Section 23-401
§ 23-401 Definitions. Whenever used in this chapter:
a. "Commissioner" shall mean the commissioner of the department of
information technology and telecommunications, or of any successor
agency.
b. "Department" shall mean the department of information technology
and telecommunications, or any successor agency.
c. "Owner" shall mean a natural person or business entity which owns,
leases, or is otherwise responsible for the installation, operation and
maintenance of a public pay telephone.
d. "Permit" shall mean an authorization by the department to install,
operate and maintain one or more public pay telephones at a location on,
over or under a street or other inalienable property of the city.
e. "Public nuisance" shall mean the use of a public pay telephone on a
regular basis which the commissioner has reasonable cause to believe is
in furtherance of unlawful activity.
f. "Public pay telephone" shall mean a telephone and associated
equipment, from which calls can be paid for at the time they are made by
a coin, credit card, prepaid debit card or in any other manner, which is
available for use by the public and provides access to the switched
telephone network for the purpose of voice or data communications. The
term "public pay telephone" shall include any pedestal or telephone bank
supporting one or more such telephones, associated enclosures, signage
and other associated equipment.
g. "Street" shall have the meaning ascribed thereto in subdivision
thirteen of section 1-112 of this code.
Section 23-402
§ 23-402 Permit required. No public pay telephone shall be installed,
operated or maintained on, over or under any street or other inalienable
property of the city without a permit therefor, and unless such
installation, operation and maintenance is in accordance with the
provisions of this chapter, the rules of the commissioner promulgated
pursuant thereto, and the terms and conditions of such permit.
Section 23-403
§ 23-403 Powers of commissioner. a. The commissioner may issue and
renew permits under this chapter based upon a determination, at his or
her discretion, that issuance or renewal of a permit would be in the
best interests of the city, provided that:
1. no permit shall be issued or renewed unless the applicant holds a
franchise granted by the city to install, operate and maintain public
pay telephones on, over and under the streets and other inalienable
property of the city;
2. (i) in the event that the installation of a public pay telephone
requires the opening, drilling or other physical alteration of a
building facade or other private property, no permit shall be issued or
renewed without the written consent of the building owner.
(ii) in the event that the installation of a public pay telephone
requires affixing the phone to a building facade or other private
property, no permit shall be issued or renewed without the written
consent of the building owner.
(iii) in the event the installation of a public pay telephone is to be
accomplished in a manner other than as set forth in subsection (i) and
(ii) of this section, but requires access through an existing conduit or
other opening on a building facade or other private property, or such
installation is to be made within six feet of a building line, no permit
shall be issued or renewed without the written consent of the building
owner or the commercial lessee who shall certify (aa) that the building
owner has authorized the lessee to grant such consents; and (bb) that
the lessee has provided the building owner or its authorized agent with
written notification by certified mail, of the granting of such consent,
the name and address of the owner of the public pay telephone and the
location of such public pay telephone in relation to the building. Proof
of mailing of such notification to the building owner or its authorized
agent shall be included in the permit application. It shall be a
violation of this chapter where a permittee, without providing
justification therefor, fails within a time period specified by the
Commissioner to remove a public pay telephone following receipt of a
notice from the building owner or its authorized agent by certified mail
that he or she objects to the installation, where such notice and copy
to the Commissioner are sent within thirty days of receipt of the
commercial lessee's consent. Nothing herein shall be construed to limit
a building owner or its authorized agent from pursuing such remedies as
he or she may have under law with respect to the unauthorized
installation of a public pay telephone; and
3. no permit shall be issued or renewed for the installation,
operation and maintenance of a public pay telephone at any location
where it will unreasonably interfere with the use of a street by the
public, or where it will unreasonably interfere with the use of the
abutting property.
b. The commissioner shall promulgate rules to implement the provisions
of this chapter. Such rules shall include, without limitation: (i) a
procedure and timetable for review by the department, and other
appropriate agencies, including the department of transportation, of
applications for the issuance and renewal of permits to install, operate
and maintain public pay telephones at specified locations; (ii)
standards governing the location of public pay telephones designed so as
to ensure that such telephones will not unreasonably interfere with the
use of the street by the public and with use of the abutting property;
and (iii) standards and procedures governing the installation, removal,
operation, cleaning and maintenance of public pay telephones, including
procedures for the expedited removal of any public pay telephone
determined to constitute a public nuisance.
c. Permits may contain such other terms and conditions not
specifically provided for in this chapter as the commissioner deems
necessary to protect the public safety and to safeguard the interests of
the city.
Section 23-404
§ 23-404 Term; Termination.
a. A permit for a public pay telephone shall continue in effect for
the term of the franchise held by the owner of such public pay
telephone, unless the commissioner, after giving the permittee notice
and an opportunity to be heard, determines: (i) that as a result of
changed conditions, the public pay telephone unreasonably interferes or
will unreasonably interfere with the use of a street by the public, or
constitutes a public nuisance; or (ii) that removal of the public pay
telephone is required in connection with a street widening or other
capital project or for other purposes as may be specified by rule of the
commissioner. Upon making such determination, the commissioner shall
order the removal of the public pay telephone within a reasonable time
period. In the event the permittee fails to remove the public pay
telephone within the time period specified in such order, the
commissioner may remove or cause the removal of the public pay telephone
and have repair and restoration work performed at the expense of the
permittee, who shall be liable in a civil action for the amount expended
by the city.
b. Notwithstanding the provisions of subdivision a of this section, in
the event that a public pay telephone is removed in connection with a
street widening or other capital project or other improvement specified
by rule of the commissioner, the permittee may apply to the commissioner
for permission to reinstall the public pay telephone at another location
or, following the completion of such street widening, capital project,
or other improvement, at or near its original location. Where such
permission is granted, the permittee shall not be required to obtain a
new permit for the public pay telephone, and the permit previously
issued for such public pay telephone shall continue in effect. If such
public pay telephone is reinstalled at another location, the permittee
may apply to the commissioner for a new permit to install another public
pay telephone following the completion of such street widening, capital
project or other improvement at or near the original location of the
public pay telephone previously removed in connection therewith,
provided that the permittee has paid the required fee for such permit.
Section 23-405
§ 23-405 Advertising. A permit issued under this chapter shall not
constitute an authorization to place advertising upon a public pay
telephone.
Section 23-406
§ 23-406 Fees. The commissioner shall by rule establish fees for the
issuance and renewal of permits pursuant to this chapter in amounts
sufficient to compensate the city for the administrative expense of
issuing or renewing a permit and the expense of inspections and other
activities related thereto.
Section 23-407
§ 23-407 Transfers. No permit issued under this chapter shall be
transferred except as may be authorized by rule of the commissioner.
Section 23-408
§ 23-408 Violations; Penalties and Other Enforcement.
a. Any owner who installs, operates or maintains a public pay
telephone on, over or under any street or other inalienable property of
the city without a permit therefor shall be guilty of a misdemeanor and
upon conviction thereof shall be punished by a fine of not more than ten
thousand dollars and imprisonment of not more than thirty days, or both
such fine and imprisonment. Such owner shall, in addition, be liable for
civil penalties pursuant to subdivisions c and d of this section.
b. An owner who repeatedly fails to provide phone services from a
public pay telephone for any sustained period of time or who fails to
provide coinless twenty-four hour 911 service from such public pay
telephone shall be in violation of this chapter and shall be liable for
a civil penalty of not more than two thousand five hundred dollars for
each violation which may be recovered in a civil action or in a
proceeding before the environmental control board. In the case of a
continuing violation, each day's continuance shall be a separate and
distinct offense.
c. An owner who violates any provision of this chapter, or any term or
condition of a permit issued pursuant thereto, or any rule promulgated
by the commissioner pursuant thereto shall be liable for a civil penalty
of not more than one thousand dollars for each violation which may be
recovered in a civil action or in a proceeding before the environmental
control board. In the case of a continuing violation, each day's
continuance shall be a separate and distinct offense.
d. An owner who is liable for a civil penalty for a violation pursuant
to subdivision c of this section shall also be liable in a civil action
for an additional civil penalty in the amount of the expense, if any,
incurred by the city in the removal of the public pay telephone and the
performance of related repair and restoration work.
e. In addition to authorized officers and employees of the department,
officers and employees of the department of transportation who are
designated by the commissioner shall have the power to issue summonses
and appearance tickets returnable in the criminal court and notices of
violation returnable before the environmental control board for
violations of the provisions of this chapter.
f. An owner of a public pay telephone shall be liable for a violation
by his or her employee, agent or independent contractor of the
provisions of this chapter, or any term or condition of a permit issued
pursuant thereto, or any rule promulgated by the commissioner pursuant
thereto, made in the course of performing his or her duties.
g. An owner who submits an application for a public pay telephone
permit containing a certification made by a commercial lessee pursuant
to subparagraph (iii) of paragraph 2 of subdivision a of section 23-403
of this chapter, knowing that such certification contains a false
statement or false information, shall be guilty of a misdemeanor.
h. The commissioner may request the corporation counsel to institute
any action or proceeding that may be appropriate or necessary to
restrain, correct or abate a violation of the provisions of this
chapter.
i. 1. If the commissioner has reasonable cause to believe that an
owner, or any employee, agent or independent contractor of such owner,
has violated the provisions of this chapter, or any term or condition of
a permit issued pursuant thereto, or any rule promulgated by the
commissioner pursuant thereto, the commissioner may (i) notify the owner
of the condition identified by the commissioner as a violation and
specify the action that must be taken to correct the condition in such
manner and within such period of time as shall be set forth in such
notice, and (ii) shall afford the owner an opportunity to contest the
commissioner's notice in a manner to be set forth in rules of the
commissioner. Upon final determination by the commissioner and failure
of such owner to correct the condition in the manner and within the
period of time specified by the commissioner, the commissioner shall be
authorized, at his or her discretion:
aa. to remove or cause the removal of any public pay telephone which
is installed, operated or maintained on, over or under any street or
other unalienable property of the city without a permit therefor.
Notwithstanding the foregoing, notice shall be provided pursuant to this
subdivision prior to removal only where the name and address of the
owner is shown on the public pay telephone or can be readily identified
by the commissioner by virtue of a trademark prominently displayed on
the public pay telephone;
bb. to revoke a permit and, upon revocation, to further order the
removal of the public pay telephone. In the event the permittee fails to
remove the public pay telephone and to perform related repair and
restoration work within the time period specified by such order, the
commissioner may remove or cause the removal of the public pay telephone
and have repair and restoration work performed at the expense of the
permittee, who shall be liable for the amount expended by the city;
cc. to render a public pay telephone inoperable except for the purpose
of emergency telephone service through the 911 system or an operator.
Such action may continue until the violation has been corrected to the
satisfaction of the commissioner and payment has been made of all civil
penalties imposed for the violation and any fees for any administrative
expense or expense of additional inspections incurred by the city as a
result of such violation. The commissioner shall affix to any public pay
phone rendered inoperable pursuant to this paragraph a notice advising
the public that the phone may be used only for emergency telephone
service through the 911 system or an operator and setting forth the
provisions of subdivision h of this section. Any device utilized by the
commissioner for the purpose of rendering a public pay telephone
inoperable shall be designed so as to permit the unimpaired use of the
public pay telephone upon the removal of the device;
dd. to suspend review of all applications for the issuance or renewal
of permits filed by such owner pursuant to this chapter. Such suspension
may continue until the violation has been corrected to the satisfaction
of the commissioner and payment has been made of all fines or civil
penalties imposed for the violation, any costs incurred by the city for
removal and related repair or restoration work, and any fees for any
administrative expense or expense of additional inspections incurred by
the city as a result of such violation.
2. Notwithstanding the provisions of paragraph one of this
subdivision, if the commissioner determines that an imminent threat to
life or property exists, the commissioner may remove or cause the
removal of a public pay telephone, and have repair and restoration work
performed at the expense of the owner, without affording the owner an
opportunity to be heard prior to such removal. An owner who is a
permittee or whose name and address is shown on the public pay telephone
shall be provided notice and an opportunity to be heard five days after
such removal in accordance with rules of the commissioner.
3. The procedures set forth in this subdivision shall be employed by
the commissioner in addition to or in lieu of the other remedies set
forth in this section and shall not be construed to limit the power of
the commissioner to commence a civil action or proceeding before the
environmental control board, or to require that the commissioner resort
to any procedure set forth in this subdivision as a prerequisite to the
commencement of any such action or proceeding.
j. It shall be a misdemeanor for any person: (i) to remove any device
installed by the commissioner pursuant to subparagraph aa of paragraph
one of subdivision g of this section or to otherwise make operable a
public pay telephone upon which such a device has been installed; or
(ii) to remove or deface any notice affixed to a public pay telephone
pursuant to such paragraph of such subdivision. Such misdemeanor shall
be punishable upon conviction by a fine of not more than ten thousand
dollars or imprisonment for not more than thirty days or both such fine
and imprisonment.
k. Any public pay telephone removed pursuant to this section which is
not claimed by the owner within thirty days of removal shall be deemed
to be abandoned. All abandoned public pay telephones may be sold at
public auction after having been advertised in the City Record and the
proceeds paid into the general fund or such abandoned telephones may be
used or converted for use by the department or by another city agency. A
public pay telephone shall be released to the owner upon payment of the
costs of removal, repair and restoration work, and of storage, any fees
for any administrative expense or expense of additional inspections
incurred by the department as a result of the violation, or, if an
action or proceeding for the violation is pending in a court or before
the environmental control board, upon the posting of a bond or other
form of security acceptable to the commissioner in an amount which will
secure the payment of such costs and any fines or civil penalties which
may be imposed for the violation.