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15-92 ORDINANCE NO. 15-92 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ARTICLE 6.3, "USE AND WORK IN THE PUBLIC RIGHT-OF-WAY", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY REPEALING, "NEWSRACKS", AND ENACTING A NEW SECTION 6.3.3, "NEWSRACKS, BENCHES AND OTHER UNATTACHED FIXTURES" TO PROVIDE FOR THE APPLICATION OF THIS SECTION TO ALL MOVABLE FIXTURES WITHIN THE RIGHT-OF-WAY; PROVIDING FOR DEFINITIONS; PROVIDING FOR OBJECTIVE STANDARDS FOR THE LOCATION OF MOVABLE FIXTURES IN THE RIGHT~OF-WAY; PROVIDING STANDARDS FOR INSTALLA- TION AND MAINTENANCE OF NEWSRACKS; PROVIDING FOR ENFORCEMENT BY CODE ENFORCEMENT DEPARTMENT; PROVID- ING FOR SPECIFIC APPELLATE REMEDIES; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVID- ING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach has invested millions of dollars in installing and maintaining streetscaping and landscaping along the public rights-of-way within Delray Beach; and, WHEREAS, the City of Delray Beach is in the process of imple- menting its Decade of Excellence Bond program which will provide additional funding of drainage, paving, and beautification of rights- of-way within Delray Beach; and, WHEREAS, the City Commission of the City of Delray Beach has maintained a strict sign code for a number of years, specifically prohibiting off-site advertising; and, WHEREAS, the City Commission of the City of Delray Beach is desirous of providing safe traffic areas for pedestrians, bicyclists, and motor vehicles; and, WHEREAS, the City .Commission of the City of Delray Beach wishes to improve the aesthetics of rights-of-way within its residential and commercial zoned areas; and, WHEREAS, the residential rights-of-way within the City of Delray Beach have not been designed to withstand constant traffic on the nonpaved section of the right-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the aesthetics of the rights-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the drainage capabili- ties of the swale area; and, WHEREAS, the City Commission fihds that newsracks which have the corporate logo and coloration on them are signs within the meaning of the City of Delray Beach Code of Ordinances; and, WHEREAS, the use of newsracks and benches as signs is illegal in Delray Beach and damages the aesthetic quality of our residential, commercial, industrial, and open space neighborhoods; and, WHEREAS, the City Commission of the City of Delray Beach believes that improving the aesthetics of Delray Beach's residential and commercial neighborhoods will improve the quality of life for the citizens of Delray Beach; and, WHEREAS, the City Commission finds that damaged swale areas negatively affects property values adjacent to such swale areas and rights-of-way; and, WHEREAS, the City Commission of the City of Delray Beach believes there is adequate areas of distribution available. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Article 6.3, "Use and Work in the Public Right-of-Way", Section 6.3.3, "Newsrac~s" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, is hereby repealed, and a new Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, is hereby enacted to read as follows: Section 6.3.3 Newsracks, Benches and Other Unattached Fixtures in the Right-of-Way: Any newsrack, bench and other non-attached fixture (hereinafter collectively referred to as "movable fixtures") which rests in whole or in part upon, or on any portion of the public right-of-way or which projects onto, into, or over any part of a public right-of-way, or which is upon private property shall be located and maintained in accordance with this Section. (A) 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. "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. "Intersecting Sidestreet." Any roadway or driveway on which traffic is required to stop prior to entering the intersection. "Newsrack." Any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display, sale, or distribution of newspaper or other news periodicals or advertising circulars. "Paved Surfaces." Any hard maintained surface used or built for the purpose of transporting vehicles, bicycles or pedestrians. Surfaces shall include, but not be limited to, asphalt, concrete, paver block, tree grates and/or rocks. "Public Agency." The city, county, or the state. "Right-of-Way." Ail 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. "Roadway." That portion of a right-of-way improved, designed, or ordinarily used for vehicular traffic. 2 ORD. NO. 15-92 "Sidewalk." Any surface within a right-of-way provided for the exclusive or primary use of pedestrians. (B) Prohibited Locations: (1) Landscaped Areas: Movable fixtures shall not be placed or installed or erected on any landscaped area within an improved public right-of-way. The landscaped areas include, but are not limited to, those areas in which the following ground cover materials placed: (a) Sod, (b) Decorative plants, or (c) Native plants maintained to match the surrounding flora. (2) 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 defined as follows: (a) 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; (b) Utility Poles: Movable fixtures shall not be physically attached, chained, or bolted to a utillty pole; (c) Fire Hydrants: Movable fixtures shall not be located within 25 feet of a fire hydrant. (3) 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 defined as follows: (a) Traffic signals. (1) Movable fixtures shall not be physically attached, bolted, or chained to a traffic signal pole. (2) 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. (b) 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. (4) Paved Surfaces: No moveable fixture shall be placed, installed, or erected directly on a paved surface which is intended primarily for the use of motor vehicles. (a) Any movable fixture placed or maintained on a sidewalk shall leave a clear area for traffic of not less than 5 feet. (b) Any movable fixture which is placed or maintained on a bike path shall leave a clear area for traffic of not less than 8 feet. 3 ORD. NO. 15-92 (5) 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: (a) The area measured within five feet of the face of a six inch high vertically faced curb. (b) The area from the edge of the travel lane on the adjacent road for the following distances: Speed Limit of Adjacent Road Distance 30 mph or less 10 feet 35 mph or greater 18 feet (c) The area measured fro~ the edge of an auxiliary lane of the adjacent street within the following distances. Speed Limit of Adjacent Road Distance 30 mph or less 6 feet 35 mph or greater 10 feet (6) Sight 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 3 feet above the payment elevation. Sight areas are further defined as the area extending from the intersect- ing sidestreet and a parallel line 15' from the edge of pavement running for 115 feet where the street on which the newsrack is placed does not have a slx inch vertically faced curb, or that area extending from the intersecting sidestreet and a parallel line 15' from the edge of pavement running for 210 feet where the street on which the newsrack is placed does have a slx inch vertically faced curb. (7) Other Areas: Movable fixture shall not be placed, installed, or erected in any of the areas defined in this section. (a) The area within 50 feet of any railroad track. (b) On any city property unless the location has been specifically permitted by the City Manager or his designee. (c) The area within the medians of a divided roadway. (8) Movable fixtures shall not be placed on any roadway, bike path or adjacent swale area within residential zoned districts of the City. (C) Standards for Newsracks Maintenance and Installation: (1) No more than one newsrack containing the same issue or edition of the same publication shall be located within the same block or 1,000 feet, whichever is the lesser distance, on the same side of the street, provided, however, a controlling entity may locate newsracks closer to each other if a public need is determined to exist. A public need may be established by the following method, but such method is not exclusive. A controlling entity desiring to establish a public need, may place a newsrack at the proposed location after notice to the City for a period of one month. If during that one month test period, the average circulation from that newsrack equals or exceeds 75 percent of the capacity of the newsrack, the public need is established and the additional newsrack may remain at its location. 4 ORD. NO. 15-92 (2) Any newsrack which in whole or in part rests upon in or over any public property or right-of-way shall comply with the following standards: (a) A newsrack shall not exceed 4 feet, 6 inches in height, 40 inches wide, or 24 inches in depth. (b) Coin operated newsracks shall be equipped 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. (c) The controlling entity shall permanently affix to its 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, the name and address of the distributor to give the notices provided for in this chapter. (d) The controlling entity shall maintain each newsrack in a neat and clean condition, and in good repair at all times. (e) All newsracks shall have a uniform light brown finish. Provided, however, that newsracks may be of any color if they are shielded from view on three sides in a covering built and permitted in accordance with the City's Building Code. (D} Restrictions on Advertising: Newsracks shall not be used for advertising or publicity purposes other than that pertaining to the display, sale or purchase of the newspaper or news periodicals sold or distributed therein. Only one (1) advertising sign, not exceeding two square feet in area, may be placed on a newsrack. In addition to the advertising sign, the controlling entity may display once, on a newsrack, the name of the publication. The name of the publication may be displayed in lettering no greater than 12" in height. (E) Abandonment: In the event a newsrack remains empty for a period of 30 continuous days, it shall be deemed abandoned, and may be treated in the same manner as provided in (F) below for movable fixtures in violation of the provisions of this subchapter. (F) Enforcement; Correction of Violation: (1) Upon determination by a Code Enforcement Officer that a movable fixture has been installed, used, or maintained in violation of the provisions of this subchapter. An order to correct the offending condition shall be issued to the entity controlling the movable fixture. (2) The order to correct the offending condition shall specifically describe the offending condition and/or 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. (3) Failure to properly correct the offending condition or violation within 15 days after the mailing date of the order, shall 5 ORD. NO. 15-92 result in the offending movable fixture being removed by the city. Any movable fixture removed by the city hereunder shall be stored at the controlling entity's expense for a period of 30 days. The movable fixture shall be released upon a proper showing of ownership and payment of any and all storage charges. In the event the movable fixture is not claimed within the 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. (4) If the controlling entity is not identified on the moveable fixture, it will be considered abandoned and posted as such. (5) If the movable fixture is posted as abandoned and not removed within 7 days from the date of posting, or the City is not contacted by the controlling entity within 7 days from receipt of the order, the City may remove the movable fixture immediately. The City shall store the movable fixture for 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 15 days of claim being made, the City may dispose of the movable fixture. (6) At least ten 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 and shall provide the controlling entity identified on the movable fixture, or if other- wise 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 it 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. (7) In the event the controlling entity appeals the order to correct the offending condition, as provided for in Subsection 6.3.3(G), below, then removal of the movable fixture shall be stayed pending final disposition of the appeal, which final dis- position shall include any Judicial review. The city shall reimburse the controlling entity any storage charges paid pursuant to an order issued by the city in the event the decision on the appeal is rendered favorable to the controlling entity. (G) Appeals: Any person or controlling entity aggrieved by any order, finding, or determination, taken under the provisions of this ordinance, (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 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. The Code Enforcement Board shall hold a hearing on the appeal no later than 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 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 ~ake 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 15 days of the hearing and 6 ORD. NO. 15-92 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. (H) The use of a bench for advertising purposes is strictly prohibited. Section 2. That all ordinances or parts of ordinances which are in conflict herewith are hereby repealed. Section 3. 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 than the part declared to be invalid. Section 4. That this ordinance shall become effective l~edi- ately upon its passage on second and final reading; provided, however that the City's formal enforcement measures shall not begin for a period of one hundred twenty (120) days. PASSED ~D ~OPTED in regular session on second and final reading on this the 16th day of , 199~__. ATTEST: City Clerk First Reading May 26~ 1992 Second Reading June 16, 1992 news 1. ord 7 ORD. NO. 15-92 MEMORANDUM TO: David T. Harden, City Manager Jeffrey S. Kurtz, City Attorney Lula Butler, Director of Community Improvement Richard Bauer, Code Enforcement Administrator David Kovacs, Director of Planning & Zoning Greg Luttrell, Traffic Engineer FROM: Alison MacGregor Harty, City Clerk~ SUBJECT: Ordinance No. 15-92 (Newsracks/Movable Fixtures) DATE: June 30, 1992 Attached for your file is a fully executed copy of Ordinance No. 15-92 regulating movable fixture locations within the City. If you have any questions, please contact the City Attorney's office. AMH/m Attachment ORDINANCE NO. 15-92 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ARTICLE 6.3, "USE AND WORK IN THE PUBLIC RIGHT-OF-WAY", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY REPEALING, "NEWSRACKS", AND ENACTING A NEW SECTION 6.3.3, "NEWSRACKS, BENCHES AND OTHER UNATTACHED FIXTURES" TO PROVIDE FOR THE APPLICATION OF THIS SECTION TO ALL MOVABLE FIXTURES WITHIN THE RIGHT-OF-WAY; PROVIDING FOR DEFINITIONS; PROVIDING FOR OBJECTIVE STANDARDS FOR THE LOCATION OF MOVABLE FIXTURES IN THE RIGHT-OF-WAY; PROVIDING STANDARDS FOR INSTALLA- TION AND MAINTENANCE OF NEWSRACKS; PROVIDING FOR ENFORCEMENT BY CODE ENFORCEMENT DEPARTMENT; PROVID- ING FOR SPECIFIC APPELLATE REMEDIES; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVID- ING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach has invested millions of dollars in installing and maintaining streetscaping and landscaping along the public rights-of-way within Delray Beach; and, WHEREAS, the City of Delray Beach is in the process of imple- menting its Decade of Excellence Bond program which will provide additional funding of drainage, paving, and beautification of rights- of-way within Delray Beach; and, WHEREAS, the City Commission of the City of Delray Beach has maintained a strict sign code for a number of years, specifically prohibiting off-site advertising; and, WHEREAS, the City Com~ission of the City of Delray Beach is desirous of providing safe traffic areas for pedestrians, bicyclists, and motor vehicles; and, WHEREAS, the City Commission of the City of Delray Beach wishes to improve the aesthetics of rights-of-way within its residential and commercial zoned areas; and, WHEREAS, the residential rights-of-way within the City of Delray Beach have not been designed to withstand constant traffic on the nonpaved section of the right-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the aesthetics of the rights-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the drainage capabili- ties of the swale area; and, WHEREAS, the City Commission finds that newsracks which have the corporate logo and coloration on them are signs within the meaning of the City of Delray Beach Code of Ordinances; and, WHEREAS, the use of newsracks and benches as signs is illegal in Delray Beach and damages the aesthetic quality of our residential, commercial, industrial, and open space neighborhoods; and, WHEREAS, the City Commission of the City of Delray Beach believes that improving the aesthetics of Delray Beach's residential and commercial neighborhoods will improve the quality of life for the citizens of Delray Beach; and, WHEREAS, the City Commission finds that damaged swale areas negatively affects property values adjacent to such swale areas and rights-of-way; and, WHEREAS, the City Commission of the City of Delray Beach believes there is adequate areas of distribution available. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Article 6.3, "Use and Work in the Public Right-of-Way", Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, is hereby repealed, and a new Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, is hereby enacted to read as follows: Section 6.3.3 Newsracks, Benches and Other Unattached Fixtures in the Right-of-Way: Any newsrack, bench and other non-attached fixture (hereinafter collectively referred to as "movable fixtures") which rests in whole or in part upon, or on any portion of the public right-of-way or which projects onto, into, or over any part of a public right-of-way, or which is upon private property shall be located and maintained in accordance with this Section. (A) 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. "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. "Intersecting Sidestreet." Any roadway or driveway on which traffic is required to stop prior to entering the intersection. "Newsrack." Any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display, sale, or distribution of newspaper or other news periodicals or advertising circulars. "Paved Surfaces." Any hard maintained surface used or built for the purpose of transporting vehicles, bicycles or pedestrians. Surfaces shall include, but not be limited to, asphalt, concrete, paver block, tree grates and/or rocks. "Public Agency." The city, county, or the state. "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. "Roadway." That portion of a right-of-way improved, designed, or ordinarily used for vehicular traffic. 2 ORD. NO. 15-92 "Sidewalk." Any surface within a right-of-way provided for the exclusive or primary use of pedestrians. (B) Prohibited Locations: (1) Landscaped Areas: Movable fixtures shall not be placed or installed or erected on any landscaped area within an improved public right-of-way. The landscaped areas include, but are not limited to, those areas in which the following ground cover materials placed: (a) Sod, (b) Decorative plants, or (c) Native plants maintained to match the surrounding flora. (2) 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 defined as follows: (a) 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; (b) Utility Poles: Movable fixtures shall not be physically attached, chained, or bolted to a utility pole; (c) Fire Hydrants: Movable fixtures shall not be located within 25 feet of a fire hydrant. (3) 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 defined as follows: (a) Traffic signals. (1) Movable fixtures shall not be physically attached, bolted, or chained to a traffic signal pole. (2) 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. (b) 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. (4) Paved Surfaces: No moveable fixture shall be placed, installed, or erected directly on a paved surface which is intended primarily for the use of motor vehicles. (a) Any movable fixture placed or maintained on a sidewalk shall leave a clear area for traffic of not less than 5 feet. (b) Any movable fixture which is placed or maintained on a bike path shall leave a clear area for traffic of not less than 8 feet. 3 ORD. NO. 15-92 (5) 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: (a) The area measured within five feet of the face of a six inch high vertically faced curb. (b) The area from the edge of the travel lane on the adjacent road for the following distances: Speed Limit of Adjacent Road Distance 30 mph or less 10 feet 35 mph or greater 18 feet (c) The area measured from the edge of an auxiliary lane of the adjacent street within the following distances. Speed Limit of Adjacent Road Distance 30 mph or less 6 feet 35 mph or greater 10 feet (6) Sight 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 3 feet above the payment elevation. Sight areas are further defined as the area extending from the intersect- ing sidestreet and a parallel line 15' from the edge of pavement running for 115 feet where the street on which the newsrack is placed does not have a six inch vertically faced curb, or that area extending from the intersecting sidestreet and a parallel line 15' from the edge of pavement running for 210 feet where the street on which the newsrack is placed does have a six inch vertically faced curb. (7) Other Areas: Movable fixture shall not be placed, installed, or erected in any of the areas defined in this section. (a) The area within 50 feet of any railroad track. (b) On any city property unless the location has been specifically permitted by the City Manager or his designee. (c) The area within the medians of a divided roadway. (8) Movable fixtures shall not be placed on any roadway, bike path or adjacent swale area within residential zoned districts of the City. (C) Standards for Newsracks Maintenance and Installation: (1) No more than one newsrack containing the same issue or edition of the same publication shall be located within the same block or 1,000 feet, whichever is the lesser distance, on the same side of the street, provided, however, a controlling entity may locate newsracks closer to each other if a public need is determined to exist. A public need may be established by the following method, but such method is not exclusive. A controlling entity desiring to establish a public need, may place a newsrack at the proposed location after notice to the City for a period of one month. If during that one month test period, the average circulation from that newsrack equals or exceeds 75 percent of the capacity of the newsrack, the public need is established and the additional newsrack may remain at lts location. 4 ORD. NO. 15-92 (2) Any newsrack which in whole or in part rests upon in or over any public property or right-of-way shall comply with the following standards: (a) A newsrack shall not exceed 4 feet, 6 inches in height, 40 inches wide, or 24 inches in depth. (b) Coin operated newsracks shall be equipped 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. (c) The controlling entity shall permanently affix to its 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, the name and address of the distributor to give the notices provided for in this chapter. (d) The controlling entity shall maintain each newsrack in a neat and clean condition, and in good repair at all times. (e) All newsracks shall have a uniform light brown finish. Provided, however, that newsracks may be of any color if they are shielded from view on three sides in a covering built and permitted in accordance with the City's Bullding Code. (D) Restrictions on Advertising: Newsracks shall not be used for advertising or publicity purposes other than that pertaining to the display, sale or purchase of the newspaper or news periodicals sold or distributed therein. Only one (1) advertising sign, not exceeding two square feet in area, may be placed on a newsrack. In addition to the advertising sign, the controlling entity may display once, on a newsrack, the name of the publication. The name of the publication may be displayed in lettering no greater than 12" in height. (E) Abandonment: In the event a newsrack remains empty for a period of 30 continuous days, it shall be deemed abandoned, and may be treated in the same manner as provided in (F) below for movable fixtures in violation of the provisions of this subchapter. (F) Enforcement; Correction of Violation: (1) Upon determination by a Code Enforcement Officer that a movable fixture has been installed, used, or maintained in violation of the provisions of this subchapter. An order to correct the offending condition shall be issued to the entity controlling the movable fixture. (2) The order to correct the offending condition shall specifically describe the offending condition and/or 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. (3) Failure to properly correct the offending condition or violation within 15 days after the mailing date of the order, shall 5 ORD. NO. 15-92 result in the offending movable fixture being removed by the city. Any movable fixture removed by the city hereunder shall be stored at the controlling entity's expense for a period of 30 days. The movable fixture shall be released upon a proper showing of ownership and payment of .any and all storage charges. In the event the movable fixture is not claimed within the 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. (4) If the controlling entity is not identified on the moveable fixture, it will be considered abandoned and posted as such. (5) If the movable fixture is posted as abandoned and not removed within 7 days from the date of posting, or the City is not contacted by the controlling entity within 7 days from receipt of the order, the City may remove the movable fixture immediately. The City shall store the movable fixture for 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 15 days of claim being made, the City may dispose of the movable fixture. (6) At least ten 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 and shall provide the controlling entity identified on the movable fixture, or if other- wise 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 it 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. (7) In the event the controlling entity appeals the order to correct the offending condition, as provided for in Subsection 6.3.3(G), below, then removal of the movable fixture shall be stayed pending final disposition of the appeal, which final dis- position shall include any judicial review. The city shall reimburse the controlling entity any storage charges paid pursuant to an order issued by the city in the event the decision on the appeal is rendered favorable to the controlling entity. (G) Appeals: Any person or controlling entity aggrieved by any order, finding, or determination, taken under the provisions of this ordinance, (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 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. The Code Enforcement Board shall hold a hearing on the appeal no later than 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 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 15 days of the hearing and 6 ORD. NO. 15-92 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. (H) The use of a bench for advertising purposes is strictly prohibited. Section 2. That all ordinances or parts of ordinances which are in conflict herewith are hereby repealed. Section 3. 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 than the part declared to be invalid. Section 4. That this ordinance shall become effective i~edi- ately upon its passage on second and final reading; provided, however that the City's formal enforcement measures shall not begin for a period of one hundred twenty (120) days. PASSED AND ADOPTED in regular session on second and final reading on this the ~6th day of 199 2 ATTEST: Ci~ Clerk ~ ' -r First Reading May 26, 1992 Second Reading June 16, 1992 news 1. ord 7 ORD. NO. 15-92 £1TY DF I)ELAI:I¥ BEACH CITY ATTORNEY'S OFFICE FACSIMILE 4~7/278~4755 Wr~ter ' (407) 243-~092 MEMO~NDUM Date: June 23, 1992 To: Alison MacGregor Harty, City Clerk From: Jeffrey S. Kurtz, City Attorney//. Subject: Ordinance No. 15-92 It would be appreciated if you would forward a fully executed copy of Ordinance No. 15-92 regulating movable fixture locations within the City to the following people: City Attorney's Office David Harden Lula Butler Rich Bauer Greg Luttrell David Kovacs Thank you. JSK:sh ~ fixture2.jsk MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: ~CITY MANAGER SUBJECT: AGENDA ITEM # /O~ - MEETING OF JUNE 16, 1992 ORDINANCE NO. 15-92 DATE: June 12, 1992 This is the second reading of an ordinance amending the Land Development Regulations by enacting a new Section 6.3.3, "Newsracks, Benches and Other Unattached Fixtures" to provide for the application of this section to all movable fixtures within the right-of-way; providing standards for installation and maintenance of newsracks; providing for enforcement by the Code Enforcement Department; and providing for specific appellate remedies. This ordinance is a revised version of the ordinance presented at the April 14, 1992 regular meeting. City staff has met with representatives of the newspaper companies to discuss their concerns with the ordinance. As a result, some of the standards regarding newsrack locations have been modified. No other substantive revisions were made to the ordinance. Recommend approval of Ordinance No. 15-92 on second and final reading. CITY JIF I]ELAAV BER[H CITY ATTORNEY'S OFFICE FACSIblILE 4~7'278-4755 (407) 243-7092 MEMORANDUM Date: May 21, 1992 To: City Commission From: Jeffrey S. Kurtz, City Attorney~::~ Subject: Movable Fixture Ordinance; Our File No. 13-79.001 This ordinance is a revised version of the ordinance presented at your April 14, 1992 meeting. City staff met with represen- tatives of the newspaper companies to discuss their concerns with the ordinance. As a result, some of the standards regarding newsrack locations have been modified. (6.3.3(B)(6)) No other substantial revisions were made to the ordinance. The ordinance will be presented for first reading on May 26, 1992. Should any Commissioner have any questions concerning this matter, please do not hesitate to contact our office. JSK:sh cc: David Harden, City Manager Chris Brown Jerry Budney Joanne Fanizza movable.dnt ORDINANCE NO. ~ ~_~___ AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ARTICLE 6.3, "USE AND WORK IN THE PUBLIC RIGHT-OF-WAY", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY REPEALING, "NEWSRACKS", AND ENACTING A NEW SECTION 6.3.3, "NEWSRACKS, BENCHES AND OTHER UNATTACHED FIXTURES" TO PROVIDE FOR THE APPLICATION OF THIS SECTION TO ALL MOVABLE FIXTURES WITHIN THE RIGHT-OF-WAY; PROVIDING FOR DEFINITIONS; PROVIDING FOR OBJECTIVE STANDARDS FOR THE LOCATION OF MOVABLE FIXTURES IN THE RIGHT-OF-WAY; PROVIDING STANDARDS FOR INSTALLA- TION AND MAINTENANCE OF NEWSRACKS; ' PROVIDING FOR ENFORCEMENT BY CODE ENFORCEMENT DEPARTMENT; PROVID- ING FOR SPECIFIC APPELLATE REMEDIES; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVID- ING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach has invested millions of dollars in installing and maintaining streetscaping and landscaping along the public rights-of-way within Delray Beach; and, WHEREAS, the City of Delray Beach is in the process of imple- menting its Decade of Excellence Bond program, which will provide additional funding of drainage, paving, and beautification of rights- of-way within Delray Beach; and, WHEREAS, the City Commission of the City of Delray Beach has maintained a strict sign code for a number of years, specifically prohibiting off-site advertising; and, WHEREAS, the City Commission of the City of Delray Beach is desirous of providing safe traffic areas for pedestrians, bicyclists, and motor vehicles; and, WHEREAS, the City Commission of the City of Delray Beach wishes to improve the aesthetics of rights-of-way within its residential and commercial zoned areas; and, WHEREAS, the residential rights-of-way within the City of Delray Beach have not been designed to withstand constant traffic on the nonpaved section of the right-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the aesthetics of the rights-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the drainage capabili- ties of the swale area; and, WHEREAS, the City Commission finds that newsracks which have the corporate logo and coloration on them are signs within the meaning of the City of Delray Beach Code of Ordinances; and, WHEREAS, the use of inewsracks and benches as signs is illegal in Delray Beach and damages the aesthetic quality of our residential, commercial, industrial, and open space neighborhoods; and, WHEREAS, the City Commission of the City of Delray Beach believes that improving the aesthetics of Delray Beach's residential and commercial neighborhoods will improve the quality of life for the citizens of Delray Beach; and, WHEREAS, the City Commission finds that damaged swale areas negatively affects property values adjacent to such swale areas and rights-of-way; and, WHEREAS, the City Commission of the City of Delray Beach believes there is adequate areas of distribution available. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Article 6.3, "Use and Work in the Public Right-of-Way", Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, is hereby repealed, and a new Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, is hereby enacted to read as follows: Section 6.3.3 Newsracks, Benches and Other Unattached Fixtures in the Right-of-Way: Any newsrack, bench and other non-attached fixture (hereinafter collectively referred to as "movable fixtures") which rests in whole or in part upon, or on any portion of the public right-of-way or which projects onto, into, or over any part of a public right-of-way, or which is upon private property shall be located and maintained in accordance with this Section. / (A) 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. "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. "Intersecting Sidestreet." Any roadway or driveway on which traffic is required to stop prior to entering the intersection. "Newsrack." Any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display, sale, or distribution of newspaper or other news periodicals or advertising circulars. "Paved Surfaces." Any hard maintained surface used or built for the purpose of transporting vehicles, bicycles or pedestrians. Surfaces shall include, but not be limited to, asphalt, concrete, paver block, tree grates and/or rocks. "Public Agency." The city, county, or the state. "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. "Roadway." That portion of a right-of-way improved, designed, or ordinarily used for vehicular traffic. 2 ORD. NO. "Sidewalk." Any surface within a right-of-way provided for the exclusive or primary use of pedestrians. (B) Prohibited Locations: (1) Landscaped Areas: Movable fixtures shall not be placed or installed or erected on any landscaped area within an improved public right-of-way. The landscaped areas include, but are not limited to, those areas in which the following ground cover materials placed: (a) Sod, (b) Decorative plants, or (c) Native plants maintained to match the surrounding flora. (2) 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 defined as follows: (a) 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; (b) Utility Poles: Movable fixtures shall not be physically attached, chained, or bolted to a u?ility pole; (c) Fire Hydrants: Movable fixtures shall not be located within 25 feet of a fire hydrant. (3) Traffic Control Devices: Movable fixtures shall not be Dhysically attached, chained, bolted, or erected to obstruct the function of traffic signals, traffic signs or pavement markings. These areas shall be defined as follows: (a) Traffic signals. (1) Movable fixtures shall not be physically attached, bolted, or chained to a traffic signal pole. (2) 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. (b) 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. (4) Paved Surfaces: No moveable fixture shall be placed, installed, or erected directly on a paved surface which is intended primarily for the use of motor vehicles. (a) Any movable fixture placed or maintained on a sidewalk shall leave a clear area for traffic of not less than 5 feet. (b) Any movable fixture which is placed or maintained on a bike path shall leave a clear area for traffic of not less than 8 feet. 3 ORD. NO. (5) 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: (a) The area measured within five feet of the face of a six inch high vertically faced curb. (b) The area from the edge of the travel lane on the adjacent road for the following distances: Speed Limit of Adjacent Road Distance 30 mph or less 10 feet 35 mph or greater 18 feet (c) The area measured from the edge of an auxiliary lane of the adjacent street within the following distances. Speed Limit of Adjacent Road Distance 30 mph or less 6 feet 35 mph or greater 10 feet (6) Sight 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 3 feet above the payment elevation. Sight areas are further defined as the area extending from the intersect- ing sidestreet and a parallel line 15' from the edge of pavement running for 115 feet where the street on which the newsrack is placed does not have a six inch vertically faced curb, or that area extending from the intersecting sidestreet and a parallel line 15' from the edge of pavement running for 210 feet where the street on which the newsrack is placed does have a six inch vertically faced curb. / (7) O{her Areas: Movable fixture shall not be placed, installed, or erected in any of the areas defined in this section. a) The area within 50 feet of any railroad track. b) On any city property unless the location has been specifically permitted by the City Manager or his designee. c) The area within the medians of a divided roadway. (8) Movable fixtures shall not be placed on any roadway, bike path or adjacent swale area within residential zoned districts of the City. (C) Standards for Newsracks Maintenance and Installation: (1) No more than one newsrack containing the same issue or edition of the same publication shall be located within the same block or 1,000 feet, whichever is the lesser distance, on the same side of the street, provided, however, a controlling entity may locate newsracks closer to each other if a public need is determined to exist. A public need may be established by the following method, but such method is not exclusive. A controlling entity desiring to establish a public need, may place a newsrack at the proposed location after notice to the City for a period of one month. If during that one month test period, the average circulation from that newsrack equals or exceeds 75 percent of the capacity of the newsrack, the public need is established and the additional newsrack may remain at its location. 4 ORD. NO. (2) Any newsrack which in whole or in part rests upon in or over any public property or right-of-way shall comply with the following standards: (a) A newsrack shall not exceed 4 feet, 6 inches in height, 40 inches wide, or 24 inches in depth. (b) Coin operated newsracks shall be equipped 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. (c) The controlling entity shall permanently affix to its 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, the name and address of the distributor to give the notices provided for in this chapter. (d) The controlling entity shall maintain each newsrack in a neat and clean condition, and in good repair at all times. (e) All newsracks shall have a uniform light brown finish. Provided, however, that newsracks may be of any color if they are shielded from view on three sides in a covering built and permitted in accordance with the City's Building Code. (D) Restri~tions on Advertising: Newsracks shall not be used for advertising or publicity purposes other than that pertaining to the display, sale or purchase of the newspaper or news periodicals sold or distributed therein. Only one (1) advertising sign, not exceeding two square feet in area, may be placed on a newsrack. In addition to the advertising sign, the controlling entity may display once, on a newsrack, the name of the publication. The name of the publication may be displayed in lettering no greater than 12" in height. (E) Abandonment: In the event a newsrack remains empty for a period of 30 continuous days, it shall be deemed abandoned, and may be treated in the same manner as provided in (F) below for movable fixtures in violation of the provisions of this subchapter. (F) Enforcement; Correction of Violation: (1) Upon determination by a Code Enforcement Officer that a movable fixture has been installed, used, or maintained in violation of the provisions of this subchapter. An order to correct the offending condition shall be issued to the entity controlling the movable fixture. (2) The order to correct the offending condition shall specifically describe the offending condition and/or 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. (3) Failure to properly correct the offending condition or violation within 15 days after the mailing date of the order, shall 5 ORD. NO. result in the offending movable fixture being removed by the city. Any movable fixture removed by the city hereunder shall be stored at the controlling entity's expense for a period of 30 days. The movable fixture shall be released upon a proper showing of ownership and payment of any and all storage charges. In the event the movable fixture is not claimed within the 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. (4) If the controlling entity is not identified on the moveable fixture, it will be considered abandoned and posted as such. (5) If the movable fixture is posted as abandoned and not removed within 7 days from the date of posting, or the City is not contacted by the controlling entity within 7 days from receipt of the order, the City may remove the movable fixture immediately. The City shall store the movable fixture for 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 15 days of claim being made, the City may dispose of the movable fixture. (6) At least ten 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 and shall provide the controlling entity identified on the movable fixture, or if other- wise known, with written notification of the auction by certified mail, retur9 receipt requested. Provided, however, that the City Manager, or/his designee, may dispose of the movable fixture in any manner it 'sees fit, including negotiating the release of the movable fixture to the controlling entity for less than full payment of all storage charges Jf 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. (7) In the event the controlling entity appeals the order to correct the offending condition, as provided for in Subsection 6.3.3(G), below, then removal of the movable fixture shall be stayed pending final disposition of the appeal, which final dis- position shall include any judicial review. The city shall reimburse the controlling entity any storage charges paid pursuant to an order issued by the city in the event the decision on the appeal is rendered favorable to the controlling entity. (G) Appeals: Any person or controlling entity aggrieved by any order, finding, or determination, taken under the provisions of this ordinance, (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 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. The Code Enforcement Board shall hold a hearing on the appeal no later than 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 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 15 days of the hearing and 6 ORD. NO. 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. (H) The use of a bench for advertising purposes is strictly prohibited. Section 2. That all ordinances or parts of ordinances which are in conflict herewith are hereby repealed. Section 3. 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 than the part declared to be invalid. Section 4. That this ordinance shall become effective immedi- ately upon its passage on second and final reading; provided, however that the City's formal enforcement measures shall not begin for a period of one hundred twenty (120) days. PASSED AND ADOPTED in regular session on second and final reading on this the __ day of __, 199 MAYOR ATTE ST: City Clerk / First Reading / Second Reading. newsl.ord 7 ORD. NO. MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER~ SUBJECT: AGENDA ITEM ~ /~ - MEETIN$ OF MAY 26, 1992 ORDINANCE NO. 15-92 DATE: May 22, 1992 This is a first reading of an ordinance amending the Land Development Regulations by enacting a new Section 6.3.3, "Newsracks, Benches and Other Unattached Fixtures" to provide for the application of this section to all movable fixtures within the right-of-way; providing standards for installation and maintenance of newsracks; providing for enforcement by the Code Enforcement Department; and providing for specific appellate remedies. This ordinance is a revised version of the ordinance presented at the April 14, 1992 regular meeting. City staff has met with representatives of the newspaper companies to discuss their concerns with the ordinance. As a result, some of the standards regarding newsrack locations have been modified. No other substantive revisions were made to the ordinance. Recommend approval of Ordinance No. 15-92 on first reading. £1TV DF DELR;I¥ BERgH CITY ATTORNEY'S OFFICE FACSIMILE 407/278~4755 Writer's DIrect Line (407) 243-7092 MEMORANDUM Date: / April 10, 1992 To: City Commission From: Jeffrey S. Kurtz, City Attorney/ Subject: Newsrack Ordinance; Our File #F3-79.001 On Thursday, April 2, 1992 I met with attorneys and representa- tives of the major newspapers doing business in Delray Beach concerning the newsrack ordinance. The newspaper companies were uniformly opposed to the ordinance and indicated that if it was passed and enforced as it is currently drafted, litiga- tion would ensue. The newspaper representatives suggested that a committee be formed consisting of City and newspaper staff to determine and review all current newspaper locations and produce a report on those locations. The most logical City staff person to be involved in such an exercise would be our Traffic Engineer, Greg Luttrell, and it is my estimation that his involvement in such an exercise would require a minimum of three to five full work days. The report, as outlined by the newspapers, would identify particular problem areas and could serve as a basis for a potential compromise on certain existing locations. The newspaper representatives indicated that they would rather lock into their existing locations in an exchange for promises of non-ex- pansion rather than dealing with the objective criteria set forth in the ordinance. The newspapers believe that enactment of the current ordinance would severely restrict the availabil- ity of newsrack locations. The Palm Beach Post, for example, indicated that in its review of the location requirements, only six of their approximately 70 locations would not violate some aspect of the ordinance. Greg Luttrell and I have modified many of those standards which may reduce slightly the number of current newsrack locations affected. The revisions were made at Mr. Luttrell's suggestion and better define the clear zone and site areas. The City concurs that a great many of the current newsrack locations would be eliminated from consideration as the current ordinance is drafted because such locations are inappropriate for newsracks. It is also the City's position that numerous Memo to City Commission April 10, 1992 Page 2 different locations would be available for the placement of newsracks. The newspapers, while understanding some of our concerns, believe that many of our problem areas could be better addressed by the placement of driveways or expanded paved areas which would allow drivers to pull off the roadway to get newspapers without leaving a paved surface. At this point in time, however, the newspapers have not indicated any willing- ness to pay for the construction or maintenance of any such areas. Instead they have alluded to compromises they have reached in other jurisdictions wherein they have agreed to limit newsracks to current existing locations. I have some concerns with respect to the legal consideration for the newspapers to enter into the agreements and that would necessarily affect the enforceability of the agreements, but moreover, even if enforceable, it is unlikely that the advertising circulars and smaller newspapers would be willing to similarly restrict themselves. In essence, we would be relying solely on the good faith and good will of the major newspapers for enforcement. With respect to the standards for the newsracks themselves, the newspapers once again had uniform opposition to the determina- tion that newsracks constituted signage and indicated that even if agreement was reached with respect to locations, they would file suit over our uniform color or shielding requirement. The Sun Sentinel further indicated that it had recently filed suit over Coral Springs' attempt to mandate such a requirement. It should be noted that the meeting did not end without some compromise being achieved. I agreed to recommend that the proposed width of newsracks be increased from 32" to 40". The 32" had originally been inserted to allow for double racks. Apparently the industry standard for such double racks has increased from 32" to 40". This would still be a reduction in width from having two single racks at a location versus the one double rack. Direction is requested from the Commission as to whether further attempts to modify the ordinance or enter into agree- ments with the newspapers concerning newsrack location and standards is desired. The principle areas of potential compromise or conflict are as follows: 1. Location of the newsracks. Memo to City Commission April 10, 1992 Page 3 2. Number of newsracks. 3. Color of newsracks. 4. Size of lettering or logo on newsracks. 5. Whether the regulations would be imposed on private property as well as public property and rights-of-way. If the Commission feels that the uniform color is essential to any satisfactory ordinance, it would be my recommendation that the ordinance be passed in its current or slightly modified form. I would not suggest that staff time be exerted in an effort to jointly work out a proposed compromise. It is my clear understanding that a court challenge would follow, if the only change in the ordinance was the uniform color requirement. If litigation is inevitable, I would not waste staff time searching for a compromise until definitive recommendations have been put forth by the newspapers. Should any Commissioners have any questions concerning this matter, please do not hesitate to contact our office. A copy of the modified ordinance is attached for your perusal. JSK:jw Attachment cc: David Harden, City Manager Greg Luttrell, Traffic Engineer Rich Bauer, Code Enforcement Officer newsrakl.jsk ORDINANCE NO. i~ AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ARTICLE 6.3, "USE AND WORK IN THE PUBLIC RIGHT-OF-WAY", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY REPEALING, "NEWSRACKS", AND ENACTING A NEW SECTION 6 · 3 · 3, "NEWSRACKS, BENCHES AND OTHER UNATTACHED FIXTURES" TO PROVIDE FOR THE APPLICATION OF THIS SECTION TO ALL UNATTACHED FIXTURES WITHIN THE RIGHT-OF-WAY; PROVIDING FOR DEFINITIONS; PROVIDING FOR OBJECTIVE STANDARDS FOR THE LOCATION OF UNATTACHED FIXTURES IN THE RIGHT-OF-WAY; PROVIDING STANDARDS FOR INSTALLA- TION AND MAINTENANCE OF NEWSRACKS; PROVIDING A BAN ON THE LOCATION OF NEWSRACKS WITHIN RIGHTS-OF-WAY OF SINGLE FAMILY RESIDENTIAL DISTRICTS; PROVIDING FOR ENFORCEMENT BY CODE ENFORCEMENT DEPARTMENT; PROVID- ING FOR SPECIFIC APPELLATE REMEDIES; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVID- ING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach has invested millions of dollars in installing and maintaining streetscaping and landscaping along the public rights-of-way within Delray Beach; and, WHEREAS, the City of Delray Beach is in /the process of imple- menting its Decade of Excellence Bond program' which will provide additional funding of drainage, paving, and beautification of rights- of-way within Delray Beach; and, WHEREAS, the City Commission of the City of Delray Beach has maintained a strict sign code for a number of years, specifically prohibiting off-site advertising; and, WHEREAS, the City Commission of the City of Delray Beach is desirous of providing safe traffic areas for pedestrians, bicyclists, and motor vehicles; and, WHEREAS, the City Commission of the City of Delray Beach wishes to improve the aesthetics of rights-of-way within its residential and commercial zoned areas; and, WHEREAS, the residential rights-of-way within the City of Delray Beach have not been designed to withstand constant traffic on the nonpaved section of the right-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the aesthetics of the rights-of-way; and, ~ WHEREAS, the City ~iCommission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the drainage capabili- ties of the swale area; and, WHEREAS, the City COmmission finds that newsracks which have the corporate logo and coloration on them are signs within the meaning of the City of Delray Beach Code of Ordinances; and, WHEREAS, the use of newsracks and benches as signs is illegal in Delray Beach and damages the aesthetic quality of our residential and commercial zoned neighborhoods; and, WHEREAS, the City Commission of the City of Delray Beach believes that improving the aesthetics of Delray Beach's residential and commercial neighborhoods will improve the quality of life for the citizens of Delray Beach; and'~ WHEREAS, the City ~ommission finds that damaged swale areas negatively affects property values adjacent to such swale areas and rights-of-way; and, WHEREAS, the City Co,scion of the City of Delray Beach believes there is adequate areas'of distribution available. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Article 6.3, "Use and Work in the Public Right-of-Way", Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, is hereby repealed, and a new Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, is hereby enacted to read as follows: Section 6.3.3 Newsracks, Benches and Other Unattached Fixtures'in the Right-of-Way: Any newsrack, bench and other non-attached fixture (hereinafter collectively referred to as "movable fixtures") which rests in whole or in part upon, or on any portion of the public right-of-way or which projects onto, into, or over any part of a, public right-of-way, or which is upon private property shall be loca~.%d and maintained in accordance with this Section. (A) 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 parking area. "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. "Newsrack." Any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display, sale, or distribution of newspaper or other news periodicals or advertising circulars. "Paved Surfaces." Any hard maintained surface used or built for the purpose of transporting vehicles, bicycles or pedestrians. Surfaces shall include, but not be limited to, asphalt, concrete, paver block, tree grates and/or rocks. "Public Agency." The city, county, or the state. "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. "Roadway." That portion of a right-of-way improved, designed, or ordinarily used for vehicular traffic. 2 ORD. NO. "Sidewalk." Any surface within a right-of-way provided for the exclusive or primary use of pedestrians. "Swale." Any area within a right-of-way which is not either a bike path, sidewalk, or roadway. The terms shall also include any area within a roadway which is not open to vehicular travel. (B) Prohibited Locations: (1) Landscaped Areas: Movable fixtures shall not be placed or installed or erected on any landscaped area within an improved public right-of-way. The landscaped areas include, but are not limited to, those areas in which the following ground cover materials placed: (a) Sod, (b) Decorative plants, or (c) Native plants maintained to match the surrounding floor. (2) 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 defined as follows: (a) Drainage structures: Movable fixtures shall not be placed within 15 feet of any drainage structure, inlet pipe, or other physical object meant to carry water for, drainage purposes, ! (b) Utility Poles: Movable fixtures shall not be physically attached, chained, bolted to a utility pole, or be placed within 15 feet of a utility pole, (c) Fire Hydrants: Movable fixtures shall not be located within 25 feet of a fire hydrant. (3) Traffic Control Devices: Movable fixtures shall~not be installed or erected to obstruct the function of traffic signals, traffic signs or paved markings. These areas shall be defined as follows: (a) Traffic signals. (1) Movable fixtures shall not be physical, ly attached, bolted, or chained to a traffic signal pole, or be within 15 feet of a traffic signal pole. (2) 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 30 inches away from such pedestrian traffic signal push buttons. (b) Traffic signs. Movable fixtures shall not be physically attached, bolted, chained to, or touch a traffic sign or post used for the support of a traffic sign or signs. (4) Paved Surfaces: No moveable fixture shall be placed, installed, or erected indirectly on a paved surface which is intended primarily for the use of motor vehicles. (a) Any movable fixture shall be placed or maintained on a sidewalk shall leave a clear area for traffic of not less than 5 feet. 3 ORD. ~0. (b) Any movable fixture which is placed or maintained on a bike path shall leave a clear area for traffic of not less than 8 feet. ~- ~ (5) Clear Zones: Movable fixtures shall not be installed, attached, placed or erected within clear zones as defined in this section. Clear zones are defined as follows: (a) The area within five feet of the face of a six inch high vertically faced curb. (b) The area from the edge of the travel lane on the adjacent road for the following distances: Speed Limit of Adjacent Road Distance 25 mph 6 feet 30 10 feet 35 18 feet 40 - 45 24 feet 50 or more 30 feet If the speed limit of the road is not visible, it is assumed that the speed limit is 30 mph for purposes of this ordinance. If two roads with different speed limits intersect, the greater speed limit distance shall prevail. (c) The area measured from the edge of an auxiliary lane of the adjacent street within the following d%~tances. Speed Limit Auxiliary Lane Distance 25 mph 6 feet 30 10 feet 35 18 feet 40 - 45 24 feet 50 or more 30 feet If the speed limit of the road is not visible, it is assumed that the speed limit is 30 mph for purposes of this ordinance. If two roads with different speed limits intersect, the greater speed limit distance shall prevail. (6) Sight Areas: Movable fixtures shall not be placed, attached, installed or erected within the sight areas defined in this section. For purposes of this ordinance, sight areas extend vertically 3 feet from the pavement elevation. (a) Traffic Sign Sight Area - The sight area adjacent to traffic signs shall be the triangular area in advance of the traffic sign delineated by the following area: a line extending from the pavement in a perpendicular direction to the base of the traffic sign, another line along the pavement for 300 feet, and the hypotenuse connecting the two lines. (b) Residential Driveway Sight Areas 1. Single Family Residences - The sight area adjacent to single family residential driveways shall be the rectangular area extending 30 feet from the edge of the driveway at the point where the driveway meets the pavement edge, ~9xtending 15 feet from the pavement edge towards the residence. 2. Other Residences - The sight area adjacent to all other residential driveways shall be a triangular area defined as follows: A line commencing at the center of the driveway approach lane extending 15 feet from the edge of the pavement shall define the base of the 4 ORD. NO. triangle, the hypotenuse shall be a straight line connecting this point with a point X feet both left and right measured from the center of the driveway approach lane along the near side edge of pavement. Speed Limit Distance 25 - 35 mph 325 feet 40 400 feet 45 475 feet 50 or more 650 feet (c) Non-Residential Driveway Sight Area. The sight area adjacent to non-residential driveways shall be that asea as defined'in Section Newsracks shall not occupy a space measured as defined in Section 6.3.3 B(5)(b)2. (7) Other Areas: Movable fixtures shall not be placed, attached, installed, or erected in any of the following areas: (a) The area within 50 feet of any railroad track, (b) On any city property, unless the location has been specifically permitted by the City Manager or his designee, and (c) The area within medians of a divided roadway. (8) Movable fixtures shall not be placed on any roadway, bike path, sidewalk or adjacent swale area wSthin single family residential zoned districts of the City. / / (9) The use of a bench for advertising purposes is strictly prohibited. (D) Standards for Newsracks Maintenance and Installation: (1) No more than one newsrack containing the same issue or edition of the same publication shall be located within the same block or 1,000 feet, whichever is the lesser distance, on the same side of the street, provided, however, a controlling entity may locate newsrack closer to each other if a public need is determined to exist. A public need may be established by the following method, but such method is not exclusive. A controlling entity desiring to establish a public need, may place a newsrack at the proposed location after notice to the City for a period of one month. If during that one month test period, the average circulation from that newsrack equals or exceeds 75 percent of the capacity of the newsrack, the public need is established and the newsrack may remain at its location. (2) Any newsrack which in whole or in part rests upon, in, or over any public property or right-of-way shall comply with the following standards: (a) Single newsracks shall not exceed 4 feet, 6 inches in height, 40 inches wide and 24 inches in depth. (c) Coin operated newsracks shall be equipped 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 col~ return mechanism shall be maintained in good working order. (d) The controlling entity shall permanently affix to its newsracks a label which states a 24 hour operable telephone number of a working telephone service which the 5 ORD. NO. 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, the name and address of the distributor to give the notices provided for in this chapter. (e) The .controlling entity shall maintain each newsrack in a neat and clean condition, and in good repair at all times. (f) All newsracks shall have a uniform light brown finish. Provided, however, that newsracks may be of any color if they are shielded from view on three sides in a covering built and permitted in accordance with the City's Building Code. (g) All newsracks which are placed, attached, installed or erected in accordance with this ordinance on surfaces intended primarily for the use of pedestrians shall leave a clear area for traffic of not less than 5 feet. (h) All newsracks which are placed, attached, installed or erected on paved surfaces intended primarily for the use of bicycles shall leave a clear area for traffic of not less than 8 feet. / (D) Restrictions on Advertising: / Newsracks shall not be used for advertising or publicity purposes other than that pertaining to the display, sale or purchase of the newspaper or news periodicals sold or dis- tributed therein. Only one (1) advertising sign, not exceeding two square feet in area, may be placed on a newsrack'. In addition to the advertising sign, the con- trolling entity may display once, on a newsrack, the name of the publication. The name of the publication may be displayed in lettering no greater than 12" in height. (E) Abandonment: In the event a newsrack remains empty for a period of 30 continuous days, it shall be deemed abandoned, and may be treated in the same manner as provided in section (F) below for movable fixtures in violation of the provisions of this subchapter. (F) Enforcement; Correction of Violation: (1) Upon determination by a Code Enforcement Officer that a movable fixture has been installed, used, or maintained in violation of the provisions of this subchapter. An order to correct the offending condition shall be issued to the entity controlling the movable fixture. (2) The order~to correct the offending condition shall specifically describe the offending condition and/or violation and suggest actions necessary to correct the condition or violation. Such order shall be mailed by certified mail return receipt requested to the controlling entity. (3) Failure to' properly correct the offending condition or violation within 15 days after the mailing date of the order, shall result in the offending movable fixture being removed by the city. Any movable fixture removed by the city hereunder shall be stored at the controlling entity's expense for a period of 30 days. The movable fixture shall be 6 ORD. NO. released upon a proper showing of ownership and payment of any and all storage charges. In the event the movable fixture is not claimed within the 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. (4) If the controlling entity is not identified on the moveable fixture, it will be considered abandoned and posted as such. (5) If the movable fixture is posted as abandoned and not removed within 7 days from the date of posting, or the City is not contacted by the controlling entity within 7 days from receipt of the order, the City may remove the movable fixture immediately. The City shall store the movable fixture for 30 days and if not claimed within that time, the City may dispose of the movable fixture in any manner it deems appro- priate. 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 15 days of claim being made, the City may dispose of the movable fixture. (6) At least ten 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 and shall 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 it 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 controlling entity is of the opinion that such disposal will be more advantageous to the City than auctioning off the movable fixture. (7) In the event the controlling entity appeals the order to correct the offending condition, as provided for in Subsection 6.3.3(G), below, then removal of the movable fixture shall be stayed pending final disposition of the appeal, which final disposition shall include any Judicial review. The city shall reimburse the controlling entity any storage charges paid pursuant to an order issued by the city in the event the decision on the appeal is rendered favorable to the controlling entity. (G) Appeals: Any person or controlling entity aggrieved by any order, finding, or determination, taken under the provisions of this ordinance, (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 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. The Code Enforcement Board shall hold a hearing on the appeal no later than 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 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 7 ORD. NO. filed in the Office of the City Clerk within 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. Section 2. That all ordinances or parts of ordinances which are in conflict herewith are hereby repealed. Section 3. 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 than the part declared to be invalid. Section 4. That this ordinance shall become effective immedi- ately upon its passage on second and final reading; provided, however that the City's formal enforcement measures shall not begin for a period of one hundred twenty (120) days. PASSED AND ADOPTED in regular session on Second and final reading on this the __ day of , 199 . MAYOR ATTEST: City Clerk First Reading Second Reading 8 ORD. NO. MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITYMANAGERi?V'! SUBJECT: AGENDA ITEM % ~2 0/~.- MEETING OF APRIL 14. 1992 QRDINANCE NO. 15-92 DATE: April 10, 1992 This is a first reading of an ordinance regulating the placement of newsracks and other movable fixtures within the City's rights-of-way. At the time the agenda was completed, the City Attorney's office was still revising the draft ordinance. The ordinance and related backup material will be forwarded to you prior to the April 14th regular meeting. CITY COMMISSION DOCUMENTATION TO: DAVID T. HARDEN, CITY MANAGER FROM: D~VID J. KOVACS, DIRECTOR DEPARTMENT OF PLANNING AND ZONING SUBJECT: MEETING OF APRIL 14, 1992 NEWSRACK ORDINANCE ACTION REQUESTED OF THE COMMISSION: The action requested of the City Commission is that of approval of this proposed ordinance on first reading. The ordinance is being presented by the Office of the City Attorney. BACKGROUND: This item was initiated by direction of the City Commission. It has been previously discussed in work sessions. A draft ordinance was reviewed and referred to the Planning and Zoning Board. PLANNING AND ZONING BOARD CONSIDERATION: The Planning and Zoning Board formally reviewed this item at its meeting of March 26th at which time it was forwarded with the following recommendation and comment: That the ordinance be approved upon first reading on April 14th and that the subject matter and direction of the regulations is recommended for approval. However, the Board will give further review to standards which are contained therein and will provide further recommendations at its meeting of April 20th. Those recommendations will be presented to the City Commission at the time of the public hearing and second reading. Those recommendations will not affect the caption. RECOMMENDED ACTION: By motion, approval of the ordinance on first reading and set a public hearing date. Attachment: * Ordinance by others CITY DF nELRflV BER[H CITY ATTORNEY'S OFFICE ~.~.~,~,,~.~~ ~' ~ .?,,~.~?~~ * ~"^~ '~"' ~°'~^ ~'~ Writer's Direct Line (40?) 243-7092 MEMORANDUM Date: February 25, 1992 To: City Commission From: Jeffrey S. Kurtz, City Attorney Subject: Newsracks and Other Movable Fixtures Ordinance Our File #13-79-001 Attached is the long awaited proposed ordinance dealing with newsracks and movable fixtures. The ordinance has been designed to restrict the negative aesthetic and safety problems associated with benches, newsracks and the like. The ordinance places restrictions on the location of movable fixtures within the City's rights-of-way based on aesthetic grounds and maintenance of a clear zone for pedestrian and vehicular travel. The ordinance regulates the size of newsracks, along with their coloration and placement. Newspaper vendors will be most concerned with three aspects of the ordinance: (1) ban on the placement of newsracks with single family residential zoned areas; (2) limitation on color and therefore limitation on newsracks as advertising vehicles; (3) and uniformity of the newsracks as to size. The ordinance places enforcement in the hands of Code Enforcement rather than Engineering. In all likelihood the newspapers will challenge the constitutionality of this ordinance; however, I believe that this is proper regulation of their distribution rights if the City Commission concurs in the importance of this ordinance from an aesthetic and traffic safety perspective. JSK: jw ~/~ 0~¥;~ ~9~z~Cc/, ~ Attachment ~r~7~ ~/~ newsrack.jsk 03/11/92 10:48 8407 243 3774 CITY/DELRAY BCH. [~001 ACT I V 1TY REPORT TRANSMISSION OK CONNECTION TEL 13057357838 CONNECTION ID G3 START TIME 03/11 10:43 USAGE TIME 04'37 PAGES 8 'CITY OF DELRAY BEACH 100 N.W. 1st AVENUE, DELRAY BEACH, FLORIDA 33444 407/243-7000 FAX NUMBER 407/243-3774 FAX TRANSMITTAL DATE: '--~- //- CITY: TOT~ NUMBER OF PAGES INCLUDING T~S~~ S~ET: COUNTS: TELEPHONE COPIES TO: IF YOU DO NOT RECEIVE ALL OF THE ABOVE REFERENCED PAGES, PLEASE CONTACT THE SENDER NOTED ABOVE ASAP. ORDINANCE NO. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ARTICLE 6.3, "USE AND WORK IN THE PUBLIC RIGHT-OF-WAY", OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY REPEALING, "NEWSRACKS", AND ENACTING A NEW SECTION 6.3.3, "NEWSRACKS, BENCHES AND OTHER UNATTACHED FIXTURES" TO PROVIDE FOR THE APPLICATION OF THIS SECTION TO ALL UNATTACHED FIXTURES WITHIN THE RIGHT-OF-WAY; PROVIDING FOR DEFINITIONS; PROVIDING FOR OBJECTIVE STANDARDS FOR THE LOCATION OF UNATTACHED FIXTURES IN THE RIGHT-OF-WAY; PROVIDING STANDARDS FOR INSTALLA- TION AND MAINTENANCE OF NEWSRACKS; PROVIDING A BAN ON THE LOCATION OF NEWSRACKS WITHIN RIGHTS-OF-WAY OF SINGLE FAMILY RESIDENTIAL DISTRICTS; PROVIDING FOR ENFORCEMENT BY CODE ENFORCEMENT DEPARTMENT; PROVID- ING FOR SPECIFIC APPELLATE REMEDIES; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVING CLAUSE; PROVID- ING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach ~has invested millions of dollars in installing and maintaining streetscaping and landscaping along the public rights-of-way within Delray Beach; and, WHEREAS, the City of Delray Beach is in the process of imple- menting its Decade of Excellence Bond program which will provide additional funding of drainage, paving, and beautification of rights- of-way within Delray Beach; and, WHEREAS, the City Commission of the City of Delray Beach has maintained a st~lct sign code for a number of years, specifically prohibiting off-Site advertising; and, WHEREAS, the City Commission of the City of Delray Beach is desirous of providing safe traffic areas for pedestrians, bicyclists, and motor vehicles; and, WHEREAS, the City Commission of the City of Delray Beach wishes to improve the aesthetics of rights-of-way within its residential and commercial zoned areas; and, WHEREAS, the residential rights-of-way within the City of Delray Beach have not been designed to withstand constant traffic on the nonpaved section of the right-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the aesthetics of the rights-of-way; and, WHEREAS, the City Commission finds that vehicular traffic pulling onto swale areas on a continuing non-emergent basis causes damage to the swale area which negatively affects the drainage capabili- ties of the swale area; and, WHEREAS, the City Commission finds that newsracks which have the corporate logo and coloration on them are signs within the meaning of the City of Delray Beach Code of Ordinances; and, WHEREAS, the use of newsracks and benches as signs is illegal in Delray Beach and damages the aesthetic quality of our residential and commercial zoned neighborhoods; and, WHEREAS, the City Commission of the City of Delray Beach believes that improving the aesthetics of Delray Beach's residential and commercial neighborhoods will improve the quality of life for the citizens of Delray Beach; and, WHEREAS, the City Commission finds that damaged swale areas negatively affects property values adjacent to such swale areas and rights-of-way; and, WHEREAS, the City Commission of the City of Delray Beach believes there is adequate areas of distribution available. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Article 6.3, "Use and Work in the Public Right-of-Way", Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby repealed and a new Section 6.3.3, "Newsracks" of the Land Development Regulations of the Code of Ordi- nances of the Gity of Delray Beach, be and the same is hereby enacted to read as follow~: Section 61'3.3 Newsracks, Benches and Other Unattached Fixtures in the Right-of-Way: Any newsrack, bench and other non-attached fixture (hereinafter collectively referred to as "movable fixtures") which rests in whole or in part upon, or on any portion of the public right-of-way or which projects onto, into, or over any part of a public right-of-way, or which is upon private property shall be located and maintained in accordance with this Section. (A) 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. "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. "Newsrack." Any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display, sale, or distribution of newspaper or other news periodicals or advertising circulars. "Public Agency." The city, county, or the state. "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. "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. "Swale." Any area within a right-of-way which is not either a bike path, sidewalk, or roadway. The terms shall also include any area within a roadway which is not open to vehicular travel. 2 ORD. NO. (B) Prohibited Locations: (1) Landscaped Areas: Movable fixtures shall not be placed or installed or erected on any landscaped area within an improved public right-of-way. These areas are defined as having the follow- ing ground cover materials: (a) Sod, (b) Decorative plants, (c) Native plants maintained ?to match the surrounding floor. (2) ~Public Utilities: Movable fixtures shall not be placed, tnstalled~: or erected to obstruct the use of any public utility pole or structure. These areas are defined as follows: (a) Drainage structures: No movable fixture shall be placed within 15 feet of any drainage structure, inlet pipe, or other physical object meant to carry water for drainage purposes, (b) Utility Poles: No movable fixture shall be physically attached, chained, bolted, touched or to be placed within 15 feet of any utility pole, (c) Fire Hydrants: No movable fixture shall be located within 25 feet of any fire hydrants. (3) Traffic Control Devices: Movable fixtures shall not be installed or erected to obstruct the function of traffic signals, traffic signs or paved markings. These areas shall be defined as follows: (a) Traffic signals, / (1) No movable fixture shall be physically attached, bolted, chained, attached or be within 15 feet of a traffic signal pole. No movable fixture shall be placed to obstruct the free pedestrian flow to and from a pedestrian traffic signal push button in order to allow for handicap access. This will require movable fixtures not to be at least 30 feet away from such pedestrian traffic signal. (b) No movable fixture shall be physically attached, bolted, chained, or touch a traffic sign or post used for the support of traffic signs. (4) Paved Surfaces: For the purpose of this regulation, paved surfaces shall include any hard maintained surface used or built for the purpose of transporting vehicles, bicycles or pedestrian. Surfaces shall include, but not be limited to, asphalt, concrete, paver block, tree grates and/or rocks. No movable fixture shall be placed, installed, or erected directly on a paved surface. (a) No movable fixture shall be placed, installed, or erected directly on a paved surface which is intended primarily for the use of motor vehicles. (b) Any movable fixture which is placed or maintained on paved surface intended primarily for the use of bicycles or pedes-. trians shall leave a clear area for traffic of not less than feet. (5) Clear Zones: No movable fixture shall be installed, placed or erected within clear zones. The clear zone is defined as follows: 3 ORD. NO. (a) The area within five feet of the face of the six inch high curb. (b) The area as measured from the edge of a travel lane on the adjacent road within the following distances. If the speed limit of the road is not visibly, it shall be assumed to be 30 mph for purposes of this ordinance. Speed Limit Distance 25 - 35 18 feet 40 24 feet 45 24 feet 50 or more 30 feet (c) The area as measured from the edge of an auxiliary lane based on the legally posted speed of the adjacent street within the following distances. An auxiliary lane is defined as a turn lane. If the posted speed limit of the road is not visibly posted, it shall be assumed to be 30 mph for purposes of this ordinance. Speed Limit Auxiliary Lane Distance 25 - 35 10 feet 40 14 feet 45 14 feet ~50 or more 18 feet (6) Sight Areas: No movable fixture shall be placed, installed or erected within a sight area as defined in this section. (a) Traffic Signs - A triangular area in advance of traffic signs as defined as follows 1. Stop and Yield Signs - The area within 12 feet of the edge of pavement when no curb is present and in advanced of the 'Stop' or 'Yield' sign for a distance of 300 feet. (b) Driveways ~ No movable fixture shall occupy a space as defined in this section. 1. Residential Driveways - A. Single Family Residence - The area within 30 feet of the driveway edge measured where the driveway meets the pavement edge. B. Other Residential - The area within a triangular area defined as follows. A point 10 feet from the edge of pavement and centered on the driveway approach lane shall define the base of the triangle. (7) Other Areas: No movable fixture shall be placed, installed, or erected in any of the areas defined in this section. (a) The area within 50 feet of any railroad track. (b) On any city property unless the location has been specifically permitted by the City Manager or his designee. (c) The area within the medians of a divided roadway. (8) Newsracks shall not be placed on any roadway, bike path or adjacent swale area thereto within single family residential zoned districts of the City. 4 ORD. NO. (C) Standards for Newsracks Maintenance and Installation: (1) No more than one newsrack containing the same issue or edition of the same publication shall be located within the same block or 1,000 feet, whichever is the lesser distance, on the same side of the street, provided, however, a controlling entity may locate newsrack closer to each other if a public need is determined to exist. A public need may be established by the following method, but such method is not exclusive. A controlling entity desiring to establish a public need, may place a newsrack at the proposed location after notice to the City for a period of one month. If during that one month test period, the average circulation from that newsrack equals or exceeds 75 percent of the capacity of the newsrack, the public need is established and the newsrack may remain at its location. (2) Any newsrack which in whole or in part rests upon in or over any public property or right-of-way shall comply with the following standards: (a) No single newsrack shall exceed 4 feet, 6 inches in height, 32 inches wide or 24 inches in depth. (b) No newsrack shall be used for advertising or publicity purposes other than that dealing with the display, sale or purchase of the newspaper or news periodicals sold or distributed therein. Not more than one (1) advertising sign (not exceeding 2 feet by 1 foot) may be placed on a newsrack. (c) Each coin operated newsrack, except where newspaper or periodicals are distributed free, shall be e~uipped with a coin return mechanism to permit a person u~ing the machine to secure an immediate refund in the event he is unable to open the newsrack. The coin return -mechanism shall be maintained in good working order. (d) Each newsrack shall have affixed to it in a readily visible place so as to be seen by anyone using the newsrack, the telephone number of a working telephone service to call and report a malfunction, or to secure a refund in the event of a malfunction of the coin return mechanism, and shall feature clearly on its face, the name and address of the distributor to give the notices provided for in this chapter. (e) Each newsrack shall be maintained in a neat and ~ clear condition and in good repair at all times. (f) All newsracks shall have a uniform light brown ~ finish. Provided, however, that newsracks may be of any color if they are shielded from view on three sides in a covering built and permitted in accordance with the City's Building Code. (D) Abandonment: In the event a movable fixture remains empty for a period of 30 continuous days, it shall be deemed abandoned, and may be treated in the same manner as provided in (F) below for movable fixtures in violation of the provisions of this subchapter. 5 ~'. ORD. NO. .~'(1) The use of a bench for advertising purposes is strictly prohibited. (2) Newsracks shall be light brown in color and may display the name of the publication on it only once in letter- ~ ~ ing not measuring more than ~" in height. Provided, however, ,~ that newsracks may be of any color if they are shielded from view on three sides in a covering built and permitted in accordance with the City's Building Code. (F) Enforcement; Correction of Violation: (1) Upon determination by a Code Enforcement Officer that a movable fixture has been installed, used, or maintained in violation of the provisions of this subchapter, an order to correct the offending condition shall be issued to the entity controlling the movable fixture. (2) If the movable fixture is posted as abandoned and not removed within 5 days or the City is not contacted by the entity controlling the movable fixture within 5 days, the City may remove the movable fixture immediately. The City shall store the movable fixture for 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 be responsible for all removal and storage charges. If the charges are not paid within 15 days of claim being made, the City may dispose of the movable fixture in any manner it sees fit. (~) If such entity is not identified on the moyable fixture, it will be considered abandoned and posted as such. This order shall be mailed by certified mail return receipt requested. The order to correct the~offending condition shall spec£fically describe the offending condition and suggest actidns necessary to correct the condition. '~(4) Failure to properly correct the offending condition within 15 days after the mailing date of the order, shall result in the offending movable fixture being removed by the city. Any movable fixture removed by the city hereunder shall be stored at the controlling entity's expense for a period of 30 days. The movable fixture shall be released upon a proper showing of ownership and payment of any and all storage charges. In the event the movable fixture is not claimed within the 30 day period, the movable fixture may be sold at public auction and the proceeds applied first to storage charges and then paid into the General Fund of the City. At least ten days prior to the public auction, the City Clerk shall publish a description of the movable fixture, the location from which it was removed, and notice of the auction in a newspaper of general circulation in the city and shall provide the controlling entity identified on the movable fixture or if otherwise known, with written notification of the auction by certified mall, return receipt requested. Provided, however, that the City Manager, or his designee, may dispose of the movable fixture in any manner it sees fit including negotiating the release of the movable fixture to the controlling entity for less than full payment of all storage charges if he is of the opinion that such disposal will be more advantageous to the City than auctioning off the movable fixture. 6 ORD. NO. 'DR FT (5) In the event the distributor of'the movable fixture appeals the order to correct the offending condition, as provided for in Subsection 6.3.3(G), below, then removal of the movable fixture shall be stayed pending final disposition of the .appeal, which final disposition shall include any Judicial review. The city shall pay or reimburse to the distributor any storage charges paid pursuant to an order to correct which is appealed as provided herein and the decision rendered favorable to the distributor. (G) Appeals: Any person or entity aggrieved by a finding, deter- mination, notice of access taken under the provisions hereof (herein- after an appellant) may appeal to the Code Enforcement Board. An appeal must be effected within 15 days after the mailing or posting of notice of any protested decision or action by delivering to the Clerk of the Code Enforcement Board a letter of appeal briefly stating herein the basis of the appeal. A hearing on the appeal shall be held on a date not more than .30 days after the receipt of the letter of appeal unless the parties mutually agree to an extension thereof. The appellant shall be given at least 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 10 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. Section 2. That all ordinances or parts of ordinances which are in conflict herewith are hereby repealed. Sect~o~ 3. That should any section or provision of this ordinance or an~ 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 than the part declared to be invalid. Section 4. That this ordinance shall become effective immedi- ately upon its passage on second and final reading; provided, however that the City's formal'enforcement measures shall not begin for a period of one hundred twenty (120) days. PASSED AND ADOPTED in regular session on second and final reading on this the __ day of , 199 MAYOR ATTEST: City Clerk First Reading Second Reading. ORD. NO. Published Daily Monday ~hrough Sunday Boca Raton, Palm Beach County, Florida, Delray Beach, Palm Beach County Florida Before the undersigned authority personally. 'g~ll"l~ ~i~l~ ~ 1"f CIW~i~ ~ ~'~- i' T~ ~ ~ ~ ~K IN THE, appeared Nancy Smith, Inside Sales Man- ager of The News, daily newspapers pub- lished in Boca Raton in Palm Beach COUB. ty, I ment was published in said newspapers in ~he issues of: / ~TI~ ~ ~ ¢~ FIX. ~ ~ IN f~ ~T~AY; ~ NE~; ~ ~D~ FOR VlP~ ~ SKd :lC ~PP~L- A ~VI~ ~ IFFE~IVE ~TI J Affiant further says that The New~ is a newspaper published in Boca, B,a,ton, in said Palm Beach County, Florida, Monday C~ER through Sunday, and has been entered as second class matter at the post office in first publication of the attached copy, Of advertisement; and affiant further says that ~.E~ he has neither paid nor promised any person, firm or corporation any discount, ~..,~ :.P.~,w~ , rebate, commission o~ refund for ~he put- f~.TO~ ~]ACKI~ ~STM E~ RE~IRE. : ~ose o[ 8eou~in¢ this &d~erMsemef~t ¢o~ pub- lication in said newspapers. REP~LER C~U~ AND EFFE~IVE ~TI Sworn ~o and subscribed before me this ~ ~I~16 , I (Seal, Notary Pubii&/8~ FI~~R~) ~on~ ~m ~ I~. ~ ~ Oomm~ee:on e~~ ~.