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Ord 45-98 ~. ..' . .' _._~~_._--- ORDINANCE NO. 45-98 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING TITLE 9, "GENERAL REGULATIONS", CHAPTER 102, "STREETS AND SIDEWALKS", BY AMENDING SUBHEADING, "MOVABLE FIXTURES WITHIN THE RIGHT-OF-WAY", OF THE CODE OF ORDINANCES OF THE CITY OF DELRA Y BEACH; BY AMENDING SECTION 102.40, "PURPOSE AND SCOPE", TO INCLUDE MODULAR NEWSRACKS; BY AMENDING SECTION 102.41, "DEFINITIONS", TO CLARIFY THE ..,,,,, DEFINITIONS OF NEWSRACKS AND MODULAR NEWSRACKS; BY AMENDING SECTION 102.42, "CERTIFICATE OF COMPLIANCE REQUIRED", TO CLARIFY THAT MODULAR NEWSRACKS ARE INCLUDED; BY AMENDING SECTION 102.43, "STANDARDS FOR NEWSRACK MAINTENANCE AND INST ALLA TION", TO PROVIDE FOR A RETITLING OF THE SECTION, AND CLARIFYING THAT THE CITY MAY ACT AS A CONTROLLING ENTITY OF MODULAR NEWSRACKS, PROVIDING THAT RENT AND MAINTENANCE COSTS ABOVE ACTUAL COSTS ARE PROHIBITED, PROVIDING FOR REGULATIONS FOR THE PLACEMENT, APPEARANCE, AND MAINTENANCE OF MODULAR NEWSRACKS; BY AMENDING SECTION 102.44, "PROHIBITED LOCATIONS", TO PROVIDE FOR CONCRETE PADS FOR MODULAR NEWSRACKS ON PUBLIC RIGHTS OF WAY AND CITY PROPERTY AND PROVIDING FOR RELETTERING; BY AMENDING SECTION 102.45, "INSURANCE AND INDEMNIFICA TION", TO INCLUDE REQUIREMENTS FOR MODULAR NEWSRACKS; BY AMENDING SECTION 102.46, "ABANDONMENT" , TO INCLUDE A STANDARD FOR ABANDONMENT OF MODULAR NEWSRACKS, AND SHORTENING THE TIME FOR A DETERMINATION OF ABANDONMENT; BY AMENDING SECTION 102.47. "ENFORCEMENT", TO INCLUDE MODULAR NEWSRACKS; BY AMENDING SECTION 102.48, "APPEALS", TO CLARIFY THE APPEAL PROCESS, PROVIDING FOR AN IMMEDIATE APPEAL TO CIRCUIT COURT IN CASES OF ABANDONMENT OF NEWSRACKS AND MODULAR NEWSRACKS, PROVIDING EXCEPTIONS TO A STAY OF THE REMOVAL OF MODULAR NEWSRACKS AND NEWSRACKS IN CERTAIN INSTANCES AND WHERE ABANDONMENT ADVERSELY AFFECTS DISTRIBUTION, PROVIDING FOR REIMBURSEMENT OF STORAGE COSTS IF APPELLANT PREVAILS ON APPEAL; PROVIDING A ; . . " .. . GENERAL REPEALER CLAUSE, A SAVINGS CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, substantial growth in the number of newspaper operators and Newsracks in the City produced a significant increase in the number of Newsracks installed in public rights-of-way; and WHEREAS, the uncontrolled placement of Newsracks in public rights-of-way presents an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services; and WHEREAS, the installation and placement of Newsracks in public rights-of-way has resulted in concerns by the public and City officials with regard to the safety, convenience and aesthetics thereof; and WHEREAS, the City Commission adopted Ordinance 27-96 on August 6, 1996 and found that there is a need to regulate and establish procedures regarding installation, placement maintenance and insuring of Newsracks within the City; and WHEREAS, since the adoption of Ordinance 27-96, the City Commission finds that such regulations and procedures governing Newsracks need to be more clearly defined with respect to modular news racks which are installed on the City's right-of-way in order to promote the health, safety, aesthetics and welfare of the citizens of Delray Beach; and WHEREAS, the City Commission recognizes the need for the entity which installs a modular newsrack to collect a fee to offset the actual cost of the modular news rack and to maintain the modular newsrack. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRA Y BEACH, FLORIDA: Section 1. That Title 9, "General Regulations", Chapter 102, "Streets and Sidewalks", Subheading "Movable Fixtures Within the Right-of-Way", of the Code of Ordinances of the City of Delray Beach, be, and the same is hereby amended to read as follows: MOVABLE FIXTURES WITHIN THE RIGHT-OF-WAY 2 ORD NO. 45-98 . ------------- - ._------~--- ---~ -- ---~--------~ --~------ Section 102.40 PURPOSE AND SCOPE. The purpose of the following is to promote the public health, safety and welfare through the regulation of placement, type, appearance, servicing, and insuring of newsracks and modular newsracks on public rights-of-way so as to: (A) Provide for pedestrian and driving safety and convenience. (B) Restrict unreasonable interference with the flow of pedestrian or vehicular traffic including ingress into or egress from any residence or place of business, or from the street to the sidewalk by persons exiting or entering parked or standing vehicles. (C) Provide for public and property safety during hurricane conditions. (D) Provide reasonable access for the sue and maintenance of poles, posts, traffic signs or signals, hydrants, mailboxes and access to locations used for public transportation purposes. (E) Relocate and/or replace newsracks and modular newsracks which result in a visual blight and/or excessive space allocation on the public rights-of-way or which unreasonably detract from the aesthetics of store window displays, adjacent landscaping and other improvements, as well as to have abandoned newsracks and modular newsracks removed. (F) Maintain and protect the values of surrounding properties and prevent damage to grass right-of-way areas. (G) Reduce unnecessary exposure of the public to personal injury or property damage. (H) Treat all newspapers equally regardless of their size, content, circulation, or frequency of publication. (I) Maintain and preserve freedom of the press. (1) Cooperate to the maximum with newspaper distributors. Section 102.41 DEFINITIONS. For the purpose of this subsection, the following definitions shall apply unless the context clearly indicates or requires a different meaning. "ADVERTISING CIRCULAR." Any publication that contains only advertising and no news reports. "AUXILIARY LANE." A turn lane or on-street parking area. 3 ORD NO. 45-98 . ---~ --- -- _____ ______M________._~_____ -------------- --- - -p-,----- ----~--- - -------~---- -.-------- ----- - "BIKE PATH." That portion of a right-of-way improved, designed, or ordinarily used for bicycle traffic. "CONTROLLING ENTITY." The person or entity responsible for placing and maintaining a movable fixture, the owner of the movable fixture, or the publisher of the newspaper vended within a newsrack. The City may be a controIIin~ entity of modular newsracks if it purchases. leases. or lease purchases and maintains or subcontracts out the maintenance of modular newsracks. "DOWNTOWN AREA." The rectangular area bounded generally by the western right- of-way of S.W.lN.W. 4th Avenue on the west, the northern right-of-way of N.W.lN.E. 2nd Street on the north, the Intracoastal Waterway on the east, and the southern right-of-way of S.W.lS.E. 1st Street on the south. In addition, on the east side of the Intracoastal Waterway, Lowry Street on the north, Miramar Street on the south, and the western right-of-way of Ocean Boulevard on the east. Also including N.E. 2nd Avenue from Atlantic Avenue north to N.E. 4th Street. "INTERSECTING SIDE STREET." Any roadway or driveway on which traffic is required to stop prior to entering the intersection. "MODULAR NEWSRACK." A connected grouping of four to fti.Re ei2hteen newsracks modules placed on a pedestal or platform which is installed as a sin21e unit and ef used for the display, sale, or distribution of newspapers or other news periodicals or advertising circulars. "MOV ABLE FIXTURE." Any newsrack, modular newsrack. bench, or other non- attached fixture. "NEWSRACK. " Any stand alone self-service non coin-operated or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display, sale, or distribution of a particular newspaper5~ or otHer news periodica15~ or advertising circular5. "PAVED SURFACES." Any hard maintained surface used or built for the purpose of transporting vehicles, bicycles or pedestrians, including parking areas. Surfaces shall include, but not be limited to, asphalt, concrete, paver block, tree grates and/or rocks. "PUBLIC AGENCY." The City of Del ray Beach, Palm Beach County, the State of Florida, its subdivisions, departments or authorized agents. "RIGHT-OF-WAY." All that area dedicated to public use or otherwise owned by a public agency for public street purposes and shall include, but not be limited to. roadways, swales, bike paths, and sidewalks. 4 ORD NO. 45-98 '. --~--- ---- --. ----~-- --- --~---~~-- "ROADWAY." That portion of a right-of-way improved, designed, or ordinarily used for vehicular traffic. "SIDEWALK." Any surface within a right-of-way provided for the exclusive or primary use of pedestrians. Section 102.42 CERTIFICATE OF COMPLIANCE REQUIRED. The pliblisher ar ciistributor controllin~ entity of any newspaper ef, written periodical, m: advertisin& circular distributed from any newsrack or modular newsrack location within a ~ ~ right-of-way within the City shall notify the Code Enforcement Administrator or his/her designee, in writing, of the location or change of location of any such newsrack or modular newsrack by filing a certificate of compliance in accordance with the provisions of this section no later than fourteen (14) days after the placement or relocation of the newsrack or modular newsrack. (A) Reviewini and Enforcement Authority: The authority responsible for reviewing the certificates of compliance to verify compliance with the ordinance provisions and enforcing the terms of this ordinance shall be the Code Enforcement Administrator or his/her designee. (B) Certification: The controlling entity shall file with the Code Enforcement Administrator a written certificate of compliance which shall contain the following information: (1) The name, address and telephone number of the controlling entity, who is the owner and/or principal responsible for the newsrack(s) or modular newsrack(s). (2) The name, address and telephone number of a responsible person whom the City may notify or contact at any time concerning the controlling entity's newsrack(s) or modular newsrack(s), including notifications for enforcement purposes. (3) The proposed location of the newsrack(s) or modular newsrack(s). (4) Names of newspapers or periodicals to be contained in each news rack m: modular newsrack. (5) A certification that the newsrack(s) or modular newsrack(s) is (are) installed in conformance with the provisions of this ordinance in their entirety. (6) Executed indemnification agreement and insurance certificate in compliance with Section 102.45. 5 ORD NO. 45-98 . i ~~----_._- _.~------_.~~- - ----.------ ------ ---- More than one newsrack or modular newsrack location may be included on a certificate of compliance. (C) Denial of Certificate of Compliance: If ace ficate of compliance for newsrack m: modular newsrack location is incorrect, or the newsrack is not located, maintained, or installed in conformity with the certification or this section, the certificate of compliance shall be deemed denied, and an order to correct dje violation shall be issued pursuant to Section 102.47. t f. Section 102.43 STANDARDS FOR NEWSRACK ~ MODULAR NEWSRACKS INCLUDING MAINTENANCE. AND INST ALLA TION, ~ LOCATIONS. Any newsrack or modular newsrack which in whole or in part rests upon, in or ()\'er any public property or right-of-way located within the City shall .:omply with the following standards: ! ' ~ (A) A news rack shall not exceed 4 feet, 6 inchei in height includine the pedestal. if W, 40 inches wiae in width, or 24 inches in depth. MoJtdar aewsracks may exceed tfie size limitations. 1: . ;, (B) A modular newsrack shall not exceed 4 feet. 6 inches in hei~bt (includin~ the pedestal. if any) and 24 inches in depth. A modular newsrack's width shall not exceed the width of the concrete pad. (C) Modular newsrack modules shall be arranied so as to provide an overall square or i rectaniular shape to the entire modular newsrack. ~ .', ~ OOiIll Newsracks and modular newsracks shall carry no advertising except for the name of the publication being distributed, and a cardholder kept in a neat and untorn condition describing the publication being distributed. tbj!El Coin-operated newsracks and coin-operated modular newsracks shall be e~ipped with a coin return mechanism to permit a person wishing to purchase a newspaper or periodical to secure an immediate refund in the event the newsrack is inoperable. At all times, the coin return mechanism shall be maintained in good working order. ~ID +fie ~ controlling entity shall permanently affix to its modular newsracks and f newsracks a label which states a 24 hour operable telephone number of a working telephone service which the customer may call to report a malfunction, or to secure a refund in the event of a malfunction of the coin return mechanism. The label shall feature clearly on its face, tte name and address of the distrilnltor controllin~ entity to give the notices provided for in this fbapter. ,it ~ ..l; 6 ORD NO. 45-98 i ;"; . _.- -- n______.~_. ___ __ ~(Q} Modular Newsracks Locations. (1) In the following locations, individual newsracks are Bot permitted prohibited. Modular newsracks may only be placed on concrete pads which will be constructed by the City in the following areas: (a) Within the Downtown Area. ModHlar Re'.vsracks FDa)' be placed iB the fellowiag locations: 1. East Atlantic A venue east of the FEC Railroad tracks adjacent to the parking lot on the west side of S.E. 3rd Avenue. 2. On the east side of the building located at the southwest comer of southbound Federal Highway and Atlantic Avenue. 3. The Municipal Tennis Center, in close proximity to the clubhouse building. 4. In front of City Hall on N.W. 1st Avenue. 5. At the Gleason Bath House at Atlantic A venue and South Ocean Boulevard. 6. Adjacent to the building located at 40 South Ocean Boulevard. (b) Within the North Federal Highway Redevelopment Area. (c) Within the West Atlantic Avenue Redevelopment Area. (d) A modular newsrack may be placed on the west side of South Ocean Boulevard approximately 1,000 feet south of Linton Boulevard. ~(Q} The FDodHlar Rev/sracks shall be installea aRa FDaimaiaea BY the distributors iR coRformity witH existiag City ordiRaRces. The color of the modular newsracks shall have gloss black bases, and forest green sides and doors. A color sample is available in the Community Improvement Department. Any FDoaHlar Rewsraek feuRa to be iR '/iolatioR of me City orainance is subject to the enfor~eFDeBt provisions comaiRea iR SeetioR 102. 47. tBflD The controlling entity shall maintain each movable fixture in a neat and clean condition, and in good repair at all times. Each movable fixture shall be maintained so that: 7 ORD NO. 45-98 . -~~.. - -- -- - - - - - ------ ---. -------~~-----~_.- ---~-- ~-------- --~--~------- (1) It is free of graffiti. (2) It is reasonably free of dirt and grease. (3) It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas thereof. (4) It is reasonably free of rust and corrosion in the visible metal areas thereon. (5) The clear plastic or glass parts thereon, if any, through which the publications are viewed are unbroken and reasonably free of cracks, dents, blemishes, and discoloration. (6) The paper or cardboard parts or inserts thereof are reasonably free of tears, and are not peeling or tearing. (7) The structural parts are not broken or unduly misshapen. (8) The surrounding area upon which the newsrack or modular news rack is placed will also be maintained in a neat and orderly condition. ~ill The use of a bench for advertising purposes is strictly prohibited. tH1ill Any newsrack or modular newsrack being installed, placed or maintained on a , public right-of-way, street or sidewalk or other public property shall be installed in a safe and secure manner so as to prevent the newsracks or the modular newsrack from being stolen or becoming a hazard in severe weather. At any time, the total weight of the newsrack or modular news rack and any weighting device shall not be less than one hundred twenty-five (125) pounds. A modular newsrack must be secured to a concrete pad. tltOO In the event of the issuance of a hurricane warning by any entity with jurisdiction to issue such a warning, the newsrack shall be secured to the ground or placed in such a manner so that the newsrack is parallel to the ground. (L) The controllin2 entity of a modular newsrack or newsrack shall not recover or collect. from entities placin2 for distribution publications in a newsrack. or modular newsrack p~ments in excess of the actual cost of the newsrack or modular newsrack. and the actual reasonable costs for maintenance. The cost of the modular newsrack may be prorated in proportion to the size of the individual module in a modular newsrack. The cost of a modular newsrack or newsrack may be paid over a 36 month period. or less. in equal monthly installments. The annual maintenance costs may be also paid in equal monthly installments. In no event. however. shall a controllin~ entity collect payments over the actual costs referred to 8 ORD NO. 45-98 . --- --~-- -<~ -- -_.- -~ above. once recaptured. The control1in~ entity shall file a document with the Code Enforcement Administrator illustratin~ the monthly cost computations. (M) The City mlQ' order the removal of modular newsracks from public riihts-of-way and City property in order to serve as a control1in~ entity of modular newsracks to ensure uniformity and compatibility of style. (N) Modular newsracks shall not be placed on the concrete pad in a manner to obstruct other modular newsracks on the same concrete pad nor mlQ' they extend beyond the concrete pad. (0) Movable Fixtures shall be installed and maintained by the controllin~ entity or their a~ent or desi~nee in conformity with existin~ City ordinances. Any movable fixture found to be in violation of the City ordinances is subject to the enforcement provision of Section 102.47 and subject to abandonment where indicated by Section 102.46. Section 102.44 PROHIBITED LOCATIONS. (A) Landscaped Areas: Movable fixtures shall not be placed or installed or erected on any landscaped area within an improved public right-of-way or public property. The landscaped areas include, but are not limited to, those areas in which the following ground cover material is placed: (1) Decorative plants, or (2) Native plants maintained to match the surrounding flora. (B) Concrete Pads: Modular newsracks may not be placed in any public riiht-of-way or on any City property unless installed on a concrete pad and securely affixed thereto. 0010 Public Utilities: Movable fixtures shall not be placed, installed or erected to obstruct the use of any public utility pole or structure. These areas are designated as follows: (1) Drainage structures. Movable fixtures shall not be physically attached, chained or bolted to any drainage structure, inlet pipe or other physical object meant to carry water for drainage purposes. (2) Utility poles. Movable fixtures shall not be physically attached, chained or bolted to a utility pole. (3) Fire hydrants. Movable fixtures shall not be located within 15 feet of a fire hydrant. 9 ORD NO. 45-98 . . - -- -- -_.- -.--.' --,-- - -. ~ --_._---~_..,- -.. ~!D} Traffic Control Devices: Movable fixtures shall not be physically attached, chained, bolted or erected to obstruct the function of traffic signals, traffic signs or pavement markings. These areas shall be designated as follows: (1) Traffic signals. (a) Movable fixtures shall not be physically attached, bolted or chained to a traffic signal pole. (b) Movable fixtures shall not be placed in such a manner which obstructs the free pedestrian flow to and from a pedestrian traffic signal push button. In order to allow for the free pedestrian flow, and handicap access, to and from pedestrian traffic signal push buttons, movable fixtures shall be placed at least 36 inches away from such pedestrian traffic signal push buttons. (2) Traffic Signs. Movable fixtures shall not be physically attached, bolted or chained to a traffic sign or post used for the support of a traffic sign or signs. fI)1,(E} Paved Surfaces: No movable fixture shall be placed, installed or erected directly on a paved surface which is intended primarily for the use of motor vehicles. ~(E) Sidewalks: Movable fixtures placed or maintained on a sidewalk shall leave a clear area for traffic of not less than 40 inches. fB,(Q} Bike Paths: Movable fixtures which are placed or maintained on a bike path shall leave a clear area for traffic of not less than 8 feet. fG1!Hl Clear Zones: Movable fixtures shall not be installed, placed or erected within clear zones as defined in this section. Clear zones are defined as follows: (1) The area measured within four feet of the face of a six inch high vertically faced curb. Where the four foot minimum is impractical, the minimum may be reduced to 2 1/2 feet. (2) In all other locations, the movable fixture shall be located no less than ten (10) feet away from the edge of the pavement. If there is not ten (10) feet available, the movable fixture shall be located as far away from the edge of the pavement as possible. OOill Si2ht Areas: Movable fixtures shall not be placed, attached, installed or erected within the sight areas defined in this section. For purposes of this section, sight areas extend vertically from a point commencing 3 feet above the pavement elevation, and encompass the triangular area of property located at a corner formed by the intersection of two or more public 10 ORD NO. 45-98 . . - .".-. ".. ",- -. -- .-_. - .__._~~~ ------ ---- -. "p- .- _.-- -- _____.__. _M______~___._ . ... - ._-- ---. -----.- ------..------ i rights-of-way, with two sides of the triangular area extending twenty-five (25) feet from their I ~ point of intersection along the edge of pavement, and the third side being a line connecting the ends of the other two lines. (See Figure 1). All obstructions to the required sight distance shall j be removed within the area shown in Figure 1. , I I I I I r I I I 1 :J r1tCIITAl.EA ld ,EDGE Of" PAvrllENT I , I -I ,_!l_! --------- I -------- -- ~"~J I J.~.' I I'r ".., .,,-1 J j l ,,--,,", -. Figure 1 Typical Intersection (not to scale) <-Bill Other Areas: Movable fixtures shall not be placed, installed or erected in any of the areas defined in this section. (1) The area within 50 feet of any railroad track. (2) On any City property unless the location has been specifically designated by the City Manager or any authorized representative. (a) The City Manager or the duly authorized City representative shall designate locations at City facilities for the placement of movable fixtures. (b) The City shall prepare a map for each City facility illustrating the designated locations for the placement of movable fixtures. The location maps shall be available for inspection at the office of the City Clerk. (c) Movable fixtures WHicH are placed at City facilities are subject to all provisions of Section 102.40 thrOUgH 102.48, iflclHsi'/e. Improperly placed movable fixmres shall be considered abandoned movable fixtures. f (3) The area within the medians of a divided roadway. 11 ORD NO. 45-98 " -- --- -.-.-. . _~~~. ,.__R. ~ .~_" .",,_ ",,__. ..- ,_ _ ~ _~>~h~'__.,~_.,.' (4) Newsracks or modular newsracks may not be placed within a one hundred fifty foot (150') radius of another newsrack containing the same newspaper, news periodical, or advertising circular except where separated by a street corner. Where warranted by the quantity of newspaper sales, the Code Enforcement Administrator may allow a double newsrack not more than forty (40) inches wide otherwise complying with the requirements of Section 102.43. (5) Newsrack and modular newsrack locations may be agreed upon by mutual consent of the City, publishers and distributors. f.B @ Fixture Placement: Movable fixtures shall not be placed on any roadway, bike path or swale area in front of, to the rear of, or to the side of a single family residence within the City. Section 102.45 INSURANCE AND INDEMNIFCATION. (A) Insurance. Every publisher or distributor controlling entity other than a governmental entity or agency who places or maintains a newsrack or modular news rack on a public right-of-way or public property shall provide to the Code Enforcement Administrator a current certificate of insurance, naming the City as an additional insured on October 1st of each year. Such insurance shall be comprehensive general liability or commercial general liability coverage on a form no more restrictive than the latest edition of the Comprehensive General Liability Policy or Commercial General Liability filed by the Insurance Services Office. Minimum limits of total coverage shall be $300,000.00 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Reasonable evidence of equivalent self- insurance coverage may be substituted by the applicant for the above certificate of insurance, subject to the approval of the City's Risk Manager. Insurance under this section shall run continuously with the presence of the applicant's newsrack(s) or modular newsrack(s) in the City's right-of-way, and any termination or lapse of such insurance shall be a violation of this section, subject to the appropriate remedy by the Code Enforcement Division under Chapter 37 of the City's Code of Ordinances and the enforcement provisions of this chapter. (B) Indemnification. Every publisher or distributor controlling entity other than a governmental entity or agency who places or maintains a newsrack or modular news rack on a public right-of-way, public sidewalk, street or swale in the City shall execute and deliver a written agreement under which it agrees to indemnify, hold harmless and defend the City, its officers, agents and employees from any loss, liability or damage sustained by any person as a result of the installation, use and/or maintenance of a modular news rack or newsrack within the City. This shall not be construed to affect in any way the City's rights, privileges and immunities as set forth in Section 768.28, Florida Statutes. 12 ORD NO. 45-98 . __________ _0___ . ~__~__ .__.___~_ -- -.----..- - Section 102.46 ABANDONMENT. (A) In the event a newsrack remains empty for a period of thirty (30) continuous days for a monthly publication and fourteen (14) continuous days for all other publications, it shall be deemed abandoned. aad filii:)' be treated ia the same maaner as f)ra'/ieled ia Seetioa 102. 47 below for movable fixmres ia vialatiaa af the f)ravisioRS of tI:lis sabeI:lapter. $) If fifty -one percent (51 %) of the total modules in a modular news rack remain emptY for fourteen (14) continuous days. it shall be deemed abandoned and posted as such. fIij!Q If the controlling entity is not identified on the movable fixture, it will be considered abandoned and posted as such. fGj,(ill If the newsrack is placed at a City facility in a location not previously approved m: a newsrack is placed in a location where individual newsracks are prohibited, it will be considered abandoned and posted as such. (E) If the controllini entity of a newsrack or modular newsrack is in violation of Section 102.43(L). it shall be considered abandoned and posted as such. Section 102.47 ENFORCEMENT. (A) Correction of Violation. Upon determination by a Code Enforcement Officer that a movable fixture has been installed, used or maintained in violation of this chapter, an order to correct the violation shall be issued to the controlling entity. If tfle a news rack or modular newsrack is considered abandoned, it will be posted and an order will not be issued. (B) The order to correct the violation shall specifically describe the violation and may suggest actions necessary to correct the condition or violation. Such order shall be mailed by certified mail, return receipt requested, to the controlling entity. (C) Failure to properly correct the violation within fifteen (15) days of the receipt of the order shall result in the offending movable fixture being removed by the City. Any movable fixture removed by the City thereunder shall be stored at the controlling entity's expense for a period of thirty (30) days. The movable fixture shall be released upon a proper showing of ownership and payment of removal, administrative and storage charges. The administrative charge is $55.00 and the storage charge is $2.00 per day, up to a maximum of thirty (30) days. In the event the movable fixture is not claimed within the thirty (30) day period, the movable fixture may be sold at public auction and the proceeds applied first to removal, administrative and storage charges, and the remainder, if any, then paid into the General Fund of the City. 13 ORD NO. 45-98 '. . ---------~------ --~------- -- - . (D) If the movable fixture is posted as abandoned and not removed within seven (7) days from the date of posting, or the City is not contracted by the controlling entity within seven (7) days from receipt of an order to correct the violation, the City may remove the movable fixture immediately. The City shall store the movable fixture for thirty (30) days and if not claimed within that time, the City may dispose of the movable fixture in any manner it deems appropriate. If the movable fixture is claimed, the entity claiming the movable fixture shall pay for all removal, administrative and storage charges prior to release of the fixture. If the charges are not paid within fifteen (15) days of claim being made, the City may dispose of the movable fixture. (E) At least ten (10) days prior to the public auction, the City Clerk shall publish a description of the movable fixture, the location from where it was removed, and notice of the auction in a newspaper of general circulation in the City. Any publication may include multiple listings of movable fixtures. The City shall also provide the controlling entity identified on the movable fixture, or if otherwise known, with written notification of the auction by certified mail, return receipt requested. Provided, however, that the City Manager, or his designee, may dispose of the movable fixture in any manner he sees fit, including negotiating the release of the movable fixture to the controlling entity for less than full payment of all storage charges if the City Manager, or his designee, is of the opinion that such disposal will be more advantageous to the City than auctioning off the movable fixture. (F) IR the event tRe controlliRg eRtity appeals the oraer to correct tRe offeRding condition, as proyided for iR Section 102.48 belo.,..., theR remo'lal of the movable fixture shall be stayed peRaiRg fiRal disposition of tRe aJ3peal, .....RicR final disposition shall inclHde any judicial revie':l. The City shall reimbllrse the controlliRg entity aRY storage cRarges paid pHrsllant to aR order issl:led by tRe City in the eveR the decisioR OR the apJ3eal is rendered favorable to the controlling entity. Section 102.48 APPEALS. !Al Any J3ersoR or controlling entity aggrieved by any order, finding or determination taken under the provisions of this ordinance other than abandonment of a newsrack or modular newsrack. (hereinafter an appellant) may file an appeal with the Code Enforcement Board for the City of Delray Beach. The appellant must effect their appeal within fifteen (15) days after receipt of the order mailed to the appellant pursuant to this ordinance. In order to effect the appeal, the appellant must deliver their letter of appeal, briefly stating the basis of their appeal, to the Clerk of the Code Enforcement Board. A hearing before the Code Enforcement Board shall be scheduled on the appeal no later than thirty (30) days following the receipt of the letter of appeal, unless the parties mutually agree to an extension thereof. The appellant shall be given at least 14 ORD NO. 45-98 '. ---- _"_n"____._ _ ---.--.... ----- ~ - seven (7) days written notice of the time and place of the hearing. The Board shall give the appellant and any other interested party a reasonable opportunity to be heard in order to show cause why the fixture is not violating this ordinance. At the conclusion of the hearing the Board shall make a final and conclusive determination. The determination shall be reduced to writing and signed by the Board and filed in the Office of the City Clerk within fifteen (15) days of the hearing and a copy shall be sent to the appellant. The decision of the Board shall be effective when rendered. The decision of the Board may be appealed as provided for by law. $) Where the newsrack or modular newsrack is considered abandoned. the controllin~ entity may take an immediate appeal to Circuit Court as provided by law. (C) Durin~ the pendency of an c\ppeal. the removal of the movable fixture shall be stayed pendini final disposition of the appeal. except if abandonment of the newsrack or modular newsrack occurs in violation of sections 102.46(A). (B). eD)' em and 102.43(U. and adversely effects the distribution of newspapers. news periodicals or advertisin~ circulars from that location. (D) The City shall reimburse the controIlin~ entity any stora~e char~es in the event the decision on c\ppeal is rendered in favor of the controIlin~ entity. Section 2. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other that the part declared to be invalid. Section 3. That all ordinances or parts of ordinances which conflict herewith be and the same is hereby repealed. Section 4. That this ordinance shall become effective immediately upon passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the 20th day of October ,1998. . ATTEST: &~C7l(1J;tJiiJf57 J.!rh'by - City Clerk First Reading October 6, 1998 Second Reading October 20, 1998 15 ORD NO. 45-98 '. M E M 0 RAN DUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER~l SUBJECT: AGENDA ITEM JoB - REGULAR MEETING OF OCTOBER 20. 1998 ORDINANCE NO. 45-98 (MOVEABLE FIXTURES/NEWSRACKS) DATE: OCTOBER 13, 1998 This is second reading and a public hearing for Ordinance No. 45-98 which amends Chapter 102, "Streets and Sidewalks", "Moveable Fixtures Within the Right-of-Way" , of the City Code primarily to clarify provisions and their applicability to modular newsracks. The most notable changes are as follows: (1 ) A prohibition on charges by controlling entities in excess of actual costs for the use and maintenance of modular newsracks. (2 ) Clarifies the definitions of newsracks and modular newsracks, adding the term II modular newsracks" to various sections to clarify the applicability of the City's ordinance provisions to modular newsracks. (3 ) Expressly provides that the City can be a controlling entity to ensure uniformity and compatibility of style of modular newsracks, and provides that the City may order removal of modular newsracks to accomplish this goal. (4 ) Amends the abandonment section to shorten the period before which abandonment can be declared and provides standards for abandonment of modular newsracks. (5) Amends the enforcement and appeals sections to provide immediate appeals in cases of abandonment to Circuit Court. Amends the provisions regarding stays to eliminate the stay if it involves removal of an abandoned newsrack or modular newsrack, if the stay would adversely affect distribution of newspapers, periodicals or advertising circulars by others. (6) Provides that all modular news racks must be placed on concrete pads and that no modular newsrack may obstruct other modular news racks on the same pad or extend beyond the concrete pad. At first reading on October 6th, the City Commission passed the ordinance by unanimous vote. Recommend approval of Ordinance No. 45-98 on second and final reading. ref:agmemo18 faoouJl 5-0 '. - . . t~ 1 [IT' DF DELIA' IEA[H CITY ATTORNEY'S OFFICE 200 NW 1st AVENUE. DELRAY BEACH, FLORIDA 33444 TELEPHONE 561/243-7090. FACSIMILE 561/278-4755 DELRAY BEACH Writer's Direct Line: 5611243-7091 f L 0 KID A ......... AII.America City , ~ III! MEMORANDUM ~~~ DATE: October 2, 1998 1993 \ 6/0 \q~ TO: City Commission \o\b David T. Harden, City Manager FROM: Susan A. Ruby, City Attorney SUBJECT: Movable Fixture Ordinance Amendment The attached ordinance amends our current ordinance to primarily clarify provisions and their applicability to modular newsracks, and to make other changes. The most notable changes are as follows: 1. A prohibition on charges by controlling entities in excess of actual costs for the use of and maintenance of modular newsracks. 2. Clarifying the definitions of newsracks and modular newsracks adding the term "modular newsracks" to various sections to clarify the applicability of the City's ordinance provisions to modular newsracks. 3. Providing expressly that the City can be a controlling entity to ensure uniformity and compatibility of style of modular newsracks and providing that the City may order removal of modular newsracks to accomplish this goal. 4. Amending the abandonment section to shorten the period before which abandonment can be declared and by providing standards for abandonment of modular news racks . 5. Amending the enforcement and appeals sections to provide immediate appeals in cases of abandonment to Circuit Court. Amending the provisions regarding stays to eliminate the stay if it involves removal of an abandoned newsrack or modular newsrack, if the stay would adversely affect distribution of newspapers, periodicals or advertising circulars by others. /;.p. '. . . - City Commission October 2, 1998 Page 2 6. Providing that all modular newsracks must be placed on concrete pads and that no modular newsrack may obstruct other modular newsracks on the same pad or extend beyond the concrete pad. Please place this ordinance on the agenda for first reading for October 6, 1998. There may be further changes by Tuesday after the publishers have reviewed the ordinance. SAR:smk Attachment cc: Alison MacGregor Harty, City Clerk All Newspaper Publishers racks. sar '. &5: /liLi:Urn - em Of"" IUCIl, ~ _OfPUlUC_ , -II PUBlIC IEARING .. be held on 1he following ~ Dfdinances on TUESDAY, ER 20, 1998, AT =.. ""::t_Wj aucIl..-ng _ set by 1he Com- '_n , In 1he Commission Cham- ....!.,~: .~,... ..- I 'ClIlIlINANcE NO, 4H8 = Ileoch, _, II which time !Nil ORDINANCE OF TIE cnv COM- .... ~ will consider lheir .-loption. The proposed onIInances iMISSlON OF THE cnv OF DElRAY 'IYIIy be Inspected 1l1he 0Ifice 0I1he 'iIfACH, FlORID" AME'IDING TITlE Q\Y Clerk II City Hall, 100 NoW. 1st . I, "'GeNERAL REGULATIONS", CHAP- -Avenue, Delroy Beach, Florida, "nR 102, "STREETS AND SIDE. between 1he hours 01 8:00 a.m. IIld WALKS", BY AMENDING SUBHEAD- 5:00 p.m., ~ lhrough Friday, -ING "MDVEABU FIXTlJRES WITHIN 4llIlePI holidays. AI __ parties 'TIE RIGKHIF.WAY", OF THE CODE .. InYiIId 10 _1Ild be hIanl with OF ORDlNANCES OF TIE CITY OF ....... 10 1he prGpCIIIld onIInn:es. ~Y IIEACH, BY AMENDING SEC- 'TION 102.40, "PURPOSE AND 1IIIIIIWICE III. .. "SCOPE', TO INCLUDE MODULAR 'NEWSRACKS; BY AMENDING seC. M ORDINANCE OF TllE CITY COM. TION 102.41, "DEFINfTlDNS', TO MISSION OF TIE CITY OF DB.RAY ..clARIFY THE DEFINmONS OF IlEACH, R.0RIllA, REZONING AND ; 'NfWSRACKS AND MODUlAR NEWS- PlACING lAND PRESENTLY ZONED t""" " ...- """" == R+A (SINGLE FAMILY RESIDEN- 102.42, "C6!TIFlCATl: OF COMPlI- ~ DISTRICT IN THE ~OBILE '-ANCE REQUIRED', TO ClARIFY THAT = We DISTRICT; SAID BEING - MODUlAR NEWSRACKS ARE ~ M ST40~OFMEASTI2O >N:lUDED; BY AMENDING SECTION D;l ~ OF LOT &, PlAT OF lAMBERT '102.43, "STANDARDS FOR NEWS. TRAILER COURT, LllCAlED AT 311 I RACK MAINTENANCE AND INSTAL- ~ SOUTHEAST 12TH ROAD. AS MORE I LAnON', TO PROVIDE FOR A RET~ D;l PARTICUlARLY DESCRIBED HEREIN; I TUNG OF TIE SECTION, AND ClARI-, AMENDING "ZONING MAP OF DEL. I FYING THAT THE CITY MAY ACT AS A ~ 'RAY IIEACH, FlORID" 1994"; PRD- I """"""' '""""........ = VlDING A GENERAL REPEALER NEWSRACKS, PROVIDING THAT = ,ClAUSE, A SAVING a.AUSE, AND 114 REl'IT 1140 MAINTENANCE COSTS 2 ffFfCTlVE DATE. ABOVE ACTUAL COSTS ARE PRDHI&- . ITED, PROVIDING FOR REGULA. ~ I 0RDIIWlCE NO. 41-4111 nONS FOR THE f'LACEMENT =! APPEARANcE, 1140 MAINTENANce 'M 0RIlINANCE OF TIE CITY cOM- OF MODUlAR NEWSRACKS; BY ! ~ MISSION OF TIE CITY OF DEUlAY -AMENDING SECTION 102.44, "PRD- i .. . IlEACH, R.OR~ IlE2llMNG CER- t KIBITEO LllCAT~ TO I'ROV1IlE ~ TAlN PARCElS lANO, AS MORE fllR CONCRm FOR MOOU' 1 PARTICUlARLY DESCRIBED HEREIN, LAR NEWSRACKS ON PUBLIC I - FROM ill (MULnPlE FAMILY RES!- RIGIiTS-Of.WAY AND CITY PROPER. =- DENTIAL . LOW DENSmr TO R-1-M TY AND PROVIDING FOR RElETTER. D;l W:NGLE FAMILY RESIDE IALI DIS' ING; BY AMENDING SECTION 102 45 I ICT, FROM RM ~MULTIPlE FAMILY 'INSURANCE AND INDEMHIFIi:A: i ~ RESIDENTIAL - EDIUM DENSITY) TION", TO INCLUDE REOUIREMENTS ' = TO R-l-A (SINGLE FAMILY RESIDEN- FOR MODULAR NEWSRACKS; BY TIAL) DISTRICT, AND FROM RL AMENDING SECTION 102.46, 'AIIAN- I ~ (MULTIPLE FAMILY RESIDENTIAL - DONMENT"', TO INClUDE A STN4- ~ LOW DENS~TO R.l-A ~NGLE DARD FOR ABANDONMENT OF MOD. I = FAMILY RESIDE ~ DISTIl ; AU. 'lM"~~ AS REQUIRED TO I PlEMENT TIE ~ SEACRESTtOEL IDA PARK NEIGH- TION OF 'MANDONMENT' BY ~ BORHOOD PlAN PURSUANT TO M I AMENDING SECTION 10247 ! .., GOAlS, DIlJECTI\IES 1140 POlICIES 1:NFORCEMENr, TO INCLUDE MOO: OF THE COMPREHENSIVE PlAN; UlAR NEWSRACKS; BY AMENDING ~ SAID LAND BEING GENERALLY SECTION 102.48, 'APPEALS", TO .. LOCATED BElWEEN SEACREST CLARIFY THE APPEAL PROCESS - BOULEVARD AND DIXIE HIGHWAY PROVIDING FOR AN IMMEDIATE AND BfTWEEN GEORGE BUSH . APPEAL TO CIRCUIT COURT IN ~ BOULEVARD 1140 ATLANTIC HIGH CASES OF MANDONMENT OF ~ SCHOOl; AMENDING "ZONING MAP ;IEWSRACKS AND MODUlAR NEWS- OF DfLRAY BEACH, flORIDA. 1994"; , RACKS, PROVIDING EXCEPTIONS TO == PROVIDlNG A GENERAL REPEALER -' STAY OF THE REMOVAL OF MOOU- CLAUSE, A SAVING CI.A/JSE, NfJ 114 ; f lAR NEWSRACKs 1140 HEWSIIACKs ... ER'ECTlVE DATE. ~ IN CERTAIN INSTANCES AND WtERE I ABANDONMENT ADVERSELY " ORDINANCE NO, 42.- ' AFfECTS DISTRIBUTION, PROVIDING FOR REIMBURSEMENT OF STORAGE 114 ORDINANCE OF M CITY COM. COSTS IF APPELlANT PREVAILS ON MISSION OF THE CITY OF DELRAY APPEAL; PROVIDING A GENERAL BEACH, FlORID" REZONING lWD REPEALER ClAUSE, A SAVING PARCELS OF LAND, AS MORE PAR. . ClAIISE, NID 114 EmCTI\IE DATE. TICUlARLY DESCRIBED fEREIN, FROM RM.l0 lMULnPlf FAMILY PleaIe III Dtsed thal . . '*""" RESIDENTIAL - MEDIUM DENSITY 'decides lD ~ declsiori ..- WITH A DENSITY SlJFFIX OF 10 ;by 1he City ....lIIpICllD ~ UNITS fER ACREJr: C. - CllIIIIIdnIII.. ......, PRD-5~ RESIDE -"'-lD_thala llEVEL . 5 UNOS Pl'R ACRE) . Wlbllim IIll:OrlI inctudes 1he Ieslimony . TO AM.l0 :&LT1Pl.E FAt.lILY RES!- MIonce ... ""*".. ~ III 'DENTIAL - UM IIENSlTY WITH A III...... TIll ClIycbs ~ .1lENSITY SUFfIX OF 10 lIMI..UNG == 1UdI-.d. . lD . UNOS PER ~ IIESPECTIVELY, 'I. 05. ASSOCIAlED THE CITATION a. OTY OF DEUlAY IIEACH CLUB 1140 HAMMOCK RESERVE 1lEVELllPMENTS; SAID PARCElS OF k.:...J~ 'lANO BEING LOCATED ALONG ;0IlCHARD LANE. APPROXIMATELY '100 ~ EAST OF MILITARY TRAIL; ,AMENOtNG "ZONING MAP OF oa.. RAY BEACH, R.ORIDA, 1994"; PRD- , 1148116 ... " .. f"'" · -- -- ---.--- IO.AUSE, -' MVING a.AUSE. NfJ AN f8'EC"VEDIOE.~. ..;.. '~':,',' .. . ;. i ::;,~~III,"" '. . , .1I4'ORotIwI:E OF TIE CITY COM- -MISSION OF TIE CITY OF DElRAY BEACH, flORIDA, AMENDING APPENDIX '~NmONS) OF THE lAND DEVEL NT REGUlArlONS OF THE CITY OF DELRAY BEACH, BY ,~-==~; _ PROVIDlNG A GENERAL REFfALER CLAUSE. ,. SAVING CLAUSE, NifJ AN EFfECTIVE DATE.