An ordinance amending Title 13 of the Metropolitan Code to create a new Chapter 13.18 pertaining to the regulation of newsracks within the public right-of-way.

BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. Title 13 of the Metropolitan Code of Laws is hereby amended by creating the following new Chapter 13.18:

CHAPTER 13.18 REGULATION OF NEWSRACKS IN THE PUBLIC RIGHT-OF-WAY
Sections:
13.18.010 Purpose and Intent.
13.18.020 Definitions.
13.18.030 Newsrack Permit Director.
13.18.040 Transition
13.18.050 Permit Required.
13.18.060 Application for Permit.
13.18.070 Application Fee.
13.18.080 Display of Permit.
13.18.090 Renewal of a Permit.
13.18.100 Maintenance and Display Standards.
13.18.110 Prohibitions.
13.18.120 Revocation of Permit.
13.18.130 Seizure of Newsracks.
13.18.140 Hearings.
13.18.150 Severability.

13.18.010 Purpose and intent.

The Metropolitan Council hereby finds that newsracks placed and maintained on the public right-of-way, absent some reasonable regulation, may unreasonably interfere with the use of such public right-of-way, may present hazards to persons or property, and may interfere with the aesthetics of the area.
The Metropolitan Council further finds that public rights-of-way are historically associated with the sale and distribution of a diverse assortment of newspapers and other publications, and that access to and use of these areas for such purposes shall be encouraged and is not to be denied except where such use unreasonably interferes with the use of these areas by pedestrians or traffic, where such use presents a hazard to persons or property, or interferes with the aesthetics of the area.
The Metropolitan Council therefore has determined that a reasonable accommodation of these competing interests can be achieved by adoption of this Ordinance, which regulates the placement and maintenance of newsracks.

13.18.020 Definitions.

For the purpose of this chapter, the words and phrases used in this chapter shall have the following meanings, unless otherwise clearly indicated by the context:

A. "Abandoned newsrack" is any newsrack which remains empty for 30 business days, except that a newsrack remaining empty due to labor strike or any temporary and extraordinary interruption of distribution or publication by the newspaper or other publication sold or distributed from that newsrack shall not be deemed abandoned until such temporary and extraordinary interruption has ceased.
B. "Metropolitan Area" consists of the General Services District.
C. "Metropolitan Government" is the Metropolitan Government of Nashville and Davidson County, Tennessee.
D. "Director" is the Metropolitan Government of Nashville and Davidson County, Tennessee's Director of Public Works or his or her designated representative.
E. "Existing newsrack" is a newsrack that is placed within the metropolitan area on or before June 30, 2007.
F. "Location" is any area within the public right-of-way that has been approved by the Director as a proper newsrack location.
G. "Multi-unit Fixed Newsrack" is any self-service or coin-operated multi-unit box, container, storage unit, or other dispenser containing a minimum of five units that is permanently affixed to the public right-of-way for the display and sale or distribution of newspapers, periodicals or other publications.
H. "New newsrack" is a newsrack that is properly placed within the metropolitan area after June 30, 2007.
I. "Newsrack" is a general term used in this chapter when both single-unit freestanding newsracks and multi-unit fixed newsracks are implicated equally.
J. "Person", "Applicant," and/or "Permit-holder" is an individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit, excepting the United States of America, the State of Tennessee, or any political subdivision thereof.
K. "Public right-of-way" means real property subsurface and air rights acquired by the Metropolitan Government by any lawful means and includes the surface and that area below the surface which is necessary to support the public street, alley, path, bridge, tunnel, sidewalk, planting strip, median, waterway, dock, wharf, pier, public ground or other public right-of-way. Public right-of-way also includes the surface of any public street, alley, path, bridge, tunnel, sidewalk, planting strip, median, waterway, dock, wharf, pier, public ground or other public right-of-way acquired by the Metropolitan Government.
L. "Single-unit Freestanding Newsrack" is any single self-service or coin-operated box, container, storage unit, or other dispenser placed, used, or maintained for the display and sale or distribution of newspapers, periodicals or other publications.

13.18.030 Newsrack permit director.

A. Director--Authority.

1. The Director shall have jurisdiction over the permits, regulating and controlling of all newsrack permits as provided in this chapter, located in the Metropolitan Area.

2. The Director shall have authority to implement this chapter by appropriate rules and regulations, not inconsistent with state law, the Metropolitan Charter, or any ordinance, as it deems appropriate for the conducting of its business.

B. Inspectors--Authority. The Director is empowered to employ suitable person(s) as inspectors.

13.18.040 Transition.

A. All persons responsible for existing newsracks must submit an application for a permit by June 30, 2007, or remove the newsrack from the right-of-way.

B. A permit application to maintain an existing newsrack must include a photograph of the newsrack verifying its placement in the right-of-way on or before June 30, 2007.

C. A permit for an existing newsrack may be denied if the newsrack is in violation of any provisions of this chapter or regulations promulgated by the Director.

D. All persons responsible for existing newsracks who apply for a permit by June 30, 2007, may maintain the newsrack described in the application even if the Director votes to deny the application where such denial is appealed to a court in accordance with Section 13.18.140 unless the Metropolitan Government obtains injunctive relief.

13.18.050 Permit required.
A. From and after June 30, 2007, no new newsrack shall be placed within the public right-of-way without first obtaining a permit issued by the Director.
B. Any person that desires to place more than one newsrack in the Metropolitan Area must have a permit for each newsrack.
C. No permit or interest in a permit may be transferred to any person, partnership or corporation without first securing approval of the Director.
D. No person is allowed more than one permit for a newsrack on the same intersection of two public right-of-ways.

13.18.060 Application for permit.

A. Application.

1. Any person wanting to secure a permit shall make application to the Director. The applicant shall file the original application with one copy. The original application shall be dated by the Director and held in the files of the Director. A copy of the dated application shall be distributed the next business day by the Director to the Department of Codes Administration and the applicant.

2. Application forms shall be available at the office of the Department of Public Works and on the Department of Public Works' website for download.

3. The application form shall include all the information indicated in subdivisions (a) through (c) of this subsection.
a. The applicant's name, mailing address, telephone and fax number.
b. The frequency of publication.
c. The exact location on a map where the newsrack will be placed.
d. If relevant, proof that any outstanding fees are paid in full.

4. If any of the information on the application changes over the course of the time for which the permit is issued, including any changes in the location of the newsrack, the permit-holder shall inform the Director, in writing, of the changes.

B. Grant or Denial of Application.

1. The Director shall grant or deny an applicant's request for a permit and send notification of the determination to the applicant within fifteen days from the date the Director received the application.

2. Every permit issued pursuant to this chapter will terminate at the expiration of one year from the date of issuance unless sooner revoked and must be renewed before operation the following year.

3. If an application is denied, the applicant has the right to request a hearing pursuant to Section 13.18.140.

13.18.070 Application fee.

A. A permit fee of fifty dollars ($50) per single-unit freestanding newsrack shall be submitted with the application for an initial permit for a single-unit freestanding newsrack.

B. A permit fee of ten dollars ($10) per unit in a multi-unit fixed newsrack shall be submitted with the application for an initial permit for a multi-unit fixed newsrack.

13.18.080 Display of permit.

The permit shall be displayed in a conspicuous place on the newsrack.

13.18.090 Renewal of permit.

A. Any permit-holder desiring to renew a permit shall make application for renewal to the Director. The application for renewal must be filed not later than sixty days before the permit expires. The original application for renewal plus the number of copies listed in Section 13.18.060(A)(1) shall be filed and dated by the Director.

B. The Director shall adopt a renewal application form, which shall be available in written and electronic form.

C. The renewal application form shall be the same form described in Section 13.18.060(A)(3) for a permit except as indicated below in subsection G of this section.

D. For a renewal, the permit-holder shall fill out the renewal application form in its entirety or fill in any information which has changed over the year and is now different than the information indicated on the application from the prior year.

E. If the permit-holder chooses to only include information concerning items which have changed, he/she will swear to the accuracy of both the information contained in the renewal application form and the information attached from the prior year.

F. The renewal application form shall be the same form described in Section 13.18.060(A)(3) for a permit except the final line shall state:
I swear the information I have given in the application from 20___ is still accurate and any facts or circumstances which have changed are indicated in this application for a renewal of the permit.

Signature of Applicant.

G. For single-unit freestanding newsracks, a permit renewal fee of ten dollars ($10) shall be submitted with the renewal application form.

H. For multi-unit fixed newsracks, a permit renewal fee of ten dollars ($20) per multi-unit fixed newsrack shall be submitted with the renewal application form.

I. The renewal application form is subject to the same rules and limitations as the initial application.

J. Denial of a Request for Renewal. When a renewal application form is denied, the applicant has the right to request a hearing pursuant to Section 13.18.140.
K. A permit may be renewed annually only four consecutive times. After five years a new permit application fee must be paid.

13.18.100 Maintenance and display standards.

A. Every newsrack shall be maintained in good repair and working order. Newsracks that have been damaged or stolen shall be replaced or repaired as soon as is practical, unless the permit-holder wishes to abandon the location, in which event such person shall promptly remove the newsrack and repair any damage to public property caused by the installation or removal of such newsracks.

B. All coin-operated newsracks shall be equipped with a coin-return device maintained in good repair and working order.

13.18.110 Prohibitions.

A. No person shall place or maintain any newsrack, which, in whole or in part, rests upon, in or over any portion of any public right-of-way on which motor vehicles are lawfully permitted.

B. No person shall place or maintain any newsrack in any location where such newsrack leaves less than 36 inches of clear space for pedestrian path of travel on a public right-of-way or as required by the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. and its corresponding regulations, whichever is greater.

13.18.120 Revocation of permit.

A. The Director shall revoke a permit for any of the following reasons:

1. Discovery that false or misleading information or data was given on any application, or material facts were omitted from any application. False or misleading information does not include information which the applicant reasonably believed, after exercising due diligence, was correct at the time of the application;

2. Any cost or fee required to be paid by this chapter is not paid;

3. The permit-holder maintains a newsrack in violation of Sections 13.18.100, 13.18.110, or the regulations promulgated by the Director;

4. The permit-holder attempted to transfer his/her permit or any interest in his/her permit to someone else; or

5. The application for a permit or the application for the renewal of a permit was denied and that administrative denial was appealed and upheld by a court after adjudication on the merits.

B. Permit Revocation.
1. Before revoking any permit the Director shall give the permit holder fifteen days written notice of the alleged violation(s) against him/her. In such cases the charges shall be specific and in writing, except under Section 13.18.130.

2. When a permit is revoked, the applicant has the right to request a hearing pursuant to Section 13.18.140.

13.18.130 Seizure of newsracks.

A. After notice is given pursuant to Sections 13.18.060, 13.18.090, 13.18.120, and/or 13.18.140, the Metropolitan Government may seize and remove a newsrack if the permit holder: (i) has not requested a hearing pursuant to 13.18.140, (ii) has failed to remedy the violation within fifteen business days after having been mailed the written decision that the newsrack was installed or maintained in violation of this chapter, or (iii) the entire hearing process described in Section 13.18.140 is complete and the outcome is in favor of the Metropolitan Government and the permit holder has not repossessed the newsrack or brought it into compliance per order of the Director or the court.

B. Seized newsracks shall be retained by Metropolitan Government and may be recovered by the permit holder during a period of thirty days following seizure.

C. If a newsrack is installed or maintained in such a place or manner as to pose an immediate and serious danger to persons or property, Metropolitan Government may seize such newsrack without prior notice to the permit holder. The Director shall issue notification immediately after such seizure has occurred, and the permit-holder shall have the right to a hearing as set forth in Section 13.18.140. Further, the Metropolitan Government shall seek an immediate temporary injunction to continue to hold the newsrack pending a hearing before the Director. Any newsrack seized pursuant to this Section shall be retained by Metropolitan Government and may be recovered by the permit holder during a period of thirty days from the seizure.

D. Abandoned newsracks may be removed by a public officer of Metropolitan Government designated by the Director and may be disposed of if not claimed by the permit holder within thirty days. The above notwithstanding, at least thirty days before any newsrack is removed under this subsection, the Director shall issue written notice to the permit holder pursuant to this Section that such newsrack is suspected of being abandoned. Such newsrack shall not be removed if, before removal, the party responsible for its installation or maintenance informs the Director in writing that the newsrack has not been abandoned and promptly stocks and maintains the subject newsrack. In addition, the abandoned newsrack may not be seized until the permit holder has had five days from the date upon which the Director issued notice that the newsrack is suspected of being abandoned to request a hearing pursuant to Section 13.18.140.

E. The fee for seized and/or abandoned single-unit freestanding newsrack collection and storage is one-hundred dollars ($100) per single-unit freestanding newsrack.

F. The fee for seized and/or abandoned multi-unit fixed newsrack collection and storage is one-hundred dollars ($500) per multi-unit fixed newsrack.

13.18.140 Hearings.

A. Procedures for Hearings. This section shall apply to all hearings by the Director including but not limited to hearings for denial of an initial application, renewal, or revocation of a permit, or seizure of a newsrack.
1. A request for a hearing shall be in writing and filed with the Director within five days of the Director's decision to deny an initial application or renewal, to revoke a permit, or seize a newsrack.
2. The Director shall notify the applicant or permit holder by United States mail of the hearing date.
3. The hearing date shall fall within twenty-five days from the date the Director receives the request, unless the applicant requests a later date and the Director grants the request.
4. The applicant or permit holder shall have a minimum of five days of notice before a hearing may be held. An applicant or permit holder is considered notified upon their receipt of notification from the Director.
5. At the hearing, the applicant or permit holder may present evidence as to why his/her initial application or renewal should not be denied, why his/her permit should not be revoked, or why his/her newsrack should not be seized.
6. The Director has the authority to subpoena witnesses to testify before hearings.
7. Within five days of the hearing the Director shall state in writing the reason for the Director's decision that will either affirm or reject the denial of an initial application, renewal, the revocation of a permit, or the seizure of a newsrack and mail it by United States mail to the address of the applicant as listed on the application.
8. If the Director fails to issue a decision on the application, renewal, revocation, or seizure within the time specified in this section, then the permit shall be deemed approved or renewed, shall not be revoked, or the newsrack shall not be seized.
9. Any denial after a hearing of an initial application for a permit may be appealed by writ of certiorari to the Circuit or Chancery courts of Davidson County within sixty days from the date of the hearing. If an appeal is filed, then the Metropolitan Government shall file the record of all proceedings with the court within seven days from the date the metropolitan government was served with a petition for a writ of certiorari.
a. For an existing newsrack, as defined in Section 13.18.020, any adverse administrative decision denying an initial application that is appealed to any court shall not take effect until that decision has been upheld by the court after adjudication on the merits. If the court fails to rule within forty days of the filing of an appeal, a permit shall issue. When the court makes a determination after adjudication on the merits that upholds the administrative denial of the application then that application permit shall be denied. Adverse administrative decisions of the Director, which are not appealed, shall not take effect for sixty days from the date of the decision to allow the affected party time to seek judicial review.
b. For a new newsrack, as defined in Section 13.18.020, any adverse administrative decision denying an initial application shall take effect the day the decision is issued by the Director. If the adverse administrative decision is appealed to a court, and if the court fails to rule within forty days of the filing of an appeal, a permit shall issue. When the court makes a determination after adjudication on the merits that upholds the administrative denial of the application then that application shall be denied.
10. Any denial after a hearing of an application for the renewal of a permit may be immediately appealed by writ of certiorari to the Circuit or Chancery courts of Davidson County within sixty days from the date of the hearing. The Metropolitan Department of Law or the applicant may institute proceedings for a declaratory judgment. If the applicant chooses to appeal by filing a petition for a writ of certiorari, then the Metropolitan Government shall file the record of all proceedings with the court within seven days from the date the metropolitan government was served with a petition for a writ of certiorari.
11. Any decision after a hearing to revoke a permit may be immediately appealed by writ of certiorari to the Circuit or Chancery courts of Davidson County within sixty days from the date of the hearing. The Metropolitan Department of Law or the applicant may initiate proceedings for a declaratory judgment in the circuit or chancery court for Davidson County. If the permit-holder chooses to appeal by filing a petition for a writ of certiorari, then the metropolitan government shall file the record of all proceedings with the court within seven days from the grant of the writ of certiorari.
12. Any decision after a hearing to seize a newsrack may be immediately appealed by writ of certiorari to the Circuit or Chancery courts of Davidson County within sixty days from the date of the hearing. The Metropolitan Department of Law or the applicant may initiate proceedings for a declaratory judgment in the circuit or chancery court for Davidson County. If the permit-holder chooses to appeal by filing a petition for a writ of certiorari, then the metropolitan government shall file the record of all proceedings with the court within seven days from the grant of the writ of certiorari.
13. Any adverse administrative decision that is appealed shall not take effect until that administrative decision has been upheld by the court after adjudication on the merits. Adverse decisions of the Director, except the initial denial of a new newsrack application, which are not appealed, shall not take effect for sixty days from the date of the decision to allow the affected party time to seek judicial review.
14. None of the preceding subsection shall prevent the Metropolitan Government or the applicant from obtaining immediate injunctive relief when appropriate. The Metropolitan Government itself may institute any legal proceeding authorized by federal or state law if necessary to insure any applicant or permitee is provided prompt judicial review of any adverse decision of the Director.

13.18.170 Severability.

If any provision or clause of this Ordinance or the application thereof to any person or circumstance is held to be unenforceable by a court of competent jurisdiction, such clause or provision and the remainder of this Ordinance shall remain effective and enforceable to the fullest extent allowed by law, and all clauses and provisions of this Ordinance are hereby declared to be severable.

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

Sponsored by: Ludye Wallace, Mike Jameson, Ginger Hausser, Michael Craddock

LEGISLATIVE HISTORY
Introduced:	February 20, 2007
Passed First Reading:	February 20, 2007
Referred to:	Budget & Finance Committee Public Works Committee
Deferred:	March 20, 2007
Passed Second Reading:	April 3, 2007
Passed Third Reading:	April 17, 2007 - Roll Call Vote
Vetoed:	May 15, 2007
By: