5828165 Transportation, District Department of - Notice of Second Proposed Rulemaking - Publisher Boxes  

  • District Department of Transportation

     

    Notice Of SECOND Proposed Rulemaking

     

    The Director of the District Department of Transportation (“Department”), pursuant to the authority set forth in Sections 4(a)(5)(A) (assigning authority to coordinate and manage public space permits and records to the Department Director), 5(4)(A) (assigning duty to review and approve public space permit requests to the Department Director), 6(b) (transferring the public right-of-way maintenance function previously delegated to the Department of Public Works under Section III(F) of Reorganization Plan No. 4 of 1983 to the Department), 9j (granting the Director rulemaking authority), and 9(j) (authorizing civil fines and penalties) of the Department of Transportation Establishment Act of 2002 (“DDOT Establishment Act”), effective May 21, 2002 (D.C. Law 14-137; D.C. Official Code §§ 50-921.03(5)(A), 50-921.04(4)(A), 50-921.05(b), 50-921.18, and 50-921.19 (2014 Repl.& 2015 Supp.)), Sections 604 and 607 of the Fiscal Year 1997 Budget Support Act of 1996, effective April 9, 1997 (D.C. Law 11-198; D.C. Official Code §§ 10-1141.04 and 10-1141.07 (2013 Repl. & 2015 Supp.)), Subtitle C of Title VI of the Fiscal Year 2005 Budget Support Act of 2004, effective December 7, 2004 (D.C. Law 15-205; D.C. Official Code §§ 10-1181.01 et seq.(2013 Repl. & 2015 Supp.)), and the Public Space Enforcement Amendment Act of 2014, effective March 11, 2015 (D.C. Law 20-207; 61 DCR 12690 (December 19, 2014)), provides notice of the intent to adopt the following proposed rules to amend Title 24 (Public Space and Safety) of the District of Columbia Municipal Regulations (“DCMR”) by adding a new Chapter 36 (Publisher Boxes). 

     

    The purpose of this rulemaking is to regulate the placement of publisher boxes on public space within the District of Columbia to promote public safety and the efficient use of public space, and to require annual permits, public liability insurance, and indemnification of the District in connection with the placement of publisher boxes on public space.  This rulemaking will also establish an annual permit fee per publisher box to partially cover the administrative costs of permitting and monitoring the placement of publisher boxes on public space.  Additionally, this rulemaking will establish a process whereby a person may obtain a public space permit to install and maintain a publisher box corral on public space.

     

    A Notice of Proposed Rulemaking was published in the D.C. Register on August 23, 2013 at 60 DCR 12226.  In response to public comments received, the annual permit fee per publisher box is reduced from $5.00 to $1.00 and the following provisions are added: an option for a two (2) year annual permit; an allowance for the number of permitted publisher boxes to increase by ten percent (10%) without penalty; the addition of a permit amendment process if the number of publisher boxes increases by more than ten percent (10%); and permission for the publisher box owner to print as many permit stickers as desired.  Also added are requirements for the publisher box to: be ADA accessible; display contact information for the person responsible for maintenance of the box; protect publications from weather; keep the publisher boxes free of past issues, trash and debris; and a prohibition on displaying an expired permit sticker.  Additionally, the publisher box placement requirements are reorganized into general requirements, curbside requirements, and new requirements for placement adjacent to a building or wall. The prohibition on residential zone placement has been removed.  A new section is added to address the need to move or remove publisher boxes from public space due to presidential inaugurations, some special events, construction work and new or relocated bus stops. 

     

    Also, due to the enactment of the Public Space Enforcement Amendment Act of 2014, new sections are added to outline the processes for the immediate removal of a dangerous publisher box, the service, abatement and adjudication of a compliance order and the service, abatement and adjudication of a notice of infraction.  A new section is added to specify where in Title 16 DCMR (Consumers, Commercial Practices, and Civil Infractions) the applicable civil infractions for publisher box violations and associated Administrative procedures and schedule of fines are located.  Finally, a new section for publisher box infractions is added to a chapter of Title 16 DCMR that is being proposed by a separate rulemaking.

     

    DDOT received some comments that it believes conflicts with the goal of the rulemaking and did not modify the rulemaking as a result.  Accordingly, DDOT: retained language requiring an annual permit, a permit fee, liability insurance and the minimum pedestrian pathway widths on sidewalks as other major cities have similar requirements.  DDOT rejected one commentator’s proposal to prohibit plastic or top heavy publisher box designs because adequate bottom weighting is already required by these rules.  Also rejected was a proposal to require a building owner’s or a building manager’s permission to place a publisher box adjacent to a building or within a certain distance or security perimeter of a building.  While a prudent suggestion, it proposes an encumbrance on free speech that no other large U.S. city imposes.

     

    Final rulemaking action to adopt these amendments shall be taken not less than thirty (30) days from the date of publication of this notice in the D.C. Register. 

     

    A new Chapter 36, PUBLISHER BOXES, is added to Title 24 DCMR, PUBLIC SPACE AND SAFETY,as follows:

     

     

     

    CHAPTER 36      PUBLISHER BOXES

     

    3600                                PLACEMENT OF PUBLISHER BOXES On public space

     

    3600.1             Any person may place, maintain, or operate a publisher box on public space after first obtaining an annual public space permit from the Director of the District Department of Transportation (“Director”).

     

    3600.2             The Director shall issue an annual public space permit when the following conditions are satisfied:

     

    (a)        A non-refundable public space permit application fee of fifty dollars ($50) has been paid;
     
    (b)        The Director determines that the information and documentation submitted pursuant to § 3601 are complete; and

     

    (c)        An annual public space permit fee of one dollar ($1) per publisher box per year has been paid.

     

    3600.3             As a condition of the annual public space permit, the permittee shall indemnify and hold harmless the District of Columbia, its officers, employees or agents from any and all liability, loss, or damage the District of Columbia may suffer as a result of claims, demands, costs, or judgments against it arising from the placement of the publisher box.

     

    3600.4             An owner of an existing publisher box on public space must obtain the annual public space permit required by § 3600.1 by June 1, 2016.   

     

    3600.5             Notwithstanding § 3600.2(a), the fifty dollar ($50) public space permit application fee shall only be charged for the original permit application and shall not be charged when submitting an application to renew or to amend the original permit.  The fee to renew or amend an annual permit shall be based solely on the permit fee per box per year pursuant to § 3600.2(c).

     

    3600.6             If after securing the annual public space permit, the owner no longer wishes to place publisher boxes in public space, the owner must request a refund within one hundred eighty (180) days from the date the permit was issued pursuant to 24 DCMR § 225.3. 

     

    3601                APPLICATION AND QUALIFICATIONS TO OBTAIN A PUBLISHER BOX PERMIT

     

    3601.1             The owner of a publisher box located or to be located on public space shall submit a public space permit application to the Director on an annual or biennial basis.  The application shall be accompanied by the following:

     

    (a)        Contact information for the following:

     

    (1)        The name, business address, phone number and the email address of the person requesting the annual permit who may be the owner of the publisher box or the agent for the owner;

     

    (2)        The name, business address, phone number and, if applicable, the email address of the owner of the publisher box who shall be shown on the permit as the permittee; and

     

    (3)        The name, business address, phone number and email address of the person currently responsible for maintaining the publisher box on public space;

     

    (b)        A document stating the name of each publication, periodical, or document distributed from the publisher box owned by the applicant, to be used solely for DDOT confirmation of use of the publisher box by a permitted applicant;

     

    (c)        A certificate of insurance naming the District of Columbia, a municipal corporation, its officers, and employees as an additional insured and covering any liability arising from the placement of the applicant’s publisher box on public space for the duration of the permit. The certificate of insurance shall show the following:

     

    (1)               The District of Columbia, a municipal corporation, as the certificate holder;

     

    (2)        Minimum general liability limits of no less than three hundred thousand dollars ($300,000), except that any person who maintains one hundred (100) or more publisher boxes at any one time shall maintain minimum insurance coverage of one million dollars ($1,000,000).  These limits shall include a combined single limit for bodily injury, including death and property damage; and

     

     (3)       A cancellation clause requiring notice to the District of Columbia, as certificate holder, prior to the cancellation of the insurance coverage;

     

    (d)       Information as to the total number of publisher boxes the owner is placing on public space for the duration of time the annual permit is in effect;

     

    3601.2             The annual public space permit required by § 3600.1 and the liability insurance required by § 3601.1(c) shall be maintained for as long as the publisher box remains on public space.

     

    3601.3             Notwithstanding § 3601.1(d), the actual number of publisher boxes located on public space for the duration of the annual permit may increase to one hundred ten percent (110%) of the total number of boxes the owner claimed on the application.

     

    3601.4             If at any time after securing the annual public space permit, the owner wishes to install additional publisher boxes in excess of the one hundred ten percent (110%) allowed by § 3601.3, the owner shall submit a public space permit application pursuant to § 3601.1 to amend the current annual public space permit to include the number of publisher boxes the owner is placing on public space in addition to the one hundred percent (100%) originally claimed.

     

    3601.5             The Director shall reissue the applicant’s annual permit when the owner pays the pro-rated permit fee for each additional publisher box installed for the duration of time remaining until the annual permit expires.

     

    3601.6             To place a publisher box on public space lawfully, the owner of the publisher box must also have a basic business license with a general business endorsement in accordance with Section 3800 of Title 17 of the District of Columbia Municipal Regulations.

     

    3602                DISPLAY OF ANNUAL STICKER ON PUBLISHER BOXES ON PUBLIC SPACE

     

    3602.1             In addition to the annual public space permit, the Director shall issue an annual sticker for each publisher box owned by the applicant and located on public space.  Each sticker shall have the following information:

     

    (a)        The permit number of the annual public space permit issued to the applicant; and

     

    (b)        The expiration date of the annual public space permit.

     

    3602.2             The applicant shall affix one (1) sticker to each publisher box in a visible location on the front side of the box at least one foot (1 ft.) above the sidewalk grade, unless another location is designated by the Director.

     

    3602.3             The Director may issue additional permit stickers to the applicant free of charge at the time of permit issuance or at any other time for the duration of the annual permit.

     

    3602.4             At no time shall an expired annual permit sticker be displayed on a publisher box. 

     

    3603                SPECIFICATIONS OF PUBLISHER BOXES ON PUBLIC SPACE

     

    3603.1             No person shall place a publisher box on public space unless the publisher box complies with the following specifications:

     

    (a)        The publisher box shall be no more than fifty-two inches (52 in.) tall, twenty-five inches (25 in.) wide, and twenty-two inches (22 in.) deep.  In determining whether a publisher box is in compliance with these limits, each of the dimensions of the publisher box shall be measured at its widest point, including any coin mechanism;

     

    (b)        The publisher box shall be sufficiently weighted at the base, or attached to other publisher boxes or a publisher box corral, so as to be secure in all expected weather conditions; and

     

    (c)        Each publisher box shall display a sticker, decal, stencil or other printed sign displaying the name, mailing address, current phone number and email address of the person currently responsible for maintaining the publisher box on public space.

     

    3603.2             The owner of the publisher box or the owner’s authorized agent may use space on the publisher box to display the name and trademarks of the publication the publisher box is being used to distribute.

     

    3604                MAINTENANCE OF PUBLISHER BOXES ON PUBLIC SPACE

     

    3604.1             A publisher box on public space shall be maintained in good working order, including the following:

     

    (a)        Any vandalized or otherwise damaged publisher box shall be repaired within a reasonable time, but no later than thirty (30) calendar days following the occurrence of the damage or within the time allowed by a compliance order sent by the Director;

     

    (b)        The interior and exterior of the publisher box shall be reasonably clean and free of dents, blemishes, and discoloration;

     

    (c)        The publisher box’s clear or glass parts, if any, shall be unbroken and reasonably free of cracks, and discoloration;

     

    (d)       Any lid or door for accessing the publications shall protect the publications from the weather at all times and prevent the publications from littering the surrounding area during windy conditions;

     

    (e)        The interior of the publisher box shall be kept free of past issues of publications, food, clothing, trash, debris and other solid waste;

     

    (f)        The exterior of the publisher box shall be kept free of graffiti and pasted bills; and

     

    (g)        The publisher box shall be stocked with current publications and shall not remain empty of current publications for more than thirty (30) consecutive days.  Any publisher box empty for longer than this period shall be deemed abandoned.

     

    3604.2             No person shall place a publisher box on public space unless the publisher box placement complies with the following general placement requirements:

     

    (a)        No publisher box shall be attached to a utility pole, street light pole, traffic signal light pole, regulatory sign, parking meter, trash receptacle, fire hydrant, directional sign, bicycle rack, bike station, bus shelter, street furniture, or other public street fixture, except as allowed by Subsection 3604.3;

     

     (b)       No publisher box shall be placed on any space that reduces the width of the pedestrian circulation pathway on the sidewalk to less than the following:

     

    (1)        Ten feet (10 ft.) on sidewalks having a total width of twenty feet (20 ft.) or more;

     

    (2)        Eight feet (8 ft.) on sidewalks having a total width of sixteen feet (16 ft.) to twenty feet (20 ft.);  or

     

    (3)        Six feet (6 ft.) in other areas.

     

    (c)        No publisher box shall be placed within five feet (5 ft.) of the edge of a driveway or alley, a fire hydrant, a bus shelter, a bicycle rack, or a designated vending cart location;

     

    (d)       No publisher box shall be placed on or within two feet (2 ft.) of a manhole cover, meter, or valve box cover or any utility access cover or vent cover for underground utilities or within two feet (2 ft.) of a traffic control cabinet;

     

    (e)        No publisher box shall be placed within a designated bus zone or on a streetcar platform; and

     

    (f)        No publisher box shall be placed on a tree space or on any other unpaved surface adjacent to the sidewalk;

     

    3604.3             Notwithstanding Subsection 3604.2(a), a publisher box may be attached to a publisher box corral; provided there is available space within the corral for the publisher box.

     

    3604.4             No person shall place a publisher box adjacent to the roadway curb on public space unless the publisher box placement complies with the following curbside placement requirements:

     

    (a)        Publisher boxes shall be placed no less than eighteen inches (18 in.) and no more than twenty four inches (24 in.) from, and parallel to, the vertical face of the roadway curb, with the publisher box opening facing toward the sidewalk and away from the roadway;

     

    (b)        No publisher box shall be placed within three feet (3 ft.) of a parking meter or a multi-space parking meter, as measured parallel to the roadway curb, or within four feet (4 ft.) of a parking meter reserved for persons with disabilities;

     

    (c)        No publisher box shall be placed upon or within five feet (5 ft.) of a pedestrian access ramp, including the area between any two ramps on a given corner, or within two feet (2 ft.) of a marked pedestrian crosswalk;

     

    (d)       No publisher box shall be placed adjacent to the curved portion or radius of any roadway curb at the corner of any city block;

     

    (e)        No publisher box shall be placed within a designated commercial loading zone, taxi stand, valet staging zone, building entrance zone or other passenger drop-off zone as delineated by signage posted at the roadway curb;

     

    (f)        No publisher box shall be placed at a location where signage designates the curb space as being reserved parking for persons with disabilities; and

     

    (g)        Publisher boxes placed side by side, and not located within a publisher box corral, shall be arranged in groups of no more than seven (7) boxes.  A space of at least six feet (6 ft.) shall separate each group of publisher boxes or shall separate a group of publisher boxes from an adjacent publisher box corral.

     

    3604.5             No person shall place a publisher box at a location on public space which is adjacent to a building or wall unless the publisher box placement complies with the following requirements:

     

    (a)        A publisher box shall be parallel to and not more than six inches (6 in.) from the building face or wall; and

     

    (b)        A publisher box shall be located at least five feet (5 ft.) from either side of a building entrance, fire exit, fire hose connection, show window, display window, ATM or sidewalk café.

     

    3605                PUBLISHER BOX CORRALS

     

    3605.1             No person shall place or maintain a publisher box corral on the public sidewalk or other public space without first obtaining a public space permit from the Director.

     

    3605.2             Unless in conflict with a legal priority established for a business improvement district (BID) concerning streetscape improvements, any person may submit a public space permit application to the Public Space Committee (PSC) for the purpose of installing and maintaining a publisher box corral on public space.

     

    3605.3             An application for the installation of a publisher box corral shall include the following:

     

    (a)        The name and contact information of the person that will be responsible for maintaining the publisher box corral;

     

    (b)        A site plan drawn to scale showing the location and dimensions of the proposed publisher box corral and any associated new paving, including dimensions to the roadway curb and property line, a dimension specifying the distance to the nearest intersection, and showing all the existing conditions within thirty feet (30 ft.) of the corral location, including any business entrances, transit entrances, bus zones or street car platforms, crosswalks, regulatory signage, light poles, traffic signal lights, traffic control cabinet, and other public street fixtures;

     

    (c)        A drawing of the publisher box corral showing the front and side views, the method of anchoring or attaching the corral to the ground, and, if proposed by the applicant, the placement and display of a logo or the name of the organization responsible for the corral; 

     

    (d)       A proposal for the allocation of space within the publisher box corral and any limits on the placement of publisher boxes that allows for the removal or addition of publisher boxes within the corral;

     

    (e)        Any required approvals by the U. S. Commission of Fine Arts (CFA) and by the D.C. Historic Preservation Review Board; and

     

    (f)        The application fee required under Section 225 of this title.

     

    3605.4             The corral shall have an open design and shall be a height of no less than thirty-six inches (36 in.) and no more than forty-two inches (42 in.);

     

    3605.5             The applicant’s proposal for the allocation of space and any limits on the placement of publisher boxes within the publisher box corral shall be content neutral.

     

    3605.6             In determining whether to approve an application, the PSC shall allow as much space for publisher boxes as is consistent with pedestrian and vehicular safety and other lawful uses of the public space.

     

    3605.7             As a condition of the permit, the person responsible for maintaining the publisher box corral shall bear sole responsibility, including the cost, for installing and maintaining the publisher box corral, as well as its removal, should the Director determine that the sidewalk space is needed for another transportation related  purpose, such as for a bus zone, bike station or tree space.

     

    3605.8             The Director shall issue a public space permit for the installation and maintenance of the publisher box corral if:

     
    (a)        The application has been approved by the PSC; and

     

    (b)        All permit fees, pursuant to Section 225 of this title, have been paid.

     

    3605.9             No person shall place or maintain any advertising on any publisher box corral other than the logo or name of the organization responsible for the publisher box corral.

     

    3606                RELOCATING OR REMOVING PUBLISHER BOXES

     

    3606.1             Any person owning or maintaining a publisher box located within the perimeter of the Presidential Inauguration Parade Route, as defined by the U.S. Secret Service prior to the inauguration, shall remove or relocate the publisher box to a location outside the parade route perimeter at least one (1) day prior to the inauguration. The publisher box may be returned to its original position the day after the inauguration.

     

    3606.2             An authorized agent of the D.C. government or the U.S. government may relocate a publisher box under circumstances where crowd control or public safety is an immediate concern as follows:

     

    (a)        Relocating a publisher box from within the security perimeter of the presidential inauguration parade route the day before the inauguration;

     

    (b)        Relocating a publisher box from within the security perimeter established for an event when the Metropolitan Police Department (MPD) has determined that the presence of the publisher box poses an eminent safety threat to the public; provided advance notice of the event and the need for relocating the publisher box has been sent by DDOT to the email address of the permittee and, if different, the person responsible for maintaining the publisher box; or

     

    (c)        Replacing a fallen publisher box to its upright position.

     

    3606.3             Prior to the start of a DDOT street reconstruction project, the temporary occupancy of public space in connection with construction work on private property, or other work in the sidewalk that will take longer than two (2) weeks and will require the temporary removal of a publisher box from public space, the contractor performing the work shall provide notice to the person responsible for maintaining the publisher box to remove the publisher box from the planned work zone provided the person’s contact information is displayed on the publisher box. 

     

    3606.4             The contractor performing the work shall provide notice to remove a publisher box pursuant to § 3606.3 by mail or by email at least fifteen (15) days prior to the time the work will commence. The request shall include the following information:

     

    (a)        A detailed description or map showing the location and extents of the work zone;

     

    (b)        The approximate date the work will commence;

     

    (c)        The approximate date when the work will be completed; and

     

    (d)       The phone number and email address of the person who may be contacted for additional information.

     

    3606.5             Upon the commencement of work, the contractor performing the work may relocate any publisher box that has not been removed from the work zone to the nearest available location on the adjacent sidewalk without providing additional notice.

     

    3606.6             Prior to the commencement of a sidewalk replacement project or for other work performed in the sidewalk requiring the temporary relocation of a publisher box for no more than two (2) weeks, the contractor performing the work may temporarily relocate the publisher box to the nearest available location on the adjacent sidewalk without first providing notice to the person responsible for maintaining the publisher box.

     

    3606.7             Following the completion of work in the sidewalk pursuant to § 3606.6, the contractor shall endeavor to return the publisher box to its original location on the sidewalk.

     

    3606.8             Prior to the installation of transportation related infrastructure, such as a new bus zone, bus shelter or bike station, the Director shall provide notice to the person responsible for maintaining the publisher box to relocate any publisher box under their control from the planned bus zone, bus shelter area or bike station area; provided the person’s contact information or the permit sticker is displayed on the publisher box. 

     

    3606.9             The Director shall provide notice to relocate a publisher box pursuant to § 3606.8 by mail or by email at least fifteen (15) days prior to the time the new bus zone will be put into service.  The request shall include the following information:

     

    (a)        A detailed description or map showing the location of the new bus zone, bus shelter or bike station;

     

    (b)        The approximate date the bus zone will be put into service as a bus stop or the approximate date when a bus shelter or bike station will be installed;

     

    (c)        If applicable, the date when the enforcement of the bus zone placement violation may commence; and

     

    (d)       The phone number and email address of the person at DDOT who may be contacted for additional information.

     

    3607                REMOVAL OF A HAZARDOUS PUBLISHER BOX

     

    3607.1             No person shall leave in or upon any public space any hazardous publisher box.  A hazardous publisher box shall be defined as any publisher box that is in a wrecked, incinerated or otherwise irreparable condition such that it poses an imminent hazard to public safety and welfare.

     

    3607.2             Any publisher box that has been deemed to be an actual or potential hazardous publisher box may be removed from public space immediately by an authorized agent of DDOT. 

     

    3607.3             The removal of a hazardous publisher box shall be conducted in accordance with the requirements of D.C. Official Code § 921-19(d)(1), to include the issuance of a notice of infraction pursuant to the Civil Infractions Act and § 3609 of this chapter.

     

    3607.4             Notwithstanding § 3607.3, if no legible contact or ownership information is available on the hazardous publisher box, the Director shall post information regarding the removal of the hazardous publisher box and the notice of infraction on the Department’s website pursuant to § 3609 of this chapter and include the following additional information:

     

    (a)        The condition of the hazardous publisher box necessitating its immediate removal from public space; and

     

    (b)        A description of the publisher box, including any identifying information that is printed on or affixed to the publisher box.

     

    3608                COMPLIANCE ORDERS

     

    3608.1             When the Director has determined that a publisher box is in violation of a provision of this chapter, the Director shall serve a first notice of infraction (Compliance Order) to the owner by mail directing the owner and, if different, the person responsible for maintaining the publisher box to abate the violation within fifteen (15) days of the date the compliance order was sent.  Additionally, the Director may post information regarding the Compliance Order on the agency’s website.

     

    3608.2             In the event that the Director has determined that a publisher box is in violation of a provision of this chapter and no contact or other ownership information is displayed on the publisher box, the Director shall affix the Compliance Order to a conspicuous location on the publisher box and shall post information regarding the Compliance Order on the Department’s website.as a means of providing the fifteen (15) day notice.

     

    3608.3             Each Compliance Order shall display the following information:

     

    (a)        The nature of the alleged violation, including the citation to the regulation that the respondent is violating;

     

    (b)        The conduct the respondent must cease or the action the respondent must take to correct the infraction;

     

    (c)        The date and time by which such conduct must be ceased or such action must be taken;

     

    (d)       A statement that the respondent has a right to timely challenge the order at a hearing before the Office of Administrative Hearings, where the hearing will determine whether the order is valid;

     

    (e)        A statement that to obtain a hearing, the respondent must request a hearing in writing within fifteen (15) days after the service of the order;

     

    (f)        The process by which the respondent may request a hearing; and

     

    (g)        A statement that if the respondent fails to comply with the order or request a hearing within the fifteen (15) days, the Director may impound or remove and dispose of the publisher box and recover up to three (3) times the cost and expense of removing and disposing of the non-compliant publisher box.

     

    3608.4             Answering a Compliance Order shall be in accordance with 16 DCMR § 3103 (Answering a Notice of Infraction).

     

    3608.5             The abatement of a Compliance Order shall be in accordance with 16 DCMR § 3104 (Abatement of Infractions).

     

    3608.6             If a respondent does not request a hearing in writing within fifteen (15) days after the service of the Compliance Order, the order shall be deemed final.

     

    3609                NOTICE OF INFRACTION

     

    3609.1             If the respondent has been served with a Compliance Order, but failed to abate the violation or request a hearing within the fifteen (15) days allowed by the Compliance Order or the Director takes action pursuant to § 3607, the respondent shall be liable for civil penalties and expenses incurred by the Department due to the violation.  Additionally, the Director may impound or remove the publisher box from public space.

     

    3609.2             The Director shall serve a Notice of Infraction to the respondent by mail.  In addition, the Director may post information regarding the Notice of Infraction on the Department’s website.

     

    3609.3             In the event that no contact or ownership information is displayed on the publisher box, the Director shall affix the Notice of Infraction to a conspicuous location on the publisher box and shall post information regarding the Notice of Infraction on the Department’s website as a means of providing the fifteen (15) day notice. 

     

    3609.4             The Notice of Infraction shall state the following:

     

    (a)        Any action the Department has taken, including the impoundment or removal of the publisher box from public space;

     

    (b)        The basis for the action;

     

    (c)        The nature of the alleged infraction, including a citation to the regulation that the respondent violated;

     

    (d)       A statement that the respondent has a right to challenge the action at a hearing before the Office of Administrative Hearings;

     

    (e)        A statement that to obtain a hearing, the respondent must request a hearing in writing within fifteen (15) days after the service of the notice;

     

    (f)        That the respondent has a right to request an expedited hearing by making this request in writing within five (5) days after service of the notice;

     

    (g)        The process by which the respondent may request a hearing;

     

    (h)        The method by which the respondent may recover the publisher box impounded or removed from public space;

     

    (i)         The deadline by which the respondent must recover the publisher box; and

     

    (j)         The amount owed the Department for the civil infraction pursuant to Chapter 32 of Title 16 DCMR, and expenses incurred by the Department.

     

    3609.5             The Notice of Infraction shall be answered, abated and adjudicated in accordance with administrative procedures found in Chapter 31 of Title 16 DCMR.

     

    3609.6             The Director shall store the publisher box which has been impounded or removed from the public space pursuant to § 3609.1 for fifteen (15) days after the service of the Notice of Infraction.

     

    3609.7             If the respondent does not recover the property by the date set forth in the notice, the Director may, consistent with reasonable business practices, sell or otherwise dispose of the property.

     

    3609.8             A respondent who fails to reclaim the property within the time prescribed shall nevertheless be entitled to recover the fair market value of any property disposed of pursuant to this subsection if:

     

    (a)        The respondent timely requests a hearing;

     

    (b)        The administrative law judge dismisses the notice or order or finds no violation; and

     

    (c)        The respondent establishes the property’s fair market value by a preponderance of the evidence; provided that if the District has sold the property, the price paid by a good faith purchaser, other than the respondent, shall establish a rebuttable presumption of the fair market value of the property.

     

    3609.9             If the respondent who fails to request a hearing or to otherwise abate the Notice of Infraction or is ordered to make payment by the administrative law judge pursuant to 16 DCMR § 3113, the respondent shall be responsible for the payment of all fines, costs and expenses imposed in accordance with Chapter 31 of Title 16 DCMR.

     

    3610                CIVIL INFRACTIONS, ADMINISTRATIVE PROCEDURES AND SCHEDULE OF FINES APPLICABLE

     

    3610.1             The civil infractions set forth pursuant this chapter are subject to the provisions of Chapter 31 (Administrative Procedures) and Chapter 32 (Schedule of Fines) of Title 16 (Consumers, Commercial Practices, and Civil Infractions) DCMR.

     

    3610.2             The civil infractions set forth pursuant this chapter are found under the DDOT infractions chapter of Title 16 (Consumers, Commercial Practices, and Civil Infractions) DCMR.

     

    3699                DEFINITIONS

                        

                            When used in this chapter, the following terms and phrases shall have the meanings ascribed:

     

    Bus zone – a ten foot (10 ft.) wide strip of sidewalk parallel to the roadway and measured from the vertical face of the roadway curb toward the building line that runs the entire length of the area delineated as a bus zone by signage posted at the roadway curb.

     

    DDOT or Department – District Department of Transportation.

     

    Director – Director of the District Department of Transportation, or the Director's agent, representative, or designee.

     

    Fixture - District government-authorized furniture or equipment that is secured or permanently affixed to public space.

     

    Mail – Delivery of notice by U.S. Postal Service, electronic mail or other method of written message delivery.

     

    MPD - Metropolitan Police Department of the District of Columbia.

     

    Owner – a person that owns or is in control of one or more publisher boxes placed, installed, or maintained on public space.  Each publisher box shall have a single owner for the purposes of this chapter.

     

    Person – an individual or entity.

     

    Publisher box – a self-service or coin-operated box, container, storage unit, display or dispenser installed, used, or maintained for the display, distribution, or sale of newspapers or other periodicals.

     

    Publisher box corral – a fixture, approved by the Public Space Committee, installed on public space for the purpose of controlling the placement of publisher boxes.

     

    Streetcar platform - the public right of way designated for public use as an embarkation/disembarkation or waiting area for the streetcar and which includes streetcar shelters, adjoining stairways, ramps and sidewalks and all attached equipment or fixtures.

     

     

    All persons interested in commenting on the subject matter of this proposed rulemaking should file comments in writing, not later than thirty (30) days after the publication of this notice in the D.C. Register, with Samuel Zimbabwe,  District of Columbia Department of Transportation, 55 M Street, S.E., 5th Floor, Washington, D.C. 20003.  You may also send comments electronically to publicspace.policy@dc.gov.  Copies of this proposed rulemaking are available, at cost, by writing to the above address, and are also available electronically, at no cost, on the District Department of Transportation’s website at www.ddot.dc.gov.