N.Y.C. Admin. Code § 19-128.1: § 19-128.1 Newsracks.

a.

Definitions. For purposes of this section, the following terms have the following meanings:

Board. The term “board” means the environmental control board within the office of administrative trials and hearings.

Corner area. The term “corner area” means an area of a sidewalk encompassed by the extension of the building lines to the curb on a corner, or, where there is no building, an area of a sidewalk encompassed by the extension of the property lines to the curb on a corner.

Corner quadrant. The term “corner quadrant” means an area of a sidewalk extending 10 feet from either side of a corner area.

Crosswalk. The term “crosswalk” means a portion of a roadway, whether marked or unmarked, that is included within the extension of the sidewalk lines between opposite sides of the roadway at an intersection, or any portion of a roadway at an intersection or elsewhere designated or indicated for pedestrian crossing by lines or other markings on the surface.

Crosswalk area. The term “crosswalk area” means an area of a sidewalk bounded by the extension of the lines of a crosswalk onto the sidewalk up to the building or property line.

Multi-rack newsrack. The term “multi-rack newsrack” means a newsrack that is designed with multiple enclosed compartments to accommodate the display, sale, or distribution of multiple publications to the general public.

Newsrack. The term “newsrack” means a self-service or coin-operated box, container, or other dispenser installed, used, or maintained for the display, sale, or distribution of publications to the general public.

Owner. The term “owner” means a natural person, partnership, corporation, limited liability company, or other association that owns 1 or more newsracks.

Publication. The term “publication” means a newspaper, periodical, or other similar written material.

Sidewalk block. The term “sidewalk block” means an area of a sidewalk spanning from one intersection to the next intersection.

Single newsrack. The term “single newsrack” means a newsrack that is designed to accommodate the display, sale, or distribution of no more than 1 publication to the general public.

b.

Requirements. It shall be a violation for any person to place, install, or maintain a newsrack on any sidewalk unless such newsrack is in compliance with the provisions of this section.

1. Newsracks shall conform to standards set forth in rules of the department relating to the size and shape of such newsracks and materials used to construct such newsracks. Whenever any newsrack is found to be in violation of any such rules, the commissioner shall issue a notice of correction by email to the owner or person in control of such newsrack. The commissioner shall cause photographic evidence of such violation to be taken. Such evidence shall be sent by email together with such notice of correction. Such owner or person in control shall cause such violation to be corrected within 30 business days from the date on which the commissioner sends by email such notice of correction.

2. No newsrack shall include photographs or be used for advertising or promotional purposes, other than announcing the name or website or both of any publication offered for distribution in such newsrack, provided that a publication may display the logo of such publication on the door of a single newsrack or compartment in a multi-rack newsrack in which such publication is offered, in a size not to exceed 50 percent of the door space.

3. Each newsrack used to sell publications shall be equipped with a coin return mechanism in good working order so as to permit a person to secure a refund in the event that the newsrack malfunctions.

4. The owner shall affix to the newsrack the owner’s name, address, telephone number, and email address in a readily visible location on the front or side of the newsrack and shall conform such information to any changes required to be reported to the department in accordance with the provisions of subdivision c of this section. In no event shall a post office box be considered an acceptable address for purposes of this paragraph.

5. Subject to the limitations set forth in this section, newsracks shall be placed near a curb.

6. A newsrack shall not be placed, installed, or maintained: (a) within 15 feet of any fire hydrant; (b) in any driveway or within 10 feet of any driveway; (c) in any curb cut or pedestrian ramp designed to facilitate street access by disabled persons; (d) within 15 feet of the entrance or exit of any railway station or subway station; (e) within any bus stop; (f) within 5 feet of a crosswalk area; (g) within a corner quadrant; (h) on any surface where such installation or maintenance will cause damage to or will interfere with the use of any pipes, vault areas, telephone or electrical cables, or other similar locations; (i) on any cellar door, grating, utility maintenance cover, or other similar locations, or within 5 feet of any cellar door; (j) on, in, or over any part of the roadway of any public street; (k) on any sidewalk, unless 8 feet of sidewalk width is preserved for unobstructed pedestrian passage; (l) in any park or on any sidewalk immediately contiguous to a park where such sidewalk is an integral part of the park design, such as the sidewalks surrounding Central Park or Prospect Park; (m) 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; (n) within 5 feet of any bench or other street furniture; (o) within 5 feet of a bikeshare station; (p) within 8 feet of a bicycle rack; (q) within 5 feet of a water sampling station of the department of environmental protection; or (r) where such placement, installation, or maintenance endangers the safety of persons or property. Any limitation on the placement or installation of newsracks pursuant to this paragraph shall be no more restrictive than necessary to ensure the safe and unobstructed flow of pedestrian and vehicular traffic, and otherwise to assure the safety of persons and property.

7. The department shall develop standards regarding the placement of newsracks, including, but not limited to, the manner in which newsracks shall be placed or installed to prevent newsracks from tipping over. In the event of noncompliance with such standards, the commissioner shall issue a notice of correction as provided in subparagraph (a) of paragraph 1 of subdivision f of this section.

c.

Notification to city of location of newsrack.

1. (a) Where a newsrack has been placed or installed on a sidewalk before the effective date of this section, the owner or person in control of such newsrack shall, within sixty days after such effective date, submit to the commissioner a form identifying: (i) the address of such newsrack; (ii) the name of the newspaper(s) or written matter to be offered for distribution in such newsrack; and (iii) the name, address, telephone number, and email address of the owner or person in control of such newsracks; and representing that such newsracks comply with the provisions of this section.

(b) Any other owner or person in control of a newsrack shall, prior to placing or installing such newsrack on a sidewalk, submit to the commissioner a form providing the information in clauses (ii) and (iii) of subparagraph (a) of this paragraph.

2. Subsequent to the initial notification requirements set forth in paragraph 1 of this subdivision, the owner or person in control of any newsrack shall submit the information set forth in subparagraph (a) of such paragraph once a year to the commissioner in accordance with a notification schedule to be established by the commissioner. However, if the number of newsracks owned or controlled by such owner or person increases or decreases by 10 percent or more of the number of newsracks that have been included in the most recent notification required to be submitted by such owner or person, such owner or person shall also be required to submit the information set forth in such paragraph within 5 business days of such change, and provided, further, that such owner or person shall advise the department of any change in such owner or person’s name or email address within 5 business days of such change.

3. Notification to the city, as required by paragraphs 1 and 2 of this subdivision, shall be submitted to the department electronically.

d.

Indemnification and insurance.

1. Each owner of a newsrack placed or installed on any sidewalk shall indemnify and hold the city harmless from any and all losses, costs, damages, expenses, claims, judgments, or liabilities that the city may incur by reason of the placement, installation, or maintenance of such newsrack, except to the extent such damage results from the negligence or intentional act of the city.

2. Each owner of a newsrack placed or installed on any sidewalk shall maintain a general liability insurance policy naming the city of New York, and 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 all losses, costs, damages, expenses, claims, judgments, or liabilities that result from or arise out of the placement, installation, or maintenance of any newsrack. The minimum limits of such insurance coverage shall be no less than $300,000 combined single limit for bodily injury, including death, and property damage, except that any owner who maintains an average of 100 or more newsracks at any one time shall maintain such minimum insurance coverage of $1,000,000. An insurance certificate demonstrating compliance with the requirements of this subdivision shall be submitted annually by December 31 to the commissioner by the owner of such insured newsracks. Should said policy be called upon to satisfy any liability for damages covered by said policy, the policy must be of such a nature that the original amount of coverage is restored after any payment of damages under the policy. Failure to maintain a satisfactory insurance policy pursuant to this subdivision or failure to submit an annual insurance certificate to the commissioner pursuant to this subdivision, shall be deemed a violation of this section subject to subparagraph (b-1) of paragraph 1 of subdivision f of this section.

e.

Maintenance, continuous use, repair and removal.

1. Any person who owns or is in control of a newsrack shall, once every 4 months, repaint each newsrack under such person’s ownership or control, and remove from each such newsrack any graffiti or other unauthorized writing, painting, drawing, or other markings or inscriptions. If the department determines that an owner or person in control of a newsrack has not repainted or removed graffiti or other unauthorized writing, painting, drawing, or other markings or inscriptions at least once every 4 months as required by this paragraph, or upon a determination by the department that an owner or such person failed to comply with any other provision of this paragraph, the department shall issue a notice of violation in accordance with subparagraph b-1 or b-2 of paragraph 1 of subdivision f of this section.

2. Any person who owns or is in control of a newsrack shall ensure that each newsrack under such person’s ownership or control is not used as a depository for the placement of refuse and shall remove any refuse placed within such newsrack within 48 hours of receipt of a notice of correction from the commissioner as provided in paragraph 1 of subdivision f of this section regarding such condition.

3. 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 thirty consecutive days.

4. Any newsrack that has been damaged or is in need of repair shall be repaired, replaced, or removed by the owner or person in control of such newsrack within 3 business days of the date on which the commissioner sends by email a notice of correction as provided in paragraph 1 of subdivision f of this section regarding such damage or need for repair. If such newsrack has been damaged, or if it is in a state of disrepair, such that it constitutes a danger to persons or property, it shall be made safe within 2 business days from the date on which the commissioner sends by email such a notice of correction regarding such condition.

5. Any damage to city property resulting from the placement, installation, maintenance or removal of a newsrack shall be repaired promptly by the owner or person in control of such newsrack. If a newsrack is removed from its location on a sidewalk, the owner or person in control of such newsrack shall be responsible for restoring the sidewalk and any other affected city property to the condition existing prior to installation of that newsrack.

f.

Enforcement.

1. (a) Whenever any newsrack is found to be in violation of any provision of subdivision b of this section or any rule promulgated pursuant to paragraph 1 of such subdivision b, or paragraphs 2, 3, 4, or 5 of subdivision e of this section, the commissioner shall issue a notice of correction specifying the date and nature of the violation and shall send notification, by email, to the owner or person in control of the newsrack. The commissioner shall cause photographic evidence of such violation to be taken. Such evidence shall be sent by email together with the notice of correction. Except as otherwise provided for the removal of refuse in paragraph 2 of subdivision e of this section, or for the repair, replacement, or removal of a newsrack that has been damaged or is in need of repair in paragraph 4 of subdivision e of this section, or for the failure to conform to standards set forth in the rules of the department relating to size and shape of a newsrack adopted pursuant to paragraph 1 of subdivision b of this section, such person shall, within 5 business days from the date on which the commissioner sends a notice of correction by email, cause the violation to be corrected.

(b) If an owner or other person in control of a newsrack fails to comply with a notice of correction issued pursuant to subparagraph (a) of this paragraph, or an order by the commissioner to remove served pursuant to paragraph 3 of this subdivision, a notice of violation returnable to the board shall be served on such owner or person in control of such newsrack. No notice of violation shall be issued for the failure to comply with a notice of correction issued pursuant to subparagraph (a) or (b-1) of this paragraph unless the commissioner has caused a second inspection of the violation to take place within a period of time that commences on the day after the applicable period for correcting such violation expires and ends 10 business days after such day. In addition, the commissioner may send to such owner or other person in control of such newsrack, by email, photographic evidence of such violation taken at such second inspection. Failure to send such photographic evidence by email will not result in the dismissal of a notice of violation issued pursuant to any provision of this section.

(b-1) Failure by an owner or a person in control of a newsrack to comply with subdivision c or d of this section, paragraph 1 of subdivision e of this section, or an order by the commissioner to remove or cause to be removed a newsrack pursuant to paragraph 3 of this subdivision, shall be a violation and shall be subject to the applicable penalties provided in paragraph 6 of this subdivision. A proceeding to recover any civil penalty authorized by this subparagraph shall be commenced with service on such owner or person of a notice of violation returnable to the board. The commissioner shall not be required to issue a notice of correction before issuing or serving a notice of violation pursuant to this subparagraph.

(b-2) Notwithstanding any provision of this paragraph to the contrary, whenever any newsrack is found to be in violation of any provision of paragraph 1 of subdivision b or paragraph 2 or 4 of subdivision e of this section, or any rule adopted pursuant to paragraph 1 of subdivision b or paragraph 2 or 4 of subdivision e of this section, the commissioner may issue or serve a notice of violation at the same time the commissioner issues or serves a notice of correction for such violation, provided that, where such owner or person in control of such newsrack complies with a notice of correction the commissioner issues and sends pursuant to this subparagraph within the applicable time specified for correcting such violation, the commissioner shall withdraw such notice of violation and notify the board of such withdrawal prior to the return date of such notice of violation.

(c) If the return date of a notice of violation issued pursuant to subparagraph (b) or (b-1) of this paragraph is more than 5 business days after the service of such notice, the board shall, upon the request of the respondent, in person at the office of the board, provide a hearing on such violation prior to such return date and no later than 5 business days after the date of such request. At the time set for such hearing, or at the date to which such hearing is continued, the board shall receive all evidence relevant to the occurrence or non-occurrence of the specified violation(s), the compliance or noncompliance with any of the provisions of this section, and any other relevant information. Such hearing need not be conducted according to technical rules relating to evidence and witnesses. Oral evidence shall be taken only on oath or affirmation. Within 5 business days after the conclusion of the hearing, the board shall render a decision, based upon the facts adduced at said hearing, whether any violations of this section have occurred. The decision shall be in writing and shall contain findings of fact and a determination of the issues presented. The board shall send to the owner or person in control of the newsrack by regular mail, a copy of its decision and order.

2. (a) 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 1 of this subdivision and the violation is not remedied within 5 business days of receipt of the decision of the board, the commissioner or the commissioner’s designee is authorized to provide for the removal of such newsrack and any contents thereof to a place of safety. For purposes of this subparagraph, a decision shall be deemed to have been received 5 business days from the date on which it was mailed. If such newsrack and any contents thereof are not claimed within 30 days after their removal by a person entitled to their return, they shall be deemed to be abandoned and shall be subject to the provisions of paragraph 4 of this subdivision, and the owner or person in control shall be liable to the city for the costs of removal and storage and shall be subject to a civil penalty pursuant to subparagraph (a) of paragraph 6 of subdivision f of this section. Newsracks and the contents thereof that are removed pursuant to this subparagraph shall be released to the owner or other person lawfully entitled to possession upon payment of the costs for removal and storage and any civil penalty or, if an action or proceeding concerning the violation is pending, upon the posting of a bond or other form of security acceptable to the department in an amount that will secure the payment of such costs and any penalty that may be imposed hereunder.

(b) If the board renders a decision upholding the finding of a violation against the respondent for having failed to demonstrate that such respondent repainted or removed graffiti or other unauthorized writing, painting, drawing, or other markings or inscriptions, as required by paragraph 1 of subdivision e of this section, or having failed to comply with any other provision of paragraph 1 of subdivision e of this section, the board shall impose a penalty in accordance with subparagraph (b) of paragraph 6 of this subdivision.

3. The commissioner may send an order by email to the owner or other person in control of a newsrack requiring such person to remove or cause to be removed such newsrack within 5 business days from the date on which the commissioner sends by email such order where such removal is required because the site or location at which such newsrack is placed is used or is to be used for public utility purposes, public transportation, or public safety purposes, or when such newsrack unreasonably interferes with construction activities in nearby or adjacent buildings, or if removal is required in connection with a street widening or other capital project or improvement. If such person does not remove such newsrack within 5 business days of the date the commissioner sends by email such order, the provisions contained in subparagraphs (b) and (c) of paragraph 1 of this subdivision and subparagraph (a) of paragraph 2 of this subdivision regarding issuance of a notice of violation and alternatives for removal, storage, abandonment, disposal, and release, shall apply.

4. Notwithstanding any other provision of law to the contrary, if a newsrack has been deemed to have been abandoned in accordance with this paragraph, the commissioner, the commissioner’s designee, an authorized officer or employee of any city agency, or a police officer is authorized to provide for the removal of such newsrack and it may either be sold at public auction after having been advertised in the City Record, the proceeds thereof being paid into the general fund, used or converted for use by the department or another city agency, or otherwise disposed of. A newsrack shall be deemed to have been abandoned for purposes of this paragraph if: (i) no identifying material of the owner or other person in control of such newsrack, as required by paragraph 4 of subdivision b of this section, is affixed to such newsrack; or (ii) such owner or other person in control of such newsrack has not submitted to the commissioner the name, address, telephone number, and email address of such owner or other person in control of such newsrack as required by paragraph 1 of subdivision c of this section.

5. (a) Where emergency circumstances exist and the commissioner or the commissioner’s designee gives notice to the owner or other person in control of a newsrack to remove such newsrack, such person shall comply with such notice. For the purposes of this paragraph, emergency circumstances shall mean circumstances which present an imminent threat to public health or safety.

(b) If any owner or other person in control of a newsrack does not remove such newsrack when directed to do so pursuant to the provisions of subparagraph (a) of this paragraph, or if circumstances are such that public safety requires the immediate removal of a newsrack and it is not reasonable to give the owner or other person in control of such newsrack notice prior to removal, the commissioner or the commissioner’s designee may provide for the removal of such newsrack to a place of safety. If a newsrack has been removed by the city pursuant to this subparagraph, the commissioner or the commissioner’s designee shall, no later than 48 hours following such removal, send by email to the owner or person in control of such newsrack notice of such removal. Unless an administrative proceeding brought pursuant to subparagraph (c) of this paragraph has terminated in favor of such owner or other person in control of such newsrack, such owner or other person in control of such newsrack may be charged with the reasonable costs of removal and storage payable prior to the release of such newsrack and the contents thereof.

(c) If an owner or other person in control of a newsrack fails to comply with a notice issued pursuant to subparagraph (a) of this paragraph to remove such newsrack, a notice of violation returnable to the board shall be served on such owner or person in control of such newsrack. If the newsrack has been removed by the city pursuant to subparagraph (b) of this paragraph, such notice of violation shall be served immediately after removal, and, if the return date of the notice of violation is more than 5 business days after the service of such notice, the board shall, upon the request of the respondent, in person at the office of the board, provide a hearing on such violation prior to such return date and no later than 5 business days after the date of such request. The hearing shall take place under the provisions set forth in subparagraphs (b) and (c) of paragraph 1 of this subdivision and a decision shall be rendered by the board within 5 business days after the conclusion of the hearing. If a decision is rendered at such hearing that emergency circumstances did not exist, such newsrack shall be returned within 10 business days to the location from which it was removed by the commissioner or the commissioner’s designee. If a decision is rendered against the respondent upon default or after a hearing that such emergency circumstances existed, such newsrack and the contents thereof shall be released to the owner or other person lawfully entitled to possession. If, after a board decision that removal was proper, such newsrack and any contents thereof are not claimed within 30 days after the date of removal by a person entitled to their return, such newsrack and any contents thereof shall be deemed abandoned and may be either sold at a public auction after having been advertised in the City Record, the proceeds thereof being paid into the general fund, used or converted for use by the department or another city agency, or otherwise disposed of.

6. (a) 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 (i) no less than $250 and no more than $500 for each violation for a specific newsrack of any of the provisions of paragraphs 2, 3, 4 or 5 of subdivision e of this section or paragraph 4 of subdivision b of this section, except that a person found in violation of any of such provisions after a decision of the board issued on default shall be subject to a penalty of no less than $250 and no more than $500; (ii) no less than $3,000 and no more than $4,000 for each violation of paragraph 1 of subdivision c of this section; and (iii) no less than $250 and no more than $500 for each violation of paragraphs 1, 2, 3, 5, 6 and 7 of subdivision b of this section or of any rule adopted pursuant to paragraph 1 of subdivision b of this section.

(b) Any owner or person in control of 1 or more newsracks found by the board to have failed to demonstrate that such owner or person repainted or removed graffiti or other unauthorized writing, painting, drawing, or other markings or inscriptions, as required by paragraph 1 of subdivision e of this section, or failed to comply with any other requirements of such paragraph, or failed to comply with any provision of paragraph 2 of subdivision c of this section, or failed to maintain insurance as required by subdivision d of this section, shall be liable for a civil penalty determined in accordance with the number of newsracks such person owns or controls as follows:

Number of newsracks owned or controlled by such person

A violation of paragraph 1 of subdivision e, paragraph 2 of subdivision c or subdivision d of this section

Up to and including 99 newsracks

$400 to $600

More than 99 and less than 250 newsracks

$600 to $800

More than 249 and less than 500 newsracks

$1,100 to $1,500

More than 499 and less than 750 newsracks

$1,700 to $2,250

More than 749 and less 1,000 newsracks

$2,300 to $3,000

1,000 or more newsracks

$3,000 to $4,000

7. The commissioner shall remove or cause to be removed from any sidewalk for a period of 3 consecutive months, every newsrack and the contents thereof under the ownership or control of any person who repeatedly violates any provision or provisions of this section. For purposes of this paragraph, a person shall be deemed to have repeatedly violated this section if such person has been determined by the board, upon default or after a hearing, to have violated the provisions of this section 3 or more times within any 6 month period or that such person has failed to pay 3 or more civil penalties imposed during that same time period. The department shall maintain a record of all persons who repeatedly violate any provision or provisions of this subdivision. In the event that the commissioner removes or causes to be removed all newsracks and the contents thereof under the ownership or control of any person based upon this paragraph, such person shall be permitted to replace all such newsracks at the locations from which they were removed upon payment in full of all outstanding civil penalties imposed for violations of this section and the reasonable costs of removal and storage, provided that such newsracks meet the requirements of this section. If any newsracks or contents thereof removed pursuant to this paragraph are not claimed within 30 days after the expiration of the 3 month removal period, such newsracks or the contents thereof shall be deemed abandoned and may be either sold at public auction after having been advertised in the City Record, the proceeds thereof being paid into the general fund, used or converted for use by the department or another city agency or otherwise disposed of.

8. In giving any notice of correction or serving any commissioner’s order required under this section, except as otherwise provided by law, the commissioner may rely on the validity of any email address of the owner or person in control of the newsrack submitted to the department pursuant to subdivision c of this section, and shall provide such notice by email.

9. Nothing in this section shall preclude the immediate removal of a newsrack when otherwise authorized by law.

g.

Severability. If any subdivision, paragraph, subparagraph, sentence or clause of this section is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this section.

h.

Community notice. The department, in consultation with the office of ethnic and community media, shall notify owners of any changed obligation imposed by this section or any rule of the department promulgated hereunder prior to the effective date of such change. Such notice shall, to the extent feasible, be in English as well as the language of any publication distributed by a newsrack of such owner.