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HomeMy WebLinkAboutNS-2154 - Adding Article VI to Chapter 17 of the Santa Ana Municipal Code to Regulate Pay TelephonesORDII~%NCB NO. ~S-2154 AN ORDINANCE OF THE CITY OF S~NTA ANA ADDING ARTICLE VI TO CHAPTER 17 OF THE S&NTAANA MUNICIPAL CODE TO REGULATE PAY TELEPHONES THE CITY COUNCIL OF THE CITY OF SANTA AN~ DOES ORDAIN AS FOLLOWSz ~ That Chapter 17 Code is hereby amended by adding an which said article reads as follows: of the Santa Aha Municipal article to be numbered VI, CHAPTER 17 ARTICLE VI. PAY TELEPHONES Sec. 17-71. Pay telephones - prohibited locations (a) No pay telephone shall be installed, located, or maintained on unimproved property. (b) Any existing pay telephone which is located or maintained in violation of subsection (a) shall be removed within ninety (90) days after the effective date of this ordinance. Notwithstanding the previous sentence, any pay telephone which is the subject of a written contract authorizing its installation which was entered into prior to the enactment of this ordinance and which contains provisions for termination shall be removed by the first date after enactment of this ordinance on which permissive termination of the written contract by either party could take effect, if either party elected to terminate, or within ninety (90) days after the effective date of this ordinance, whichever occurs later. (c) Any pay telephone which is installed, located, maintained, or operated in violation of this section is hereby declared to be a public nuisance. Sec. 17-72. Pay telephones - public nuisance. Any pay telephone which is used as an instrumentality for or contributes substantially by its presence to any of the following conditions is hereby declared to be a public nuisance: 1 156 Ordinance No. NS-2154 Page 2 (a) Selling or giving away controlled substances (as defined in Division 10 of the California Health and Safety Code): soliciting, agreeing to engage in, or engaging in any act of prostitution; or other criminal activity; (b) Consumption of alcoholic beverages on nearby outdoor public or private property except where outdoor consumption of alcoholic beverages is specifically authorized pursuant to a license issued by the Department of Alcoholic Beverage Control; (c) Loitering on nearby public or private property; (d) Excessive noise. As used in this section, "loitering" shall mean standing, sitting, lying or remaining on any property under such circumstances that a reasonable person would conclude that the person who remains on the property does not have a purpose connected with the usual and ordinary use to which such property is put, does not have bonafide intent to exercise a constitutional right, and is causing public inconvenience or annoyance. Beo. 17-73. Abatement generally. (a) Whenever the Chief of Police, or his designate, determines that any pay telephone constitutes a public nuisance as defined in Sections 17-71 or 17-72, the Chief of Police, or his designate, may commence proceedings to abate the nuisance. The abatement proceedings shall conform to Article II of this Chapter, except as specified in this article. (b) No proceedings to abate a public nuisance as defined in Sections 17-71 or 17-72 shall be commenced unless the Chief of Police, or his designate, first has made a reasonable effort to work with the property owner where the pay telephone is located or the pay telephone vendor to eliminate the conditions described Ordinance No. NS~154 Page 3 in Sections 17-71 or 17-72 by voluntary measures, such as: (1) blocking incoming calls; (2) adding lighting; (3) changing the telephone's location on the parcel; (4) making the telephone inoperative; (5) temporarily removing the telephone; (6) changing the type of enclosure of the telephone; or (7) removing all or one of the telephones. Sec. 17-74. Replacement prohibited. If the public nuisance to be abated is one defined in Section 17-72: (a) the hearing notice required by Section 17-21 shall specify that abatement shall consist of removal of the pay telephone, and that no pay telephone shall be installed on the same parcel, or on any contiguous parcel owned by the same property owner, to replace the removed telephone for a period of one year from the date of removal; and (b) any decision of the hearing officer ordering abatement shall specify that no pay telephone shall be installed on the same parcel, or on any contiguous parcel owned by the same property owner, to replace the removed telephone for a period of one year from the date of removal. seo. 17-75. Notice to pay telephone vendor. Ail notices shall also be sent to any vendor of the pay telephone, if known to the Chief of Police, or his designate. Sec. ~7-76. List of abated locations. The Chief of Police, or is designate, shall maintain, and make available upon request, a list of locations where installation of pay telephones is prohibited pursuant to Section 17-74. 3 158 Ordinance No. NS- 2154 Page 4 SECTION 2~ If any section, subsection, sentence, clause, phrase or portion of this ordinance 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 ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. SECTION 3~ Neither the adoption of this ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violation of ordinances, which violations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such license or penalty or the penal provision applicable to any violation thereof, nor to affect the validity of any bond or cash deposit in lieu thereof, required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations thereunder appertaining shall continue in full force and effect. ADOPTED this 3rd ATTEST: Wnice C. Guy / Clerk of the Councik/ day of... February 1992. ~a¥or COUNCILMEMBERS: Young Aye Pulido Abstained Acosta Nav Griset Aye McGuigan Aye Norton Aye Richardson Aye APPROVED AS TO FORM: 4 159 The city Council had questions regarding the abatement procedures for the proposed pay telephone ordinance. The following are the procedures in Chapter 17 to be used if abatement is necessary. ARTICLE L GENERAL PROVL~ONS ~ 17-1. Public nui~m~. As used in this chapter, Ihc term 'public nuisance" means any condition which is a "nuisance" and n "public nuisance" as defined in Sections 3479 and 3480 of thc Civil Code of thc State of California or which is spe~fically declared to constitute a nuisance by any statute of thc Slate of California or by any ordinance of thc City of Santa Ans. As used in this chapter, 'enforcement officer" means the city manager or any officer of thc city dusignated b~ him, except that when a public nuisance is created solely by reason of thc violation of a state statute or Municipal Code provision, the officer of the city charged with the p~imaty responsibility for enforcement of such provision may act ~s enforcement officer without thc necessity of prior designation by thc city manager. Sac. 1%3. Premi~ AS used in this chaptcr, "premises" mcans any building, lot, parcel, land or portion thereof, improved or unimproved, including adjacent streets, sidewalks, parkways, and parking areas. Scc. 1%4. Abate.; absent. As used in this chapter, thc terms "abate* and "abatemcnff means action lo repair, replace, remove., destroy, terminate, or othet~sc remedy the condition or activity in question by such means and in such manner as is necessary in thc inte~csls of thc health, safety or welfare of thc public. S~:. 17-5. Sa~ce c~ Whcnevcr any notice, o~lcr, statement or resolution is required to bc sca, cd upon thc owner of any premises by thc pn:n'isions of this chapter, such service shall bc either by personal san, icc upon the owner or by delivery into the U.S. mail, postage prepaid, cc~tificd or registered mail, addressed lo Ihc owner as such parson's name and address appear on the latest available as~asmcnt roll, or as othc~vire known lo be thc more reliable name and address of Ihe owner. In addition, if thc owner's mailing address is different from that of thc premises, a copy of such notice shall eilher bc likewise sawed on the parson in possession of thc premisus or conspicuously IX~tcd upon thc premises, and such service or posting shall constitute service of notice upon the owner in the evenl that he fails to receive notice mailed to him. Sa~. 17~. procedure not c~lusivc. The procedure provided in this chapter shall bc cumulative and in addition to any other procedure provided in this Code or by state law for the abatement of any of the conditions which may be abated under this chapter, and abatement hereunder shall not prejudice or affect any other action, civil or c~iminal, for the abatement of any such condition. 160 ~ 1%20. Initiation of Whenever it appears that any premises within the city are being maintained in such a way aa to create a public nuisance, the enforcement off'leer may investigate the matter and make a preliminary determination as to whether conditions on the pre mit~s constitute a public nuisance. Sec. 17-21. Whenever the enforcement officer determines that a public nuisance exials, be shall cause notice to bc sewed upon the ovmcr of thc premises. The notice shall describe thc premises involved by street address, if po~ible, and otherwise by the as~sor's parcei number or legal dc~cription. It shall give a brief description of the conditions which constitute the public nuisance, a brief statement of the method of abatement recommended aa appropriate, and a reasonable period of time for such abatement. Il shall inform the owner of his right to a public hearing on thc question of whether the conditions constitutca public nuisance. Such notice shall b~ in substantially thc following form: NO'I'IC~ 3'0 .Alk~:'l'l] PUBLIC NUISANC~ (Name and addre~ of person notified) A~ o~er of thc premises at you are hereby notified that the undersigned, pursuant to Chapter 17 of thc Santa Ama Municipal Code, has determined that thc following conditions existing upon said premises constitute a public nuisance: You are hereby notified to abate said conditions to the aalisfaction of the undersigned within __ days of the date of this notice. Otherwise such conditions shall be abated by the city and thc co~t of such abatement shall be assessed upon such premises and shall constitute a special assessment upon such premises until paid. Abatement is to be accomplished in thc following manner: If you have any objection to thc determination by thc undersigned that the above-described conditions constitute a public nuisance, you are hereby notified to file a written request for hearing to determine whether such conditions constilute a public nuisance. Such request for hearing must be filed with the Clerk of the Council of the City of Santa Aha within leu (10) days of thc date of this notice. l)atc of service: (Name and title of officer) The enforcement officer shall cause a copy of the notice of abatement to be recorded in thc office of thc county recorder of thc County of Orange, and upon such recordation subsequent grantees of the premises shall be deemed to have notice of the potential assc~ment of costs of abatement against thc premises. Failure to record the notice of abatement shall not affect thc validity of proceedings under this chapter. ll~ating mt caistcncc c~ publi~ nuisance. If the owner files with thc clerk of the council a request for a hearing within ten (10) days of thc date of service of the notice of abatement, a public hearing shall be conducted in accordance with Chapter 3 of this Code, upon the question of whether the conditions upon thc premises constitute a public nuisance. The owner shall be served with notice of the time, hour and place of such hearing The burden of proof shall be upon thc enforcement officer to show that the conditions constitute a public nuisance. The owner may appear in person or by representative, testify, call witnesses, and cross-examine the witnesses against him. He may, in lieu of such appearance, submit a sworn written statement setting forth the facts in support of his contentions, together with any supporting sworn affidavits by other 2 161 Sec. 17-25. Abatement by thc city. Upon the expiration of the period for abatement of the public nuisance by thc owner, if no such abatement has o~curre, d to the satisfaction of thc enforcing officer, the officer of thc city dcalgnatcd by thc city council or by thc city manager may enter upon the premises and abate the public nuisance. Such abatement by thc city may ha accompllshad by city cmployee~ or by an independent contractor retained by the city. The officer of the city designated to abate the nuisance shall maintain a detailed account of nil co~t~ incurl~d by the city in the abatement of the public nuisance. 3 CERTIFICATE OF ORIGINALITY & PUBLICATION State of California County of Orange I, JANICE C. GUY, Clerk of the Council, do hereby certify the attached Ordinance N~-=2/~-~ to be the original ordinance adopted by the City Council of the City of Santa Ana on ~-~- ~.~ ; and that said ordinance was published in accordance with the Charter of the City of Santa Aha. ~l~rk of the Co~ncJDate City of Santa Ana