian't that far off..."
[57 T7►e holdings stated above are auffi- but there ia reason to doubt him. Before
cient to invalidate the entire ordinaace. Wheatoa passed the ordinance, the assis�
T'hat notwithatanding, to preserve judicial ant city manaSer eucveyed 27 communitiea
reaourcea, and to guide Wheaton's Bubae- in the.area. He discovered that only two
quent efforts,the court analyzes one other charged feea for newsracks. Of those two,
pmvision: � 2P-148(4}, the rental permit one city charged�lb per newsrack,and the
fee. Wheaton charges an initial fee of$2b other ;10. Based on that aurvay, the as-
per newsrack inatalled,as well as an annu- sietant recommended lowering the fee in
ai renewal fee of i16 per newarack The Wheaton to either E10 or $Ib.
newspapera challenge these fees as an un- In responae, Wheaton saya that the pro-
constitutional tax on their �rst Amend- cesa is more expensive because it requires
ment rights. the tirae and attention of several emptoy-
Licensing fees are permias�bte,but a mu- ees, including the city manager� who is
nicipality can charge no more than the relatively weq paid. But this overlooks
amount needed to cover adminiatrative severa] thinga. Wheaton isauea licenaes
coats. Cox % New HampJhire, 312 U.S. for appmximately 80 difPerent activitfea.
569, b77, 61 S.C� 762, 766, 8b L.Ed, 1049 Rose deposition, 70. The only liceoae
1472 697 F'EDERAL SUPPLEMENT
which receivea the peraonal attention of the 870, 873, 94 L.Ed. 1088 (1950)). Wheaton
city manager is the newaracic licenae. !d claima that the newsracka created an imme-
The reat are adminiatered by either the city diate riak, and plaintiffs offer nothing to
manager's assistant or his secretary. Md the contrary. On this record, summary
the city manager conceded that hie secre- judgment ia improper.
tary was perfectly able to monitor the pes-
mit system for newaracks. In light of [7.81 Plaintiffs alao claim they are enti-
these points,the aewspapers asked the cur tled to attome�s fees for legal work need-
rent city manager why he had to adminis- � � ��t the initial aewarack ordinance
ter thia particular ordinance,and no other. P�g� by Wheaton. They argve that
He said that was"(j]uat the way we decid- �eaton amended the initisl ordinance in
ed to set it up." Id at 71. �ponae to a letter written by plaintiife'
Alternatively, he could have pointed out counee►. This, they claim, makea them a
that the ordinance called upon him to make Prevailing party for the purposea of
several discretionary determinationa. But ¢ lg�• P�aintiffs' claim is denied.
those provisions are invalid. Measuring A party may prevail without formal judi-
compliance hardly requires the time and cial relief. Maher u Gagne, 448 U.S. 122,
expertise of seniqr city officials. Wheaton 129, 100 S.Ct. 25?0� 2574, 65 L.Ed.2d 653
is of course free to determine the dutiea of (1980j; In n Burlington Northern, 1�
its employees and may leave the adminis- Employment Practices Litigation, 832
tration of this program with the city man- F2d 422, 426 (7th Cir.1987). To prevail in
ager. But Wheaton is not free to enact a settled case, the actions taken by the
and administer unconatitutional restrictions Pisintiff must be causally tinked to the
on speech and then charge those whose �1ief obtained. Burlington Northern,832
apeech is restricted to pay for the time it F.2d at 425. The causal connection, how-
�k, ever,is a factnal determination. Id; Hari �.
rington u DeVito, 666 F.2d 264, 267 (7th
IV. Other Isaues Cir.1981), cerG denied 456 U.S. 993, 102
(6] The remaining issuea may be dealt S.Ct 1621, ?1 L.Ed.2d 8b4 (1982). Here,
with briefly. FSrst� plaintiffs argue that p�affa cannot eatabliah the necesaary
when Wheaton coniiacated Tribune and �usal connection, aince Wheatoa insiats
Sun-�lmes newaracks in March 1986, it u'e ordinance was amended in responae to
deprived the newspapera of their rights �e S'vcth Circuit decision in Laktu�ood
under the FSrst, F1'fth, and Fourteenth �eaton's poaition is certainly tenable,
Amendments. Wheaton admits con�scat- Bince the original ordinaace was ao atrik-
ing the boxes, but argues that the newa- �ngly aimilar to the ordinance diaapproved
racks obstructed the sidewalk and created by the Sixth Circui� In addition, the
an imminent safety riak. changes made by Wheaton correspoad
Plaintiffa'motion for summary judgment more cloaely to the opinion of the Sixth
is denied here. If the neweracka in fact Circuit than to counsel e letter. For in-
created an imminent safety riak, Wheaton e�ce, counsel warned against the resi-
deatiai ban. The Sixth Circuit upheld this
could summarily eonfiscate thern. The ban, and the amended Wheaton ordinance
Court has repeatedly upheld summary ad- ��tuded i� On a motion for summary
ministrative action in emergeney situationa, judgment, diaputed facts are resolved
and"deprivation of pmperty to protect the against the movank �xman a WLS-TV,
public health and eafety is '[o]ne of the gq6 F.2d 448, 452 (7th Cir.1988). Conse-
oideat�examples' of permissible summary quently, plaintiffa' motion for summary
action. Xodel v. Vir9inia Surjace Min- judgment on this point ia denied.
ing & Rec[amation Ass'n, 452 U.S. 264, � IS THEREF08E ORDERED thaw
900, 101 S.Ct. 2352, 2373, 69 L.Ed.2d 1
(1981) (quoting Ewing v Mytinger& Cas- (1) Plaintiffa' motion for summary jndg-
selberry, Ina, 339 U.S. 594, b99, 70 S.C� ment is granted in part end denied in part.
,�
CHICAGO NEWSPAPER PUBLISHER3 v. CITY OF WHEATON 1473
CHe��97 F.Eupp.1161 p�I.D.I11 19l8)
(2) Defendant's motion for aummary (3) Within ten (10) days of receipt of
judgment is denied. an application for a permit,the city man-
(3} A atatus hearing is aet for November ager ahall grant the apglication and iasne
10, 1988 at 9:16 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 snd condi-
ORDINANCE N0: E-314T tions of Sectaon 20-148.where applicable,
are not complied with, the city manager
AN ORDINANCE AMENDING THE shall,within ten(10)days of receipt of aa
WHEATON CITY COD�--VENDING applicatioa for a permit,deny the applica-
AND NEWSPAPER DISPENSING tion,atating the reasons for such denial.
DEVICES AND AMENDING ORDI- �, Zp-148. Rental permit conditioas.
NANCE NO-E-3088 The newapaper dispensiug device rent-
Section 1: City of Wheaton Ordinance al permit ahall be subject to,and granted
No. E-3088, "ANI ORDINANCE AMEND- upon, the following conditione, restric-
ING THE WHEATON CITY CODE-- tions, and requiremente:
VENDING AND NEWSPAPER DISPENS- (1) Newspaper dispensing devices ahall
ING DEYICES", is amended by deleting not be placed 'm the residential zoning
the terms and provisions thereof in their districts of the city.
entuety; and the Wheaton City Code is (2) Newepaper diapensing devices ahall
amended bq adding and including therein be placed adjacent and parallel ta build-
the following: ing walis not more than six inches (6')
distant therefrom,or near and parallel to
"ARTICLE VII. VENDING AND the curb not lesa than eighteen inchee
NEWSPAPER DISPENSING (18') snd not more than twenty-four
DEVICES inches(24')distant from the curb at euch
^ Sec. 20-147. Newspaper diapeasing de- ���one applied for and determined by
vices; application and pera►it the city manager not to cause a health or
(1) No newepaper dispenaing device aa#ety hazard or interfere with the right
shall be placed or located within a pubtic of the public to use of the etreeta, thor-
or private rightof-'way,along the streets, oughfares, and sidewalka.
thoronghfares, or sidewalks within the (3) No newspaper dispeneing device
City of Wheaton unless a permit has ahaU be placed, installed, located, used,
previously been issned therefor by the or maintained:
city. The term `newspaper diapensing a• Within fifteen feet(16')of any fire
device', as nsed in this section, shall hydrant or other emergency facility;
mean a mechanical, coin�perated con- b. Within fifteen feet (16') of any in-
tainer,constructed of inetal or other ma- ����►8 drlveway, alley, or atreet;
tetial of substantially equivalent c. Within�ive feet(5')of any marked
atrength and durability, not more than cmaswalk;
fifty inches(60')in height and not more d. At any loeation where the width of
" than twenty-�ve inches (Zb'j in length paved dear apace in eny direction for
and width. the pasaageway of pedestrians is re-
(2) Applicatioas for such permit may duced to lesa than five feet (5');
be made to, and oa forms approved by, e. Within five huadred feet (600h of
the city manager for rental permite at- another newspaper diapensing device
lowing for the iastalladon and placement containing the same newapaper o�
of newspaper diapensing devices within newe periodical, eacept that the city
the public and private right�f-way,along manager may permit three (3) such
the streeta,thoroughfares,and sidewalka dispensing devicea at an intersection
within the city. where auch placement would not im-
�.
1474 697 FEDERAL SUPPLEMENT
APPENDIX—Continued meat o!the grounds for the appeai with
pair traffic or otherwiae create a haz- the city clerk within ten (10) daya after
ardoua condition; notice of the deciaion of the city manag-
f. Any location where three(3)news- er. The city council ahaU set the time
paper dispenaing devices are already and place for hearing such appeal, and
J��� notice of auch time and place shall be
g. So as to be chained, or otherwise B�ven in Lhe same manner aa specified
secured, to any tree, utility, or light herein. The city council ehall have the
pole, parking meter, traffic control power to reverse, affirm, or modify the
post, street sign post, or other public decision of the city manager, snd any
prope�y; such deciaion by the city counsel shaq be
h. On or within any median withia r�a��
any public or private rightrof-way. Section 8: If any aection, eub-section,
4. The permittee ahaA pay aa iaitial clauae,or phrase of thie ordinance ia for
rental permit fee of TWENTY-FIVE any reason held to be invalid or unconati-
DOLLARS ($25.00) for each location tutional by the deciaion oi any court of
where a newspaper dispensing device is competent jnriadiction, such decision
inatalled. 'The initial rental permit fee ahall not affect the validitq of the re-
shall be apQlicable to the initisi licease maining portiona of this ordinance.°
year, or part thereof. The permittee
shall pay a renewal rental permit fee of w
FIFTEEN DOLI.ARS ($15.00) per yesr o #u��a�u�saru�
for each location where a newspaper dis-
pensing device is installed.
Sec. 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 CaseU RANDLE, George Austin and
the following causea: Holma Communicationa, Plaintitis,
(1) F�sud, misrepreaentation, or any r.
false statemeat contained in the applica-
tion for permit; Ls8ALLE TELECOMMUPIICATIOPI3,
(2) Viotation of any city ordinance, ur INC., d/b/s Chicago Cable TV,
cluding the ordinance regulating auch Defendan�
rental permit; No. 88 C 5280.
(3) Violation of the ternss of the rental United States Diatrict Court,
permit granted to permittee. N.D. Illinois, E.D.
Notice of hearing of such revocation
sha11 be given in writing to permittRe Oc� 14, 1988.
etating the grounda of the complaint to-
gether with the time and place of hearing
and ahall be mailed, postage prepaid, to Minority enterpriae which marketed ca-
the permittee to the addresa given in the ble eubacriptions for cable company and
rental permit appGcation not lesa than two ot its employees brought§ 1981 cisima
frve (� days prior to the date set for against csble company. On motions for
hearing. summary judgment, the Di�trict Court, Za-
The decision of the city msnagec in gel, J., held that (1) plaintiffa failed to
refusing to grant, or revoldng, a rental demonatrate direct evidence of discrimina-
permit ahall be appealable. The pern�it- tion; (2) minority eaterprise was not
tee ahall have the right to agpeal the coerced'u►to laying off two black employeea
decision of the city manager to the city for two montha on basis of discrimination;
council. Such appeal ahall be takea by (3) asaignment ot neighborhoade for mar
151ing a notice of appeal including a state- keting eervicea was not done in s discrimi-
� �
o g�
�� s
�
ORDINANCE NO. �
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, RELATIVE TO
NEWSRACKS, PROVIDING AMENDMENTS TO SAME,
PROVIDING A PURPOSE AND INTENT; DEFINING
TERMS; PROHIBITING NEWSRACKS ON PUBLIC
STREETS, SIDEWALKS, ALLEY'S AND OTHER PUBLIC
RIGHTS OF WAY AND PROPERTY OWNED BY THE CITY
OF GRAPEVINE WITHIN CERTAIN HISTORIC AREAS OF
THE CITY; PROVIDING FOR THE REMOVAL OF
NEWSRACKS FOR VIOLATIONS OF THIS ORDINANCE;
REPEALING CONFLICTING ORDINANCES; PROVIDING A
PENALTY NOT TO EXCEED $100; PROVIDING A SAVING
CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council has recognized the important cultural and
educational significance of the City's historic properties and districts by designating
such areas as Historic Districts and Landmarks, and creating zoning overlay districts;
�`� and
WHEREAS, the City Council has established extensive and restrictive
ordinances and design criteria for such districts and landmarks in order to maintain their
historic aesthetics and integrity and enhance the City's historic architecture; and
WHEREAS, the City has invested significantly in the preservation of its historic
aesthetics and architecture, including instituting and funding the installation of a fire
sprinkler system within buildings along the City's historic Main Street; and
WHEREAS, the City Council finds and declares that the installation 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 open
and not open to vehicular traffic; and
WHEREAS, the proliferation of 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 aforementioned issues presented by newsracks are exacerbated �_
in and around the City's Historic Districts, the Township (platted as the Original Town of
Grapevine), and Landmarks, and such newsracks threaten the aesthetic goal of
enhancing the City's historic architecture; and
WHEREAS, the City Council finds that there are reasonable alternatives
available for the publishers of newspapers to display and sell their newspapers; and
WHEREAS, the City determines that prohibiting the placement of newsracks
upon any public street, sidewalk, alley or any other public right -of-way or City owned
property in the City's Historic Districts, the Township, and Landmarks is necessary to
protect the historic aesthetics and integrity of such areas; and
WHEREAS, the City Council determines that this prohibition represents the least
restrictive means available to protect the historic aesthetics and integrity of the City's
historic areas; and
WHEREAS, the City intends this ordinance to be applied and enforced on a
content-neutral basis; and
WHEREAS, the City of Grapevine is authorized by law to adopt the provisions
contained herein, and has complied with all the prerequisites necessary for the passage
of this Ordinance, including but not limited to the Open Meetings Acfi and ,�:.�,
WHEREAS, the purposes of this Ordinance are to promote the public health,
safety, and general welfare of the citizens of the City of Grapevine.
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF GRAPEVINE, TEXAS:
Section 1. That all matters stated hereinabove are found to be true and correct
and are incorporated herein by reference as if copied in their entirety.
Section 2. That Chapter 20, Streets, Sidewalks and other Public Ways, of the
Grapevine Code of Ordinances is hereby amended by the addition of a new Section 20-
20, Newsracks Placed Within Public Right-of-Way Prohibited, to read as follows:
"Sec. 20-20. Newsracks placed within public right-of-way in historic areas
prohibited.
(a) It shall be unlawful for any person to place, operate or maintain any
newsrack upon any public street, sidewalk, alley or any other public
right -of-way or City owned property, located within 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.
ORD. NO. 2
For the purposes of this section, newsrack shall be defined as any
self service free, coin, cash or credit card operated container, rack,
or structure used or maintained for the display distribution, or sale
of newspapers, periodicals, or other publications.
(b) Procedure for Abatement: The Building Official or his designee
shall notify the owner of any newsrack placed upon public right-of-
way or City owned property in violation of this ordinance that such
newsrack shall be removed.
Such notification shall be by one of the following methods:
(1) Mailing the owner of such newsrack a letter demanding
removal.
(2) Posting of a notice on the newsrack demanding removal.
(3) Publication in the official newspaper of the City an order to
remove the newsrack.
After the expiration of seven (7) days following the notification, the City
shall remove the newsrack. The City will keep the newsrack for a period
���-
of at least seven (7) days and shall return the newsrack upon request
provided the owner reimburses the City for any and all expenses
incu rred."
Section 3. That a person who installs, operates, or maintains any newsrack
upon any public street, sidewalk, alley, or other public right-of-way or property owned by
the City of Grapevine within the City in violation of this Section is guilty of an offense
and upon conviction, is subject to a fine not to exceed one hundred dollars ($100) for
each day that the violation exists.
The penalties provided for in this Section are in addition to any other enforcement
remedies that the City may have, other City Ordinances, or State Law.
Section 4. That all ordinances or any parts thereof in conflict with the terms of
this ordinance shall be and hereby are deemed repealed and of no force or effect.
Section 5. That if any section, subsection, sentence, clause or phrase of this
ordinance shall for any reason be held to be invalid, such decision shall not affect the
validity of the remaining portions of this ordinance.
Section 6. That the fact that the present ordinances and regulations of the City
of Grapevine, Texas are inadequate to properly safeguard the health, safety, morals,
peace and general welfare of the inhabitants of the City of Grapevine, Texas, creates an
ORD. NO. 3
emergency for the immediate preservation of the public business, property, health, �w
safety and general welfare of the public which requires that this ordinance shall become
effective from and after the date of its passage, and it is accordingly so ordained.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS, on this the 18th day of November, 2008.
APPROVED:
ATTEST:
APPROVED AS TO FORM:
ORD. NO. 4
Page 1 of 1
Stephanie Rivera-HDGA voting
.:-.:<-i�'rom: "James A. Humphrey" <
'I'a; <rsstewart@grapevinetexas.gov>, "Darlene F." <jfreedl@hottnail.com>;<mlease@structuras-
interiors.com>, "Shane Wilbanks" �swilbanks@grapevinetexas.gov>, "Sharron Spencer"
<SMSSTX@earthlink.net>,<ccoy@grapevinetexas.gov>, "Bruno Rumbelow"
<Brumbelow(a�grapevinetexas.gov>
Date: 8/29/2008 11:03 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 info�rn the city council and the city manager conceming 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.
Yoting Results-- Voting concluded end-oj-day,Aug.27,2008
O�cial Ballols Cast: 41 Quorum Satisfred(If al!votes nol casl went 100%jor any position,results would not cl�ang�)
The Executive Co»tmittee thanks all our members for tlielr courteous discussions and debate of these lssues and espectally t/tose ofyou that
/'ollowed your dlscussions wlih a vot�
"DGA Of�icial�alIot-08/20/08.
L�To establish an ojficial HDGA position,the foUowing stalement wiU be used:
� The I�Iistoric 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 I do not agree-6 Abstain-2
In response to an offkia!request from llie Fort Wortli/Dallas Toy Run jor ADGA to lead a[obbying e,JJ"'ort wteh the chamber of commerce,
the ciry,th¢eity eouncll and any other lnterested parttes in supporl ojth¢Toy Run's speetflc proposa!presented to HDGA and distributed
durfng the August 20,2008,general meeting,my vote rs:
Results: Yes,HDGA should-34 No,HDGA shoald not-7 Abstain-0
Thank you,
James A. Humphrey
President, HDGA
�
file://C:1Documents and Settings\wsid1011\Local Settings\Temp�XPgrpwise\48B7DB9DGRPVNCHSCP... 8/29/2008