[Added 10-9-1991, approved 10-10-1991]
The City Council of the City of Mount Vernon finds and declares
that:
A.
The uncontrolled placement of customer-owned or -leased currency-
or credit-operated telephones (COCOT) and public telephones in public
rights-of-way presents an inconvenience and danger to the safety and
welfare of persons using such rights-of-way, including pedestrians,
persons entering and leaving vehicles and buildings and persons performing
essential utility, traffic control and emergency services.
B.
Said telephones so located as to cause an inconvenience or danger
to persons using public rights-of-way or improperly maintained or
illegally operated in violation of the New York State Public Service
Law promulgated by the New York State Public Service Commission located
therein constitute public nuisances.
C.
The provisions and prohibitions hereinafter contained and enacted
are in pursuance of and for the purpose of securing and promoting
the public health, morals and general welfare of persons in the City
of Mount Vernon in their use of public rights-of-way.
As used in this article, the following terms shall have the
meaning indicated:
The City of Mount Vernon.
Any customer-owned or -leased currency- or credit-operated
telephone as regulated by the Public Service Commission pursuant to
the New York State Public Service Law and applicable regulations promulgated
thereunder and, only for the purposes of this article, any public
currency- or credit-operated telephone owned by the local exchange
company (presently known as "New York Telephone").
The person responsible for placing and maintaining a COCOT
in a public right-of-way.
The sum total of all charges paid by or billed to customers
for use of a COCOT during a calendar month.
That area between the sidewalks and the curb of any street
and, where there is no sidewalk, that area between the edge of the
roadway and property line adjacent thereto. "Parkway" shall also include
any area within a roadway that is not open to vehicular travel.
Any areas dedicated to public use for public street purposes
and shall include, but not be limited to, roadways, parkways, alleys
and sidewalks.
That portion of a street improved, designed or ordinarily
used for vehicular travel.
It shall be unlawful for any person, firm or corporation to
erect, place, maintain or operate on any public street or sidewalk
or in any other public right-of-way or in any place requiring the
user to stand or otherwise occupy any public right-of-way in the City
of Mount Vernon any COCOT without first having obtained a permit from
the City specifying the exact location of such COCOT. One permit may
be issued to include any number of COCOTs and shall be signed by the
applicant and countersigned by both the City Clerk and Commissioner
of the Department of Public Works and bear the imprint of the Official
Seal of the City of Mount Vernon.
Application for such permit shall be made, in writing, to the City Clerk upon such form as shall be provided by him and shall contain the name and address of the applicant and the proposed specific location of said COCOT and shall be signed by the applicant. The application shall be referred by the City Clerk to the Commissioner of the Department of Public Works of the City to determine if the specified locations comply with the requirements of § 227-58.7. A fee of $100, plus $25 for each COCOT for which a permit is sought, shall accompany the application.
A.
As an express condition of the acceptance of such permit, the permittee
thereby agrees to indemnify and save harmless the City, its officers,
directors and employees against any loss or liability or damage, including
expenses and costs for bodily or personal injury, and for property
damage sustained by any person as the result of the installation,
use or maintenance of a COCOT within the City.
B.
The applicant shall file with the application for the permit a certificate
of public liability insurance in the amount of not less than $500,000
and property damage insurance in the amount of not less than $25,000
for any one accident and $50,000 in the aggregate, with the City of
Mount Vernon listed as additional insured, said certificate to be
approved as to form, correctness and adequacy by the Corporation Counsel
to insure the City against any loss, injury or damage arising out
of the granting of the permit or from any negligence or fault of said
applicant, his agents, servants or employees in connection with said
COCOT or with any work related thereto. Such insurance must remain
in force throughout the effective period of the permit as well as
any authorized extensions thereof and shall carry an endorsement to
the effect that the insurance company will give at least 10 days'
written notice to the City of any modification or cancellation of
any such insurance.
C.
Such permits shall be valid for one year and shall be renewable pursuant to the procedure for original applications referred to in § 227-58.4 and upon payment of a fee of $100.
D.
Stickers showing the permit number shall be issued with the permit
and must be displayed on the COCOT at all times.
E.
The licensee shall pay to the City monthly commissions for the use of the public right-of-way as described in § 227-58.11.
F.
The licensee shall install, operate and maintain its COCOTs in conformance
with all applicable requirements of the New York State Public Service
Law and all applicable regulations promulgated by the New York State
Public Service Commission.
G.
No renewal permit may be granted if any required compliance or other
reports or financial statements have not been filed with the City
or if the payment of any monthly commissions are overdue or for any
COCOT if the New York State Public Service Commission has ordered
the discontinuance of service of a licensee's COCOT at that location.
Any COCOT which, in whole or in part, rests upon, in or over
any public right-of-way or which requires the user to stand or otherwise
occupy any public right-of-way shall comply with the following standards:
A.
No COCOT shall be used for advertising signs or publicity purposes
other than that dealing with the use of the COCOT itself.
B.
Each COCOT shall be equipped with a coin-return mechanism to permit
a person using the COCOT to secure an immediate refund in the event
that the call paid for by the user is unable to be completed. The
coin-return mechanisms shall be maintained in good working order.
C.
Each COCOT shall have affixed to it, in a readily visible place so
as to be seen by anyone using the COCOT, a notice setting forth:
(1)
The identity and address of the COCOT licensee;
(2)
A statement that calls can be made at no charge to the 911 emergency
number, the operator and, where applicable, to local directory assistance;
(3)
Specific dialing and coin deposit/return information, including
instructions for accessing a local exchange telephone company operator
and directory assistance;
(4)
The rates charged for local calls, including the initial charge
for a local call and the rates charged for additional time periods;
(5)
The identity of the interexchange company carrying calls from
the COCOT and instructions for obtaining access to the other interexchange
companies;
(6)
Where applicable, a notice that additional charges are imposed
by the COCOT licensee for the use of the telephone or telephone equipment
for the placing of a call;
(7)
A toll-free number which the caller can use to obtain information
on the rates, surcharges, terms or conditions applicable to calls
placed from the COCOT; and
(8)
The toll-free number to call for resolution by the COCOT of
a billing or service complaint and the toll-free number of the Public
Service Commission to call for assistance in resolving a complaint.
D.
Each COCOT shall be maintained in a neat and clean condition and
in good repair at all times. Specifically, but without limiting the
generality of the foregoing, each COCOT shall be serviced and maintained
so that:
(1)
It is reasonably free of dirt and grease.
(2)
It is reasonably free of chipped, faded, peeling and cracked
paint in the visible painted areas thereof.
(3)
It is reasonably free of rust and corrosion in the visible unpainted
metal areas thereon.
(4)
The clear plastic or glass parts thereof, if any, are unbroken
and reasonably free of cracks, dents, blemishes and discoloration.
(5)
The paper or cardboard parts or inserts thereof, if any, are
reasonably free of tears, peeling or fading.
(6)
The structural parts thereof are not broken or unduly misshapen.
Any COCOT which rests in whole or in part upon or on any portion
of a public right-of-way or which projects onto, into or over any
part of a public right-of-way or which requires the user to stand
in or otherwise occupy any part of a public right-of-way shall be
located in accordance with the provisions of this section, as follows:
A.
No COCOT shall be used or maintained which projects onto, into or
over any part of the roadway of any public street or which rests,
wholly or in part, upon, along or over any portion of the roadway
of any public street or which requires the user to stand in or otherwise
occupy any part of the roadway of any public street.
B.
A maximum of two COCOTs may be placed next to each other and only
by the same licensee.
C.
No COCOT shall be placed, installed, used or maintained:
(1)
Within three feet of any marked crosswalk.
(2)
Within 12 feet of the curb return of any unmarked crosswalk.
(3)
Within five feet of any fire hydrant, fire call box, police
call box or other emergency facility.
(4)
Within five feet of any driveway.
(5)
Within three feet ahead or 15 feet to the rear of any sign marking
a designated bus stop.
(6)
Within three feet of the outer end of any bus bench.
(7)
At any location whereby the clear space for the passageway of
pedestrians is reduced to less than six feet.
(8)
Within three feet of or on any public area improved with lawn,
flowers, shrubs, trees or other landscaping.
(9)
Within 150 feet of any other COCOT, except when two units are
installed by the same licensee next to each other.
(10)
On any handicap access ramp.
A COCOT licensee shall obtain at its own expense all permits
and licenses required by law, rule, regulation or ordinance and maintain
the same in full force and effect for as long as required.
A.
A COCOT licensee shall construct, operate, maintain, repair, remove,
replace or restore the COCOT in strict compliance with all current
technical codes adopted by the City, the state or the United States.
A.
During any phase of construction, installation, maintenance and repair
of the COCOT, the COCOT licensee shall use materials of good and durable
quality, and all such work shall be performed in a safe, thorough
and reliable manner.
B.
All wires, conduits, cable (coaxial, fiber or functional equivalent)
and other property and facilities of a COCOT licensee shall be so
located, constructed, installed and maintained so as not to endanger
or unnecessarily interfere with usual and customary use, traffic and
travel upon the streets, rights-of-way, easements and public ways
of the City.
C.
In the event that a COCOT creates a hazardous or unsafe condition
or an unreasonable interference with property, then, at its own expense,
such COCOT licensee shall voluntarily or upon the request of the City
remove that part of the system that creates the hazardous condition
from the subject property.
D.
A COCOT licensee shall not place equipment where it will interfere
with the rights of property owners or with gas, electric or telephone
fixtures; or with water hydrants or mains; or with wastewater pump
stations; or any other service or facility that benefits the City
or its residents' health, safety or welfare.
E.
A COCOT licensee, at either its own expense or that of a private
contractor, shall protect rights-of-way and easements and support
or temporarily disconnect or relocate in the same street or other
public way any property of such COCOT licensee when necessitated by
reason of the following:
(1)
Traffic conditions;
(2)
Public safety;
(3)
A street closing;
(4)
Street construction or resurfacing;
(5)
Change or establishment of street grade;
(6)
Installation of sewers, drains, waterpipes, storm drains, pump
stations, force mains, power or signal lines; or
(7)
Any improvement, construction or repair related to the City
or its residents' health, safety or welfare.
F.
It shall be the responsibility of a COCOT licensee, acting alone
or in conjunction with another person, to locate and mark or otherwise
visibly indicate and alert others to the location of its underground
cable (coaxial, fiber or functional equivalent) before employees,
agents or independent contractors of a COCOT licensee install cable
in the marked-off area.
A.
A COCOT licensee granted a permit to install or operate a COCOT after
the date this article becomes effective shall pay to the City for
the continued privilege and use of the streets, rights-of-way, easements
and public ways and other facilities of the City in the operation
of the COCOT and for supervision thereof by the City during the term
of the permit a sum based upon the monthly gross usage of the COCOT
as follows:
B.
A COCOT licensee shall file with the City Clerk, within 45 days after
the expiration of each month, a detailed financial and revenue statement
clearly showing the gross monthly usage of each COCOT during the preceding
month and certified by a certified public accountant or officer of
a COCOT licensee attesting to the accuracy, completeness and veracity
of the usage figures. Such statement shall be in the form and format
approved by the Comptroller of the City.
C.
Payment of the monthly commission shall be rendered to the City at
the time the financial statement is filed.
D.
In the event that payment is not made within 30 days after the date
specified in this section, then such COCOT licensee may be declared
in violation of this article, and the license granted hereunder may
be revoked, terminated or canceled in the manner prescribed by this
article.
E.
The right of audit and recomputation of any and all amounts paid
as commissions shall always be accorded to the City.
F.
No acceptance of any payment shall be construed as a release of or
an accord or satisfaction of any claim that the City might have for
further or additional sums payable under the terms of this article
or for any other performance or obligation of a COCOT licensee.
G.
Payments of compensation made by a COCOT licensee to the City, pursuant
to the provisions of this article, shall be considered in addition
to and exclusive of any and all authorized taxes, business license
fees, other fees, other levies or assessments presently in effect
or subsequently adopted.
A.
At any time the Federal Communications Commission or New York State
Public Service Commission or another federal or state agency requires
or requests the submission of reports, data or other information by
a COCOT operator, then such COCOT licensee shall at the same time,
without a separate or specific request, submit those reports, data
or other information to the City Clerk. However, unless specifically
authorized by the state, a COCOT licensee shall not be required to
submit state or federal tax returns or any information exempted under
federal or state privacy laws.
B.
With respect to any enforcement proceedings brought by the New York
State Public Service Commission pursuant to its regulations, the licensee
shall promptly file with the City Clerk any citations issued against
the licensee regarding any COCOT located in the City as well as a
copy of notification that the citation is being contested and any
subsequent determination of said Commission.
C.
With respect to reports required by this article, it is noted that
a COCOT licensee shall timely submit any required report, including
but not limited to the following:
(1)
An annual compliance statement in the manner set forth in this
article.
(2)
A periodic gross revenue statement in the manner set forth in
this article.
(3)
Any other reports or information required by any other section
of this article, or by the City Council, which are necessary to protect
the health, safety and welfare of the citizens of the City.
A.
A COCOT licensee shall keep complete and accurate books of accounts
and records of the business and operations under and in connection
with its operation in the City.
B.
The Comptroller of the City shall have the right to review, either
by mail or at the COCOT licensee's local office, all records
pertaining to a COCOT licensee's operations on seven working
days written notice. Such review, unless mutually agreed upon or judicially
ordered, should occur within the COCOT licensee's normal business
hours.
C.
The Comptroller shall have the right to hire, at the City's
expense, an independent certified public accountant or other business
or financial expert to review the books and records of a COCOT licensee.
If after a financial audit it is determined that the COCOT licensee
has underpaid amounts owed by more than 2%, then the City may require
the COCOT licensee to reimburse the City for the actual cost of the
audit.
D.
A false entry into the books and/or records of a COCOT licensee,
made by a COCOT licensee, of a material and substantial fact shall
constitute a material violation of this article.
E.
A COCOT licensee, at its local office, shall keep complete and accurate
books and records of the key aspects of the COCOT licensee's
operation for at least the preceding three years in such a manner
that all matters pertaining to the City can be easily produced and/or
verified at the City's request. Also, the COCOT licensee shall
keep, at its local office, any other applicable records and information
that may be required by any other federal or state agency having jurisdiction
over the COCOT licensee.
A.
Within 30 days from the date that this article becomes effective,
the City Council shall approve a COCOT licensee's compliance
statement in an effort to determine whether the COCOT licensee is
complying with the various provisions and/or requirements of this
article. The form or content of the compliance statement may be amended
from time to time.
B.
Prior to December 1 of each calendar year, the City Clerk shall furnish
to each COCOT licensee a compliance statement.
C.
Prior to December 31 of each calendar year, each COCOT licensee shall
file with the City Clerk a completed and executed, by the COCOT licensee
or an officer thereof, compliance statement.
D.
There shall be no charge or fee associated with returning the annual
compliance statement. However, if the COCOT licensee supplies incomplete
information which requires independent verification by the City or
its consultant, then the COCOT licensee may be required to reimburse
the City for all costs associated with the independent verification.
Moreover, failure to submit a statement by the deadline or the provision
of false information within said statement may subject an affected
COCOT licensee to any and all penalties and fines listed in this article.
A.
Upon a determination by the Commissioner of Public Works that a COCOT has been installed, used or maintained in violation of this article, an order to correct the offending condition will be issued. Such order shall be telephoned to said licensee and confirmed by mailing a copy of the order by certified mail, return receipt requested. The order shall specifically describe the offending condition, suggest actions necessary to correct the condition and inform the COCOT licensee of the right to appeal. Failure to properly correct the offending condition within five days (excluding Saturdays, Sundays and legal holidays) after the mailing date of the order or to appeal the order within three days after its receipt shall result in the offending COCOT being summarily removed and processed as unclaimed property. If the offending COCOT is not properly identified as to owner under provisions of § 227-58.6C hereof, it shall be removed immediately and processed as unclaimed property.
B.
Upon a determination by the City Clerk that a licensee is operating in violation of this article in that a COCOT licensee has failed to file any report required by § 227-58.12 or has failed to pay any commissions required by § 227-58.11 or has failed to allow an audit of the licensee's books and records as required by § 227-58.13 or has made a false entry into its books and/or records pursuant to § 227-58.13D, an order to correct the violation will be issued. Such order shall be telephoned to said licensee and confirmed by mailing a copy of the order by certified mail, return receipt requested. The order shall specifically describe the section of this article violated, suggest actions necessary to correct the violation and inform the COCOT licensee of the right to appeal. Failure to properly correct the violation within five days (excluding Saturdays, Sundays and legal holidays) after the mailing date of the order or to appeal the order within three days after its receipt shall result in the licensee's COCOTs being summarily removed and processed as unclaimed property. If the licensee's COCOT is not properly identified as to the owner under the provisions of § 227-58.6C hereof, it shall be removed immediately and processed as unclaimed property.
C.
An impound fee, which shall be measured by the City's cost and expense of impounding, shall be assessed against each COCOT summarily removed. The Commissioner of Public Works shall cause inspections to be made of corrected conditions ordered under Subsection A hereof or of a COCOT reinstalled after removal under this section. The COCOT licensee shall be charged an inspection fee of $25 for each COCOT so inspected. This charge shall be in addition to all other fees and charges required under this article.
Any person or entity aggrieved by a finding, determination,
notice, order or action taken under the provisions of this article
may appeal and shall be advised of his right to appeal to the City
Council. An appeal must be perfected within three days after receipt
of notice of any protested decision or action by filing with the office
of the City Clerk a letter of appeal briefly stating therein the basis
for such appeal. A hearing shall be held on a date no more than 10
days after receipt of the letter of appeal. The appellant shall be
given at least five days' notice of the time and place of the
hearing. The City Council shall give the appellant and any other interested
party a reasonable opportunity to be heard in order to show cause
why the determination of the Commissioner of Public Works or the City
Clerk should not be upheld. At the conclusion of the hearing, the
City Council shall make a final and conclusive decision. This decision
shall be immediately appealable to a court of competent jurisdiction.
"City Clerk," as used in this article, shall include his/her
designated representative.
In the event that a COCOT remains inoperable for a period of 30 continuous days or in the event that the New York State Public Service Commission orders the discontinuance of service of any COCOT, the same shall be deemed abandoned and may be treated in the manner as provided in § 227-58.15 for COCOTs in violation of the provisions of this article.
A.
Any licensee who erected, placed, maintained or operated a COCOT on any public street or sidewalk or in any public right-of-way or in any place requiring the user to stand or otherwise occupy any public right-of-way with the prior permission of the City Council shall have 30 days from the effective date of this article to apply for a permit to maintain those units in the present locations, notwithstanding the location requirements of § 227-58.7. Such existing COCOTs for which the City Council had granted a previous license shall be exempt from the location requirements provided in § 227-58.7 only if a valid permit is applied for within 30 days of the effective date of this article, which permit is timely renewed and not revoked pursuant to the terms of this article. The application fee for such a permit shall be the same as provided for a renewal permit pursuant to § 227-58.5C. All prior ordinances or resolutions of the City Council granting permission to any licensee to erect, place, maintain or operate a COCOT on any public street or sidewalk or any public right-of-way or in any place requiring the user to stand or otherwise occupy the public right-of-way are hereby revoked effective 30 days after the effective date of this article.
B.
Any licensee who erected, placed, maintained or operated a COCOT on any public street or sidewalk or in any public right-of-way or in any place requiring the user to stand or otherwise occupy any public right-of-way without the prior permission of the City Council shall have 30 days after the effective date of this article to apply for the permit required by § 227-58.3. In the event that any licensee fails to apply for said permit within such time period or a licensee's application for a permit is denied, the COCOT shall be deemed abandoned and may be treated in the manner as provided in § 227-58.15 for COCOTs in violation of the provisions of this article.
If any section, subsection, sentence, clause or phrase of this
article 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 article.
This article shall take effect October 31, 1991.
