Sec. 42-241. - General restrictions.

(a)

No person shall place, erect, build, construct or maintain, or cause or permit to be placed, erected, built, constructed or maintained, any booth, stand, stall, cabinet, tent or place for the purpose of displaying or selling any goods, wares or merchandise, or for any purpose whatsoever, which extends beyond the true building line of any street, highway, lane or alley of the city, or shall in any manner place, display or sell any goods, wares or merchandise upon any portion of any street, highway, lane or alley of the city between the true building lines thereof.

(b)

Nothing in this section shall be construed to interfere with any provision, rule or regulation made relating to the public curbstone markets.

(Code 1968, § 45-97)

Sec. 42-242. - Newspaper, magazine sales.

The sale of newspapers and magazines on Market Street, between Front and 12th Streets, is excepted from the provisions of this division; provided, however, that any person selling newspapers and magazines beyond the true building line of such portion of Market Street of the city shall have a stand which shall be of uniform construction as follows: one foot in depth, two feet, eight inches in height, three feet, two inches in length and consisting of not more than three shelves, as illustrated by plan on file in the office of the department of public works. Newspaper and magazine stands shall abide by the following conditions:

(1)

This stand shall be kept or maintained as close to the building line as possible.

(2)

There shall be only one stand to a corner and not more than two stands at any one intersection.

(3)

The permission of the property owner on whose corner the stand is placed shall be had before the stand is placed on that corner.

(4)

No advertisement shall be placed on any portion of such stand.

(5)

No newspapers or magazines shall be placed or maintained on any portion of the sidewalk area.

(6)

No stand permitted under this section shall be maintained by any person unless permission shall have been obtained from the department of public works.

(Code 1968, § 45-97(a))

Sec. 42-243. - Bus shelters.

The installation, maintenance and use of passenger bus shelters is excepted from the provisions of this division; provided however that:

(1)

Prior to the installation of any such shelter, the definite and specific space or place of each shelter shall be specifically set forth in plans and sketches to be submitted by the local transportation authority to the department of public works for approval;

(2)

The local transportation authority agrees to indemnify and save harmless the city from any and all claims, liability, loss, costs and expenses growing out of or resulting from negligence of the local transportation authority in the installation, maintenance or use of such passenger shelters;

(3)

The local transportation authority agrees to assume the entire responsibility for maintenance of the shelters and agrees to permit the city to remove or repair the shelters in the interest of public safety, if necessary, at the authority's expense; and

(4)

The department of public works shall have the right and authority to impose or require such other conditions as in its sole judgment may be in the interest of and for the protection of the city.

(Code 1968, § 45-97(c))

Sec. 42-244. - Outdoor dining areas.

The installation, maintenance and use of an outdoor dining area is excepted from the provisions of this division, provided that prior to installation a permit is obtained in accordance with rules and regulations promulgated for their issuance.

(Code 1968, § 45-97(d))

Sec. 42-245. - Installation, maintenance, and use of public telephones.

(a)

Authorization; permit required.

(1)

The installation, maintenance and use of outdoor public telephones ("phone(s)") or "public telephone(s)," whether or not regulated by the Delaware Public Service Commission as customer-owned, coin-operated (or pay) telephones, or as telephones of Bell Atlantic-Delaware, Inc., or any other telephone company, may be permitted as exceptions to the provisions of this division that prohibit encroachments in the public right-of-way. The commissioner of licenses and inspections "commissioner" is hereby authorized and empowered to approve the issuance of permits, revocable at his determination, to the serving telephone company, or other providers as the case may be, (generally, "pay phone owners") for the installation and maintenance of public telephones, including any public telephone of any kind or design, on public sidewalks in the city. No new permits shall be issued prior to October 1, 1995, unless a listing of all phone locations in the public right-of-way has been completed.

(2)

Prior to any such approval, the commissioner shall seek the advice of the chief of police regarding the proposed phone location; provided, however, that except for those public telephones that have already been installed as of August 2, 1991, and which shall be brought into conformity with the provisions hereof within 60 days following such date, prior to the installation of any outdoor public telephone, through a separate application for each, the exact and specific space or place where each such telephone is to be located shall be specifically set forth in and illustrated on a map of the site, showing the location of the proposed installation, the location of all surface facilities such as poles, hydrants, steel lighting electroliers, vehicular parking, parking meters, building entrances, driveway entrances, and the width of the sidewalk fronting the adjoining lot or property which shall be submitted by Bell Atlantic-Delaware, Inc., its successors or assigns, or by any other lawfully operating telephone company, or by any other entity providing encroaching phones, or other providers as the case may be, (generally, "pay phone owners") to the department of licenses and inspections for approval, and no such outdoor telephone shall be installed until such map of the site shall have been approved by the department of licenses and inspections. The department of licenses and inspections shall have the right and power to deny the application or, if it approves, to impose and require such conditions as in its sole judgement may be in the interest of and for the protection of the city, including, but not limited to, a requirement that the subject pay phone owner shall be deemed to be subject to a hold harmless agreement as to the city for each installation as referenced in section 42-217. It shall be unlawful to install and maintain any public telephone, including a telephone stand or telephone affixed to a building wall in the public right-of-way, without first obtaining the permit required by this section to do so and paying the fees for the same in accordance with the provisions of this section.

(b)

Operation and maintenance; unlawful use. All telephones of any entity providing phones encroaching in the right-of-way, and that are authorized and permitted pursuant to, or otherwise subject to, the provisions of this section and this division shall be maintained in conformity with the provisions of this section. Any such telephone service about which there is credible evidence, obtained by or reported to federal, state or local law enforcement officials, that it is or has been operated for any unlawful purpose shall be subject to immediate removal by the telephone company, or other entity, on its own initiative, or by the city, or by both. Telephone service shall not be furnished if the police department, acting by and through the chief of police, or his designee, advises the commissioner and the subject telephone company, or other entity, that such service is being used or will be used in violation of federal, state or city law, or if the telephone company, or other entity, receives such evidence that such service is being or will be so used and the telephone company, or other entity, takes action regarding refusal or discontinuance of service pursuant to and in accordance with the provisions of its tariff. All telephones and all phone installations and equipment placed therein shall be kept clean, sanitary and be well-maintained at all times by the subject telephone company, or other entity, in order to prevent such telephone from becoming unsightly, or a nuisance, or a discredit, in the neighborhood where installed. Each telephone installation shall be equipped with electric lighting facilities for the safety and convenience of patrons, unless there is satisfactory indirect lighting as determined by the commissioner, or his designee, to achieve the purpose stated.

(c)

Filing of petition to remove. The residents and business proprietors in the block in which any outdoor telephone is or has been installed by a duly authorized telephone company or by any other entity providing any encroaching phone, and the residents and business proprietors in the block immediately opposite to, and across the street from, any such location may, at any time, file with the commissioner a written petition seeking the removal of any such outdoor telephone. The provisions of this section shall be applicable to any such outdoor telephone whether installed prior to or subsequent to August 2, 1991. Any such petition shall be submitted in writing, clearly typed or printed, indicating in clear type or print the name and address of each petitioning resident or duly licensed business proprietor and the signature of the same and a concise, but comprehensive, statement of the reasons forming the basis for the petition. The petition may include the signatures of more than one petitioning resident per dwelling unit, household, or business, but only one shall be counted toward the requisite minimum number of ten petitioning residences or businesses qualifying for petition, except that 50 percent or more of the eligible residences or businesses, if there are fewer than ten in total in the block, shall qualify to file a petition. For purposes of this section, a "residence" shall mean a single-family dwelling unit, whether in a single-family building or in a multifamily building.

(d)

Review of petition. Upon receipt of a petition, duly executed and stating therein the reasons for the filing of the petition, the commissioner shall review the petition, the stated reasons for the filing of it, the location involved, and he shall elicit the chief of police's comments and advice about the petition and the subject location; thereafter, in light of reasons stated in the petition, or the chief of police's comments or recommendations, or for violations of requirements in section 42-217 or subsection (a) of this section, or any combination of the same, the commissioner may suspend or revoke the permit issued or other approval, if any, that had authorized the installation of the phone in the subject location, notify the telephone company, or other entity, in writing and by certified mail return receipt requested of the same, and schedule a time of from three to 30 days within which the telephone company, or other entity, shall remove forthwith the subject telephone. If, however, the commissioner determines that the removal of the phone would not be necessary or justified, he may reject the petition and so notify the petitioners. In all instances, if the petitioners have not verifiably already done so, the commissioner shall forward a copy of the petition to the telephone company or other entity, by certified mail return receipt requested. The telephone company or other entity may object to the petition and state in writing, within three days of its receipt of a copy of the petition, its reasons for retention of the telephone, or alternative types of telephones or telephone services that would meet the objections of the petitioners in a reasonable and adequate way and yet allow continuation of telephone service to meet the needs of its customers, or the public safety needs of the city, or both. In such cases, the commissioner may approve such retention or modification of the subject telephone service and so advise the petitioners, the telephone company and the chief of police. In all instances, whether by order to remove, or by approval of retention of a telephone or telephone service, the public safety needs of the community shall be deemed to be of paramount importance.

(e)

Applicability. The provisions of this section shall be applicable to any telephone, as of August 2, 1991, that is located beyond the building line, including those affixed to the exterior facade of a building or structure that is coextensive with such building line. The provisions of this section shall be applicable to any written petition that has been submitted to the city prior to August 2, 1991.

(f)

Appeals. Any appeal of any matter in this section shall be to the board of licenses and inspection review ("board") in accordance with its rules, unless otherwise provided by law. Any pay phone owner may appeal the denial of a permit by filing a written notice of appeal to the board within ten working days after such denial.

(g)

Violations and penalties.

(1)

Any violation of the provisions of this section by any telephone company, or pay phone owner, or by the owner of private property adjoining the location of a public telephone in the public right-of-way, shall be punishable as provided in this section.

(2)

The failure or refusal of any telephone company, or pay phone owner, or other entity, telephone customer, adjoining owner, or other responsible party ("other party") properly to obtain a permit for each telephone as required by this section, to maintain any telephone, in good condition and in compliance with this section, or promptly to remove a telephone that is subject to the provisions of this division when so directed by the commissioner, shall constitute a violation, and upon conviction thereof, the telephone company or other party shall be fined not less than $500.00 nor more than $2,300.00. Each day of any such violation shall be deemed to be a separate violation and shall be punishable as a separate violation.

(3)

The city solicitor, or any property owner or other person who claims to be damaged specifically by such violation, may in addition to all other remedies provided by law, institute injunction, mandamus, abatement, or any other appropriate action, or proceeding to prevent, enjoin, abate, or remove such unlawful erection, installation, construction, reconstruction, alteration, maintenance or use.

(Code 1968, § 45-97(b); Ord. No. 91-003(sub 1), § 2, 8-1-91; Ord. No. 92-053(sub 1), § 1(g), (j), 7-2-92; Ord. No. 94-038, § 1, 7-14-94; Ord. No. 95-045(sub 1), §§ 1, 2, 8-31-95; Ord. No. 98-105(sub 1), § 3, 12-10-98)

Cross reference— Utilities, ch. 45.

Secs. 42-246—42-260. - Reserved.