(MSCC) John Mudd, Sharon Jasprizza, September 25, 2018 — Newspaper/Magazine Dispenser Problem and Solutions Study

Prepared by: Midtown South Community Council

Prepared for: Midtown South’s Community Partners

Prepared when: October 12, 2017

Content

INTRODUCTION

GENERAL

PROBLEM

OBJECTIVE

PROBLEM Overview

CITYWIDE

NATIONWIDE

MANAGERIAL NEGLIGENCE

PUBLIC’S HEALTH AND WELFARE

SAFETY RISKS

REGULATORY REVIEW

REGULATIONS

LEGISLATION

SOLUTIONS

ENFORCEMENT

DESIGN ALTERNATIVES

NEW DESIGN ALTERNATIVES

COOPERATIVE

PUBLIC EMPOWERMENT

LEGAL

SUMMARY

appendix A: DOT NEWSRACKS RULES AND REGULATIONS

appendix B:  FIRST AMENDMENT INTERPRETATION

appendix C: DESIGN REQUESTS

appendix D: NEW DISPENSER BUDGETS

 

INTRODUCTION

GENERAL

The Midtown South Community Council is a not-for-profit 501c3 organization devoted to bettering the quality of life within Midtown South of Manhattan. Midtown Community Council (MSCC) interest’s covers south of 45 Street to north of 29th Street, and the east side of 9th Avenue to the west side of Lexington Avenue. MSCC’s Beautification Program, one of our many developing programs, supports many improvement plans within New York City’s Midtown South, including keeping our pedestrian sidewalks clean and safe.

PROBLEM

New York City’s sidewalks are filled with obstacles: phone booths, kiosks, garbage cans, illegal dumping, sign and light posts, and so on. The newspaper/magazine dispensers (known as “newsracks†in the Department of Transit (DOT) rules and regulations) are one of the more obtrusive and unnecessary obstacles in our city. They are kept in ill repair, often times are empty, and they are turned on their side and used as furniture to sit on. The plastic (non-environmentally friendly) and metal dispensers are not only eyesores, but are obtrusive, and can often be found in groups of two to twelve or more, competing with pedestrians for sidewalk space.

OBJECTIVE

This proposal examines the problem posed by and options for these singular plastic newspaper/magazine dispensers that house the publications: Metro, Daily News, China Daily, AM New York, Daily News.

We are seeking the best solution and will work to resolve this issue, with the help from our community building partners: Grand Central Partners, Port Authority, Transit Authority, Times Square BID, 34th Street Partnership, Garment District Alliance, Fashion BID, Hell Kitchen Alliance, Hudson Yards, 5th Avenue BID, Bryant Park Association, Cb4, CB5, Borough President, Councilman Cory Johnson’s office, Mayor’s office, Department of Transportation, other governing bodies, and New York City agencies, and of course our Midtown South Precinct, with an interest to improve our city’s mobility and aesthetics and enhance pedestrian health, welfare, and safety.

PROBLEM Overview

The newspaper/magazine dispensers, hereinafter referred to as dispenser(s), are not only a city problem but also a nationwide problem. The managerial neglect of the dispensers and wire racks leaves our public with health, welfare, and safety risks .

CITYWIDE

The dispensers plague our streets, clutter our sidewalks, and degrade our landscape, and their unsightliness misrepresents our city’s progressiveness. These dispensers are unnecessary: individuals hand out the more popular and widely distributed papers and magazines (Metro, AM), leaving the dispensers empty and with no real purpose—see picture at right).

The eight feet DOT regulation does nothing to curb the dispenser’s tendency to be moved (see Appendix C). Often they are dragged along on sidewalks, used as chairs, beds, garbage cans, and other nefarious activities; the latter is noted by Joseph Lauletta, U.S. Circulation Director for Metro, “…drug dealers are using the boxes for drug deals.†DOT regulations states, “Newsracks must be weighted down in such a way as to ensure that they cannot be tipped over.â€

Street corners, especially near subways entrances are common places for the dispensers. Many Metro and AM New York dispensers have thin wire racks and an occasional handcart attached to its back. (See milk crates and wire racks attached to dispensers at right).

Racks and handcarts are found tied to scaffolds, metal rails, and light or sign posts (see picture at right). The distributors place these wire racks on sidewalks without regulatory supervision, and often near subway exits where they obstruct the droves of people pouring from them during rush hour.

Nothing in the regulations permit these wire racks to be stored on our sidewalks, nor on the backs of their dispensers. They compromise the public’s mobility and safety. Without the strict enforcement of regulations, further abuses are encouraged.

NATIONWIDE

The problems of the dispensers are not for us alone, they are nationwide problems too. North West District Association of Portand Oregon noted after a survey of violations on NW 23rd:

In January 2012, the newsracks along four block faces of NW 23rd were analyzed for encroachment violations and city pole/posts usage violations. A total of 27 newsracks were located along the western side of NW 23rd from Glisan to Kearny. 18 (67%) of those violated the encroachment policy. 11 (41%) violated the city pole usage requirements.

San Francisco, Philadelphia, Boston, Florida, Cincinnati, and other cities have fought similar battles on the streets and through the courts (see the Legal section of this proposal).

MANAGERIAL NEGLIGENCE

There is a lack of regulatory adherence: The publisher/distributors would argue that their dispensers’ permit includes the wire racks and employees. Joseph Lauletta, U.S. Circulation Director for Metro:

Our boxes have permits, the permit extends to our property, including a hawker handing out papers by the box. The only thing we need an extra permit for, is if we are handing out food. The rules state that newsracks may not be placed at any distance less than 18 inches or more than 24 inches from the face of the curb. This leaves us 6 inches on the back of the box to attach wire racks.  There are no specifications about chaining on the side of the rack, so this is permissible.

Mr. Lauletta is incorrect in that the permit extends to their property. It is the dispensers that have permits. There are no rules permitting the use of thin wire racks anywhere upon our landscape. Logic does not prevail in the absence of specificity: when filing a location card, it is the dispenser or “newsrack†that is documented and permitted. Just because there are 6 inches that are unused, does not mean they should be available for attaching wire racks in their place. And to state the obvious, hawkers are not property; it is the first amendment that allows the “hawkers†to hand out publications.

As for the dispenser, rack, or other objects being a form of free speech, Chief Judge Juan Torruella, of the U.S. Circuit Court of Appeals in Boston, would disagree, and did so in a 1993 decision: “While the First Amendment guarantees the right to circulate publications, it does not guarantee the right to do so through private structures erected on public property.â€

PUBLIC’S HEALTH AND WELFARE

Dispensers lying on their side, battered and marked, are not good for consumption.

Comprehensive urban planning grew from the City Beautiful Movement, its members, architects, landscape architects, and at least one lawyer, Albert S. Bard, sought to obtain legislative means for aesthetic regulation in New York City. The City Beautiful Movement’s fundamental idea was that “livability of cities was essential to the health, welfare, and safety of the people.â€

Heinz Paetzold notes in The Aesthetics of City Strolling, “…the rhythm of traffic on the streets and squares influences the mode of city strolling. Each individual metropolis has a rhythm of its own by which everyday life is enacted. The rhythm in New York is different from that of Paris, Singapore, Shanghai, Beijing, Tokyo, or Rome. Rome is hectic; whereas the crowds in New York move forward like a torrent of lava.â€

The torrent of lava doesn’t stop short for objects in its path, but rather absorbs it; seemingly unaffected, yet subconsciously distressed.

The psychological effects are not so obvious. The dispensers are just another subliminal annoyance (late trains, dirty and smelly subway stations, overcrowded streets and subways, long work hours) all gnawing on our nerves.

As Heinz Paetzold said in The Aesthetics of City Strolling in Contemporary Aesthetic’s

“Atmospheres take possession of us without reasoning. We experience the atmosphere first and then concentrate on the details of the scene.â€

We humans need healthy visuals for consumption. Let us walk a little more comfortably in our shoes toward our destination in this highly charged city without the stressors, which are not overtly noticed, but which negatively affect us. Beautification of our city is important. Aesthetics advertise our city. Cleaning, greening, and keeping graffiti-free spaces are important as we move through our city. Certainly the sidewalks of midtown Manhattan do not yield great pleasure, but why offer further displeasure with broken and unsightly obstacles in the path of pedestrians. Why poorly advertise our city?

SAFETY RISKS

The dispensers and their managerial neglect not only violates NYC rules and regulations, and harms the public’s health and welfare, it also poses a direct safety threat…

• To state the obvious, one could easily trip and fall over the dispensers
• The homeless, loiterers, and transients are attracted to dispensers not for their reading material, but for use as chairs, couches, beds, so they can sit, lounge, and sleep

Groups of loiterers on the streets, with questionable motives, can cause anxiety among pedestrians.

• The dispensers are sometimes used as trash cans, or for hiding places to stash drugs, the latter is noted by Joseph Lauretta:

The police need to be notified about 39th and 9th, drug dealers are using the boxes for drug deals, the police will have to get involved here, we do not approach drug dealers.

• • When asked if drug dealers have been known to stash drugs in the dispensers, the Midtown Precinct confirmed, “Sometimes they do.â€
• And for security concerns, a dispenser, sitting idly on a busy street corner in midtown, can easily be used as a hiding place for an explosive device.

If the distributor refuses to maintain his property, what rules, regulations, and laws are there to ensure the public’s safety?REGULATORY REVIEW

Regardless of whatever solutions can be found, the dispensers need vigorous regulation and policing.

Civitas, a nonprofit, quality of life champion in New York City, specified 162 locations between 59th Street and 96th Street from Fifth to York Avenues where dispensers were in violation of the law. The list was sent to the Department of Transportation (DOT) for enforcement. They only removed one dispenser—it lacked proper identification. “According to DOT, they removed a paltry 51 newsracks in 2012 throughout the city.â€Â â€”from CIVITAS blog post 

We look at the NYC guidelines, rules, regulations, and laws to examine why violating them is more like crossing against the “Don’t Walk†sign than the crimes of theft, robbery, or murder.

REGULATIONS

The DOT rules and regulations for the “newsracks†and the NYC Administrative Code Sidewalk Rules, with the NYC Street Design Manual were not put in place to enable the publisher/distributors free reign. Rules, regulations, and laws are contracts to make clear what is expected by the participants and are enacted and enforced for the public’s welfare and protection.

Further protections are found ensconced in our laws from which the rules and regulations are derived from, such as the Bard Act of 1956, New York City Local Law 23, and New York City Local Law 36.

LEGISLATION

Bard Act: Out of the City Beautiful Movement of New York City (1895-1980) came the Bard Act, passed in 1956, permitting local municipalities to pass laws that regulate the aesthetics of the city. By beautifying the city, the government was providing a benefit to the public overriding private interests. The “police powers†were extended to mean that the regulation of the physical environment promoted the health, safety, and welfare of the people.

The city of New York Local Law 23 of 2002 speaks directly to our dispenser problems:

• “Every newsrack shall be placed or installed in a manner that will ensure that such newsrack cannot be tipped over.â€

‘Many of the dispensers are in violation of the above clause, the dispensers, as the homeless, loiterers, and transients are using them everyday for chairs, couches, or beds. The language is clear, but the infractions carry on without impunity.’

• “Maintenance, continuous use, repair and removal. Any person who owns or is in control of a newsrack shall be required to monitor each newsrack so that it is kept clean and free of graffiti and other unauthorized writing, painting, drawing, or other markings or inscriptions and is kept in good repair.â€
• “Such person shall also use best efforts to ensure that each newsrack under his or her ownership or control is not used as a depository for the placement of refuse and shall be required to remove any refuse placed within such newsrack within twenty-four hours of being made aware of such condition.â€
• “In no event shall the owner or person in control of a newsrack fail to keep such newsrack supplied with written matter for a period of more than seven consecutive days without securing the door so as to prevent the deposit of refuse therein. In no event shall such newsrack remain empty for a period of more than twenty-one consecutive days.â€
• “Any newsrack that has been damaged or vandalized shall be repaired, replaced or removed by the owner or person in control of such newsrack within ten days of receipt of notice of such damage or vandalism. If such newsrack has been damaged or vandalized so as to constitute a danger to persons or property, it shall be made safe within a reasonable time following notice of such condition.â€

These clauses are regularly violated and more. All over the city the dispensers sit damaged and empty of “written matter†and sometimes filled with refuse. The responsibilities are clearly outlined for the governing of the dispensers, that is, if the distributors follow the regulations. The management ultimately falls upon the agency, activist, and persons of the community.

The Local Law 36 amendment to local law 23, Subdivision e of section 19-128.1 of chapter 1 of title 19 of the administrative code of the city of New York, removes the text requiring newsrack owners to regularly maintain the newsracks, to only requiring a maintenance certification three times a year. Essentially, adding even more oversight duties to an already overburdened public and their advocates, while at the same time lessening them for the distributor.

The First Amendment is the preferred shield of protection for freedom of expression. (See a common interpretation, Appendix C).

My layman sensibilities conclude:

• The guidelines, rules, regulations, laws, and the First Amendment of our Constitution were meant for the public’s interest
• It is the offender who disrespects the public by not abiding by the rules, regulations, and laws
• The ineffectualness and strenuous process to force violators to comply with the rules, regulation, and local law for the protection of the public’s interest, or the ability to efficiently evict the empty, battered, and useless dispensers from our public’s pathway, reflects largely upon the legalese
• The legislatures’ duty is to implement harsher and more stringent rules to incentivize the violators to comply and participate in the public’s interest

Furthermore, rigorous oversight and enforcement must be called upon in the absence of violators’ willingness to follow our laws, regardless of the strength of those rules, regulations, and laws.

solutions

The problems that have plagued ours and other cities nationwide tell us that there will always be managerial neglect. The solutions hereinafter examine enforcement and design replacement options for the stand-alone dispensers. We also consider their removal through cooperative, public empowerment, legal, and or legislative means.

ENFORCEMENT

Regardless if we replace the current dispensers with fixed dispensers, the regulations need to be policed.

The city of New York Local Law 23 of 2002: 

• “Enforcement. Whenever any newsrack is found to be in violation of this section, the commissioner shall issue a notice of correction by affixing it to such newsrack specifying the date and nature of the violation and shall send written notification, by regular mail, to the owner or person in control of the newsrack.â€
• “Such person shall within seven business days from the date of receipt of notification via regular mail cause the violation to be corrected.â€
• “If the board renders a decision upholding the finding of a violation against the respondent upon default or after a hearing held pursuant to paragraph one of this subdivision, and the violation is not remedied within seven days of receipt of the decision of the board, the commissioner or his or her designee is authorized to provide for the removal of such newsrack and any contents thereof to a place of safety.
• “Any owner or person in control of a newsrack found to be in violation of any provision of this section shall, after a board decision has been issued upon default or after a hearing, be subject to a civil penalty in the amount of no less than one hundred dollars and no more than five hundred dollars for each violation.â€

The process lacks effective outcome. If the distributors do not remedy a fix to the violation after notification, the distributor will have ample opportunity after a judge’s decision with no hefty penalty to deter them. No cumulative penalties to effect changes. Do the laws hinder enforcement? If it is not specified a distorted logic prevails, as in Mr. Laulette case, “There are no specifications about chaining on the side of the rack, so this is permissible.†Is there a hesitancy to ask a judge to prevail and sort out the right logic?

Corporations are not self-policing. Enforcement burdens city agencies, civic-minded principals, community groups, and individuals. Can a new design and management program be the solution?

DESIGN ALTERNATIVES

There are fixed designs housing several publications that are much more favorable than the current plastic single dispensers that are seen on our sidewalks throughout this city.

• The 34th Street Partnership and Grand Central’s dispensers hold single or multiple newspapers and or magazines (see six unit pictured  at right). The units are kept clean. The 24â€x 24†double, and certainly the 42†x 24†bulky-bodied dispensers, take up considerable amount of space. However, this design consolidates the dispensers and allows for storing of the wire racks.

• The Garment District Alliance’s multi dispenser prototype (shown at right) in comparison to the above takes up less space when considering the many publications it houses. It also has the dual purpose of greening our landscape.

• San Francisco’s Department of Public Works entered into a 20-year contract with Clear Channel Outdoors to place fixed pedestal newsracks in the public right-of-way. DPW administers the newsrack program.

• Many cities have fought to eliminate the use of the plastic and metal dispensers by using similar programs, charging users fees to manage dispensers, and partnering with a manufacturer for the production and maintenance of them.

Although these designs are much appreciated over the moveable single plastic or metal dispensers used by the distributors, they still confiscate a good portion of our public sidewalks. They also add, rather than subtract, to the clutter of our landscape (garbage, office furniture, kiosks, trash cans, sign and light poles, and more).

NEW DESIGN ALTERNATIVES 

We believe there is a better design to be had, one that may add beauty and square footage to our landscape. We are searching for an aesthetically appealing alternative to the stand-alone dispensers through a design competition. Please see  our press release (Appendix C), also on our website.

One promising design offering is an attachable unit that uses existing street furniture (light and sign poles), rather than adds to the clutter (garbage, office furniture, kiosks, trash cans, sign and light poles, and more) on our landscape.

Can there be a dual purpose in some of our existing structures? Why not attach newspaper/magazine dispensers (similar in size to the box pictured at right) to the light or sign poles? Perhaps it could also have side panels to display missing persons or community notices?

The benefits in using existing structures:

• Allows more sidewalk space
• Provides easy passage for pedestrians
• Improves aesthetics
• Reduces misuse
• Offers job opportunities

Other cities, ours included, enjoy some success with permanent installations. However, the publisher/distributors continual non-compliance to the rules makes it a risky investment. The removal may be the most cost effective and best solution for our city and the public’s interest:

• It reduces potential hazards
• It removes the burden of policing them
• It takes away the competition between the dispensers and pedestrians for sidewalk space
• It may persuade distributors to hire more personnel to hand out their publicationsCOOPERATIVE

We’ve asked the distributors to remove their units on a particularly hazardous corner, and they have obliged. Perhaps with further communication they will be responsive to the community and remove all their dispensers. Reasoning may rule the day: The dispensers are antiquated and destined for retirement; both the “hawkers†and even the internet negate the usefulness of the dispensers. The distributors may rethink the dispensers in the wake of dwindling production.

A 2009 a CNN article reported that, “The New York Times had 5,678 boxes at the time, down from 13,300 a decade earlier.â€

The Learning Annex has quit using the dispensers, and rely primarily on internet advertising.

The Village Voice announced on Wednesday, August 23, 2017, that they are discontinuing their print publication.

The 34th Street and Grand Central Partnerships’ fixed dispensers in the city are often found empty.

Newsweek 2016 article notes:

• Given the state of newspaper boxes in those cities, it’s no surprise that publications are shifting strategy or shuttering altogether: In Philadelphia, where city code requires licenses for the boxes, there were 527 of them this year, the city says. A decade ago, the number was 1,401; In New York, where the Department of Transportation regulates the boxes, there were 10,000 registered this year, the city says. That’s down from more than 12,500 registered just three years ago.
• According to data collected by the Newspaper Association of America, in 1996, newspaper boxes accounted for about 46 percent of single-sale daily newspapers. In 2014, that percentage was down to 20. And in 2008, daily newspapers had on average 210 newspaper boxes. In 2014 the number was 128.â€
• A spokeswoman for the Times tells Newsweek, the number in the entire country is 39. The publication has not purchased a new box in more than five years…. It’s not been a little decline,†says Ruitenschild. “It’s fallen off the cliff.â€
• John Murray, vice president of audience development at the Newspaper Association of America, says some publications have even gone “cold turkeyâ€â€”that is, pulled all of their boxes.
• Jay Sterin, general manager of Philadelphia Weekly, which acquired the intellectual property of Philadelphia City Paper, says they picked up most of the City Paper boxes and put them in storage. Others will be repurposed with the Weekly’s logo.
• “If countless newsracks appear to be abandoned, there is good reason: time has passed them by as an effective means of distribution.â€

San Francisco Public Works entered a deal with Clear Channel to install and manage numerous multiple fixed units throughout San Francisco’s residential commercial corridors (see locations)—only to be removing them.

Publishers of newspapers and other once-print media increasingly look to the internet as the primary vehicle for distribution outside of home deliveries and newsstand sales. Perhaps the publishers/ distributors will give considerable thought to removing their units.

PUBLIC EMPOWERMENT

How can the public be empowered to make a change? Alberta, Portland Oregon’s regulations empowers and encourages business owners to combat the newspaper/magazine dispensers encroachment on city sidewalks:

Local building owners and shopkeepers can participate in reducing the proliferation of singleâ€use publication boxes. The City of Portland code Title 17/Public Improvements †Chapter 17.28.020 specifies the responsible party for sidewalk management as the owner of the property that abuts the rightâ€ofâ€way. This makes the property owner responsible for newsrack encroachments, which are placed haphazardly and aggressively by publishers.

The Alberta Main Street website highlights a history of problems with the dispensers and encourages business owners further:

Good news! If you do not want newsrack boxes on the sidewalk outside your store obstructing a crosswalk, hindering access to your business, encouraging graffiti, or accumulating trash you, can take action and take back control of the sidewalks.

Business owners are often sued for slip and falls: A man trips over a basement hatch, a person slips on an icy patch in front of their premises. Building and business owners are required to patch, repair, and replace pieces of the sidewalk to avoid fines. New York City is clear about the business owner’s responsibility to maintain and repair our sidewalks. Business owners may have standing here, as they are responsible for the sidewalk conditions pursuant to the NYC Sidewalk Rules.

LEGAL

Protections for free speech were not meant for inanimate containers, nor should these dispensers have rights over people. The freedoms are applied to words spoken and printed.

The distributors repetitively ignore the public’s interest; the rule of law is against them, maybe not stridently applied. New legislation banning the dispensers may be more cost effective.

Although this does not come without a disclaimer: I’ve spoken informally with a former attorney for the city, and formally with our Council’s Attorney, Howard Lieb. He advises:

I can spend time on this and bill you for it, but I can tell you two things going in, 1. The Courts have set out a different standard for street sales of First Amendment protected items such as books and newspapers, and 2. If they have a city permit, you have a huge up-hill battle, which will involve both administrative proceedings and then court proceedings to even try to get the permits revoked (which you will need to do if you want to change this).

Legal recourse can be slow, arduous, and costly. The end result is uncertain, boiling down to who has deeper pockets and the ear of the judge, with the lawyers winning in the end. A good portion of cases travel to the higher courts.

“…the outcome of any particular newsrack litigation is hard to predict†said Nicki Ballinger, an attorney with the Newspaper Association of America.

“Attorneys consulted by CIVITAS advise that it is almost certain that the courts would uphold a law banning newsracks on public sidewalks from a challenge under the First Amendment. Laws banning newsracks from Beacon Hill and Back Bay in Boston have been sustained, and courts (including the Supreme Court) have assumed that flat bans throughout a municipality would not be deemed unconstitutional.†-CIVATAS

We do have a history of cases to consider and look to for advice.

CASE STUDIES

The dispensers’ legal disputes have been a mixed bag of winners and losers, between the publishers and municipalities. The lower courts appear divided on how they resolve newsrack controversies…

Globe Newspaper v. Boston’s Beacon Hill Architectural Commission:

• The 1st U.S. Circuit Court of Appeals upheld a ban on all “street furniture,†including newsracks in Boston’s historic Beacon Hill District.
• The First Amendment Center:

The newspaper publishers involved in that case argued that the total ban on street furniture violated their First Amendment rights. The 1st Circuit disagreed in Globe Newspaper Company v. Beacon Hill Architectural Commission, writing: “That the Street Furniture Guideline results in a total ban on newsracks is nothing more than an incidental effect of its stated aesthetic goal of enhancing the historic architecture of the District by reducing visual clutter.†The appeals court also reasoned that there were still ample alternative means for publishers to distribute their newspapers in the district, including “home delivery, sales by stores, street vendors, and mail.

Gold Coast Publications, Inc. v. Corrigan (Coral Gables, Florida): 

• The 11th U.S. Circuit Court of Appeals upheld many newsrack regulations in Gold Coast Publications, Inc. v. Corrigan.
• The First Amendment Center :

Several publishers challenged a variety of restrictions imposed by the city of Coral Gables, Fla., including the required use of a particular model of newsrack, uniform color requirement for all racks, and a uniform size of lettering on the racks. The city, whose motto is “the City Beautiful,†sought to regulate the growing number of newsracks, which to many city leaders were becoming eyesores. The city argued that the regulations were important for both safety and aesthetic reasons.

It is clear that the right to distribute newspapers is protected under the First Amendment. The Appeals court noted “a newspaper publisher does not have complete freedom in setting up a newsrack distribution scheme.†And concluded “the city’s rules were valid restrictions on the time, place and manner of speech that did not affect the content of the speech.â€

The U.S. Supreme Court has twice decided cases involving newsracks.

:

• In its 1988 decision the high court invalidated a city ordinance that gave the mayor unbridled discretion to determine whether publishers could place newsracks in various locations.
• The city ordinance provided that the mayor could deny a newsrack permit and require publishers to abide by “such other terms and conditions deemed necessary and reasonable by the Mayor.â€
• This provision, the Court said, gave the mayor “unfettered discretion†to issue permits to certain newspapers and to deny permits to others. To the Court, this was unacceptable under the First Amendment.

City of Cincinnati v. Discovery Network, Inc.:

• In its 1993 decision, the high court decided in favor of the plaintiff.
• The city revoked the newsrack permits of those publications that it called “commercial handbills.†Thus, the city allowed traditional newspapers to remain in newsracks but required the removal of other publications that were devoted primarily to advertising.
• The city justified its ordinance on its legitimate interests in safety and aesthetics. The city argued that it was only revoking the permits for papers of lesser value. The Supreme Court responded:
  • “In our view, the city’s argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech.â€
  • “This very case illustrates the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category.â€
  • The city may have an interest in aesthetics, the Court noted, but the newsracks of the challenging parties “are no greater an eyesore than the newsracks permitted to remain on Cincinnati’s sidewalks. Each newsrack, whether containing ‘newspapers’ or ‘commercial handbills,’ is equally unattractive.â€
  • The city also argued that if it had the power to ban newsracks, then it surely could limit the number of newsracks. The Court disagreed, asserting that “even if we assume…that the city might entirely prohibit the use of newsracks on public property, as long as this avenue of communication remains open, these devices continue to play a significant role in the dissemination of protected speech.â€

SUMMARY

Pursuing a design alternative is risky. There is no limit to the number of dispensers that can be placed on the sidewalk as long as each dispenser is in compliance with all other regulations. Can a deal be struck to guarantee that all must use our design for their dispensers? To fund this option in hopes of an agreement with the all the publishers seems unrealistic. What if they decline? What if a new publisher comes along? If we were to have an agreement in place much like that of Grand Central Partnership and 34th Street Partnership, will a rogue plastic dispenser pop up next to a multi-unit one to claim its square feet of free speech? Can they be forced to comply with the program? Will the city support regulations for them to comply? What if we don’t have the space? To disallow new participants will likely have us in court (see Supreme Court Decision: )

After going through the process of design development, approval, manufacture, and installation of a new or an existing dispenser, it would be disheartening, to say the least, to see a rogue publisher ignore our mission to exercise their free speech. The public’s interests are not protected by the regulations: They lack stringent enforcement and are arguable by well-funded corporations. The New York Newspaper Association already argues that “the law unreasonably restricts ownership of multiple-vending newsracks, bans single-publication newsracks, and fails to clarify the selection process for inclusion in multiple-vending newsracks.â€

With the publisher/distributor’s penchant for self-interest, disregard for regulations, lack of management, and the dispensers lack of usefulness, bad public image, and inevitable retirement, the better choice is clear. Furthermore, the publishers/distributors put the property owner in a precarious position: The property owner has the responsibility of keeping the sidewalks maintained for the safety of pedestrians. It is doubtful that these publishers/distributors will leave the business owner completely unharmed, or the city from their neglect.

The public is not interested in suffering the dispenser’s causal consequences. The publisher/distributor stands alone in opposition to a huge population of community councils, community boards, councils, mayoral, and all other governing and enforcement agencies.

appendix A: DOT NEWSRACKS RULES AND REGULATIONS

NEWSRACKS

•Registration

•Maintenance

•Size and Placement

•Enforcement

A newsrack is defined as self-service or coin-operated box, container or other dispenser used for distributing of newspapers or other printed material. Newsracks are often installed on city streets. Because they occupy public space and have the potential to cause safety hazards or attract trash and graffiti, the city regulates newsracks, setting up registration and insurance requirements. The complete city rules can be found in Section 19-128.1 of Chapter 1 of title 19 of the Administrative Code and Section 2-08 of Chapter 2 of Title 34 of the Rules of the City of New York.

There is no limit to the number of newsracks that can be placed on the sidewalk as long as each rack is in compliance with all other regulations.

Complaints about newsracks can be reported directly to DOT using this online Newsrack Complaint Form or by calling 311.

Registering New Newsracks

Before installing a newsrack on city sidewalks, the newsrack’s owner must register with DOT, indemnify DOT, and certify insurance coverage for the newsracks. Completed registration forms can be submitted by email to newsracks@dot.nyc.gov or fax to 212-839-8867.

Newsrack owner registration form (pdf)

Instructions for completing location submission form (pdf)

Location submission template (excel)

Indemnification form (pdf)

Registration and insurance information must be maintained with DOT while the installed newsracks remain on city sidewalks.

Read more on maintenance requirements

Insurance

Newsrack owners must maintain a commercial general liability insurance policy from an insurer licensed to do business in the State of New York in his or her or its name, which names the City of New York, its departments, boards, officers, employees and agents as additional insureds for the specific purpose of indemnifying and holding harmless those additional insureds from and against any and losses, costs, damages, expenses, claims, judgments or liabilities that result from or arise out of the placement, installation and/or maintenance of such newsrack.

The combined minimum single limit for bodily injury, including death, and property damage, dedicated exclusively to the liabilities relating to such newsracks for owners of fewer than 100 newsracks is $300,000. For the owners of 100 newsracks or more, the limit is $1 million.

An insurance certificate demonstrating compliance with these requirements must be submitted before newsracks are installed.

Maintenance

Owners must inform DOT within 7 days of any changes affecting registration information, including removal of newsracks from sidewalks. Newsrack owners must re-register annually by November 1 every year that a newsrack is installed. Insurance certification must be submitted every year by December 31 or by the expiration date of the insurance policy, whichever is earlier.

Newsrack owners must certify to DOT three times that each newsrack under his or her ownership or control has been repainted, or that best efforts have been made to remove graffiti and other unauthorized markings. Newsrack owners also must keep daily logs detailing maintenance activities pertaining to newsracks on the attached Newsrack Maintenance Log. The logs do not have to be submitted to DOT, but they must be kept on file by the owner for a period of three years and must be made available to DOT on request.

Download the Newsrack Maintenance Log template (excel)

Certification of Required Maintenance Activities (pdf)

Submit the certification form by email to newsracks@dot.nyc.gov or fax to 212-839-8867 according to the following schedule:

•by May 15 for the period from January 1-April 30

•by January 15 for the period from September 1-December 31

•by September 15 for the period from May 1-August 31

If DOT determines that the records do not accurately demonstrate compliance with the regulations or that the owner failed to keep adequate records, DOT may issue a Notice of Violation to the owner with a penalty ranging from $375 to $4,000 dollars, depending upon the number of newsracks owned.

Read more about enforcement

Size and Placement

The maximum dimensions for a single rack are 50 inches high, 24 inches wide, and 24 inches deep. The maximum dimensions for a multi-rack are 60 inches high, 90 inches wide, and 36 inches deep.

The owner of each newsrack must post his or her name, address, telephone number and email address on the newsrack in a readily visible location. Newsracks may not be used for any other advertising or promotional purposes.

Newsracks must be weighted down in such a way as to ensure that they cannot be tipped over. They may be chained to non-decorative city lampposts, or non-city property with the permission of the owner of that property, using a plastic- or rubber-coated steel chain with a distance of no longer than eight (8) inches between the newsrack and the item to which it is chained, as long as they meet all location requirements. Single racks may not be bolted to the sidewalk. Multi-racks may be bolted if a DOT permit has been issued for that purpose. If a multi-rack is to be located on a distinctive sidewalk, written permission from the person or entity responsible for the maintenance of the distinctive sidewalk is required.

Newsracks may not be placed:

•within fifteen (15) feet of any fire hydrant;

•in any driveway or within five (5) feet of any driveway;

•in any curb cut designed to facilitate street access by disabled persons or within two feet of any such curb cut;

•within fifteen (15) feet of the entrance or exit of any railway station or subway station, except that a newsrack that otherwise complies with this subdivision may be placed against the rear of the station entrance or exit, but not against the sides;

•within any bus stop;

•within a crosswalk area;

•within a corner area or within five (5) feet of any corner area;

•on any surface where such installation or maintenance will cause damage to or interference with the use of any pipes, vault areas, telephone or electrical cables or other similar locations;

•on any cellar door, grating, utility maintenance cover or other similar locations;

•on, in or over any part of the roadway of any public street;

•unless eight (8) feet of sidewalk width is preserved for unobstructed pedestrian passage;

•in any park or on any sidewalk immediately contiguous to a park where such sidewalk is an integral part of the park design;

•on any area of lawn, flowers, shrubs, trees or other landscaping or in such a manner that use of the newsrack would cause damage to such landscaping;

•where such placement, installation or maintenance endangers the safety of persons or property;

•at any distance less than eighteen (18) inches or more than twenty-four (24) inches from the face of the curb, measured to the side of the newsrack closest to the curb (this requirement does not apply to a newsrack placed against the rear of the entrance or exit of a subway or railway);

•within five (5) feet of a canopy; and

•within fifteen (15) feet of a sidewalk newsstand.

Enforcement

If, after inspecting a newsrack, DOT finds that it is not in compliance with the law or rules, it must first notify the newsrack owner to correct the problem by sending a Notice of Correction with a photograph of the non-complying condition. If the condition is not corrected, DOT can serve a Notice of Violation on the newsrack owner. For violations of the administrative provisions of the law, such as not registering or submitting evidence of having insurance, DOT may issue a Notice of Violation without a Notice of Correction before issuing a Notice of Violation. Notices of Violation are answerable at the Environmental Control Board (ECB), an administrative tribunal that holds hearings and adjudicates various “quality of life†infractions of the city’s laws and rules.

If the ECB finds a newsrack to be in violation, the owner is subject to a civil penalty of $250 to $4000 for each violation depending upon the nature of the violation and, in some cases, the number of newsracks owned.

The City can remove a newsrack from its location in limited circumstances:

•Abandoned newsracks: The city can remove a newsrack if the name, address or other identifying material of the newsrack owner is not affixed to the newsrack and the newsrack owner has not registered with DOT.

•Emergency Circumstances: The city can remove a newsrack if it poses an imminent threat to public health or safety.

•Construction: If a newsrack is at a location to be used for public utility work, public transportation purposes, public safety purposes or in connection with construction or a capital project, the city must notify the newsrack owner to remove it. If the owner fails to do so, the city may issue a violation. The city can remove the rack if the newsrack is not removed by the owner within seven days after receipt of a decision from ECB upholding the violation.

•Uncorrected Violations: If DOT finds that a newsrack is in violation of any other provisions of the law or rules, the city may not remove it unless and until the ECB upholds the violation. The newsrack owner has seven days from receipt of the ECB decision to remedy the condition. If the condition is still not corrected, the city may remove the newsrack.

•Repeat Violators: A “repeat violator†is a newsrack owner who, within a 6-month period: (1) has been determined by ECB to have violated the newsrack law 10 or more times, and (2) has failed to pay 3 or more civil penalties imposed by ECB. The City may remove all the newsracks owned by a repeat violator for a 3-month period. A newsrack owner shall also be considered a repeat violator if ECB determines the owner failed to certify as required or failed to accurately certify in each of two consecutive certification periods in any two-year period or three times in any two-year period.

The City will store removed newsracks for 30 days, during which time the owner may redeem them after paying any outstanding fines and storage fees. After 30 days, the city may auction or dispose of abandoned newsracks and newsracks that are not redeemed from storage.

appendix B:  FIRST AMENDMENT INTERPRETATION

Common Interpretation: Freedom of Speech and the Press

By Geoffrey R. Stone and Eugene Volokh

The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.†Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).appendix C: DESIGN REQUESTS

The Council has initiated a design competition for new stable, aesthetically appealing outdoor newsracks (sometimes known as newspaper dispensers) to improve pedestrian safety and passage.

The design criteria for the newsracks include that they:

•Address community safety, functionality, durability, ease of maintenance and cosmetics for the narrower and crowded sidewalks in our community

•Be slim and fit within the busy city sidewalks

•Allow for promotion of the publication without obstructing the interior’s visibility

•Address community safety by having the interior of the newsrack visible, to prevent malicious use

•Be weather-resistant to keep the publications dry

•Be graffiti-resistant, and easy to clean and sanitize

•Address the durability, ergonomics of operation, and function well on a long-term basis with the least maintenance possible

•Be modular, “Lego-like,†and adaptable so that the newsracks can be transformed into two, three, and four or more units for the same location while retaining a slim profile

In addition, DOT requires that single and multi outdoor newsracks meet current DOT regulations. The complete DOT rules can be accessed in Section 19-128.1 of chapter 1 of title 19 of the Administrative Code and Section 2-08 of chapter 2 of Title 34 of the Rules of the City of New York. Details are at: http://www.nyc.gov/html/dot/html/infrastructure/newsracksintro.shtml

appendix D: NEW DISPENSER BUDGETS

CAPITAL INVESTMENT

The current capital investment budget is submitted by Kathy Kohng of CityRax.

ANNUAL MAINTENANCE BUDGET

The annual maintenance budget is submitted by Kathy Kohng of CityRax.

This budget has not been negotiated, compared, or accepted.