An ordinance amending Title 13 of the Metropolitan Code of Laws regarding the placement of newsracks within the public right-of-way.

WHEREAS, The uncontrolled placement of newsracks in and about the public rights-of-way within the area of the Metropolitan Government presents an inconvenience and danger to the safety, health and welfare of persons using such rights-of-way, including but not limited to pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control, and emergency services; and

WHEREAS, the uncontrolled proliferation of newsracks detracts from the appearance of streets, sidewalks, and adjacent business; and

WHEREAS, the uncontrolled placement of newsracks may inhibit wheelchair access and/or interfere with the safe use of the public rights-of-way by disabled persons; and

WHEREAS, the uncontrolled placement of newsracks increases the civil exposure of the Metropolitan Government to personal injury and property damage; and

WHEREAS, in the interest of public safety and the general welfare of persons within the area of the Metropolitan Government, it is fitting and proper that a permit process be implemented for the regulation of newsracks within the right-of-way.

NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. That Title 13 of the Metropolitan Code of Laws be and the same is hereby amended by adding the following new Chapter 13.18, Newsracks Within the Public Right-of-way:

13.18.010 Definitions.
For purposes of this Chapter, the following terms and phrases shall be defined as follows:
Director means the director of the metropolitan department of public works or his/her designee.
Distributor means a person or entity owning any newsrack located in the public right-of-way within the area of the metropolitan government, or who places or maintains, or is responsible for or directs the placing or maintenance, of such a newsrack.
Newsrack means any self-service or coin-operated box, container, storage unit, or other
dispenser installed, used or maintained for the display, sale or distribution of publications, regardless of whether a fee is charged for such publications.
Public right-of-way means all areas legally open to public use and used and/or intended for vehicular or pedestrian traffic, including public streets, alleys, sidewalks, and roadways.
Sidewalk means the area of the public right-of-way which is designated or ordinarily used for pedestrian travel.

13.18.020 Prohibition - Applicability.
No person shall place, install, use or maintain any newsrack which rests in whole or in part upon, in, or on any portion of the right-of-way within the area of the metropolitan government. The provisions of this chapter shall apply to all newsracks, whether installed and maintained prior to or after the effective date of any of the provisions of this chapter. Those newsracks installed prior to the effective date of any provision in this chapter shall be brought into compliance with such provisions within thirty days of the effective date of such provisions.

13.18.030 Standards for newsracks placed in the right-of-way.
A. No newsrack shall exceed fifty inches in height, twenty-seven inches in width, or twenty inches in thickness.
B. Each newsrack shall have affixed to it in a readily visible place so as to be seen by anyone using the newsrack a notice setting forth the name and address of the distributor and the telephone number to call to report a malfunction, or to secure a refund in the event of a malfunction of the coin-return mechanism, or to give the notices provided for in this chapter.
C. Each newsrack shall be maintained in a neat and 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:
1. It is reasonably free of dirt and grease;
2. It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas thereof;
3. It is reasonably free of rust and corrosion in the visible unpainted metal areas thereof;
4. 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;
5. The structural parts thereof are not broken and are in good working order; and
6. It is free of graffiti.

13.18.040 Location of newsracks.
A. Newsracks shall be located only in the sidewalk portion of the right of way.
B. Newsracks shall not be positioned so as to impede pedestrian traffic flow or access to a business.
C. No newsrack shall be located in whole or in part in any roadway or driveway or otherwise located so as to interfere with vehicular traffic.
D. Newsracks shall be located only near the curb (or, if there is no curb, the edge of the
roadway) or the wall of a building. If located near the curb or edge of the roadway, a minimum of two (2) feet of clear area shall be maintained between the newsrack and the face of the curb or, if there is no curb, the edge of the roadway and a minimum of four (4) feet of clear area shall be maintained between the newsrack and the back edge of sidewalk. Newsracks located at the wall of a building shall be located parallel to and not more than six (6) inches from the wall thereof.
E. No newsrack shall be located directly in front of any display window of any building abutting a sidewalk or parkway, without the written consent of the person or entity legally in occupancy or otherwise in control of the premises on which the display window is located. If such consent is withdrawn, any newsrack placed in front of a display window shall be removed within fourteen (14) days of the date of written notice from the County to the distributor of such newsrack.

F. No newsrack shall be placed, installed, used or maintained where placement unreasonably interferes with the use of utility poles, traffic signs or signals, or mailboxes.
G. In order to implement the provisions of this chapter, the director may make such rules and regulations as are not inconsistent with the provisions of this chapter, including standard specifications, design guidelines, permit provisions and other rules as may be
necessary to maintain the public's safety, health and general welfare and so as to otherwise preserve and protect the right-of-way.

13.18.050 Additional newsrack controls.
A. The director may place restrictions on the number of newsracks at any one location, based on but not limited to the following factors:
a. Pedestrian and vehicular safety;
b. Interference with the flow of pedestrian or vehicular traffic including ingress and egress from any residence, business, public facility or legally parked or stopped vehicles;
c. Compliance with the Americans with Disabilities Act and passage for persons with disabilities;
d. Access for the safe and efficient use and maintenance of sidewalks, poles, posts, traffic signs or ramps, hydrants, mailboxes, delivery areas, loading zones, parking meters, and locations used for public transportation services; and
e. Visual blight, clutter and litter problems associated with poorly maintained, improperly located or abandoned newsracks.
B. The provisions of this section are not intended to violate or infringe upon any person's rights protected by the First Amendment of the United States Constitution, and, with guidance from the metropolitan attorney, the director shall interpret and apply this section and any guidelines promulgated hereunder in a manner consistent with those Constitutional rights.

13.18.060 Encroachment permit requirement.
Any person who desires to install or place a newsrack within the right-of-way must first obtain an encroachment permit from the department of public works. The application for an encroachment permit shall include a plan specifying the proposed location of the newsrack(s), the proposed type and style of newsrack(s), the proposed method of affixing, attaching or securing the newrack(s), and the proposed location or locations of the newsrack(s). No fee shall be charged for said permit. The director shall keep a
current registration of all encroachment permits, including name of permit holder, address, telephone number, date of issued permit and location of newsracks.
All for-profit business applicants must submit a copy of a current business license issued by the Davidson county clerk before an encroachment permit may be issued.

13.18.070 Restoration costs.
Upon removal, withdrawal or abandonment of any newsrack, the distributor and the owner shall be jointly and severally liable for all costs and expenses, including reasonable attorney fees, associated with restoring the right-of-way to the condition that would have existed had the newsrack not been installed.

13.18.080 Insurance
All applicants for a newsrack encroachment permit shall provide a public liability insurance policy in such amount as directed by the metropolitan attorney and in the form of the metropolitan attorney, to save the metropolitan government harmless from all claims for damages that may result to persons or property by reason of the installation or maintenance of such encroachment. Each such person shall keep in force such policy or policies of public liability insurance during such time as he or she continues to place or install or maintain any newsrack under the terms of this chapter.

13.18.090 Indemnification.
Any person, including but not limited to any distributor, placing, installing, maintaining a
newsrack under this Chapter shall further be required to execute a written agreement with the metropolitan government that he or she agrees to indemnify, defend and hold harmless the metropolitan government and its agents and representatives from all claims, demands, lawsuits, liability, damage or judgments (herein collectively referred to as claims) arising out of or in any way connected with the placement, installation or maintenance of any newsrack in the right-of-way.

13.18.100 Abandonment.
In the event a newsrack remains empty for a period of thirty (30) consecutive calendar days, the same shall be deemed abandoned and may be treated in the manner provided by state law regarding abandoned property.

13.18.110 Violations.
Any person, corporation, partnership or other entity who violates any of the provisions of this chapter is subject to a fine in the amount of fifty dollars ($50.00) per day per violation.

13.18.120 Severability.
If any section, subsection, subdivision, sentence, clause, phrase or part of this Chapter or any part thereof is for any reason held to be invalid or unconstitutional by the final decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter or any part thereof.

Section 2. This Ordinance shall take effect from and after its date of enactment, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Ludye Wallace