Aug 6

Written by: Steve Erbach
Wednesday, August 06, 2008 9:56 PM

My name is Steve Erbach and I live at 1017 Babcock St.

I'd like to begin by expressing thanks to the crews that repaved Cecil Street. There was very little disruption or re-routing - just a couple of days of driving over the ground-down pavement before it was re-surfaced. But when those guys were ready to pour the asphalt they did it in one day…and it's beautiful. Thank you.

The thing I'd really like to talk about though, is proposed city ordinance number 1374. I'm here to speak in opposition to it.

First, in the interests of FULL DISCLOSURE: My only association with newspapers is as a regular correspondent for the Appleton Post-Crescent. I am not paid for my submissions. I do not own any of the publications that place vending machines. I am not employed by any of them either. I don't even have subscriptions to any of them, though I think The Scene is a dandy alternative paper...especially the Right Wing Nut column.

I'm going to speak on the often-repeated theme of Anything not expressly permitted is prohibited. I'm going to end my talk with the city government corollary to that rule.

Yesterday morning I read the article in the Appleton Post-Crescent regarding tonight's vote. I gave a little cheer when I saw that one voting member of the Public Services and Safety Committee was against it. I decided that I'd investigate on my own what all the hubbub was about.

When I arrived in downtown Neenah yesterday evening with my tape measure and clipboard, a gentleman approached me. As I was beginning to make notes he said, "Are you going to try to get Nick to change his mind?" I said, "No, I'm going to try to get as many members of the Council to vote against the ordinance as I can." I introduced myself and he told me he knew who I was. He then told me who HE was: Grant Birch, a member of the Business Improvement District Board. He said that he was definitely in favor of the ordinance. It didn't seem like we had a whole lot to talk about after that.

This ordinance regulates newspaper vending machines. In this talk I'm going to shorten that to NVM's. NVM's.

Section 14-143, subsection (g) contains 10 "thou shalt nots", all dealing with placement of NVM's. And now, I have a confession to make: I drove downtown last night with my tape measure to see if what I suspected, what I fantasized was true. What I hoped was that there were so many

• bus stops
• driveways
• crosswalks
• sign posts
• street lights
• water valves
• benches
• manholes
• hydrants
• utility poles
• and other "similar structures"

in the public right-of-way that anyone desiring to be in strict compliance with the proposed ordinance would find that there's maybe 27-inches of legal pavement available in which to install an NVM. THAT would have been something out of Catch- 22, but, alas! The facts don't support my fantasy.

There is, indeed, a cluster of six NVM's on the north side of Wisconsin Avenue near the main crosswalk. It's a sad little group. Every one of the machines contains free newspapers like The Scene, apartment rental, or entertainment guides…and one of them is chained to a light pole. The papers inside are free but please don't take my newsrack!

I imagine that whoever wrote this ordinance REALLY wanted to say: "Newspaper Vending Machines are hereby banned from Public Right of Way." But you can't say that because of the First Amendment to the United States Constitution. And since part of the oath of office you all take charges you with the support of the Constitution, then any ordinance written must acknowledge it.

So this ordinance contains some very high-sounding purposes. (I cherish this Section, section 14-140.) But the purposes raise some questions:

• To promote the health, safety, morals, comfort, convenience, and general welfare of Neenah's inhabitants. Now I ask you, in what way do standardized newspaper vending machines promote public health? What specific morals would be promoted by NVM's bolted to the concrete?
• Provide for not only the safety of Neenah's inhabitants but for vehicular and pedestrian safety as well. Well, if a vehicle jumped the curb and hit one of these Fort Knox newspaper boxes, wouldn't it be damaged MORE than if it hit a moveable box?
• To RESTRICT (ah! There's the nub of the matter) unreasonable interference with traffic, either pedestrian or vehicular. But what vehicular traffic travels on the sidewalk? Well, the State of Wisconsin has granted municipalities the authority to regulate public right-of-ways. The boxes are eyesores, but you can't call them eyesores and simply ban them for being ugly.
• To ensure reasonable access for the maintenance of sidewalks, poles, signs, hydrants, mailboxes, etc. OK.
• To remove blight; said blight being NVM's that unreasonably detract from the aesthetics of store window displays. Well, maybe you can call them ugly after all! They're part of the scourge of urban blight!
• Maintain and preserve freedom of the press. Aha! THAT'S why this ordinance is so long and involved. You can't just ban them, no matter how much you'd like to. The ACLU might take an unhealthy interest in such a blatant restriction of the 1st Amendment.

Section 14-143 lays on the bulk of the regulations for proper placement with relation to the curb, size, color, method of installation, restriction of advertising, size and color of lettering, and chemical composition (water-soluble), surface maintenance (must be paintable), longevity (10 years), surface finish (glossy), color (brown), and application of the caulk to seal the NVM base plate. What insane person went to all that trouble to bedevil the vendors of free newspapers? And subsection (f) requires that the NVM's "shall be installed and checked for level". Who does the checking for that? Who inspects all those caulk qualities? Who stands by while the new NVM's are bolted into the concrete?

Was there a bidding process for awarding the contract for NVM's to Sho-Rack? And what's the name of a specific vendor doing in the text of the ordinance: subsection (b)? If a new manufacturer of NVM's comes along and has a better price but, perhaps, slightly different dimensions, what happens? What if Sho-Rack goes out of business? Then new vendors will have to look on Ebay for used Concourse Modular Units because the law says "manufactured by Sho-Rack".

I read my wife a few of the more egregious requirements of Ordinance number 1374. She asked me why somebody couldn't just call the vendor to come take care of his newsrack?

No, that isn't how it's done. Like I always say, sometimes, if something's worth doing, it's worth overdoing. What's government for if it isn't to minutely control things that never needed controlling before?

Lets take Section 14-144 regarding abandoned NVM's. Subsection (a) says the Department of Community Development may deem the newsrack abandoned "and take appropriate action for an ordinance violation." There isn't any mention of specific penalties. Will the city simply unbolt the newsrack and haul it away and notify the vendor that it has to fill up the bolt holes?

Also in subsection (a), if the NVM isn't filled with the latest edition within 48 hours of its release, it may be deemed abandoned. So who tracks the date of release of the current issue of each publication?

An NVM SHALL be deemed abandoned when it's been empty for seven consecutive days. That's the "Scene" subsection. The Scene is a monthly. Thus if its press run is all used up after three weeks and the Scene NVM is empty for another 9-10 days, it's "abandoned", am I correct?

Will the Mayor have to appoint the Abandoned Newspaper Vending Machine Commission to monitor them?

Finally, Section 14-146 takes the cake. The subsection says a permit fee established by the Common Council shall be required. It also says that a permit request has to be submitted. So this isn't like buying a dog license. The Common Council establishes the fee; therefore the Common Council votes yes or no on every permit request, yes? Just as with a request for a bartender's license or a street vendor's permit? It isn't enough that the vendor buy an expensive newsrack that has to have a small construction crew to install and level it...his permit request might be turned down in the democratic process pursuant to all those high-sounding purposes in Section 14-140.

As of 10:00 am this morning there were 15 comments on that Post- Crescent story from yesterday. A number of the commenters made very good points. For example, AfternoonSkulker wrote: "We don't tell business owners that they must use red brick to match the color of the Towers." NeenahMama wrote: "I walk downtown Neenah several times a week with a wide jogging stroller and never once has a newspaper machine been a safety issue for me and I have not noticed their colors. I can't believe a committee actually spent time on this." MidwaySailor wrote: "Why would you need liability insurance for a newpaper vending box? Is it in case someone gets a paper cut?"

In Greek mythology the tale is told of Procrustes. He was a bandit who holed up in the hills ouside Eleusis. In his stronghold was an iron bed he kept for guests. Anyone unfortunate enough to pass by was invited -- which here means that the guest had no choice -- to lie down on the bed. If the guest was too tall for the bed, Procrustes would trim off the excess. If the guest proved too short for the bed, Procrustes would stretch him on the rack until he fit. But, you see, nobody EVER fit the bed because Procrustes would secretly adjust it after sizing up his victims from afar.

City ordinances aren't "adjusted" in secret but out in the open, as you're about to do with Ordinance number 1374. This ordinance will "invite" newspaper vendors to contribute to the morals of the inhabitants of Neenah by purchasing at considerable expense a city-authorized newsrack. This type of rack must be used by vendors of the Sunday New York Times as well as the free monthly Scene. The vendors must submit to a vote by the City Council to be granted a permit. So if the Scene uses language that's a bit too intemperate for five of the Council members, voilà! The permit is gone.

So what's the city government corollary to "Anything not expressly permitted is prohibited"? Anything can be prohibited: just require a permit.

This ordinance should be taken out behind the woodshed and killed with an ax.

 

 

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