CHAPTER 5
PUBLIC WELFARE, MORALS AND POLICY

PART XXVI

PERMITS FOR PAY TELEPHONES

DIVISION 1

SEC. 5-1100.        DECLARATION OF PUBLIC NUISANCE:

The Council of the City of Stockton finds and declares that:

A.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, the selling or giving away of controlled substances, as defined in Division 10 of the California Health and Safety Code, is hereby declared to be a public nuisance.

B.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, the consumption of alcoholic beverages outdoors on public or private property, except where outdoor consumption of alcoholic beverages is authorized or permitted, is hereby declared to be a public nuisance.

C.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, gang activity, is hereby declared to be a public nuisance.

D.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, loitering on nearby public or private property, is hereby declared to be a public nuisance.   As used in this section, “loitering” shall mean 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 and does not have a bona fide intent to exercise a constitutional right.

E.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, the soliciting, agreeing to engage in, or engaging in any act of prostitution; or, the conduct of any other criminal activity, is hereby declared to be a public nuisance.

F.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, the making of excessive noise is hereby declared to be a public nuisance.

G.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, acts disturbing the peace, is hereby declared to be a public nuisance.

H.      Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, lewd acts, is hereby declared to be a public nuisance.  

I.       Any pay telephone used as an instrumentality for, or contributing substantially by its presence to, acts which threaten the public health and safety including, but not limited to, public urination, is hereby declared to be a public nuisance.

J.       Any pay telephone that is repeatedly tagged with graffiti and not cleaned within 48 hours of notice to the owner of the pay telephone is hereby declared to be a public nuisance.

K.      Any pay telephone that is neglected or damaged to such an extent as to present a visual blight is hereby declared to be a public nuisance.

L.      Any pay telephone contributing substantially by its presence to the obstruction of the public sidewalk is hereby declared to be a public nuisance.

M.     Any pay telephone that has been abandoned or has otherwise remained inoperative for a period of thirty (30) days as of the effective date of this ordinance is hereby declared to be a public nuisance.

N.      Any pay telephone, which is installed, located, maintained, or operated in violation of this chapter, is hereby declared a public nuisance.

O.      Any pay telephone that the Chief of Police determines otherwise constitutes a public nuisance consistent with California Civil Code Sections 3479 and 3480.

SEC. 5-1101.        DEFINITIONS:

For purposes of Chapter 5, Part XXVI, Division 1, sections 5-1100 through 5 1114:

A.      “Chief of Police” means the Chief of Police for the City of Stockton or his/her authorized designee.

B.      "Objectionable Conditions that Constitute a Nuisance" means conditions such as: disturbance of the peace; public drunkenness; drinking in public; harassment of passersby; gambling; prostitution; gang activity; loitering; public urination; lewd conduct; drug trafficking; drug use; loud noise; using a telephone to divert law enforcement, including placing false 911 calls, pretending to use an inoperable telephone to avoid contact by law enforcement; or high calls for service.

C.      “Unimproved Private or Public Property" means any real property upon which there are no legally authorized buildings, structures, or other development such as pavement or landscaping that increases the value of the real property.

D.      “Vacant Improved Property” means any real property upon which there are legally authorized buildings structures that are unoccupied and may or may not be boarded and secured.

SEC. 5-1102.        PROHIBITED LOCATIONS OF PUBLIC PAY TELEPHONES:

A.      It is unlawful for any person to install, locate, or maintain a pay telephone on Unimproved Public or Private Property.

B.      Any existing pay telephone which is located or maintained in violation of subsection A of this section shall be removed within ninety (90) days after the effective date of the ordinance codified in this Chapter.   Notwithstanding the previous sentence, any pay telephone that is the subject of a written contract authorizing its installation which was entered into prior to the enactment of the ordinance and which contains provisions for termination shall be removed by the first date after enactment of the ordinance codified in this chapter 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 the ordinance codified in this Chapter, whichever occurs later.

C.      No pay telephone permits will be issued for outdoor pay telephones located on the property or in the public right-of-way adjacent to alcoholic beverage sales establishments selling alcoholic beverages except at establishments with fifteen (15) or more full time equivalent (FTE) employees and a minimum total floor area of ten thousand (10,000) square feet.   Nothing in this subsection requires the removal of existing pay telephones except as provided for in Sections 5-1103 through 5-1107.

SEC. 5-1103.        APPROVAL PROCESS FOR PUBLIC PAY TELEPHONE INSTALLATION:

A.      No pay telephone shall be installed on any improved property outside of a building unless a permit for its installation is first issued by the Chief of Police.

B.      The permit shall be applied for on a form provided by the Chief of Police.   The application shall contain the name of the applicant; the name of the owner of the real property; the lessee, if any; the owner; and the installer of the proposed pay telephone.   The application shall also contain such information as the Chief of Police deems relevant to his or her consideration of the application.   At the time of filing the application, the applicant shall pay a fee for the City of Stockton 's cost of processing and administering the permit, in an amount which will be from time to time set by Resolution of the City Council.

C.      The Chief of Police may forward the application to other City of Stockton departments for consideration and recommendation prior to his or her decision on the application.

D.      The Chief of Police shall notify the applicant in writing of the decision to approve, conditionally approve with restrictions, or deny the application for the installation of a pay telephone.

E.      No pay telephone permit may be issued unless the following minimum standards for the installation, operation, and maintenance of outdoor pay telephones have been met:

1.            The applicant shall maintain a valid City of Stockton business license at all times;

2.            The pay telephone shall be capable of dialing emergency, telephone repair, and information numbers such as "911," "211," "411," etc., at all times;

3.            The pay telephone shall be maintained in a clean, neat, damage-free, graffiti-free, and operable manner at all times;

4.            The pay telephone shall be maintained such that it does not interfere with any operations of any established use of the property such as emergency fire exits and parking;

5.            The pay telephone shall be installed and maintained in accordance with all requirements of the California Public Utilities Commission and the Federal Communications Commission and shall comply with all state and federal rules including the Americans With Disabilities Act, and the California Uniform Building Code, Title 24, requirements;

6.            Light shall be provided to the pay telephone location and immediate vicinity to assist in safe and easy use. Such lighting shall be permanently maintained to ensure that any user of the phone is clearly visible to nearby traffic, pedestrians, or public areas and to allow easy readability of telephone numbers or signage during all evening hours. Such lighting shall be directed away from any adjacent residential uses;

7.            The property shall be returned to its original condition if the pay telephone is removed; and

8.            Other operating restrictions or modifications to the above may be required as necessary to address regulatory or technological changes or other public nuisance issues that may develop.   The Chief of Police maintains discretion to add or modify any requirements for operation and maintenance of pay telephones.

F.      The Chief of Police may conditionally approve or deny the application for a permit by finding that the proposed installation:

1.            Has the potential to create objectionable conditions that constitute a nuisance as defined in Section 5-1101, or

2.            That either the physical site or building conditions, and established uses on the property on which the phone is to be located, are not in compliance with all City of Stockton codes and any other applicable local, state, or federal laws or regulations, or

3.            That the design, location, establishment, maintenance, or operation of the use for which the pay telephone permit is sought will, under the particular case, be detrimental to the public interest, health, safety, morals, comfort, convenience, or welfare of persons or other permitted uses operating nearby.

G.      If the Chief of Police conditionally approves with restrictions or denies an applicant's request for pay telephone installation, then the applicant has ten (10) calendar days from the date of service of the notice to appeal utilizing the procedures provided in section 5-1108 and Chapter One of this Code.

SEC. 5-1104.        ADDITIONAL REQUIRMENTS FOR PAY TELEPHONES LOCATED IN THE PUBLIC RIGHT OF WAY:

A.      In addition to the permit process outlined in section 5-1103 for the installation of a pay telephone, a revocable permit, pursuant to Stockton Municipal Code section 9-910, et seq., must be obtained for all pay telephones, existing and new, installed on:

1.            The public right-of-way;

2.            Private property where the pay telephone overhangs the right-of-way or requires a person to stand in that right-of-way to use the pay telephone; or

3.            Pay telephones located such that a minimum distance from the pay telephone to the public right-of-way is less than that required for property owner's, property tenant's, and/or pay telephone service provider's compliance with the Americans With Disabilities Act or Title 24 of the California Uniform Building Code.

B.      No pay telephone shall be installed in the public right-of-way, or as identified in subsection A, unless a revocable permit has been obtained pursuant to Stockton Municipal Code section 9-910.   Any pay telephone installed or maintained in violation of this subsection B shall be subject to immediate removal by the City of Stockton .   The City of Stockton may also contract for the removal of telephones illegally installed or maintained in the public right-of-way.   Costs of removal hereunder shall be at the expense of the responsible person, as defined in Chapter One of this Code.   The City of Stockton may use any and all lawful means to collect outstanding fees or costs including, but not limited to, liening the real property, legal action, or holding of the removed pay telephones until all fees and costs are paid.  

C.      A fee will be charged for the revocable permit.

D.      A maximum of three pay telephones may be covered by any single revocable permit.    

SEC. 5-1105.        PERMIT REQUIRED FOR EXISTING PAY TELEPHONE:

A permit shall be required for any pay telephone installed on any improved property outside of a building prior to the effective date of the ordinance adopting Section 5-1103 of this Division and this section.   Such permit shall be obtained no later than ninety (90) days after the effective date of the ordinance.   The procedures set forth in Section 5-1103 of this Chapter shall govern the issuance of such permit.   If no permit is obtained as required by this Section, the City of Stockton may remove or cause to be removed such pay telephone.   The City may pursue all legal remedies, including the right to lien property and to recoup its costs of removing the pay telephone.   The applicant may only reclaim a removed pay telephone upon payment of the actual removal costs incurred by the City of Stockton , storage charges, and any outstanding fees associated with the pay telephone.   All removed pay telephones not claimed after thirty (30) days shall be deemed forfeited.   The City of Stockton may dispose of all forfeited pay telephones and keep any money found within any forfeited pay telephone.

SEC. 5-1106.        PAY TELEPHONE PERMIT – ANNUAL RENEWAL:

All pay telephone permits are effective for twelve (12) months from the date of issuance and must be renewed annually.   The renewal fees shall be in an amount which will be from time to time set by Resolution of the City Council.   The Chief of Police may refuse to renew a permit if it is found to no longer be in compliance with approved conditions of approval, if it is found to be a public nuisance, or if it fails to meet the standards set forth in Stockton Municipal Code section 5-1103.   The decision to not renew a pay telephone permit is appealable as provided for in Section 5-1108 and Chapter One of this Code.   The annual renewal fee shall be due and payable thirty (30) days prior to the expiration date of the permit.   If the annual renewal fee has not been paid by this date, the City of Stockton may deem the pay telephone to be abandoned and take action to abate the pay telephone.   Late fees may be applicable.  

SEC. 5-1107.        ABATEMENT PROCEDURES:

A.      The City shall not commence any proceedings to abate a public pay telephone constituting a public nuisance unless the Chief of Police:

1.            Has notified the pay telephone owner and/or lessee; and

2.            Has made a reasonable effort to work with the property owner upon whose property the pay telephone is located or the pay telephone owner and/or lessee, or both.

B.      The City of Stockton shall work with the property owner or pay telephone owner and/or lessee to eliminate the activities constituting a public nuisance by utilization of the appropriate voluntary measures from the following list:

1.            blocking incoming calls;

2.            removing the ringer on the pay telephone;

3.            shutting off the key pad after the initial number is dialed to eliminate "beeper" use;

4.            removing hand sets;

5.            adding lighting;

6.            changing the type of enclosure of the pay telephone;

7.            changing the pay telephone's location on the parcel; or

8.            removing temporarily or permanently any or all of the pay telephones.

C.      Whenever the Chief of Police determines that any pay telephone constitutes a public nuisance within the meaning of Stockton Municipal Code section 5 1100, and further determines that the procedures in subdivision A or B of this section are not effective, an Abatement Notice and Order may be sent to any or all responsible persons directing abatement as outlined in the Notice.

D.      If the responsible person does not comply with the Abatement Notice, the Chief of Police may proceed to abate the subject pay telephone and recover all fees and costs pursuant to the procedures found in Chapter One of this Code.   Costs include, but are not limited to, removal and storage costs.   Once abated, a removed pay telephone may only be reclaimed upon payment of fees and costs owing to the City of Stockton .   All removed pay telephones not claimed after thirty (30) days shall be deemed forfeited.   The City of Stockton may dispose of all forfeited pay telephones and keep any money found within any forfeited pay telephone.  

E.      The Abatement Notice issued under Stockton Municipal Code section 5-1107 shall specify that abatement will require removal of the pay telephone and will prohibit its replacement on the same parcel or any contiguous parcel owned by the same property owner for a period of up to two years from the date of removal.   The Abatement Notice will also require that the property shall be returned to its original condition after removal of the pay telephone.  

F.      Any decision of a hearing officer ordering abatement shall specify that it is unlawful for any pay telephone owner and/or lessee to install a replacement pay telephone on the same parcel or on any contiguous parcel owned by the same property owner for a period of up to two years from the date of removal.

SEC. 5-1108.        RIGHTS OF APPEAL FROM CONDITIONAL APPROVAL OR DENIAL OF PERMIT

A.      The notice of conditional approval or denial of a permit may be appealed by filing the proper appeal in accordance with Chapter One of the Stockton Municipal Code, except as specified in this Division.   An appeal must be made in writing on the proper form to the City of Stockton Neighborhood Services Division , 22 East Weber Avenue , Stockton , California , 95202 .   There is a non refundable Administrative Hearing fee, which must accompany the appeal form.

B.      At the time and place fixed in said Notice, or at any time to which the matter may be continued by the mutual consent of the parties, the Administrative Hearing Officer shall hear the applicant and all witnesses, together with any proper documentary evidence offered in support of or against the conditional approval or denial of a permit.   The Administrative Hearing Officer shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and determine whether grounds exist for denial of a permit, as set forth in section 5-1103 of this Division. If, from the evidence, the Administrative Hearing Officer finds grounds exist for the conditional approval or denial of the permit, the Administrative Hearing Officer shall conditionally approve or deny the permit.   If, following the hearing, the Administrative Hearing Officer determines that no proper grounds exist for the conditional approval or denial of the permit, then the Administrative Hearing Officer shall grant the appeal and cause a permit to be issued.

C.      The administrative hearing provisions shall conform to Chapter One of this Code, except as specified in this Division.

SEC. 5-1109.        ACTION OF ADMINISTRATIVE HEARING OFFICER AS TO PERMIT - FINAL AND CONCLUSIVE:

              Action taken by the Administrative Hearing Officer with respect to the conditional approval or denial of a permit shall be final and conclusive, but nothing in this Code shall be construed to deprive any person of recourse to the courts as such person may be entitled to under the law.

SEC. 5-1110.        VIOLATIONS AND PENALTIES:

In addition to any other remedy available by law, any person who violates or causes or permits another person to violate any of these provisions, including any condition of a permit, is guilty of a misdemeanor.   Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of these regulations is committed, continued, permitted, maintained, or caused.

SEC. 5-1111.        CUMULATIVE EFFECT:

The provisions of this part are cumulative and are in addition to any and all other procedures or remedies provided in ordinances of the City of Stockton or by state law for the abatement of or prosecutions for nuisances.   Proceedings for abatement pursuant to this part shall not prejudice nor affect any other action, whether civil, criminal, equitable, or administrative, for the abatement or other remedy of such conditions.   Without limitation upon the foregoing, violations of the provisions of this Part shall be, and are, enforceable under the provisions of Chapter One of this Code.   Nothing contained herein shall be deemed to invalidate, supersede, or render ineffective any other provision of this Code or any ordinance of this City.  

SEC. 5-1112.        EXEMPTION:

Pay telephones located inside any building open to the public are exempt from the regulations of this Division.

SEC. 5-1113.        OVERCONCENTRATION OF PAY TELEPHONES:

No pay telephone permit may be issued for a pay telephone at an intersection when there are already two or more pay telephones at an intersection.   No pay telephone permit may be issued for any block when there are already two or more pay telephones on the block-face including intersections.   This applies to all outdoor pay telephones whether on public or private property.   The Chief of Police may grant an exception to these requirements upon the finding that it will enhance service to the public and will not create a public nuisance at that particular location.   Nothing in this Section requires the removal of any existing pay telephone except as provided in Sections 5-1103 through 5-1107.

SEC. 5-1114.        OTHER LICENSES AND PERMITS:

The permit required by the provisions of this Division shall be in addition to any other licenses or permits that may be required by other provisions of the Stockton Municipal Code or rules, laws, or regulations of the state or federal government.   

(Part XXVI added by Ordinance 033-03 C.S. – Effective December 18, 2003 )