Chapter 4 - Enacted without chapter heading.

Section 23-401

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

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

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

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

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

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

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

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.