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Help & SupportChapter 4-27: News Box Leases and Regulation53
(a) Newspaper distribution machines (often called newspaper vending machines or news boxes) on or adjacent to public sidewalks are a valuable method of distributing news and other information to the public. However, they constitute a fixed physical intrusion on public property, and their indiscriminate location on sidewalks can unnecessarily obstruct the primary function of the sidewalk, which is to allow persons to go from one place to another. They also can constitute visual blight, and can be distracting to motorists and pedestrians, and in Boulder they have had all of these effects. Furthermore, no other commercial activity would claim a right to physical occupation of the public sidewalk by proprietary structures in an unregulated manner, and even public utilities which have a high degree of autonomy from local regulation still must not interfere with the primary functions of the streets and sidewalks for which they have easements, express or implied.
(b) The city has carefully regulated the placement and form of newspaper distribution machines on its downtown mall since its inception in 1977 by providing news box banks onto which publishers of newspapers and other periodicals may install an openable face plate and their periodicals. These serve to group the machines in a few orderly and carefully chosen locations, and this has struck an appropriate balance between the competing needs for use of mall space and has allowed mall visitors and those who would serve them with publications reasonable opportunities to receive and give information. However, the mall contains significantly more pedestrian space than do the other streets and sidewalks in the downtown area of the city. The continued vitality of the city's downtown area has made downtown sidewalks increasingly congested, and thus, attractive locations for those who wish to disseminate information through newspaper distribution machines. The legislative record is replete with instances where unregulated placement of these machines, whether individually or in long phalanxes, have interfered with access to fire hydrants and parking meters, blocked access from vehicle parking to the sidewalk, interfered with bus stops, obstructed views in the corner sight triangle, and most poignantly have added to the difficulties that persons with mobility problems face in navigating the sidewalk. Further, significant portions of the downtown are within an historic district, and the unregulated placement and appearance of proprietary newspaper distribution machines interferes with the historic appearance of the area and the purposes of the district.
(c) Because of the problems associated with Boulder's fierce winds, it is essential that proprietary newspaper distribution machines be eliminated and that any news box or other rack or device serving any similar function in the distribution of publications be firmly affixed to the ground, and have a suitably functioning cover so that the materials are not scattered about. Permanent installation in turn requires city ownership to allocate fairly responsibilities and privileges to users of the right-of-way.
(d) Accordingly, this chapter is intended to regulate the design and placement of newspaper distribution machines within the right-of-way in the downtown commercial area of the city, where lack of regulation appears at present to present the most acute harm to the public good. However, the amount of space which can be devoted to these machines is limited, and thus, of necessity, a method of allocating that space must be devised.
(e) The city council has carefully considered what the best method of allocating this scarce public property resource for private newspaper distribution machines might be, and has determined that the news box bank method, similar to that which has been used on the downtown mall, best fits the circumstances of the downtown area, supplemented as needed with an additional joint use news box with multiple spaces for publications which are free and generally physically smaller.
(f) The city council has determined that joint use news boxes should be used in addition to individual news boxes, in order to accommodate free publications that cannot afford a larger individual news box space.
(g) The city council has determined that, at present, the problems caused by unregulated news boxes are most acute at only three locations, and that it desires to begin regulation by use of publicly owned news box banks only at those three locations. Publishers and distributors who use news boxes have contended that they should be allowed to regulate themselves, and reducing the areas to be regulated by the news box bank method from all of the downtown and University Hill to three areas will allow the industry to show if it can do what heretofore it has not had any interest in doing.
(h) Newspaper vending machines on the downtown Boulder Mall shall continue to be regulated in accordance with chapter 4-11, "Mall Permits and Leases," B.R.C. 1981.
(i) The city council has determined that requiring all news boxes everywhere on public property which are not in a public news box bank to contain identifying information, so that owners may be contacted by affected members of the public and public officials in case problems arise as a result of news box placement, is an insignificant intrusion and will, if publishers and distributors are in fact desirous of avoiding conflicts, improve public safety and welfare, and will be a necessary component of any further regulatory system short of the public news box bank system. The council has further determined that empty and apparently unused news boxes serve no useful purpose and are a nuisance, and that there should be a system by which the city may remove them from the public right-of-way.
(j) In adopting these regulations, the council intends to avoid doing anything which could be construed as censorship of the content of the publications placed in these news boxes, or of vesting standardless or unreviewable discretion in any public official which could be used to affect the content of the publications which appear in these newspaper distribution machines or otherwise interfere with rights guaranteed under the First Amendment, and this chapter and any other provisions of the code ancillary to it shall be interpreted so as to avoid any such unconstitutional applications.
Ordinance No. 7307 (2003)
Newspaper distribution machines are regulated by this chapter within the public right-of-way in only the following areas of the city:
(a) The RTD bus station, from one hundred sixty-five feet east of the southeast corner of Fourteenth Street and Walnut Avenue to the same southeast corner, then south on the east side of Fourteenth to Canyon Boulevard, then east along the north side of Canyon for one hundred sixty-five feet.
(b) The Post Office, from the alley on Fifteenth Street between Pearl Street and Walnut Avenue south along the west side of Fifteenth to the northwest corner of Fifteenth and Walnut, then west along the north side of Walnut for two hundred thirty feet.
(c) The Hotel Boulderado, from the alley on Thirteenth Street between Pine Street and Spruce Street south along the west side of Thirteenth to the northwest corner of Thirteenth and Spruce, then west along the north side of Spruce for one hundred thirty feet.
(d) These areas are collectively called in this chapter "the news box district."
As used in this chapter, the following terms have the following meanings unless the context requires otherwise:
"Joint use news box" means a separate structure designed to hold newspapers or other publications and protect them from the elements, that can be installed as part of a news box bank, and that contains provision for at least nine single slots for the distribution of several free publications, which materials passers by may obtain by opening a common door or doors without payment.
"News box" means one space in a news box bank designed to hold newspapers or other publications and protect them from the elements, which materials passers by may obtain by opening a door, whether after depositing money in a device which unlocks the door, or without payment by the customer, depending on the marketing of the publication. Where the context requires, news box also means a space in a joint use news box, and is used to indicate rights and responsibilities which are common to lessees of either type of space.
"News box bank" or "bank" means a structure or group of structures in one location erected by the city and firmly affixed to the ground with compartments which serve as a number of separate news boxes, and which may include a joint use news box.
"Newspaper distribution machine" means a device designed to hold newspapers or other publications and from which passers by may obtain the publications. Where depositing money in a device which unlocks a door is required, such machines are often called newspaper vending machines.
"Proprietary newspaper distribution machine" means such a machine placed or maintained on the public right-of-way within the news box district by a person other than the city. Where prohibited, the term refers to the machine without regard for whether the publication contained in the machine is a "publication" within the meaning of this section, or even whether there is any printed or other material within the machine.
"Publication" means a periodical which:
(a) Is published at least four times a year in different issues with sufficiently different content or format so each issue can be readily distinguished from previous or subsequent issues; and
(b) Is formed of printed sheets. The sheets may be die cut or deckle-edged, and may be made of paper, cellophane, foil, or other similar materials.54
"Publisher" means the person who pays to have a publication printed or otherwise causes a publication to be printed or otherwise reproduced.
"Right-of-way" means a public street from property line to property line, but does not include alleys or paths not located within a street right-of-way. It also includes an easement or other right adjacent to the right-of-way which the city has acquired from the property owner for the purpose of locating news boxes.
"Space" means a full sized news box with a separate door, which may be coin operated, or a slot, either double sized or single sized, in a joint use news box, installed as part of a news box bank.
4-27-4 Location of News Box Banks.
(a) The city council finds that the city manager has surveyed the news box district to determine the locations of existing proprietary newspaper distribution machines, the locations which are suitable for news box banks, and the appropriate size of each bank. The manager has used, in evaluating each location, general criteria to determine the effect on pedestrian and emergency services access on, to, and from streets and sidewalks, and public transportation, required maintenance of public facility infrastructure, vehicular safety, and the effect of the location, mass, and bulk of news box banks on the streetscape aesthetics of each block face, and has specifically considered sidewalk width, parking meter access, including access by persons with disabilities, access to bicycle parking, access to fire hydrants, access to bus stops, access to benches and trash receptacles, maintenance access to street trees, planters, utility and signal poles, access generally from the street to the sidewalk and the sidewalk to the street, blocking of views at intersections, alleys, and driveways, distance from intersections and driveways and alleys, distance from buildings, and the visibility of public art, and has determined the appropriate location for news box banks on each block face after taking into consideration the current locations and numbers of proprietary newspaper vending machines. The council has, after holding a public hearing, considered these determinations of the manager, and hereby ratifies them and adopts them as reasonable place and manner regulations of news box bank locations which reasonably reflect the carrying capacity of the news box district for news boxes within the right-of-way. These determinations are included in appendix A of this chapter.
(b) The city council finds that the city manager has surveyed the news box district to determine how best to relocate the users of existing proprietary distribution machines into news box banks located as specified in subsection (a) of this section. The council has, after holding a public hearing, considered these determinations of the manager, and hereby ratifies them and adopts them as reasonable place and manner regulations of news box bank locations, and includes them as an uncodified exhibit to the ordinance adopting this chapter to govern the transition to the news box bank system.
(c) Should, in the future, any news box bank require temporary or permanent removal because of construction or reconfiguration of the streets, sidewalks, or other portions of the right-of-way, the city manager is directed to provide a replacement or replacements, if the removal is reasonably expected to exceed three months, located as conveniently to the removed bank as is reasonably practical.
(d) If leases for installed news boxes or slots in joint news boxes expire, and no applicant on the waiting list enters into a new lease, the city manager may remove the unused box, boxes, or bank. If an application is received which could be satisfied by a removed box, the manager shall reinstall the removed box as promptly as is practical, but in no event within two weeks after the applicant pays for a lease.
4-27-5 Installation of News Box Banks.
(a) The city manager shall install news box banks as funds are appropriated for the purpose so that the existing proprietary newspaper distribution machines can be removed. The manager shall install news box banks on a per location basis, and no owner of an existing proprietary newspaper distribution machine within that location shall fail to remove it within fourteen calendar days thereafter. Thereafter, any proprietary newspaper distribution machine within the right-of-way at that location is declared to be a public nuisance, and may be summarily removed by the city manager, who may dispose of it in any convenient manner after ten days. If the machine is still in the possession of the city when the owner applies to the manager to get it back, the manager shall require full payment by the owner of the reasonable cost of removal and storage, plus fifteen percent for administration, before releasing the machine.
(b) The city manager shall provide the opportunity to install at least one joint use news box as part of each bank at the time of initial implementation of this chapter. If a bank does not have a joint news box attached as part of the initial implementation of this chapter, the manager may treat the bank as a location with available space and shall proceed in accordance with subsection 4-27-4(d), B.R.C. 1981, if and when application is made thereunder.
(c) When installing news box banks, the city manager shall consider sections 4-27-1, "Legislative Intent," and 4-27-4, "Location of News Box Banks," B.R.C. 1981, and shall in addition follow these standards:
(1) The linear footage of banks on any block face shall not exceed twenty percent of the linear footage of the block face, measured from the property lines at each end of the block.
(2) No bank shall be longer than thirty linear feet.
(3) Except where vehicle parking or stopping is prohibited, no bank shall be installed within three feet of the vertical face of the curb, or of any other designated parking space or loading zone. No bank shall be installed so that the face of any box which opens is less than three feet from the vertical face of the curb.
(4) No bank shall be closer than five feet to a fire hydrant.
(5) No bank shall be closer than five feet to a bus stop sign, and no bank shall be installed in such a way as to interfere with access to busses at designated bus stops.
(6) No bank shall be closer than five feet from a crosswalk.
(7) No bank shall be installed on or over a tree grate.
(8) No bank shall be closer than three feet from any existing structure.
(9) No bank shall intrude into the intersection, alley, and driveway sight triangles, as calculated in accordance with section 9-9-7, "Sight Triangles," B.R.C. 1981.
(a) On and after January 1, 2004, no person shall install, use, or maintain any proprietary newspaper distribution machine or similar device on the public right-of-way within the news box district other than in accordance with this chapter in a news box bank provided by the city.
(b) Spaces in the news box banks installed in the news box district are available for use by lease as provided in this chapter. But such leases shall be governed entirely by the provisions of this chapter, and without reference to principles of landlord-tenant law. The provisions of chapter 4-1, "General Licensing Provisions," B.R.C. 1981, concerning approval, denial, and revocation shall apply to administration of news box leases, including the applicable provisions of chapter 1-3, "Quasi-Judicial Hearings," B.R.C. 1981, but at the demand of the applicant any quasi-judicial hearing shall begin no less than five working days from receipt of the demand by the city manager, and shall not be continued, other than by agreement of the parties and the hearing officer, except at the instance of the applicant for good cause shown or at the instance of the city to prevent manifest injustice.
(c) A news box lease for an individual news box, a double sized slot in a joint use news box, or a single slot in a joint use news box is available to any publisher who wishes to place that publisher's publication therein. A news box lease is available for any particular publication for only one space in each of the banks within the news box district, and only one publication may be placed within a space. In order to be eligible for a lease, the applicant must be the publisher of the publication placed within a space, or an agent of a publisher. Where the applicant is an agent, the applicant shall so indicate, and the lease shall be valid only for the publications of such publisher and may not be assigned or transferred.
(d) The user may place a coin lock mechanism on an individual news box at the user's expense. Slots in a joint use news box shall contain only publications which are free.55
(e) The user shall not place anything on the exterior of the news box other than the logo or identifying wording specified by section 4-27-7, "Obligations of Users," B.R.C. 1981.
(f) Subject to the design constraints of the news box or joint news box, the user may place a copy of the publication found in the box vertically inside the face plate so that it is visible to customers, but may not place anything other than such publication in that position.
(g) The city manager shall not place nor permit the placing of any other advertising on the outside of the banks. But the manager may use any side of a bank other than the front face (where access to the publications is gained), at public expense, for designs or graphics designed to enhance the identity of the neighborhood in which it is located, or as a location for directories or maps showing pedestrians where they are and where local public and private services are to be found. This exception shall not be construed to permit the manager to place or permit paid advertisements, nor to cause the boxes or banks to become any kind of public forum.
(a) A news box lessee shall maintain the leased interior of the news box space, and, for individual news boxes, all mechanical workings of the individual box, including, without limitation, the window and face plate, the coin mechanism, the coin tray, and the lock, if any.
(b) The news box lessee may supply and affix to its leased individual news box or leased portion of a joint news box whatever logo or identifying wording it desires to use to let the public know which publication is inside the box. The identifying device shall be no larger than two inches high by fourteen inches wide for an individual news box, or two inches high and five and one half inches wide for a slot in a joint use news box. The identifying device shall be white text on a black background, and the device shall have a self-stick backing of a type approved by the city manager for its balance of adhesiveness and ease of removal, and be affixed in the location on the box specified by the city manager for all such boxes.
(c) A news box lease may be revoked when the machine is not stocked with the lessee's publication for a period of thirty days, or if the user has failed to maintain the news box for thirty days. The city manager shall not revoke a lease without notice to the user and an opportunity for a hearing. One seven-day opportunity to cure shall be extended in any calendar year prior to revocation.
4-27-8 Term, Expiration, and Revocation.
(a) A news box lease is valid for one calendar year, and expires if not renewed before expiration. Except for emergencies, unanticipated construction, changes in the location of transit stops, and other unanticipated situations where relocation is necessary in the public interest, lease locations shall not be changed by the city during any calendar year, but, with notice on or before November 1, may be relocated during the following calendar year.
(b) A lease can be prepaid for up to seven years in advance, in which case no application for renewal shall be required during such period. If a lessee surrenders a lease to the city in writing, the city manager shall refund the unused prepayment pro rata based on the number of whole calendar years remaining.
(c) No lease may be assigned or transferred except incidental to the sale of the publication from one publisher to another, and no lessee shall be deemed to possess any equity in the lease, although an existing lessee has priority in renewing. It shall be a grounds for revocation of the lease for any lessee to attempt to profit from the scarcity of sites for news boxes. No refund shall be made if a lease is revoked or expires.
(d) Upon denial of renewal of a lease, or revocation, or expiration for failure to renew, the city manager may remove the contents of any machine, change the locks, hold any contents and money as abandoned property, and issue a new lease for the news box or joint use news box slot to another person.
(a) The fees for use of news boxes are set based on covering the city's administrative costs, the capital cost and installation cost for the box structures, and the annual maintenance cost. The capital costs and installation costs are figured based on a seven year amortization and may be adjusted, based on replacement costs and to accrue a fund therefor, and to reflect actual installation costs. The maintenance cost will be set based on actual cost for the previous year of district operation (the maintenance cost component is estimated for the first year of operation), based on a projection at the time the fees are set, and adjusted up or down depending on whether the maintenance fund has had a shortfall or a surplus. The administrative costs are based, initially, on the city's experience with mall newspaper vending machine permit administration, and may be adjusted in future years.
(b) The fee for a news box lease is that specified in section 4-20-57, "News Box Fees," B.R.C. 1981, and must be submitted with the application for the lease or renewal of the lease if a box is immediately available at a location desired by the applicant. If such a box is not available, the applicant shall pay the waiting list fee specified in section 4-20-57, "News Box Fees," B.R.C. 1981. An applicant on a waiting list who is notified that a box is available shall pay the annual fee within ten days of notice, either actual by any means, or of the date of mailing by first class mail, whichever comes first. The waiting list fee does not reduce the annual fee.
4-27-10 Priority and Transition.
(a) News box leases, other than renewals, are available on a first-come, first-served basis based on date of receipt of the application during normal city business hours at the place where this chapter is administered. The priority between any applications received by the manager on the same day shall be determined by lot.
(b) But for the purposes of transition to the lease system created by this chapter, owners of proprietary newspaper vending machines in the news box district as of the date of the most recent survey by the city manager before the introduction of the ordinance establishing this system shall be given a preference under the new system for a space.
(c) Should the first-come, first-served method, or the transition provisions of this section, not resolve allocation questions, the city manager shall select publications by lot from among the current applicants.
(d) The city manager shall structure the waiting lists so that they may be for a specific area. The manager may additionally structure the waiting lists to accommodate applications for multiple areas.
4-27-11 Inapplicability of Other Code Sections.
Because it is essential that regulation of news boxes, given the First Amendment implications, be as clear and certain as possible, sections 2-3-5, "Downtown Management Commission," and 2-3-18, "Downtown Design Advisory Board," chapter 8-6, "Public Right-of-Way and Easement Encroachments, Revocable Permits, Leases, and Vacations," title 9, "Land Use Code," and chapter 9-11, "Historic Preservation," B.R.C. 1981, shall have no applicability to the installation and administration of news box racks by the city manager pursuant to this chapter.
4-27-12 News Box Identification Required.
(a) No person shall place or maintain any proprietary newspaper distribution machine upon the public right-of-way outside of the news box district unless the machine has affixed to it in a place where such information can be easily seen, in type no smaller than twelve nor larger than sixteen point, the name, address, and telephone number of the person responsible for the maintenance of the machine.
(b) In addition to any action which the city manager may take to enforce this section, the manager is authorized to treat any machine which is in violation of this section as abandoned property.
4-27-13 Unused News Boxes Prohibited.
(a) No person who places or maintains any proprietary newspaper distribution machine upon the public right-of-way outside of the news box district shall fail to keep the machine stocked with publications for a period of thirty days or more, or fail to maintain the machine for thirty days.
(b) For the purposes of this section, "maintain" means to keep in a state of reasonable functionality, including, without limitation, keeping the machine upright, with doors which open and close, free from litter and debris inside, and free from graffiti on the housing.
(c) In addition to any action which the city manager may take to enforce this section, the manager is authorized to treat any machine which is in violation of this section as abandoned property. The manager shall not remove an apparently unused or unmaintained proprietary newspaper distribution machine without notice to the user and an opportunity for a hearing. One seven-day opportunity to cure shall be extended in any calendar year. Thereafter the manager is authorized to treat the machine as abandoned property.
To Chapter 4-27, "News Box Leases and Regulation," B.R.C. 1981
Publications located at Post Office, RTD Bus Station and the Boulderado
As of April 11, 2003
Post Office – 15th and Walnut |
RTD Bus Station – 14th and Walnut |
|---|---|
Apartments for Rent |
Boulder County Business Report |
Auto Mart |
Boulder Weekly |
Boulder Weekly |
Colorado Daily |
Colorado Daily |
Christian Science Monitor |
Daily Camera |
Daily Camera |
Employment News |
Employment News |
Homes and Land |
Jobs and Careers |
Nexus |
Investors Daily |
Onion |
Nexus |
Denver Post |
New York Times |
Rocky Mountain News |
Auto Mart |
Employment Guide |
Onion |
Times Call |
Denver Post |
USA Today |
Rocky Mountain News |
Westword |
USA Today |
Boulder Valley Bargains |
Westword |
Post News Jobs Classifieds |
Wall Street Journal |
Wheels |
Employment Guide |
Rental Guide |
Lafayette News |
Denver Job Guide |
Louisville Times |
Women's Magazine |
Erie Review |
Mountain Gazette |
Boulder Valley Bargains |
New York Times |
Wheels |
Jobs & Cars |
Denver Job Guide |
Rental Guide |
|
I-GO Careers |
|
Boulderado – 13th and Spruce |
|
Employment Guide |
Investors Daily |
Employment News |
Homes and Land |
Boulder County Business Report |
Nexus |
Wheels |
New York Times |
Rental Guide |
Onion |
Car & Truck |
Denver Post |
Mountain Gazette |
Rocky Mountain News |
Denver Job Guide |
USA Today |
Coldwell Buyer's Guide |
Westword |
Auto Mart |
Wall Street Journal |
Women's Magazine |
Jobs & Cars |
Post News Jobs |
Boulder Weekly |
South Central Hotel/Motel Coupons |
Colorado Daily |
Boulder Valley Bargains |
Daily Camera |
53 Adopted by Ordinance No. 7282.
54 The requirements in this part of the definition are drawn from the United State Postal Service manual as part of regulations which distinguish publications which are eligible for special mailing rates from those which are not. A deckle edge is a rough, untrimmed edge.
55 The configuration and design of the joint news boxes contemplated precludes coin or similar operation for a fee.