(A) Intent and Purpose. The City Commission finds and declares that:
(1) The substantial growth in the number of newspaper publications and operators of newsracks in the city has produced a significant increase in the number of newsracks installed in the public rights-of-way.
(2) The uncontrolled placement of newsracks and other movable fixtures in the public rights-of-way presents an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, drivers and persons performing essential utility, traffic control and emergency services.
(3) The city and other property owners have invested and are in the process of investing significant funds in the revitalization and redevelopment of portions of the city, including improvements facilitating pedestrian and vehicle circulation.
(4) The uncontrolled placement of newsracks in public rights-of-way within the city does not support the intent of such investment with regard to safety, convenience and aesthetics thereof.
(5) Newsracks and other movable fixtures located in a manner to cause an inconvenience or danger to persons using public rights-of-way, or to undermine the facilitation of pedestrian and vehicular circulation and aesthetic improvements promoted by revitalization investments, and abandoned and derelict newsracks, constitute a public nuisance.
(6) The provisions and prohibitions hereinafter contained and enacted are in pursuance of and for the purpose of securing and promoting the public health, safety and general welfare of persons in the city in their use of public rights-of-way.
(7) The regulation of the placement, maintenance, weight, size and height of newsracks in the public rights-of-way will:
(a) Provide access for the use and maintenance of poles, posts, traffic signals, hydrants, mailboxes, sidewalks, pedestrian walkways and other facilities;
(b) Provide for the elimination of sight line obstructions;
(c) Reduce unnecessary exposure of the public to personal injury or property damages; and
(d) Treat all newspapers equally regardless of their size, content, circulation or frequency of publication.
(B) Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
ABANDONED. Any newsrack which remains empty for a period as provided for herein, whether otherwise in good condition or not, or any newsrack upon which no responsible contact person's name, address and telephone number has been posted. Any newsrack identified as abandoned shall be posted as such for a seven working day period. If the abandonment has not been remedied, the newsrack shall be removed and disposed of in any manner provided for herein.
ADVERTISING CIRCULAR. Any publication that contains only advertising and no news reports.
BIKE PATH, BIKE WAY. That portion of a right-of-way improved, designed, designated or ordinarily used for bicycle traffic.
BUILDING CODE OF JURISDICTION. The Florida Building Code or any successor applicable Building Code.
INTERSECTING SIDE STREET. A street intersecting a pedestrian priority street, or a street intersecting that street, which serves a pedestrian intensive area, which has less intensive usage by pedestrians.
MODULAR NEWSRACK. A connected grouping of two to eighteen pockets which may be placed on a pedestal bolted to a paved surface or be bolted directly to the paved surface, which is installed or used for the display, sale or distribution of newspapers, news periodicals or advertising circulars.
MOVABLE FIXTURE. Any newsrack, bench, waste receptacle or other non-attached fixture excepting any sign.
NEWSRACK. Any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display and sale of newspapers or other news periodicals or advertising circulars.
NEWSRACK ENHANCEMENT AREAS. Those designated locations within the city where individual newsracks are not permitted on rights-of-ways, and modular newsracks shall be bolted or securely fastened either to pedestrian sidewalks or concrete pads.
These
NEWSRACK ENHANCEMENT AREAS
, designated in support of public or private investment in revitalizing portions of the city, shall include:
(a) Pompano Beach Boulevard;
(b) Ocean Boulevard from north to south limits;
(c) Federal Highway from Copans Road to Northeast 18th Street;
(d) 14th Street Causeway;
(e) Atlantic Boulevard from Atlantic Ocean to Northeast 19th Avenue; from SCL Railroad to Powerline Road;
(f) Martin Luther King, Jr. Boulevard from Dixie Highway to 1-95;
(g) Powerline Road (South Pompano Parkway) from Sample Road to Gateway Drive;
(h) Southwest Ninth Court and Southwest Ninth Street from Cypress Road to Lyons Park Drive;
(i) Briny Avenue.
ON-STREET PARKING AREA. Those portions of roadway directly adjacent to a curb or sidewalk where motorized vehicular parking is permitted at all times or during specified hours.
PEDESTRIAN INTENSIVE AREA or PEDESTRIAN PRIORITY STREET. Those corridors where intensive pedestrian activity exists or is planned to occur as the result of public investments such as park and beach land acquisition, widened sidewalks, decorative crosswalks, special pedestrian signalization, bike paths, street trees and on-street parking; or as a result of private investment in predominantly ground floor retail or restaurant land uses, sidewalk cafes, public plazas and sidewalks, awnings or continuous street trees, greenways, bike paths or pedestrian paths. The following such areas are identified:
(a) Pompano Beach Boulevard;
(b) Atlantic Boulevard from 19th Avenue to the Atlantic Ocean;
(c) Ocean Boulevard from north to south city limits.
PUBLIC AGENCY. The city, county, state or federal government.
PUBLISHING ENTITY. The person or any other legal entity owning a newsrack in a public right-of-way. The terms "publishing entity", "responsible entity", "owner" or "publisher" shall be used conjunctively throughout this article and shall apply jointly and severally to those of them owning or maintaining the newsrack in a public right-of-way.
RIGHT-OF-WAY. All that area dedicated to public use or otherwise owned by a public agency for public purposes and shall include, but not be limited to roadways, swales, bike paths and sidewalks.
ROADWAY. That portion of a street improved, designed or ordinarily used for vehicular travel.
SIGHT TRIANGLE. The area which is within 25 feet of the intersection of the extension of the curbs, or extension of the edges of paved roadways of the two streets, except that, where an existing building intrudes into that area, a movable fixture shall be permitted to be placed if it is flush with the building and set back from the building line sufficiently to avoid further obstruction of the line of sight.
SIDEWALK or PEDESTRIAN PATH. Any service area provided for that portion of a public right-of-way that is designed and ordinarily used for pedestrian travel.
(C) Location and Placement of Movable Fixtures. Any movable fixture which rests in whole or in part upon, or on any portion of a public right-of-way or which projects onto, into or over any part of a public right-of-way shall be located in accordance with the provisions of this section:
(1) No movable fixture shall be used or maintained which projects onto, into, or over any part of the roadway, bikeway or on-street parking area of a public street.
(2) No movable fixture shall be chained to a tree, to landscaping material, to a mailbox or similar facility.
(3) 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, to a utility pole; to or placed upon any manhole cover; to or placed upon any water meter and/or water meter box; to traffic signals or traffic signs; to a bench; or to any other city-owned fixture.
(4) No movable fixture shall be placed, installed, used or maintained:
(a) On any sidewalk or pedestrian path on a pedestrian priority corridor or pedestrian intensive area, where such placement will result in less than five feet of clear area for pedestrian usage, measured from the face of the curb inward.
(b) On any sidewalk with a curb other than those in pedestrian priority corridors or pedestrian intensive areas with not less than four feet remaining open as a clear zone. If there is no curb, a six foot clear zone shall be maintained. In all cases, the clear zone is to be measured from face of curb or edge of roadway where no curb exists.
(c) Within ten feet of any marked crosswalk.
(d) Within five feet of a pedestrian crossing traffic signal control button.
(e) Within a sight triangle, unless the newsrack does not exceed 30 inches in height.
(f) Within ten feet of any fire hydrant, fire call box, police call box or any other emergency facility.
(g) Within ten feet of any driveway.
(h) Within three feet ahead or to the rear of any sign marking a designated bus stop, trolley stop or taxi stand.
(i) On any public area improved with sod, shrubs, vegetation, flowers, trees or other landscaping unless a concrete pad is in place for this usage.
(j) Within ten feet of any disability access ramp.
(k) Within the median of a divided roadway.
(l) Within ten feet of a pedestrian entrance or vehicular driveway of a single-family house, public or private school or a house of worship.
(m) Within five feet of the outer end of any bus stop.
(5) When in compliance with all other provisions of this article, movable fixtures may only be placed at the following locations:
(a) On sidewalks or improved pedestrian paths of intersecting side streets, but not within a sight triangle, excepting that, where a building already protrudes into the sight triangle, movable fixtures may be placed flush with the building and set back from the building line sufficiently to avoid further intrusion into the line of sight.
(b) On sidewalks or improved pedestrian paths of intersecting side streets and within a sight triangle if the movable fixture does not exceed 30 inches in height.
(c) On sidewalks or pedestrian priority areas or pedestrian intensive areas where a five foot clear sidewalk can be maintained.
(d) On sidewalks or pedestrian paths of streets not designated as pedestrian priority or pedestrian intensive areas, where a four foot clear sidewalk can be maintained as measured from face of curb, or where there is no curb, six foot zone of clear sidewalk or other area, including swale, as measured from edge of roadway can be maintained and at least three feet of sidewalk shall be kept clear.
(e) A private entity may install a concrete pad when a paved sidewalk or pedestrian path is not available or allowed. Concrete pads must meet the standards in division (D) of this section.
(f) Not more than one newsrack per publication containing the same issue or edition of the same publication shall be located on the same side of the street within 1,000 feet of the same publication. Provided, however, a distributor may locate newsracks in excess of this limitation by demonstrating a public need for the additional newsrack(s). A public need may be established by the following method, which method is not exclusive. If another method to establish public need is desired by a publishing entity, then the city and publishing entity shall jointly determine whether the alternate method is a legitimate and accurate means to determine public usage of the newsracks in question. A distributor desiring to establish a public need may place an extra newsrack at a proposed location, after notice to city, for a test period of one month. No Certificate of Completion will be required; however, an application must first be completed on a form provided by Planning, Zoning and Licensing Division. If during that one month test period the average circulation from the newsrack equals or exceeds 75% of the capacity of the newsrack for publications published other than daily or for daily publications, the average Sunday circulation from the newsrack equals or exceeds 75% of the capacity of the newsrack, then a public need will be deemed to have been established and the newsrack may remain at the location.
(g) Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than eight feet along a curb, or if no curb, a street, and a space of not less than three feet shall separate each group of newsracks. Modular newsracks approved for use by the city shall be provided by a publishing entity and shall be the only type of newsrack permitted at locations listed in this section as "newsrack enhancement areas". Modular newsracks may also be used at any other location mutually agreed to by the city and the publishing entities, where a publishing entity will install a concrete pad when a paved sidewalk or pedestrian path is not available. In newsrack enhancement areas where no newsracks have previously been placed, a trial period of 30 days with individual newsracks shall be permitted beginning on the day newspapers are placed for sale in individual newsracks. Publishing entities shall give the city prior written notice of such trial locations.
(D) Standards for Maintenance, Appearance and Installation. Movable fixtures, which in whole or in part rest upon, in or over any public sidewalk or public pedestrian path, shall comply with the following standards:
(1) No individual newsrack shall exceed four feet, six inches in height, 40 inches in width or 24 inches in depth. Modular newsracks may not exceed 60 inches in height. The height of handles and coin mechanisms shall not exceed 48 inches from the base of any newsrack or modular newsrack.
(2) Only modular newsracks and each part or component thereof shall be light blue in color as approved by the city, exclusive of view windows.
(3) Each newsrack, whether modular or not, shall be maintained in a neat clean 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 graffiti; all graffiti shall be corrected within seven working days' notice by the city that graffiti exists, or newsrack shall be removed and disposed of in the manner as provided for herein;
(b) It is reasonably free of dirt and grease.
(c) It is reasonably free of chipped, faded, peeling and/or cracked paint.
(d) It is reasonably free of rust and/or corrosion.
(e) The clear plastic or glass parts thereof, if any, through which the publications therein are viewed, are unbroken and reasonably free of cracks, dents, blemishes and discoloration; all such conditions shall be remedied within 15 working days' notice by the city, or newsrack shall be removed and disposed of in the manner as provided for herein.
(f) The exterior of any movable fixture shall not be used for advertising purposes and shall display only, except as provided otherwise by this section, the name of the publication contained within the newsrack or a plaque identifying the name of the entity donating or sponsoring a trash can or bench.
(g) The name, address and telephone number of a responsible person whom the city may contact for notification purposes shall be permanently displayed on a label on each newsrack. Failure to post such information within 30 days of the effective date of the ordinance creating this article shall be deemed abandonment of the newsrack. Abandoned newsracks shall be posted for a period of seven working days, and removed and disposed of in the manner provided for herein if not corrected at the end of such posting period.
(h) All coin-operated newsracks shall also post the name, address and telephone number of a responsible person whom an individual may contact for reimbursement, in the event of failure of coin mechanisms.
(4) Coin-operated newsracks shall be equipped with a coin return mechanism, maintained in good working order at all times, to permit customers to secure an immediate refund if newsrack is inoperable.
(5) Any newsrack installed, placed or maintained on a public right-of-way, sidewalk, pedestrian path or any other public property shall comply with the Building Code of Jurisdiction and must obtain a structural permit from the City's Building Department.
(6) Concrete pads must meet the standards of the Building Code of Jurisdiction, and must be approved under the structural permit in subsection (5) above.
(7) Any concrete pad installed by a publishing entity must be removed by that entity within 30 days of abandonment or removal of the newsrack permitted for the said concrete pad.
(E) Registration.
(1) It is unlawful for any controlling entity, absent a specific license agreement with the city, to place, affix, erect, construct, operate or maintain any movable fixtures in the right-of-way:
(a) Without first obtaining a one-time only Certificate of Completion for each movable fixture in the public right-of-way in accordance with this section for every such existing movable fixture prior to the effective date of this section or prior to placement of any object in the right-of-way subsequent to the effective date of this section;
(b) Contrary to the standards of this section.
(2) Issuing Authority.
(a) The issuing authority and coordinator shall be the Zoning Director. The Zoning Director shall be responsible for fairly coordinating and administering the physical placement of objects in the public right-of-way and upon compliance herewith is responsible for issuing the certificates of compliance.
(b) Prior to the Certificate of Completion being issued the Zoning Director shall secure the review and approval of the City Engineer and the City Risk Manager. The City Engineer shall review and provide approval only as to the compliance with the location of the object in the public right-of-way to ensure conformance with the conditions for placement of objects in the public right-of-way as contained herein. The City Risk Manager shall review and provide approval only as to compliance with the insurance requirements as contained herein.
(3) Application for registrations shall be made on a form provided by the Planning, Zoning and Licensing Division and shall include the following:
(a) The name, address and telephone number of the applicant;
(b) The name, address and telephone number of a responsible person whom the city may notify or contact at any time concerning the applicant's object that is being or has been placed in the public right-of-way;
(c) A brief description of the movable fixture and the name of the publication(s) to be distributed, if applicable;
(d) A map or diagram depicting precise locations of proposed movable fixture(s) as well as clear zones based on the existing variables at the time the application is made.
(F) Insurance. Each and every controlling entity responsible for placing and/or maintaining any newsrack, bench or other movable fixtures in the right-of-way shall be required to sign an indemnification agreement with the city and to maintain a policy of insurance covering any and all liability damage, including both personal and real property in the aggregate amount of $300,000 listing the city as an additional insured. This shall not be construed to affect in any way the city's rights, privileges and immunities as set forth in F.S. § 768.28. Said certificate of insurance shall be provided to the city's Risk Manager to cover each and every newsrack, bench or other movable fixtures in the right-of-way. Equivalent self-insurance coverage may be substituted by the controlling entity in lieu of the above certificate of insurance requirement. Insurance under this section shall run continuously with the presence of the controlling entity's fixtures in the public right-of-way and any termination or lapse of such insurance shall be a violation of this section and subject to the remedies as set forth herein. Notwithstanding the foregoing, the city may, in its sole discretion, require increased or decreased levels of insurance for any other object placed in the city's rights-of-way by way of individual license agreements.
(G) Issuance of Certificate of Completion.
(1) Upon a finding by the Zoning Director that the applicant is in compliance with the provisions of this section and having received the required approvals from the City Engineer and Risk Manager, the Building Official shall cause to be issued a Certificate of Completion for placement of the object in the public right-of-way. Such issuance shall be made within fifteen working days of the city's receipt of the completed application. The Certificate of Completion shall be valid only for the fixture, space, location and registered applicant. Certificates of Completion are personal and not transferable in any manner to other locations or applicants.
(2) Issuance of the Certificate of Completion under subsection (1) above shall cause to be issued by the city, a registration sticker which shall be conspicuously affixed by a publishing entity to each approved newsrack and which shall remain so affixed, while the newsrack is utilized at the approved location.
(H) Denial of Certificate of Completion. If a Certificate of Completion for some object in the public right-of-way location applied for shall be denied, the applicant shall be notified within fifteen working days of the city's receipt of the completed application. The applicant shall he advised of the specific cause of such denial by the Zoning Director. The applicant may reapply for a substitute alternative location.
(I) Additional Certificate of Completion. If, at any time after the initial application for a Certificate of Completion, an applicant wishes to install additional objects in the public right-of-way, the procedures set forth in division (E)(3) of this section are to be repeated in accordance with the provisions of this article.
(J) Enforcement; Correction of Violation.
(1) Upon determination by the City Engineer or his designee or a Code Enforcement Inspector that a movable fixture has been installed, used, or maintained in violation of this section, an order to correct the violation shall be issued to the controlling entity, and after 15 working days the newsrack shall be removed to the city and disposed of in the manner provided herein, if the violations have not been corrected within the time period. Newsracks, which are considered abandoned, will be posted as such.
(2) The order to correct the violation shall specifically describe the violation and may suggest actions necessary to correct the condition or violation. Such order shall either be hand-delivered or alternatively may be mailed by certified mail return receipt requested to the controlling entity.
(3) Failure to properly correct the violation within the time period specified by this section, or to properly correct the offending condition within five days (excluding Saturdays, Sundays and legal holidays) after the mailing date or hand-delivery date of the order or to remove posted abandoned newsracks 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 60 days. The movable fixture shall be released upon a proper showing of ownership and payment of any and all removal, administrative and storage charges. In the event the movable fixture is not claimed within the 60-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. Any movable fixture not sold may be disposed of by the city consistent with city ordinances and/or Florida law, as appropriate.
(4) If any newsrack placed, affixed, erected, constructed, operated or maintained in a public right-of-way does not contain the publication specified therefor within a period of 48 hours after release of the current issue, the city may deem the newsrack abandoned. In addition, a newsrack shall be deemed abandoned when no publication is in the newsrack for a period of more than seven consecutive days. If a newsrack is posted as abandoned and not removed within seven days from the date of posting or the city is not contacted by the controlling entity within seven days from receipt of the order and the problem which caused the newsrack to be posted is not remedied or cured, the city may remove the movable fixture immediately. The city shall store the movable fixture for 60 days and if not claimed within that time, the city may dispose of the movable fixture by selling same at a public auction with the proceeds applied first to removal, administrative and storage charges, and the remainder, if any, then paid into the General Fund of the City. Any movable fixture not sold may be disposed of by the city consistent with city ordinances and/or Florida law, as appropriate. If the movable fixture is claimed, the entity claiming the movable fixture upon proper showing of ownership shall pay for all removal, administrative and storage charges prior to the city's 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 as set forth herein.
(5) 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 county 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 by returning same to the controlling entity in any manner he sees fit including negotiating the release of the movable fixture to the controlling entity for less than full payment of all storage charges if the City Manager or his designee is of the opinion that such disposal will be more advantageous to the city than auctioning off the movable fixture.
(6) In the event the controlling entity appeals the order to correct the offending condition as provided for below, absent a court order further action by the city regarding 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 removal, administrative and storage charges paid pursuant to an order issued by the city in the event the decision on the appeal is rendered in favor of the controlling entity.
(7) Violations of this section shall be subject to appropriate legal action.
(K) Appeals. Any applicant who has been denied a certificate of compliance pursuant to the provisions of this article may within 15 days of the denial file an appeal with the City Commission by requesting, in writing, to the City Manager an appearance before the Commission to review such denial. The appeal shall be heard by the Commission within 30 days of the filing of the appeal. The decision of the Commission on appeal is subject to judicial review as provided by the laws of the state. Any person or controlling entity aggrieved by any order, finding, or determination, taken under the provisions of this section other than an applicant who has been denied a Certificate of Compliance (hereinafter an appellant), may file an appeal with the City Zoning Board of Appeals. Such appellant must effect their appeal within 15 days of the order finding or determination. In order to effect the appeal, the appellant must comply with § 155.2422 as currently enacted or as amended from time to time, briefly stating the basis of their appeal. The Zoning Board of Appeals shall hold a hearing on the appeal no later than 30 days following the receipt of the letter of appeal or at the next regularly scheduled meeting, unless the parties mutually agree to an extension thereof. The appellant shall be given at least seven days’ 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 movable fixture is not violating this section. 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 Secretary to the Board within 15 days of the hearing and a copy shall be sent to the appellant in regular United States mail. The decision of the Board shall be effective when rendered. The decision of the Board may be appealed as provided for by law.
(Ord. 99-31, passed 3-23-99; Am. Ord. 2001-04, passed 10-10-00; Am. Ord. 2001-29, passed 1-9-01; Am. Ord. 2002-20, Passed 1-8-02; Am. Ord. 2013-35, passed 1-8-13)