Sec. 11-46. Newsracks on public rights-of-way.
(a) Purpose. The purpose of this section is to establish a comprehensive set of regulations applicable to newsracks located within the public right-of-way and on other public property. There are a number of important public purposes served by regulation of newsracks. First, newsrack regulation is intended to improve public safety. Since newsracks are usually located within the public right-of-way, they pose a potential hazard to pedestrians and other users of public sidewalks. If they are located too close to driveways or intersections, they can block the view of oncoming traffic. If they are located too close to the curb, they can unreasonably hinder ingress and egress from parked vehicles. If located too close to fire hydrants, mailboxes, traffic control devices, public bus benches and other public conveniences, they can unreasonably hinder access to and use of those facilities.
A second purpose of the section is to protect the appearance of Wilmington. The city council finds that the number, size, construction, placement and appearance of newsracks can have a significantly adverse visual impact on the city, particularly in the central business district and other aesthetically sensitive areas.
A third purpose of this section is to promote and enhance the economic vitality of the community by avoiding any undue interference with commerce and business which may be posed by newsracks located too close to retail shop windows or entrances to commercial property, or located in such a way as to interfere with views from private property.
It is not the intent of this section to in any way discriminate against, regulate or interfere with the publication, circulation, distribution or dissemination of material protected by the First Amendment on the basis of the content of that material.
(b) Definitions. For the purposes of this section, the following words and phrases shall have the meaning indicated, unless the context or usage clearly requires a different meaning:
(1) Central business district. That area designated on the official City of Wilmington Zoning Map as being within the central business district zoning district.
(2) City-owned modular unit. Any city-owned semi-permanent structure designed to dispense publications upon demand either for free or for a stated price.
(3) Distributor or publisher. The person responsible for placing or maintaining a newsrack in a right-of-way.
(4) Effective date. The date of the adoption of the ordinance enacting this section which is September 5, 2006.
(5) Group. Any two (2) or more newsracks in close proximity to one another.
(6) Key streets within the central business district. Water Street from Nun Street to Red Cross Street, Front Street from Ann Street to North 3rd Street, 2nd Street from Market Street to Chestnut Street, North 4th Street from Walnut Street to Nixon Street, Ann Street from South Water Street to the Cape Fear River, Orange Street from 2nd Street to the Cape Fear River, Market Street from 3rd Street to the Cape Fear River, Princess Street from 2nd Street to the Cape Fear River, and Chestnut Street from 2nd Street to the Cape Fear River.
(7) Main street mixed use district. That area designated on the official City of Wilmington Zoning Map as being within the Main Street mixed use district zoning district.
(8) Newsrack. Any individual self-service or coin-operated box, container, storage unit or other dispenser, installed, used or maintained for the display, distribution or sale of any written or printed material, including but not limited to, newspapers, news periodicals, magazines, books, pictures, photographs, advertising circulars, and records (hereinafter collectively referred to as "newsrack material").
(9) Right-of-way. Any property under the ownership and control of the city and used for public street and related purposes, including but not limited to, sidewalks, sidewalk areas, shoulders or plazas.
(1) Failure to register. It is unlawful for any person to install, place or maintain a newsrack within a right-of-way unless the newsrack has been registered with the city manager pursuant to this section and the appropriate fee has been paid as specified in the city fee schedule.
(2) Unlawful placement. It is unlawful for any person to install, place or maintain a newsrack in violation of any of the provisions of this section.
(1) General. A newsrack shall be registered pursuant to the procedures set forth in this section.
(2) Application. A written application to register a newsrack shall be filed with the city manager and shall include at least the following information:
a. The name, address and telephone number of the registrant, who may be either the publisher of the newsrack material or the distributor.
b. The name, address and telephone of a representative of the registrant or other responsible person to receive notices regarding the newsrack.
c. The proposed location of the newsrack.
d. Type or brand of newsrack, including a photograph of the newsrack and mount.
(3) Fee. Each application to register a newsrack shall be accompanied by the application fee.
(4) Registration deadline. Any newsrack located within a right-of-way on the effective date shall be listed on a registration application filed within ninety (90) days of the effective date. Any newsrack installed or placed within a right-of-way after the effective date shall be listed on a registration application filed with the city manager prior to installation or placement. Prior to the relocation of a registered newsrack from one location to a new location within a right-of-way, a new registration application must be approved by the city manager.
(5) Issuance and denial. Within five (5) business days of receipt of a complete registration application, and upon finding that (i) the application complies with the provisions of this section, and (ii) the applicant has discharged any debt to the city which may be owed pursuant to this section, the city manager shall register the newsrack and issue to the applicant a receipt evidencing registration. If registration is denied, within five (5) business days of receipt of the application the applicant shall be notified in writing of the specific cause of such denial by the city manager. Any denial may be appealed within ten (10) days of the notice of denial as set forth in subsection (h)(3) herein.
(e) General restrictions on placement and appearance.
(1) Placement. A newsrack may only be installed, placed or maintained at a location which:
a. Does not result in the newsrack projecting onto, into or over any part of a roadway, or resting wholly or in part upon, along, or over any portion of a roadway, or resting on a sidewalk vault, meter cover, manhole or access cover.
b. Is adjacent and parallel to the wall of a building or structure and not more than six (6) inches from the wall, unless the city manager or designee determines that placement near a building is not suitable, and authorizes alternative placement.
c. Will not cause a significant risk of injury to persons or property, will not interfere with the passage of pedestrians or cause any impact on traffic safety by obstructing the views of other vehicles or users of the right-of-way.
d. Is at least five (5) feet from the curb return of any marked crosswalk.
e. Is at least ten (10) feet from any fire hydrant, fire call box, police call box or other emergency facility.
f. Is at least ten (10) feet from any driveway, traffic signal controller or utility pole.
g. Will allow a minimum of four (4) feet for the passage of pedestrians on the adjacent sidewalk.
h. Will not hinder access to entrances to property or obstruct visual access to windows.
i. Includes a maximum of four (4) newsracks grouped together at any one location. Each group must be located one hundred twenty (120) feet from any other group or individual newsrack.
(2) City-wide appearance regulations. Each newsrack shall be maintained in a clean and neat condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that:
a. It is free of dirt, rubbish, and grease.
b. It is free of chipped, faded, peeling and cracked paint in the visible painted areas thereof.
c. It is free of rust and corrosion in the visible unpainted metal areas thereon.
d. The clear plastic or glass parts thereof, if any, through which the publications therein are viewed are unbroken and free of cracks, dents, blemishes and discoloration.
e. The paper or cardboard parts or inserts thereof are free of tears, peeling or fading.
f. The structural parts thereof are not broken or misshapen.
(3) Identification information. The name, address and telephone number of a responsible person who may be contacted at any time concerning the newsrack shall be displayed on the hood of the newsrack (or, if there is no hood, on the top of the newsrack) in such a manner as to be readily visible to and readable by a prospective customer.
(4) Certain displays prohibited. No material which is prohibited under section 18-591(c) of this Code shall be displayed in a newsrack.
(f) Special requirements for newsracks within the central business district and the Main Street mixed use district.
(1) Placement and height. A newsrack may only be installed, placed or maintained at a location that:
a. Is at least one hundred fifty (150) feet from any intersection as measured from the back of the curb to the closest point on the base of the newsrack.
b. Is at least one hundred twenty (120) feet from a city-owned modular unit or another newsrack containing the same written material.
c. Installed, placed or maintained in such a manner that it is no more than forty-eight (48) inches in height measured from the sidewalk to the top of the newsrack.
(2) Appearance. Any newsrack installed, placed or replaced after the effective date of this section shall comply with the following appearance standards:
a. All opaque surfaces shall be painted a dark blue, or a substantially similar color approved by the city manager.
1. The mount shall be painted gloss black.
2. No plastic newsracks shall be allowed.
3. All newsracks installed or placed in a group at any location within the central business district shall be similar in appearance.
b. A newsrack installed or placed at any location within the central business district shall carry no advertising except the name of the newspaper or periodical being dispensed on the bottom one-third (1/3) of the plastic hood or, if there is no plastic hood on the newsrack, the name shown at not more than two (2) locations on the newsrack.
c. Nothing in this section shall alter any requirements relating to properties within a locally designated historic district.
(g) Special requirements for newsracks on key streets within the central business district.
(1) Purpose. For the purpose of protecting and enhancing the aesthetics of this heavily tourist-oriented area of the city, there have been provided at convenient locations on key streets within the central business district certain city-owned modular units, designed to contain one or more newsracks. It is the purpose of the city council to strictly regulate the location of newsracks on key streets within the central business district so as to fairly and equitable distribute the available newsrack spaces among the distributors of newsrack materials regularly distributed in the city.
(2) Prohibition. No person shall place or maintain a newsrack on key streets within the central business district except in one of the city-owned modular units.
(3) Allocation of enclosures. The city manager shall allocate the city-owned modular unit available spaces to the distributors or publishers of the newsrack materials regularly distributed in the city on a first come, first served basis. The city manager shall make assignments of newsracks for specific locations pursuant to such allocation of spaces, giving due consideration to the location preferences of the newsrack material distributors. If an assigned space remains vacant for thirty (30) days following the making of such an assignment, the city manager shall consider that space to be available for reallocation and reassignment.
(4) The costs of installation, maintenance, replacement, removal and relocation of newsracks in city-owned modular units shall be at the sole expense of the owner or registrant.
(h) Removal of newsracks or reallocation of spaces.
(1) Cause for removal. In addition to any other remedies provided in section 11-1 of this chapter, the city may require the removal of a newsrack from the right-of-way or reallocate space in a city-owned modular unit if the city manager determines that:
a. There is a public need for the area occupied by the newsrack;
b. The newsrack or space has remained unused for more than ten (10) consecutive days; or
c. The newsrack or space has been installed, used or maintained in violation of this section.
(2) Notice of removal. The city manager shall notify the distributor or publisher by certified and first class mail of the reasons for the removal or reallocation and that the newsrack must be removed or the space reallocated within ten (10) days of the date of such notice. If the certified mail notice is unclaimed or refused but the first class mail is not returned within ten (10) days after mailing, the first class mail shall be deemed sufficient to provide notice. If after due diligence the distributor's or publisher's current address cannot be determined, then the required notice shall be affixed to the newsrack. The notice affixed to the newsrack shall require the removal of the newsrack or provide for the reallocation of the space within ten (10) days of the date notice is affixed to the newsrack.
(3) Hearing. At any time before the expiration of the ten (10) day period for removal or reallocation, the distributor or publisher may request a hearing before the city manager to appeal the requirement and the reasons therefor. Upon completion of the hearing, the city manager shall consider the evidence before him and shall either affirm, vacate or modify the notice of removal or reallocation. The notice shall be stayed pending completion of the hearing and rendering of a decision. If the notice is not vacated, the distributor or publisher shall remove the newsrack or the space will be reallocated within three (3) days of the decision. If the distributor or publisher fails to remove a newsrack, the city manager shall cause the newsrack to be removed and stored.
(4) Storage; costs. The costs of removal and storage of any newsrack shall be borne by the owner thereof and may be collected by the city by filing a civil action in the nature of debt. No newsrack which has been removed and stored by the city shall be released to the distributor or publisher unless the costs of removal, storage and any necessary repair to the premises on which the newsrack was placed have been paid. If a newsrack which has been removed and stored remains unclaimed for a period of sixty (60) days, it shall be deemed to be unclaimed personal property and disposed of in accordance with law.
(Ord. of 1-20-98, § 2; Ord. No. 0-2006-79, § 1, 9-5-06)