Chapter 8.20 — PAY TELEPHONES

The purpose of this Chapter is to prescribe the rules governing the issuance of permits for outdoor pay phones. The intent of this Chapter is to ensure safe, quality public pay telephone service and to avoid potential public nuisances and criminal activities by reviewing and, where necessary, imposing operating and maintenance standards on the installation and operation of outdoor pay telephones. The purpose of this Chapter is also to establish appropriate procedures for the revocation of pay phone permits where warranted by violation of the provisions of this ordinance. The provisions of this Chapter shall apply to any telephone booth, mounted telephone, or other form of publicly accessible pay telephone not enclosed within the interior of a building, whether on public or private property.

(Ord. 12271 § 3 (part), 2000)

The provisions of this Chapter shall not apply on property owned by the following entities:

A.

Oakland/Alameda Coliseum Complex;

B.

Oakland Airport;

C.

BART;

D.

Amtrak;

E.

Oakland Unified School District;

F.

Peralta Community College District;

G.

Mills College;

H.

College of Holy Names;

I.

Laney College.

(Ord. 12271 § 3 (part), 2000)

As used in this Chapter, the following terms are defined in this section:

"Applicant" means the person, organization, corporation, association or other entity and the property owner applying for a permit to install and operate an outdoor pay phone.

"Block-face" means the length of land between intersections.

"City" means the city of Oakland as a municipal corporation, existing pursuant to the laws of the state of California.

"Existing pay telephone" means those phones that were lawfully installed as of July 25, 2000.

"Hearing Officer" means a person appointed or designated by the City Manager who is qualified by training and experience to conduct administrative hearings.

"Outdoor pay phones" means any telephone booth, mounted telephone, or other form of publicly accessible pay telephone, located on public property or on private property as an accessory, not enclosed within the interior of a building.

"Pay phone permit" means the written approval of the Zoning Administrator jointly authorizing the pay phone service provider and the owner of the real property on which the outdoor pay telephone is to be located to install or maintain an outdoor pay telephone on private property subject to the provisions of this Chapter.

"Pay phone service provider" means any person, firm, or corporation that owns pay phones or manages and operates a business that directly provides pay phone services.

"Pay telephone" means any coin- or credit card- operated telephone that is installed on private property or in the public right-of-way.

"Space use agreement" means an agreement between the city and any company intending to place phones on the public right-of-way that requires the company to pay a specified percentage of revenue to the city in exchange for the use of the right-of-way.

"Zoning Administrator" means the person appointed or designated by the Planning Director who is charged with the responsibility to administer the Oakland Planning Code and this Chapter.

(Ord. 12353 § 1, 2001: Ord. 12271 § 3 (part), 2000)

improved property.

A.

No pay telephone shall be installed on any improved property outside of a building unless a pay phone permit for its installation is first issued by the Zoning Administrator. This requirement shall apply to existing

pay telephones as well as pay telephones installed after July 25, 2000.

B.

The pay phone permit shall be applied for on a form provided by the Community and Economic Agency, Planning and Zoning Division. Except for existing pay telephones, the real property owner and pay phone provider shall be co-applicants. For existing pay telephones, the pay phone provider shall provide proof of a valid contract currently in effect with the property owner/tenant, or the phone shall be treated as a new installation and subject to requirements in this Section 8.20.040. The application shall also contain the name of the lessee of the property, if any, and the owner and the installer of the proposed pay telephone. The application shall also contain such information as the Zoning Administrator deems relevant to his/her consideration of the application. A nonrefundable application fee shall be paid in an amount set forth in this section or in the master fee schedule.

C.

Applicants for permits related to installation of new pay telephones shall cause notice to be mailed to all persons shown on the last equalized assessment roll as owning real property in the city within three hundred (300) feet of the property involved, and to any other interested parties that request such notice including neighborhood associations and Neighborhood Crime Prevention Councils (NCPCs). The application will be referred to both the Oakland Police Department (OPD) Area Commander and OPD Crime Analysis Division for their comments and recommendations on the application.

D.

Such permit shall be applied for within sixty (60) days of the effective date of the ordinance codified in this Chapter. The Zoning Administrator will prepare a schedule that outlines the application process timeframes along identified geographic boundaries. However, the city reserves the right to process an application for a pay phone permit sooner if the city determines the phone may be a public nuisance. Upon receipt of a completed pay phone application, the pay telephone shall be allowed to remain pending a final decision on the application. All existing pay telephones will be granted a pay telephone permit provided that there are no complaints on file with the city. In the event that complaints have been filed with the city, the Zoning Administrator shall have the discretion to impose reasonable conditions on continued operation of the pay telephone at the location as provided under Section 8.20.110, up to and including removal of the pay telephone at the location in question.

E.

All pay phone permit applications must include plans indicating the proposed or existing location of the pay telephone in relation to the public right-of-way.

F.

The decision by the Zoning Administrator to either grant or deny a pay phone permit for a new installation is final and not subject to further appeal.

G.

The procedures set forth in this section shall govern the issuance or revocation of such permit. If no permit is obtained as required by this section, the city may remove or cause to be removed such pay telephone. The pay phone service provider or property owner shall be responsible for paying the cost of removal as set forth in this Chapter.

(Ord. 12353 § 4, 2001: Ord. 12271 § 3 (part), 2000)

A.

A space use agreement shall be required for all pay telephones, existing and new, installed on:

The public right-of-way;

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 phone;

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 phone 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 unless the installation is made pursuant to a space use agreement entered into under this section. Any pay telephone installed or maintained in violation of this subsection B shall be subject to immediate removal by the city. The city 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 property owner's and/or pay phone service provider's expense.

C.

The City Manager or his or her designee shall have the authority to enter into space use agreements with pay phone service providers that grant the privilege of installing and maintaining pay telephones in the public right-of-way.

D.

The City Manager or his or her designee shall have the right to deny any application for a space use agreement without the right of appeal.

E.

Space use agreements in existence prior to the effective date of this Chapter shall continue to be in effect until the expiration date noted in the agreement. New space use agreements as described above will be required after the expiration of any existing agreements.

(Ord. 12353 § 5, 2001: Ord. 12271 § 3 (part), 2000)

A pay phone permit and space use agreement will be authorized by the Zoning Administrator only upon making the following findings:

A.

That both the physical site and building conditions, and established uses on the property on which the phone is to be located, shall be in compliance with all city codes and any other applicable local, state or federal laws or regulations;

B.

That the applicant has provided assurance that the proposed phone will be maintained at all times in compliance with all usage control measures required by this Chapter or included in the conditions of approval of the pay phone permit or space use agreement;

C.

That the granting of the pay phone permit or space use agreement will not adversely affect the established or planned character and land uses of the surrounding area nor be injurious to the property or improvements in such vicinity and zone in which the property is located;

D.

That the design, location, establishment, maintenance, or operation of the use for which the pay phone permit or space use agreement is sought will not, 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;

E.

That the phone is and/or shall be maintained in accordance with the "Pay phone permit and space use agreement operating standards" contained in Section 8.20.070.

(Ord. 12353 § 6, 2001: Ord. 12271 § 3 (part), 2000)

A.

Pay phone permit and space use agreements issued pursuant to this Chapter shall contain such conditions as are deemed necessary by the Zoning Administrator to implement the provisions of this Chapter.

B.

No pay phone permit or space use agreement shall be issued unless the following minimum standards for the installation, operation, and maintenance of outdoor pay phones have been met:

The applicant shall maintain a valid city business license tax certificate at all times;

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

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

Encroachment permits as required by Chapter 12.08 of the Oakland Municipal Code are not required for pay phones. However, the phone shall comply with any and all required conditions from the city's encroachment permit procedure set forth in Chapter 12.08 of the Oakland Municipal Code and 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;

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

Light shall be provided to the phone 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;

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 property shall be returned to its original condition if the pay telephone is removed.

(Ord. 12353 § 7, 2001: Ord. 12271 § 3 (part), 2000)

A.

Prohibited Locations. No pay telephone shall be installed, located, or maintained on unimproved or abandoned property as defined in Section 8.24.020 of the Oakland Municipal Code. This subsection does not apply to existing pay telephones except to the extent provided under Section 8.20.040(D). For existing pay telephones, the pay phone provider shall provide proof of a valid contract currently in effect with the property owner, or the phone shall be subject to the prohibitions of this Section 8.20.080 and shall be removed. Once said pay telephones are removed, the prohibition in this Section 8.20.080 shall apply, and no permits or other approvals shall be issued by the city.

B.

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 declared to be a public nuisance:

The selling or giving away of controlled substances as defined in Division 10 of the California Health and Safety Code; or, the soliciting, agreeing to engage in, or engaging in any act of prostitution; or, the conduct of any other criminal activity;

The consumption of alcoholic beverages on nearby outdoor public or private property except where outdoor consumption of alcoholic beverages is specifically authorized pursuant to the Department of Alcoholic Beverages Control or by law;

Loitering, as defined in state law;

Disturbing the peace;

Any acts which threaten the public health and safety including, but not limited to, public urination.

C.

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

(Ord. 12353 § 8, 2001: Ord. 12271 § 3 (part), 2000)

No pay telephone shall be installed on any parcel, or any abutting parcel owned by the same property owner, for a period of two years from the date of removal of any pay telephone determined to be a public

nuisance as defined in Section 8.20.080.

(Ord. 12271 § 3 (part), 2000)

A.

The city shall have a right of entry to any property on which an outdoor pay telephone is located for the purposes of inspecting pay telephones, removing pay telephones and otherwise enforcing the provisions of this Chapter.

B.

The city shall have the right to remove any illegally installed phone upon twenty-four (24) hours notice to the owner of the pay telephone.

C.

Where a permit is revoked upon the final decision by a Hearing Officer, the city shall have the right to remove that pay telephone.

D.

The city may pursue all legal remedies, including the right to lien property and to recoup its costs of removing the pay telephone. In addition, all removed pay telephones not claimed after thirty (30) days shall be deemed forfeited.

E.

The applicant may only reclaim a removed pay telephone upon payment of the actual removal costs incurred by the city, storage charges, and any outstanding fees associated with the pay telephone.

F.

The city may dispose of all forfeited pay telephones and keep any money found within any forfeited pay telephone.

(Ord. 12271 § 3 (part), 2000)

In the event that a pay telephone permit issued pursuant to this Chapter has been found to cause a violation of any provisions of the Oakland Municipal Code, including the Oakland Planning Code, or in the event of a failure of the applicant to comply with any prescribed condition of approval, or if the Zoning Administrator determines after the permit is issued that the application was false in any material detail, the Zoning Administrator may, after notice, issue a written order to revoke any pay phone permit.

(Ord. 12271 § 3 (part), 2000)

A.

Within ten days from the date the Zoning Administrator's written pay telephone permit revocation notice or notice to deny a permit for an existing pay telephone is mailed to the permittee, the applicant may request a hearing with the Hearing Officer. The applicant must pay for the actual cost of the Hearing Officer. The request for hearing shall state specifically wherein it is claimed there was an error or abuse of discretion by the Zoning Administrator in revoking the permit. The request for a hearing shall be accompanied by such information as may be required to facilitate review. Upon receipt of the request for hearing, the Zoning Administrator shall set a time for the hearing and notify the permittee in writing at least seven calendar days before the hearing. At least five calendar days before the hearing, the city shall serve on the applicant copies of all documentary evidence the city will present to the Hearing Officer.

B.

The Hearing Officer appointed by the City Manager shall consider the merits of the appeal. The Hearing Officer's review shall be limited to whether there was an error or abuse of discretion by the Zoning Administrator or whether the Zoning Administrator's decision is not supported by the evidence. The Hearing Officer in no case shall substitute their opinion for that of the Zoning Administrator. The written decision of the Hearing Officer shall be final.

(Ord. 12353 § 9, 2001: Ord. 12271 § 3 (part), 2000)

No pay phone permit shall be issued for a pay telephone at an intersection when there are already two or more pay phones at an intersection. No pay phone permit will be issued for any block when there are already two or more pay telephones on the block-face between intersections. This applies to all outdoor pay telephones, whether on public or private property. The Hearing Officer may grant an exception to this requirement 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 subsection requires the removal of any existing pay telephone except as provided in Section 8.20.110.

(Ord. 12353 § 10, 2001: Ord. 12271 § 3 (part), 2000)

No pay phone permits will be issued for outdoor pay telephones located on the property of alcohol beverage sales establishments selling alcohol beverages except at establishments with twenty-five (25) or more full time equivalent (FTE) employees and a minimum total floor area of twenty thousand (20,000) square feet. Nothing in this subsection requires the removal of existing pay telephones except as provided in Section 8.20.110.

(Ord. 12353 § 11, 2001: Ord. 12271 § 3 (part), 2000)

A six month moratorium on all new installations of outdoor pay telephones will begin on the effective date of this Chapter. No application for new pay telephones shall be accepted during the period of the

moratorium. Pay telephones installed in violation of this moratorium shall be removed upon twenty-four (24) hours notice to the pay phone provider and property owner. The decision to remove a phone installed in violation of the moratorium shall be final and nonappealable.

(Ord. 12271 § 3 (part), 2000)

All pay phone permits are effective for twelve (12) months from the date of issuance and must be renewed annually. The renewal fees shall be as set forth in this Chapter or the city's master fee schedule. The Zoning Administrator may refuse to renew a permit if it is found to no longer be in compliance with approved conditions of approval or if it is found to be a public nuisance. The Zoning Administrator's decision to not renew a pay phone permit is appealable as provided for in Section 8.20.120. The annual renewal fee shall be due and payable thirty (30) days prior to the expiration of the permit. If the annual renewal fee has not been paid by this date, the city may revoke the permit. Late fees shall be as set forth in this Chapter. The city may use any and all lawful means to collect outstanding fees including liening the real property, legal action, or holding of removed pay telephones until all fees are paid.

(Ord. 12271 § 3 (part), 2000)

The violation of any provision of this Chapter shall constitute an infraction. Each day that a violation of this Chapter continues shall constitute a separate offense. Administrative citations may be assessed as provided for in Chapter 1.12 of the Oakland Municipal Code.

(Ord. 12271 § 3 (part), 2000)

The Zoning Administrator shall adopt such rules and guidelines as he/she may deem necessary for the public welfare and the administration of this Chapter. Copies of the rules and guidelines shall be kept on file at the Community and Economic Development Agency, Planning and Zoning Division, and shall be made available to any person upon request.

(Ord. 12271 § 3 (part), 2000)

A.

The city shall not at any time be liable for any injury or damage occurring to any person or property from any cause whatsoever arising from the use, operation, or condition of the applicant's pay telephone.

B.

As a condition of issuing a pay telephone permit, the permittee shall agree to indemnify, save and hold harmless, and defend the city from all liens, charges and claims, including but not limited to libel, slander, invasion of privacy, and unauthorized use of any trademark, trade name, or service mark; demands; suits;

actions; fines; penalties; losses; costs, including but not limited to reasonable legal fees and court costs, including legal fees and court costs on appeals; judgments; injuries; liabilities or damages, in law or equity, or any and every kind and nature whatsoever, except those based upon the city's negligence, arising out of or in any way connected with the installation, operation, maintenance or condition of the applicant's pay telephones or the granting of the pay phone telephone permit. The granting of the pay telephone permit is a separate and distinct consideration for the granting of this indemnity.

(Ord. 12271 § 3 (part), 2000)

The following fees shall be effective until the master fee schedule has been amended to incorporate these new fees.

A.

Pay Phone Permit: two hundred sixty-five dollars ($265.00) nonrefundable application fee.

B.

Annual Renewal Fee: eighty dollars ($80.00).

C.

Late Fees: one hundred sixty dollars ($160.00).

(Ord. 12271 § 3 (part), 2000)

The property owner and the pay phone service provider shall be jointly and severally liable for violations of this Chapter.

(Ord. 12271 § 3 (part), 2000)

If any clause, paragraph, section or subsection is found to be unenforceable by any court, that finding shall not invalidate the rest of the ordinance. The City Council hereby finds and declares that it would have enacted the rest of the ordinance codified in this Chapter without that clause, paragraph, section or subsection.

(Ord. 12271 § 3 (part), 2000)

Unless otherwise provided, a person shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this Chapter is committed, continued or permitted by the person and shall be punishable accordingly as herein provided.

(Ord. 12271 § 3 (part), 2000)

In addition to any other remedies provided in this Chapter, any violation of this Chapter may be enforced by civil action brought by the city. In any such action, the city may seek, and the court shall grant, as appropriate, any or all of the following remedies:

A.

A temporary restraining order, a preliminary injunction and/or permanent injunction;

B.

Assessment of the violator for the costs of any investigation which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection, including but not limited to attorney's fees.

(Ord. 12271 § 3 (part), 2000)

Remedies under this Chapter are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided herein shall be cumulative and not exclusive.

(Ord. 12271 § 3 (part), 2000)