By Michael Roberts
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Darlene Cypser, chief executive officer for Go-Go Media, which publishes Go-Go, an entertainment biweekly, is very unhappy about the Denver ordinance governing news racks, and many of her peers feel the same. But instead of expressing her displeasure via angry words, Cypser, who has a background as an attorney, has chosen to do so in the language of the law.
In a twenty-page letter dated August 21 and addressed to Stephanie Foote, manager of Denver's Public Works department (and copied to Mayor Wellington Webb), Cypser lays out her case in polite but blunt terms: "It is the position of Go-Go Media, LLC, that this News Rack ordinance and the manner in which it is enforced violates our rights under Amendments 1, 4, 5 and 15 of the U.S. Constitution, as well as Article 2, Sections 10 and 25, of the Colorado Constitution." Later in the document, she makes several demands, including "the immediate suspension" of the ordinance's enforcement, before adding, "If these actions are not taken by September 21, 2002, then Go-Go Media, LLC, intends to file suit in District Court under 42 U.S.C. Sec. 1983 seeking injunctions and damages against the City and County of Denver and appropriate employees of the City and County of Denver."
Giving the city an ultimatum isn't something Cypser's doing lightly. But she decided to take a stand because, in her view, the law has not only hurt Go-Go's bottom line, but it could potentially drive other publications out of business entirely. "The ordinance favors the two largest newspapers in the state [the Denver Post and the Rocky Mountain News]," she says. "And the alternative papers, which tend to have smaller cash flows and publish less frequently, are all being discriminated against."
Evidence supporting this contention can be found in the ordinance, which asserts that "publishers who issue a new edition at least five days a week are more likely to advance significant government interests in cleanliness and good maintenance than publishers who issue a new edition less frequently." Therefore, "it is reasonable to make those publications with the fastest turnover most accessible to the public."
Such a declaration isn't a big surprise, given that the Denver Newspaper Agency, which handles the business operations for the Post and the News, had a great deal of input into the ordinance; other publications weighed in to a lesser degree. But Cypser can't help but be frosted by it, particularly since Go-Go is far more reliant on news racks than are the big Denver dailies. While her magazine is available at assorted retail businesses, she notes that many of those establishments are closed at night, when revelers looking for something to do are most likely to want copies, thereby making news boxes absolutely vital.
A wide range of other publications, from employment and apartment guides to weeklies like this one, are just as dependent on news racks. However, the ordinance, which was unanimously passed by Denver's city council in late October 2001 and has been enforced since this past spring, makes only passing reference to such concerns. More typical are statements such as, "The uncontrolled placement and maintenance of news racks in the public right-of-way presents an inconvenience and danger to the safety and welfare of persons using such right-of-way."
In attempting to address these and many other matters, the council established a system in which publishers are required to buy a $7 permit for each box. The racks themselves must meet detailed requirements, as do the bolts that are used when affixing them to sidewalks. Additionally, no news boxes are allowed on the 16th Street Mall, or within fifty feet of the mall's property lines, with the exception of so-called "news rack corrals" constructed under the auspices of the Denver Newspaper Agency. Elsewhere in the city, racks can't be within two feet of the curb face or pavement edge of any roadway; within three feet of a marked crosswalk; or within five feet of a fire hydrant, fire or police call box, parking meter, traffic-control cabinet, entrance to public transit shelters or telephone enclosures, driveway, public artwork, tree or bicycle rack. (Some bike racks have been placed precisely nine feet apart in order to guarantee that no news boxes can be legally placed between them.) Fortunately, being within five feet of oxygen molecules is still okay.
By their very nature, these policies, and others like them, limit the quantity of news racks in high-traffic areas -- thereby reducing potential readers' access to publications, and vice versa. But there's another way for papers and magazines to lose boxes: The ordinance requires the city to inform publishers when any rack is in violation, and if the problem isn't cured quickly enough, the box will be impounded. Companies can retrieve their racks for the price of a $50 fine plus a $25 re-inspection fee, which isn't much of a bargain in Cypser's opinion because Go-Go's news boxes cost $65 apiece. Racks that aren't retrieved within a prescribed period are destroyed.
Among the most common reasons for impoundment is graffiti; publishers are required to keep their boxes free of such vandalism. Detective Abel Gutierrez of the Denver Police Department's anti-graffiti unit says there are numerous tagging teams at large right now, sporting monikers like SWS ("Society Will Suffer") and DE ("Destroy Everything"), and the city actually pays to clean up most damage they do to buildings. (The exception is windows ruined by "mosh ink," a combination of white shoe polish and acid-based etching cream used by hobbyists, which actually eats into glass. As a result, many downtown business owners are covering their windows with clear Mylar sheets that help protect their property.) When it comes to news boxes, though, the city won't get its hands dirty. No cleaning, just seizing.