10-20 - NEWS RACKS

Ordinance NO. ORD-10-20

BY THE COUNCIL BAGEANT, CLEGG , HALLYBURTON, SANCHEZ, THOMSON AND WOODINGS

AN ORDINANCE AMENDING BOISE CITY CODE TITLE 3, LICENSES AND PERMITS, TO ENACT A NEW CHAPTER 18, ENTITLED "NEWS RACKS"; SETTING FORTH THE AUTHORITY, PURPOSE, AND INTENT TO CREATE SUCH LICENSE AND FEES; INCORPORATING EXISTING GENERAL LICENSING PROVISIONS; SETTING FORTH GENERAL PROVISIONS INCLUDING THE DEFINITION OF KEY TERMS; REQUIRING A LICENSE; ESTABLISHING FIXED PEDESTAL ZONES; PROVIDING IMPLEMENTATION PROCEDURES; DETAILING NUISANCE AND NON-USE PROCEDURES; PROVIDING OBLIGATIONS OF LICENSEES; INCORPORATING EXISTING DENIAL, REVOCATION, SUSPENSION, REVIEW, AND PENALTY PROCEDURES; APPROVING A SUMMARY OF THE ORDINANCE; AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, newspaper, magazine, and other periodical distribution machines (“news racks”) on or adjacent to public sidewalks are a valuable method of distributing news and other information to the public. However, they constitute a semi-permanent physical intrusion on public property, and their indiscriminate location on sidewalks can unnecessarily obstruct the primary function of the sidewalk, which is to allow persons effective travel from one place to another; and

WHEREAS, unregulated news racks of varying size, shape, color, and disrepair create visual blight and are distracting to motorists and pedestrians alike; and

WHEREAS, the city of Boise City (“City”) finds that uniform appearance and placement of news racks in congested areas shall contribute to the revitalization of the greater downtown corridor; and

WHEREAS, promoting a high-quality aesthetic, free of graffiti, stickers, or any other unwanted markings or debris commonly found on news racks, shall aid in economic development and social activity; and

WHEREAS, this ordinance, as applied, is consistent with the current Master License Agreement between the City and the Ada County Highway District, which grants the City authority to regulate sidewalks and news racks; and

WHEREAS, the City conducted outreach efforts to stakeholders, who provided input and review of the draft language, and this ordinance reflects those discussions.

NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO:

Section 1. That Title 3, Chapter 18, Boise City Code, be, and the same is hereby, enacted to read as follows:

CHAPTER 3-18

NEWS RACKS

Sections:

3-18-01 LEGAL AUTHORITY

3-18-02 PURPOSE AND INTENT

3-18-03 SCOPE

3-18-04 GENERAL LICENSING PROVISIONS APPLICABLE

3-18-05 DEFINITIONS

3-18-06 LICENSE REQUIRED

3-18-07 FIXED PEDESTAL ZONES

3-18-08 IMPLEMENTATION OF ORDINANCE

3-18-09 NUISANCE AND REMOVAL

3-18-10 NON-USE PROHIBITED

3-18-11 OBLIGATIONS OF LICENSE HOLDER

3-18-12 DENIAL, REVOCATION, SUSPENSION, REVIEW, PENALTIES

Section 3-18-01 LEGAL AUTHORITY:

Idaho Code Sections 50-301, 50-307 and 50-314 authorize the city of Boise City, state of Idaho (“City”) to regulate occupations and businesses and to regulate and control traffic, encroachments, and obstructions on streets, public places, and sidewalks within the City.

Section 3-18-02 PURPOSE AND INTENT:

The City finds that public health, safety, and welfare require that certain occupations and businesses operating in the City, including but not limited to, newspaper, periodical, and magazine publishers wishing to distribute their products upon the sidewalks be regulated without restraining, burdening, or over-regulating such businesses in order to afford basic protections to the public.

The use of sidewalks for the distribution of printed news, periodicals, and other publications, while providing a public benefit, may also impede travel, interfere with the rights of others using the sidewalks, and affect the public safety. News racks are often neglected and vandalized creating blight and nuisance contrary to the livability goals of the City. Therefore, to balance these competing interests, the City Council hereby designates certain areas of the City where news racks shall be exclusively used for the sale or distribution of printed news, periodicals, and other publications within the public right-of-way. These news racks shall be uniformly constructed, located, and owned by the City.

Section 3-18-03 SCOPE:

This chapter sets forth the minimum standards, requirements, and procedures applicable to all news racks located, within established zones, in the City.

Section 3-18-04 GENERAL LICENSING PROVISIONS APPLICABLE:

To the extent they are not inconsistent with this Chapter, all the provisions, definitions, paragraphs, and sections set forth in Boise City Code Title 3, Chapter 1, Article A, are hereby adopted and incorporated by reference as if fully set forth in this Chapter.

Section 3-18-05 DEFINITIONS:

For the purposes of this chapter, the following terms, phrases, words, and derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. Words used throughout this Chapter, but not defined herein or in Chapter 01 of Title 3, shall have their plain, ordinary and common meaning. Words in any gender shall apply to the feminine, masculine and neuter genders.

A. BOX: A single unit within a modular news rack for the distribution of publications either for free or at a fee.

B. CITY-OWNED NEWS RACK: A news rack owned by the City which is affixed to the ground within a designated fixed pedestal zone for the distribution of publications to the public.

C. CCCR OFFICER: The City's Code Compliance and Community Resource officer(s) who are authorized by the City, through the City Clerk's Office, to enforce City code.

D. FIXED PEDESTAL NEWS RACK: A news rack that is affixed to the ground in a permanent, but reversible, fashion. City-owned fixed pedestal news racks shall be composed of an apparatus unit which shall contain four or more individual boxes for the distribution of publications to the public.

E. FIXED PEDESTAL ZONE: An area of the City that has been specifically described and designated as benefiting from the uniformity of City-owned fixed pedestal news racks.

F. NEWS RACK: Any self-service (free or pay), box, container, storage unit, or other dispensing apparatus installed, used, or maintained for the display and sale or distribution of newspapers, magazines, periodicals, or other publications.

G. NOTICE: For purposes of this Chapter, notice shall mean any of the following: (1) a communication sent by regular US mail to an address on file with the City Clerk's Office; (2) a communication sent by electronic mail (“e-mail”) to an e-mail address on file with the City Clerk's Office; or (3) a sticker firmly and conspicuously affixed to the news rack, which shall include the date the sticker was placed, instructions to the owner of the news rack, including a date upon which remedy must be made if requested by the City, and contact information for the City Clerk's office.

H. SIDEWALK: That portion of the public right-of-way which is between the curb line and adjacent property line which is improved and designed for and is ordinarily used for pedestrian travel.

Section 3-18-06 LICENSE REQUIRED:

No person shall place a publication of any kind within a City-owned news rack box without having first obtained a license from the City.

Section 3-18-07 FIXED PEDESTAL ZONES:

A. The City designates specific areas within the City's boundaries as fixed pedestal zones. Within these zones, only City-owned fixed pedestal news rack units are allowed on the sidewalk or in the public right-of-way. This ordinance shall not affect news racks located upon private property.

B. The City Council specifically authorizes the City Clerk to determine where fixed pedestal zones should be located and to define their geographic boundaries within the City by resolution. The City reserves the right to expand, reduce, or otherwise modify the geographic boundary of any fixed pedestal zone and to create additional zones as it deems necessary.

C. The City Clerk's Office shall maintain and make publicly available during business hours the most current map of all fixed pedestal zones.

D. The City Clerk's Office will determine the location and quantity of fixed pedestal news rack units within each fixed pedestal zone. At least one box per unit shall be available for subdivision to accommodate two small publications. The boxes within a unit shall be available as pay boxes or free boxes, subject to available resources. The configuration of boxes within a unit may be static after implementation, but the subdivision of each free box may be changed, subject to available resources.

E. City-owned news rack box licenses shall be issued for a one (1) year term, starting from the date of issuance. A City-owned news rack box license may be renewed within the thirty (30) days prior to the end of the one (1) year term. The City Clerk's Office shall maintain a list of all City-owned news rack boxes with corresponding license dates. This list shall include identifying numbers for each individual box and be made publicly available.

F. Any person seeking a license for a box in a City-owned news rack shall complete the approved application form available from the City Clerk's Office.

G. A licensed applicant may request multiple boxes within City-owned news racks for one or more publications. Each box will require a separate monthly box fee. An applicant may request multiple boxes within a single City-owned news rack unit provided that the applicant places a different publication in each licensed box space therein.

H. If multiple license applications for an available box are received, priority shall be given to the application first received by the City Clerk's Office. If an applicant is unable to have their selected box due to priority or renewal, the City Clerk's Office shall notify the applicant if another box is available in the same unit or a nearby unit.

I. The City Clerk's Office, if necessary, may create a waiting list for specific boxes within City-owned news rack units.

Section 3-18-08 IMPLEMENTATION OF ORDINANCE:

A. Upon adoption of this ordinance by City Council, the City Clerk is authorized to create and define fixed pedestal zones. Once created and defined, the City Clerk shall provide notice to all known entities with existing news racks within any fixed pedestal zone. All existing news racks located upon the sidewalk or within the public right of way, in a designated fixed pedestal zone, shall be removed within thirty (30) days of receipt of notice. Any existing news rack remaining after thirty (30) days shall be deemed a nuisance and may be abated as set forth in this Chapter.

B. If the City Clerk's Office designates additional fixed pedestal zones, notice shall be provided to all known owners of existing news racks contained in the new zones. Such notice shall inform owners to remove their existing news rack from the zone within thirty (30) days of receipt of notice. Any existing news rack remaining after thirty (30) days shall be deemed a nuisance and may be abated as set forth in this Chapter.

Section 3-18-09 NUISANCE AND REMOVAL:

A. After the creation of a fixed pedestal zone and expiration of the thirty (30) day removal notice period, any news rack that is not City-owned located in the public right-of-way within such fixed pedestal zone shall be deemed a nuisance.

B. In accordance with this Chapter, the CCCR Office is authorized to mark nuisance news racks with notices of intent to abate and to order their removal and impoundment.

C. All notices of intent to abate shall be firmly and conspicuously affixed to the nuisance news rack. The notice of intent to abate shall contain: the date and time the notice was posted, the date and time after which the news rack shall be removed, the contact information and address for the location where the news rack shall be impounded, and information on how to request a post-abatement administrative review.

D. No less than seventy-two (72) hours after the posting of a notice of intent to abate, the City may remove and impound a nuisance news rack.

E. All abated news racks shall be stored and disposed of by the CCCR Office or authorized designees, in accordance with Idaho Code section 55-403. Reasonable storage fees, in an amount established by the Boise City Council and listed on the most current fee schedule, may be charged to the owner of an abated news rack to cover the costs of removal, impoundment, storage, recordkeeping, and other associated costs. Owners shall be required to pay all storage fees in full prior to the release of abated news racks.

F. Whenever a news rack, or any part thereof, is impounded and abated by the City, the owner shall be provided with the opportunity for a post-storage administrative review to determine the validity of the removal and storage of such property. In order for an owner to receive a post-storage administrative review, the owner must request the review in writing from the City within thirty (30) business days of the posting of the notice of intention to abate or notice of immediate abatement. The City shall conduct the post-storage review within forty-eight (48) hours of the request, excluding weekends and holidays. Failure by the owner to request or to attend a review shall satisfy the post-storage administrative review for that owner. If it is determined at the review that there was not reasonable cause to deem the abated news rack, or any part thereof, a nuisance, the City shall be responsible for payment of all storage fees.

G. Any news rack that is abated and impounded under this Chapter and that is not claimed and redeemed by its owner within the time limits set forth in Idaho Code 55-403 shall become the property of the City and shall be sold. Proceeds, if any, from the sale of abated news racks shall be applied first to all outstanding storage fees and any expenses related to the sale of such property. The balance of such proceeds, if any shall be kept by the City in a separate fund for a period of one year from the date of the sale in accordance with Idaho Code section 55-404.

Section 3-18-10 NON-USE PROHIBITED:

A. Any box within a City-owned news rack shall be used and maintained by the licensee at all times. Any box that remains empty for fifteen (15) consecutive days shall be designated as an abandoned box, except that a box remaining empty due to any temporary and extraordinary interruption of distribution or publication by the newspaper or other publication sold or distributed from that box shall not be deemed abandoned. The City shall notify the box license holder of the abandoned box designation. If not remedied with ten (10) days, the City may cancel the license whereupon the box shall become available to other applicants.

B. If a City-owned news rack box is improperly maintained or found to be in an unsatisfactory condition, the City shall notify the license holder of the problem. If the problem is not remedied with fifteen (15) days, the box shall be designated as abandoned. The City shall notify the box license holder of the abandoned box designation. If not remedied with ten (10) days, the City may cancel the license whereupon the box shall become available to other applicants.

Section 3-18-11 OBLIGATIONS OF LICENSE HOLDER:

A. A license holder shall be solely responsible for the upkeep and maintenance of a box within a City-owned news rack. All boxes must be kept in a clean and orderly condition, including, without limitation: the window and faceplate, the coin mechanism, the coin tray, and the lock, if any. It is the license holder's duty to periodically inspect their boxes and keep them free of graffiti, stickers, or other markings. Damage requiring repair to a City-owned news rack unit shall be reported to the City Clerk's Office.

B. The holder of a box license may supply and affix a logo or identifying wording to the interfacing portion (face) of the box, in a uniform manner consistent with the direction of the City Clerk's Office, that identifies the publications inside the news rack. Logos and stickers must be approved by the Boise City Clerk's Office prior to being affixed to the City-owned box. Any logo or wording that is affixed to the face of the box must be removable without damage to the box.

Section 3-18-12 DENIAL, REVOCATION, SUSPENSION, REVIEW, PENALTIES:

Except as otherwise provided herein, the procedures for denial, suspension, revocation and appeal of a news rack license shall be as set forth in Chapter 1, Article A of this title.

Section 2. That the summary of this Ordinance, attached as Exhibit A, be, and the same is hereby, approved as to both form and content.

Section 3. That this Ordinance shall be in effect immediately upon its passage, approval, and publication.

ADOPTED by the Council of Boise City, Idaho, on May 12, 2020.

APPROVED by the Mayor of the Boise City, Idaho, on May 12, 2020.

APPROVED:


Lauren McLean, Mayor

ATTEST:

Lynda Lowry, Ex-Officio City Clerk