Chapter 15
LICENSES
AND BUSINESS REGULATIONS*
__________
* Cross References: Dog license tag, § 3-21;
taxicab license, § 27-19 et seq.
__________ 15-68
Art.
I. In General, §§ 15-1--15-25
Art.
II. Miscellaneous Licenses, §§ 15-26--15-68
Div.
1. Generally, §§ 15-26--15-54
Div.
2. Amusement Rides, Circuses, Carnivals, §§ 15-55--15-68
Art.
III. Reserved, §§ 15-69--15-99
Art.
IV. Solicitors, §§ 15-100--15-114
Art.
V. Cable Communications, §§ 15-115--15-158
Div.
1. Franchise Procedure, §§ 15-115--15-129
Div.
2. Midland Community Television (MCTV), §§ 15-130--15-139
Div.
3. Rates, §§ 15-140--15-158
Art.
VI. Telecommunications §§ 15-180--15-201
Art.
VII. Alcoholic Beverage Licenses for Consumption on the Premises §§
15-220--15-255
Div.
1. General Purpose and General Requirements
Div.
2. New Licenses
Div.
3. Renewal and Revocation of Licenses
ARTICLE I.
IN
GENERAL
Sec. 15-1. License
required.
No person shall engage
or be engaged in the operation, conduct or carrying on of any trade,
profession, business or privilege for which any license is required by any
ordinance of the city without first obtaining a license from the city in the
manner provided for in this chapter and the ordinance requiring such license.
Sec. 15-2. Conditions
precedent to be met.
No license required by
this Code shall be granted or delivered until the applicant therefor has
complied with all the conditions precedent to its issue.
Sec. 15-3. License
application; statements to be under oath.
Unless otherwise
provided in any section of this Code or ordinance requiring a license, every
person required to obtain a license from the city to engage in the operation,
conduct or carrying on of any trade, profession, business or privilege shall
make application for such license to the city clerk upon forms provided by the
clerk. All statements required to be made as to facts which are required, or
which are applicable to the granting of any license required by the city, shall
be made under oath or affirmation.
Sec. 15-4. Investigation
of application.
The city clerk, or
issuing officer designated in any ordinance or section of this Code requiring a
license, may refer any application for a license to the chief of police, the
fire chief and the health officer or any other official of the city for an
investigation and recommendation on matters pertaining to the public safety,
health or welfare which are or may be involved in the exercise of the license
applied for.
Sec. 15-5. Fingerprints,
other information.
The city clerk, or
other issuing officer, may require the giving of fingerprints and such other
information as may be necessary to establish the identity of any applicant for
a business license.
Sec. 15-6. When state
license is required.
No license required by
any city ordinance shall be issued to any person who is required to have
license or permit from the State of Michigan until such person shall submit
evidence that he has secured such state license or permit.
Sec. 15-7. Receipt for
license fee.
The license issued by
the city issuing authority designated in any ordinances or section of this Code
requiring such license shall constitute a receipt for the license fee paid
therefor.
Sec. 15-8. License term.
Regardless of license
dates requiring an annual license, licenses shall begin on May 1 in each year
and shall terminate on April 30 of the following year. Annual licenses issued
after May 1 in any year shall terminate on April 30 of the following year. In
all cases where the provisions of an ordinance or a provision of this Code
permits the issuance of licenses for periods of less than one (1) year, the
effective date of such licenses shall commence on the date of the issuance
thereof.
Sec. 15-9. Persons
exempt from fee by state, federal law.
No license fee shall
be required from any person who is exempt from such fee by any provision of
state or federal law. Such persons shall comply with all other provisions of
this chapter and of the section requiring the license for which such fee is
required.
Sec. 15-10. License to
be carried on person or displayed.
No person to whom a
license has been granted shall fail to carry such license upon his person when
engaged in the operation, conduct or carrying on of the trade, profession,
business or privilege for which the license was granted. However, where such
trade, profession, business or privilege is operated, conducted or carried on
at a fixed place or establishment, such license shall be exhibited at all times
in some conspicuous place in such place or establishment. No person shall fail
to produce any license granted by the city when requested to do so by any city
police or health officer or by any person representing the issuing authority.
Sec. 15-11. Display of
expired, duplicate license.
No person shall
display any expired license or any license for which a duplicate has been
issued.
Sec. 15-12.
Transferability of license.
No license required by
this Code issued by the city shall be transferable unless specifically
authorized by the Code section or ordinance requiring it, and then, only in
accordance with the provisions of that section or ordinance.
Sec. 15-13. License
renewal.
Applications for the
renewal of any license required by this Code or any city ordinance shall be
considered to be and shall be treated in the same manner as an original
application for such license.
Sec. 15-14. License
suspension, revocation, nonrenewal.
Any license required
by this Code or any city ordinance may be suspended or revoked, or the renewal
thereof refused, for misrepresentation of any material fact in the application
for such license, or for any good cause, by the city manager or by the officer
of the city to whom application was required to be made to secure such license.
The term "good cause," as used in this section, shall include any
act, omission or the permitting of a condition to exist with respect to the
license in question, which is:
(a) Contrary to the health, morals, safety or welfare of the
public.
(b) Unlawful or fraudulent in nature.
(c) A violation of the section under which the license was granted.
(d) Beyond the scope of the license issued.
(e) A fact, circumstance or condition which had it existed or
been known to the issuing authority at the time the license was granted, would
have been sufficient ground for the refusal thereof.
Sec. 15-15. Appeals.
An applicant for any
license required by this Code or any city ordinance who has been refused such
license for any reason by the authorized issuing officer or whose license has
been suspended or revoked, unless an appeal is provided to another agency by
the section requiring such license or by state law, may appeal such refusal to
the council by setting forth all the facts in a written petition and filing the
same with the clerk. The council may act on such petition upon the facts set
forth therein, or may grant a further hearing to the applicant. The decision of
the council on such appeal shall be final.
Secs. 15-16--15-25.
Reserved.
ARTICLE II.
MISCELLANEOUS
LICENSES
DIVISION 1.
GENERALLY
Sec. 15-26. Application
of article I of chapter.
The terms and
provisions of article I of this chapter shall apply to all licenses enumerated
in this article.
Sec. 15-27. Bowling
alley license required.
No person shall
operate any public bowling alley without first obtaining an annual license
therefor.
Cross References: Bowling alley license fee, §
21-12.
State Law References: Bowling alleys, M.S.A.,
§ 18.491 et seq.
Sec. 15-28. Other
amusements on, adjacent to, bowling alley.
No public bowling
alley licensee shall permit any other amusement to be conducted upon the
premises occupied by him or it as a bowling alley, nor in any premises under
his or its control immediately adjacent or connected thereto, unless a
statement setting forth the nature of such amusement shall be on file in the
office of the city clerk and a license granted therefor if such a license is
required by this Code or any ordinance of the city.
Sec. 15-29. Admission of
persons under seventeen.
No person under the
age of seventeen (17) years who is not employed on the premises or engaged in
bowling shall loiter in or about any bowling alley unless accompanied by his
parent or guardian. No licensee or his agent shall permit anyone under
seventeen (17) years of age to remain or loiter in or about any bowling alley
unaccompanied by his parent or guardian.
State Law References: Minors in bowling alleys
M.S.A., § 28.336.
Sec. 15-30. Pool hall
license; required, investigation.
No person shall
operate any place which is open to the public for the principal purpose of
playing pool or billiards without first obtaining an annual license therefor.
The city clerk shall refer the application for such license to the police chief
for investigation.
Cross References: Pool hall license fee, §
21-11.
State Law References: Pool halls, M.S.A.,
18.491 et seq.
Sec. 15-31. Obstructing
pool table from view.
No pool or billiard
licensee shall permit any pool or billiard tables to be obstructed from the
public view.
Sec. 15-32. Other
amusements adjacent to pool, billiard halls.
No pool or billiard
licensee shall permit any other amusement to be conducted upon the premises
occupied by him or it as a pool or billiard parlor, nor in any premises under
his or its control immediately adjacent or connected thereto, unless a
statement setting forth the nature of such amusement shall be on file in the
office of the city clerk, and a license granted therefor if such a license is
required by this Code or any ordinance of the city.
Sec. 15-33. Closing
hours.
No pool or billiard
licensee shall permit the use of any pool or billiard tables from twelve
o'clock midnight on Saturday until one p.m. on Sunday, or on weekdays between
twelve o'clock midnight and seven o'clock of the succeeding morning.
Sec. 15-34. Admission of
persons under seventeen.
No person under the
age of seventeen (17) years who is not employed on the premises or engaged in
playing pool or billiards shall loiter in or about any pool or billiard room
unless accompanied by his parent or guardian. No licensee or his agent shall
permit anyone under seventeen (17) years of age to remain or loiter in or about
any pool or billiard room unaccompanied by his parent or guardian.
State Law References: Minors in pool halls,
M.S.A., 28.336.
Sec. 15-35. Public show
exhibition license.
No person shall
conduct or carry on any public show or exhibition, either outdoors or under
canvas, except a circus or carnival licensed by section 15-59 without first
obtaining a license.
Cross References: Public shows, exhibitions,
license fee, § 21-13.
Sec. 15-36. Fire
prevention; admission of firemen.
The fire chief may
assign a member of the fire department to attend any such show or meeting
licensed pursuant to this article for the purpose of enforcing all fire laws
and ordinances. No person conducting any such meeting shall refuse such fireman
admission.
Cross References: Fire prevention and
protection, Ch. 8.
Sec. 15-37. Sewer
connection builder's license--Required.
No person shall lay,
alter, repair or do any kind of work connected with any sewer connection, or
make any connections whatever with any sewer or house or building which is to
be connected to the sewer system, in any street, alley or right-of-way of city,
unless such person is licensed by the city as a sewer connection builder. Any
person doing such work without such license shall be deemed guilty of a
misdemeanor.
Sec. 15-38.
Same--Application.
Any person desiring to
do business as a sewer connection builder shall file in the office of the city
clerk an application for a sewer connection builder's license. Such application
shall give the name and place of business of the individual, firm or
corporation asking to be licensed by the city, and shall state that the
applicant is qualified by experience to engage in the work, and is willing to
be governed in all respects by the rules and regulations which are or may be
adopted by the city council.
Sec. 15-39. Same--Surety
bond.
Each licensed sewer
connection builder shall during the term of his sewer connection license,
maintain a surety bond in the amount of five hundred dollars ($500.00). Such
bond shall guarantee to the city that such builder will fulfill all
requirements of law and make such payments to the city in connection therewith.
Such surety bond shall serve as a guarantee that any sewer connection built
will remain in acceptable and useful condition for one year from the date such
connection is made, and that any repair or replacement required to the
connection within that period shall be paid by the connection builder who
installed the connection originally.
Sec. 15-40.
Same--Liability and property insurance; filing insurance certificates.
Each licensed sewer
connection builder shall take out and maintain during the term of his license
such public liability and property damage insurance as shall protect him and
the city from claims for damages for personal injury, including wrongful death,
as well as from claims for property damage, which may arise from his operations
in sewer connection building within the city. Such policies shall name the City
of Midland as additional assured. The amounts of such insurance shall be not
less than fifty thousand dollars ($50,000.00) for injuries, including wrongful
death, to any one person, and subject to the same limit for each person, in an
amount not less than one hundred thousand dollars ($100,000.00) on account of
one accident, and property damage insurance in an amount not less than ten
thousand dollars ($10,000.00) including the hazards of excavation. Certificates
of public liability and property damage insurance shall be filed with the city
clerk before the license is granted and any work done.
Sec. 15-41.
Same--Revocation of license.
The city council may
on its own initiative for good cause, suspend or revoke any sewer connection
builder's license issued under the provisions of this article. The finding of
the city council in such matter shall be conclusive and final, and the reasons
for such revocation or suspension shall be entered on the records of the
council.
The city engineer may,
for good cause, suspend any sewer connection builder's license granted under
this article for a period of twenty-four (24) hours and cause such license to
be delivered up to him, and he shall forthwith report in writing such action to
the city manager and upon the approval of the city manager in writing, the
license shall stand revoked or suspended until the next regular meeting of the
city council. At such regular meeting of the city council, the holder of such
license may appear before the council and be heard, and if the council, after
hearing the facts shall deem it advisable, it may revoke or suspend the license
permanently.
Sec. 15-42. Sidewalk
builder's license--Required.
No person shall lay,
construct or repair a sidewalk unless such person is licensed by the city as a
sidewalk builder. It shall be unlawful to do such work without such a license.
Sec. 15-43.
Same--Application information.
Any person desiring to
do business as a sidewalk builder shall file in the office of the city clerk an
application giving the following information:
(a) The name and place of business of the person, firm or
corporation making such application.
(b) That the applicant is qualified by experience to engage in
the work and willing to be governed in all respects by the rules and
regulations which are or may be adopted by ordinance or resolution of the city
council.
Sec. 15-44.
Same--Information to be recorded.
On receiving a license
as a sidewalk builder, the applicant therefor shall have recorded in the office
of the city clerk his business address, his residence address, and the name
under which the business is transacted. The license holder shall immediately
notify the city clerk of any change in any such information.
Sec. 15-45.
Same--Insurance for sidewalk builders.
Each licensed sidewalk
builder shall take out and maintain during the term of his sidewalk builder's
license such public liability and property damage insurance as shall protect
him and the city from claims for damages for personal injury, including
wrongful death, as well as from claims for property damage which may arise from
his operations as a sidewalk builder within the city. Such policy shall name
the City of Midland as an additional insured.
The amounts of such
insurance shall be not less than fifty thousand dollars ($50,000.00) for
injuries including wrongful death, to any one person, and subject to the same
limit for each person in an amount not less than one hundred thousand dollars
($100,000.00) on account of one accident, and property damage insurance in an
amount not less than ten thousand dollars ($10,000.00).
Certificates of public
liability and property damage insurance shall be filed with the city clerk
before the sidewalk builder's license is granted, and any work done.
Sec. 15-46. Tag Day
license required for sale of patriotic emblems.
It shall be unlawful
for any person, society of persons, individuals, organizations, firms or
corporations to conduct a tag day or to offer for sale or receive anything for
value for any emblem, badge, flower, flag or any symbol of patriotism, on the
streets of the city or any other public place in the city, without first having
obtained a license from the city council. Subsequent sales of goods by such
persons or organization shall be subject to approval by the city clerk. No
license shall be granted to each such person or organization for more than two
(2) days in each year.
Sec. 15-47. Taxicab
licenses.
Taxicab licenses shall
be governed by the terms and provisions of chapter 27. Such licenses shall not
be transferable.
Secs. 15-49--15-54.
Reserved.
DIVISION 2.
AMUSEMENT
RIDES, CIRCUSES, CARNIVALS
Sec. 15-55. Amusement
ride license generally; exception.
No person shall
operate any merry-go-round, ferris wheel, scenic railway or any other
mechanical ride device without first obtaining a license therefor, unless such
ride is a part of a circus or carnival for which a license has been obtained as
provided in section 15-59 of this Code, or a children's amusement ride.
Cross References: Amusement ride license, §
21-15.
Sec. 15-56. Children's
amusement ride--License.
No person shall
operate any merry-go-round, airplane ride, miniature boat ride or other
mechanical ride device of the size and nature limited to the use of children of
the age not exceeding nine (9) years, without first obtaining a license
therefor.
Cross References: Children's amusement ride
license fee, § 21-16.
Sec. 15-57.
Same--Inspection, insurance.
Inspection and
insurance as required by sections 15-61 and 15-62 of this Code shall be
required for amusement rides which by design and use is intended exclusively
for use of children not exceeding nine (9) years of age.
Sec. 15-58.
Same--Council may regulate by resolution.
The city council by
resolution, may regulate amusement rides of the size and of a nature which are
limited to the use of children not exceeding nine (9) years of age.
Sec. 15-59. Circus,
carnival license.
No person shall
conduct or operate any circus or carnival without first obtaining a license
therefor. Such license shall include the right to operate devices described in
section 15-55 above, incidental to such circus or carnival without the payment
of additional fees.
Cross References: Circus, carnival license
fee, § 21-14.
Sec. 15-60.
Investigation of circus, carnival license applicant.
The city clerk shall
refer each application for a circus or carnival license to the chief of police
and the health officer for their investigation and recommendation.
Sec. 15-61. Inspection
of circus, carnival devices and amusement rides.
The city manager may
inspect or cause an inspection to be made of every device licensed under
sections 15-55 and 15-59 of this Code before it is operated for public use and
periodically thereafter, and if at any inspection, any structural weakness,
defect or other unsafe condition is found, the city manager may suspend or
revoke the license therefor.
Sec. 15-62. Insurance
required.
Before any license
shall be issued under sections 15-35, 15-55 and 15-59, the applicant therefor
shall deposit with the city clerk a certificate of insurance in the amount of
fifty thousand dollars ($50,000.00) for injury to one person, five hundred
thousand dollars ($500,000.00) for one accident and five thousand dollars
($5,000.00) for property damage. Such certificate shall name the City of
Midland as an additional assured.
Sec. 15-63. Licenses to
be displayed.
All licenses granted
pursuant to this article shall be prominently displayed on the premises for
which they are issued, in such manner that they are readily visible to the
public.
Sec. 15-64. Access of
officials for inspection, enforcement of article.
No person licensed
under or subject to the provisions of this article nor his or its agent or any
employee, shall deny any member of the city fire, police or health departments,
the city manager or his agent, access to the premises on which the amusement
licensed by or subject to this article is conducted, maintained, operated, used
or displayed for use for the purpose of inspection and for the enforcement of
all laws and ordinances.
Secs. 15-65--15-68.
Reserved.
ARTICLE III.
RESERVED*
__________
* Editors Note: Former Art. III, §§ 15-69--15-95,
which pertained to community antenna television systems, was repealed by § 1 of
Ord. No. 1062, enacted Jan. 23, 1984. Since the adoption of this Code, the
repealed provisions had been amended by Ord. No. 789, § 1, enacted March 20,
1972; Ord. No. 966, § 1, enacted Dec. 3, 1979; Ord. No. 1016, § 1, enacted
March 1, 1982; Ord. No. 1028, § 1, enacted Dec. 6, 1982; Ord. No. 1041, § 1,
enacted March 21, 1983; and Ord. No. 1058, § 1, enacted Dec. 12, 1983.
__________
Secs. 15-69--15-99.
Reserved.
ARTICLE IV.
SOLICITORS*
__________
* Editors Note: Ord. No. 763 adopted Oct. 26, 1970
amended this Code by adding Art. IV, §§ 15-100--15-105. Said ordinance is set
out herein as enacted, including article title, catchlines and numbering of
sections.
__________
Sec. 15-100.
"Solicitor" defined.
The word
"solicitor" as used in this article shall include any individual,
whether a resident of the city or not, traveling either by foot, wagon,
automobile, motor truck, or any other type of conveyance, from place to place,
from house to house, or from street to street, taking or attempting to take
orders for sale of goods, wares and merchandise, books or magazines, personal
property of any nature whatsoever for future delivery, or for services to be
furnished or performed in the future, whether or not such individual has,
carries or exposes for sale a sample of the subject of such sale or whether he
is collecting advance payments on such sales or not, and such definition shall
include any person who, for himself, or for another person, hires, leases,
uses, or occupies any building, structure, tent, railroad box car, boat, hotel
room, lodging house, apartment, shop, or any other place within the city for
the sole purpose of exhibiting samples and taking orders for future delivery.
The word "solicitor" shall include the word "canvasser".
(Ord. No. 763, 10-26-70)
Sec. 15-101. License
required.
No person shall engage
in the business of solicitor within the city without first obtaining a license
therefor from the city clerk. No such license shall be granted except upon
certification of the chief of police.
(Ord. No. 763, 10-26-70)
Cross References: Solicitor's fee, § 21-49.
Sec. 15-102. License
application.
The license
application filed under the provisions of section 15-100 of this Code shall
furnish the following information:
(a) Name and description of the applicant;
(b) Permanent home address and full local address of the
applicant;
(c) A brief description of the nature of the business and the
goods to be sold;
(d) If employed, the name and address of the employer, together
with credentials establishing the exact relationship;
(e) The length of time for which the right to do business is
desired;
(f) The place where the goods or property proposed to be sold
or orders taken for the sale thereof, are manufactured or produced, where such
goods or products are located at the time said application is filed, and the
proposed method of delivery;
(g) A photograph of the applicant, taken within sixty (60)
days immediately prior to the date of the filing of the application, which
picture shall be two inches by two inches (2"×2") showing the head
and shoulders of the applicant in a clear and distinguishing manner;
(h) A statement as to whether or not the applicant has been
convicted of any felony, the nature of the offense, and the punishment assessed
therefor.
(Ord. No. 763, 10-26-70)
Sec. 15-103. Fixed
stands prohibited.
No licensee shall stop
or remain in any one place upon any street, alley or public place, longer than
necessary to make a sale to a customer wishing to buy.
(Ord. No. 763, 10-26-70)
Sec. 15-104. Practices
prohibited.
No solicitor shall
shout or cry out his goods or merchandise, nor blow any horns, ring any bell or
use any other similar device to attract the attention of the public. No
solicitor shall call upon residents in their homes after daylight hours unless
previously invited to do so by the resident.
(Ord. No. 763, 10-26-70)
Sec. 15-105. Exempt
persons.
Persons engaged in
soliciting on foot in the neighborhood of their residence under the direct
supervision of any nonprofit, education, fraternal, charitable or religious
organization with headquarters or a local chapter in the Midland area shall be
exempt from the requirements of this article.
(Ord. No. 763, 10-26-70)
Secs. 15-106--15-114.
Reserved.
ARTICLE V.
CABLE
COMMUNICATIONS
DIVISION 1.
FRANCHISE
PROCEDURE*
__________
* Editors Note: Section 1 of Ord. No. 1062,
enacted Jan. 23, 1984 amended Ch. 15 by adding thereto a new Art. V, Div. 1, §§
15-115--15-121. The provisions of said ordinance are included herein
substantially as enacted, except that the word "ordinance" was
changed to "division" where deemed necessary, and §§ 15-120 and
15-121 pertaining to severability and conflict with other provisions, have been
omitted.
__________
Sec. 15-115. Title.
This division of
Article V of the Code of Ordinances of the City of Midland shall be known and
may be cited as "The City of Midland Cable Communications Procedure
Ordinance."
(Ord. No. 1062, § 1,
1-23-84)
Sec. 15-116. Declaration
of purpose.
The purpose of the
City of Midland Cable Communications Procedure Ordinance is to provide for
regulation of cable communications service in the city in the interest of the
public; to promote and encourage adequate, economical and efficient cable
communications service to the residents of the city; and to provide for the
furnishing of a cable communications system service to the residents of the
city without unjust discrimination, undue preferences or advantages.
(Ord. No. 1062, § 1,
1-23-84)
Sec. 15-117.
Definitions.
The following words,
when used in this cable communications procedure division, shall have the
following meanings, unless otherwise clearly apparent from the context:
Access channel shall mean any of the cultural access, sports access,
educational access, government access, hospital access, leased access, public
access, religious access and social services access channels or other access
channels generally providing programs for noncommercial purposes other than
those under control of a franchisee.
Basic service shall mean that group of channels or services
delivered by a franchisee to subscribers and which may consist of
satellite-delivered programming, automated programming, broadcast station
programming, local programming and access programming covered by a regular
monthly charge payable by all subscribers.
Cable system or cable communications system shall mean a
system of antennae, coaxial cables, wires, wave guides or other conductors,
equipment and facilities designed, constructed or used for the production of
radio, television, optical or other signals, audio, video or other form of
electronic or electric interception and receipt of television or radio signals
directly or indirectly received off the air and the distribution or
transmission to subscribers of such signals by means of cable, wire, frequency
devices, optical fibers or other similar devices.
Cable
communications service shall mean the
business, in whole or in part, of receiving directly over the air, indirectly,
from local sources or via satellite, and amplifying or otherwise modifying
signals, transmitting programs by one (1) or more signals, sound signals,
pictures, visual images, digital signals, telemetry, or any other type of
closed circuit transmission by means of electrical or light impulses, whether
or not directed to originating signals or receiving signals off the air or via
satellite, and redistributing such signals by wire, cable or other means to
members of the public.
City shall mean the City of Midland, Michigan, and all the
territory within its territorial corporate limits.
Council is the city council of the City of Midland, Michigan.
Franchise or franchise agreement shall mean the separate
agreement by which the franchise is granted to the grantee as authorized by the
provisions of this division.
Grantee shall mean any person or company and parent company
thereof granted a franchise in accordance with the provisions of this division.
Pay cable service or pay TV shall mean that group of optional
channels or services other than those described as basic service which provide
specialized programming or services for which a separate per program or per
channel charge is made.
Person or company means and includes one (1) or more
individuals, firms, corporations, associations, partnerships or organizations
of any kind and any combination thereof.
Street shall mean the surface of, as well as the space above
and below, any public street, road, highway, freeway, lane, path, public way or
place, alley, court, sidewalk, boulevard, parkway drive or other easement, or
any extension thereof, now or hereafter held by the city for any public purpose
and shall include such other easements or rights-of-way or extension thereof as
shall be now held or hereafter held by the city which shall, within their
proper use and meaning, entitle the city or a franchisee to the use thereof for
the purpose of installing or transmitting cable transmissions over poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
attachments and other property as may be ordinarily necessary and pertinent to
a cable system.
Subscriber shall mean any person or entity who pays an
installation charge and/or monthly fee to a cable system operator for
connections to a cable system and for programs and services carried on and
services provided by a cable system service of a franchisee.
(Ord. No. 1062, § 1,
1-23-84)
Sec. 15-118.
Franchise--Required.
(a) No
person shall use, occupy or traverse the city streets, alleys, lanes, avenues,
boulevards, sidewalks, bridges, viaducts, rights-of-way or any other public
place or public way in the city or any extensions thereof or additions thereto
whether on, above or under the surface of the ground, for the purposes of
installing, constructing, reconstructing, maintaining or operating a cable
communications system or facilities therefor or for the purpose of furnishing a
cable communications service, nor shall any person acquire ownership or control
of a cable communications company in the city without such person having first
obtained a franchise therefor from the city in the form of a franchise
agreement between the city and the grantee.
(b) Such
franchise shall contain certain specifications including, but not limited to,
the following terms: duration of franchise; renewal of franchise; termination
of franchise; transfer of franchise; regulation of rates; fees, reporting and
records; penalties and procedures; insurance; construction, performance and
other bonds; construction schedule and standards; access, local origination,
pay and other programming; privacy; system maintenance; and operating
practices.
(Ord. No. 1062, § 1,
1-23-84)
Sec. 15-119. Same--Application;
contents; fees; issuance; and additional fees.
(a) The
application for such franchise to install, construct, reconstruct, maintain or
operate a cable communications system in the city or to furnish a cable
communications system in the city or to furnish a cable communications service
therein shall be made in writing to the city in such form as may be prescribed
by council and shall include only such information requested by the council.
The application shall be accompanied by a nonrefundable fee of three thousand
five hundred dollars ($3,500.00), which fee shall be used to cover expenses,
direct or indirect, incurred by the city in the preparation of this division,
amendments to this division, development of requests for proposals or other
application documents, the franchise agreement and any amendments thereof,
reviewing, investigating and evaluating the applications and proposals
submitted.
(b) Upon
the filing of such application and the payment of the fee as prescribed, the
council shall consider the application in such a selection process as may be
prescribed by council resolution and may request additional information as it
may deem necessary to establish the legal, financial, technical and other
qualifications of the applicant to provide a cable communications service in
the city.
(c) If
the council determines through its selection process that the applicant
possesses the necessary qualifications, legal, financial, technical and
otherwise reasonable to assure applicant's ability satisfactorily to install,
construct, reconstruct, maintain and operate a cable communications system or
to furnish a cable communications service to the public in the city, the
council may direct its staff and/or agents to negotiate a franchise contract
with such applicant. Upon approval of such franchise contract, the council may
issue the applicant a nonexclusive franchise therefor in the city.
(Ord. No. 1062, § 1,
1-23-84)
Secs. 15-120--15-129.
Reserved.
DIVISION 2.
MIDLAND
COMMUNITY TELEVISION (MCTV)*
__________
* Cross References: MCTV fines, fees and other
charges, §§ 21-120, 21-121.
__________
Sec. 15-130. Purpose of
MCTV.
(a) The
Midland Community Television (MCTV) studio has been established at the Grace A.
Dow Memorial Library to provide production equipment and support services
necessary for the creation of locally produced television programs.
(b) It
is the purpose of MCTV to provide the people and organizations in the Midland
area with an opportunity to be involved in using the television medium to
inform, communicate, educate and entertain. It is also the purpose of MCTV to
provide the Midland community with locally produced programs of public
interest.
(c) The
following television channels shall be operated by MCTV:
(1) Channel 3. This channel shall be known as the
"public access channel" and shall be used solely to cablecast
non-profit, non-commercial programming produced or sponsored by individuals or
organizations in the Midland area. When the aforementioned programming is not scheduled,
this channel may cablecast either an electronic message board to be known as
the "public access electronic message board" or the Channel 15
electronic message board. The public access electronic message board shall be
used solely for promotion of the public access channel and shall not be used
for "for-profit" commercials or advertisements. Messages cablecast on
the public access electronic message board may not contain any of the
following:
a. Obscene material as the same is
defined and regulated under Act No. 343 of the Public Acts of Michigan of 1984,
being MCL 752.362 et seq.
b. Slanderous or libelous material.
(2) Channel 5. This channel shall be known as the
"government access channel" and shall be used solely to cablecast
non-profit, non-commercial programs produced or submitted by government
agencies. When the aforementioned programming is not scheduled, this channel
shall cablecast an electronic message board containing only government related
messages submitted by government agencies to be known as the "government
electronic message board." As determined by the city administration,
electronic messages advising of emergencies, including but not limited to
weather emergencies, shall take precedence over all other programming on this
channel.
(3) Channel 15. This channel shall be used primarily to
cablecast the electronic message board. Public access programming that would
have been cablecast on Channel 3 but for scheduling constraints may also be
cablecast on Channel 15.
(Ord. No. 1384, § 1,
8-25-97; Ord. No. 1437, § 1, 3-8-99)
Sec. 15-131. Program
restrictions.
(a) No
program, production or presentation shall be cablecast that contains any of the
following:
(1) Information which relates directly or indirectly to a
lottery, gift, enterprise or similar scheme, offering prizes dependent upon lot
or chance.
(2) Obscene material as the same is defined and regulated
under Public Act 343 of the Public Acts of the State of Michigan of 1984, being
MCL 752.362 et seq.
(3) Slanderous or libelous material.
(b) Cablecasting
of programs, productions or presentations shall be for noncommercial, nonprofit
purposes only and accordingly, the following shall be excluded:
(1) Material, the primary purpose of which is to promote a
commercial service, product, trade or business.
(2) Program material which identifies any product, service,
trademark or brand name in a manner that is not reasonably related to the
noncommercial use of such product, service, trademark or brand name, portrayed
on the program material.
(3) Any solicitation for funds or other goods that would
benefit the access user or his/her agent.
(Ord. No. 1384, § 1,
8-25-97)
Sec. 15-132. Channel 15
electronic message board restrictions.
(a) The
electronic message board cablecast on Channel 15 is for informational purposes
only and may be used for:
(1) The promotion of community activities, meetings or events
by organizations or individuals.
(2) Editorial messages, the source of which shall be
identified and included with the message.
(b) The
electronic message board shall not be used for "for-profit"
commercials or advertisements.
(c) No
electronic message shall be cablecast that contains any of the following:
(1) Obscene material as the same is defined and regulated
under Act No. 343 of the Public Acts of Michigan of 1984, being MCL 752.362 et
seq.
(2) Slanderous or libelous material.
(Ord. No. 1384, § 1,
8-25-97; Ord. No. 1437, § 1, 3-8-99)
Sec. 15-133. Rules and
procedures.
The city council shall
establish by resolution such rules and procedures relative to the general
administration, control, supervision and uses of MCTV facilities as shall be
deemed necessary or advisable. Scheduling of cablecast time on any channels
that may now or hereafter be designated as a government or school district
channel by the city council of the City of Midland and any use of a MCTV access
channel or channels, including the use of any MCTV studio or equipment, by the
city council of the City of Midland or by the city manager or his or her
designee may be exempt from all or part of these rules, as determined by the
city manager or his designee. A copy of said rules and procedures shall be
published and maintained in the office of the city clerk.
(Ord. No. 1384, § 1,
8-25-97; Ord. No. 1490, § 1, 11-13-00)
Sec. 15-134. Cable
access advisory commission--Created.
There is hereby established
an advisory body to the city council to be known as the cable access advisory
commission, hereinafter to be known as the "commission," which shall
act solely in an advisory capacity to the city council with regard to all
aspects of public access cable service in the City of Midland.
(Ord. No. 1476, § 1,
4-10-00)
Sec. 15-135.
Same--Membership.
Membership
of the commission shall consist of five (5) voting members appointed by the
city council. Three (3) members shall be current registered MCTV access users,
one (1) member shall be a school representative as designated by the Midland
Public Schools, and one (1) member shall be a citizen at large and must be a
current cable television subscriber. Each member shall be a resident of the
city. The person from the administrative staff of the city who has been
designated by the city manager as the MCTV coordinator shall be an ex officio
member of the commission but without the right to vote.
(Ord. No. 1476, § 1, 4-10-00; Ord. No. 1700, §
1, 5-24-10)
Sec. 15-136. Same--Term
of members.
Each member of the
commission shall be appointed for a term of three (3) years commencing on July
1 except that the members first appointed shall begin their terms immediately
with three (3) of said members being appointed for terms ending June 30, 2003,
two (2) of said members being appointed for terms ending June 30, 2002, and two
(2) members being appointed for terms ending June 30, 2001.
(Ord. No. 1476, § 1,
4-10-00)
Sec. 15-137.
Same--Internal administration.
The
commission shall select one of its voting members as chair and shall designate
the ex-officio member as secretary. The commission may adopt such rules as it
deems necessary for the transaction of its business. Any decision of the
commission shall require the concurrence of three (3) members. The commission
shall meet as often as necessary with at least one (1) meeting each calendar
quarter and all of its meetings shall be open to the public.
(Ord. No. 1476, § 1, 4-10-00; Ord. No. 1700, §
1, 5-24-10)
Sec. 15-138.
Same--Specific duties.
The commission shall
have the following specific duties:
(1) Advise the city council regarding general policy matters
related to the services provided to public access producers and viewers
pursuant to the Code of Ordinances of the City of Midland.
(2) Encourage the use of public access channels among the
widest range of institutions, groups, and individuals within the City of
Midland.
(3) Make an annual report to the city which shall include, but
not be limited to, a summary report on the utilization of any public access
channels and a summary report of the commission's deliberations throughout the
year.
(4) Request comments and encourage suggestions from the public
regarding public access channels.
(5) Perform such other functions as the city council may
direct.
(Ord. No. 1476, § 1,
4-10-00)
Sec. 15-139.
Same--Finances.
The commission shall
not have the power to expend public funds but may make recommendations to the
city council for budget purposes.
(Ord. No. 1476, § 1,
4-10-00)
DIVISION 3.
RATES
Sec. 15-140.
Definitions.
For purposes of this
article Act shall mean the Communications Act of 1934, as amended (and
specifically as amended by the Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. 102-385), and as may be amended from time to
time; FCC shall mean the Federal Communications Commission; FCC rules
shall mean all rules of the FCC promulgated from time to time pursuant to the
Act; basic cable service shall mean basic service as defined in the FCC
rules, and any other cable television service which is subject to rate
regulation by the city pursuant to the Act and the FCC rules; associated
equipment shall mean all equipment and services subject to regulation
pursuant to 47 CFR section 76.923; and an increase in rates shall mean
an increase in rates or a decrease in programming or customer services. All
other words and phrases used in this article shall have the same meaning as
defined in the Act and FCC rules.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-141. Purpose;
interpretation.
The purpose of this
article is to adopt regulations consistent with the Act and the FCC rules, with
respect to basic cable service rate regulation; and prescribe procedures to
provide a reasonable opportunity for consideration of the views of interested parties
in connection with basic cable service rate regulation by the city. This
article shall be implemented and interpreted consistent with the Act and FCC
rules.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-142. Rate
regulations promulgated by FCC.
In connection with the
regulation of rates for basic cable service and associated equipment, the city
shall follow all FCC rules.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-143. Filing;
additional information; burden of proof.
(a) A
cable operator shall submit its schedule of rates for the basic service tier
and associated equipment or a proposed increase in such rates in accordance
with the Act and the FCC rules. The cable operator shall include, as part of
its submission, such information as is necessary to show that its schedule of
rates or its proposed increase in rates complies with the Act and the FCC
rules. The cable operator shall file ten (10) copies of the schedule or
proposed increase with the city clerk. For purposes of this article, the filing
of the cable operator shall be deemed to have been made when at least ten (10)
copies have been received by the city clerk. The city council may, by
resolution or otherwise, adopt rules and regulations prescribing the
information, data and calculations which must be included as part of the cable
operator's filing of the schedule of rates or a proposed increase.
(b) In
addition to information and data required by rules and regulations of the city
pursuant to subsection (a) above, a cable operator shall provide all information
requested by the city manager in connection with the city's review and
regulation of existing rates for the basic service tier and associated
equipment or a proposed increase in these rates. The city manager may establish
deadlines for submission of the requested information and the cable operator
shall comply with such deadlines.
(c) A
cable operator has the burden of proving that its schedule of rates for the
basic service tier and associated equipment or a proposed increase in such
rates complies with the Act and the FCC rules, including, without limitation,
47 USC section 543 and 47 CFR sections 76.922 and 76.923.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-144. Proprietary
information.
(a) If
this article, any rules or regulations adopted by the city pursuant to section
15-143(a), or any request for information pursuant to section 15-143(b)
requires the production of proprietary information, the cable operator shall
produce the information. However, at the time the allegedly proprietary information
is submitted, a cable operator may request that specific, identified portions
of its response be treated as confidential and withheld from public disclosure.
The request must state the reason why the information should be treated as
proprietary and the facts that support those reasons. The request for
confidentiality will be granted if the city determines that the preponderance
of the evidence shows that nondisclosure is consistent with the provisions of
the Freedom of Information Act, 5 U.S.C. section 552. The city shall place in a
public file for inspection any decision that results in information being
withheld. If the cable operator requests confidentiality and the request is
denied, where the cable operator is proposing a rate increase, it may withdraw
the proposal, in which case the allegedly proprietary information will be
returned to it; or the cable operator may seek review within five (5) working
days of the denial in any appropriate forum. Release of the information will be
stayed pending review.
(b) Any
interested party may file a request to inspect material withheld as proprietary
with the city. The city shall weigh the policy considerations favoring
nondisclosure against the reasons cited for permitting inspection in light of
the facts of the particular case. It will then promptly notify the requesting
entity and the cable operator that submitted the information as to the
disposition of the request. It may grant, deny or condition a request. The
requesting party or the cable operator may seek review of the decision by
filing an appeal with any appropriate forum. Disclosure will be stayed pending
resolution of any appeal.
(c) The
procedures set forth in this section shall be construed as analogous to and
consistent with the rules of the FCC regarding requests for confidentiality,
including, without limitation, 47 CFR section 0.459.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-145. Public
notice; initial review of rates.
Upon the filing of ten
(10) copies of the schedule of rates or the proposed increase in rates pursuant
to section 15-143(a) above, the city clerk shall publish a public notice in a
newspaper of general circulation in the city which shall state that the filing
has been received by the city clerk and, except those parts which may be
withheld as proprietary, is available for public inspection and copying; and
interested parties are encouraged to submit written comments on the filing to
the city clerk not later than seven (7) days after the public notice is
published. The city clerk shall give notice to the cable operator of the date,
time, and place of the meeting at which the city council shall first consider
the schedule of rates or the proposed increase. This notice shall be mailed by
first class mail at least three (3) days before the meeting. In addition, if a
written staff or consultant's report on the schedule of rates or the proposed
increase is prepared for consideration of the city council, then the city clerk
shall mail a copy of the report by first class mail to the cable operator at
least three (3) days before the meeting at which the city council shall first
consider the schedule of rates or the proposed increase.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-146. Tolling order.
After a cable operator
has filed its existing schedule of rates or a proposed increase in these rates,
the existing schedule of rates will remain in effect or the proposed increase
in rates will become effective after thirty (30) days from the date of filing
under section 15-143(a) above unless the city council (or other properly
authorized body or official) tolls the thirty-day deadline pursuant to 47 CFR
section 76.933 by issuing a brief written order, by resolution or otherwise,
within thirty (30) days of the date of filing. The city council may toll the
thirty-day deadline for an additional ninety (90) days in cases not involving
cost-of-service showings and for an additional one hundred fifty (150) days in
cases involving cost-of-service showings.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-147. Public
notice; hearing on basic cable service rates following tolling of thirty-day
deadline.
If a written order has
been issued pursuant to section 15-146 and 47 CFR section 76.933 to toll the
effective date of existing rates for the basic service tier and associated
equipment or a proposed increase in these rates, the cable operator shall
submit to the city any additional information required or requested pursuant to
section 15-143 of this article. In addition, the city council shall hold a
public hearing to consider the comments of interested parties within the
additional ninety-day or one hundred fifty-day period, as the case may be. The
city clerk shall publish a public notice of the public hearing in a newspaper
of general circulation within the city which shall state the date, time, and
place at which the hearing shall be held; interested parties may appear in
person, by agent, or by letter at such hearing to submit comments on or
objections to the existing rates or the proposed increase in rates; and copies
of the schedule of rates or the proposed increase in rates and related
information, except those parts which may be withheld as proprietary, are
available for inspection or copying from the office of the clerk. The public
notice shall be published not less than fifteen (15) days before the hearing.
In addition, the city clerk shall mail by first class mail a copy of the public
notice to the cable operator not less than fifteen (15) days before the hearing.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-148. Staff or
consultant report; written response.
Following the public
hearing, the city manager shall cause a report to be prepared for the city
council which shall (based on the filing of the cable operator, the comments or
objections of interested parties, information requested from the cable operator
and its response, staff or consultant's review, and other appropriate
information) include a recommendation for the decision of the city council
pursuant to section 15-149. The city clerk shall mail a copy of the report to
the cable operator by first-class mail not less than twenty (20) days before
the city council acts under section 15-149. The cable operator may file a
written response to the report with the city clerk. If at least ten (10) copies
of the response are filed by the cable operator with the city clerk within ten
(10) days after the report is mailed to the cable operator, the city clerk
shall forward it to the city council.
(Ord. No. 1275, § 1, 9-20-93)
Sec. 15-149. Rate
decisions and orders.
The city council shall
issue a written order, by resolution or otherwise, which in whole or in part
approves the existing rates for basic cable service and associated equipment or
a proposed increase in such rates, denies the existing rates or proposed
increase, orders a rate reduction, prescribes a reasonable rate, allows the
existing rates or proposed increase to become effective subject to refund, or
orders other appropriate relief, in accordance with the FCC rules. If the city
council issues an order allowing the existing rates or proposed increase to
become effective subject to refund, it shall also direct the cable operator to
maintain an accounting pursuant to 47 CFR section 76.933. The order specified in
this section shall be issued within ninety (90) days of the tolling order under
section 15-146 in all cases not involving a cost-of-service showing. The order
shall be issued within one hundred fifty (150) days after the tolling order
under section 15-146 in all cases involving a cost-of-service showing.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-150. Refunds;
notice.
The city council may
order a refund to subscribers as provided in 47 CFR section 76.942. Before the
city council orders any refund to subscribers, the city clerk shall give at
least seven (7) days' written notice to the cable operator by first class mail
of the date, time, and place at which the city council shall consider issuing a
refund order and shall provide an opportunity for the cable operator to
comment. The cable operator may appear in person, by agent, or by letter at
such time for the purpose of submitting comments to the city council.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-151. Written
decisions; public notice.
Any order of the city
council pursuant to section 15-149 or section 15-150 shall be in writing, shall
be effective upon adoption by the city council, and shall be deemed released to
the public upon adoption. The clerk shall publish a public notice of any such
written order in a newspaper of general circulation within the city which shall
summarize the written decision, and state that copies of the text of the
written decision are available for inspection or copying from the office of the
clerk. In addition, the city clerk shall mail a copy of the text of the written
decision to the cable operator by first class mail.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-152. Additional
rules and regulations.
In addition to rules
promulgated pursuant to section 15-143, the city council may, by resolution or
otherwise, adopt rules and regulations for basic cable service rate regulation
proceedings, including, without limitation, the conduct of hearings, consistent
with the Act and FCC rules.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-153. Failure to
give notice.
The failure of the
city clerk to give the notices or to mail copies of reports as required by this
article shall not invalidate the decisions or proceedings of the city council.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-154. Additional
hearings.
In addition to the
requirements of this article, the city council may hold additional hearings
upon such reasonable notice as the city council, in its sole discretion, shall
prescribe.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-155. Additional
powers.
The city shall possess
all powers conferred by the Act, the FCC rules, the cable operator's franchise,
and all other applicable law. The powers exercised pursuant to the Act, the FCC
rules, and this article shall be in addition to powers conferred by law or
otherwise. The city may take any action not prohibited by the Act and the FCC
rules to protect the public interest in connection with basic cable service
rate regulation.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-156. Failure to
comply; remedies.
The city may pursue
any and all legal and equitable remedies against the cable operator, including,
without limitation, all remedies under a cable operator's franchise with the
city, for failure to comply with the Act, the FCC rules, any orders or
determinations of the city pursuant to this article, any requirements of this
article, or any rules or regulations promulgated hereunder. Subject to
applicable law, failure to comply with the Act, the FCC rules, any orders or
determinations of the city pursuant to this article, any requirements of this
article, or any rules and regulations promulgated hereunder, shall also be
sufficient grounds for revocation or denial of renewal of a cable operator's
franchise.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-157.
Severability.
The various parts,
sections, and clauses of this article are hereby declared to be severable. If
any part, sentence, paragraph, section or clause is adjudged unconstitutional
or invalid by a court of competent jurisdiction, the remainder of the article
shall not be affected thereby.
(Ord. No. 1275, § 1,
9-20-93)
Sec. 15-158. Conflicting
provisions.
In the event of any
conflict between this article and the provisions of any prior ordinance or any
franchise, permit, consent agreement or other agreement with a cable operator,
then the provisions of this article shall control.
(Ord. No. 1275, § 1,
9-20-93)
ARTICLE VI.
TELECOMMUNICATIONS
Sec. 15-180. Purpose.
The purposes of this ordinance
are to regulate access to and ongoing use of public rights-of-way by
telecommunications providers for their telecommunications facilities while
protecting the public health, safety, and welfare and exercising reasonable
control of the public rights-of-way in compliance with the Metropolitan Extension
Telecommunications Rights-of-Way Oversight Act (Act No. 48 of the Public Acts
of 2002) ("Act") and other applicable law, and to ensure that the
City qualifies for distributions under the Act by modifying the fees charged to
providers and complying with the Act.
Sec. 15-181. Conflict.
Nothing
in this ordinance shall be construed in such a manner as to conflict with the
Act or other applicable law.
Sec. 15-182. Terms Defined.
The terms used in this ordinance shall have the
following meanings:
Act means the
Metropolitan Extension Telecommunications Rights-of-Way Oversight Act (Act No.
48 of the Public Acts of 2002), as amended from time to time.
City means the City of Midland.
City Council means the
City Council of the City of Midland or its designee. This Section does not authorize delegation of
any decision or function that is required by law to be made by the City
Council.
City Manager means the City Manager or his or
her designee.
Permit means a
non-exclusive permit issued pursuant to the Act and this ordinance to a
telecommunications provider to use the public rights-of-way in the City for its
telecommunications facilities.
All other terms used in this
ordinance shall have the same meaning as defined or as provided in the Act, including
without limitation the following:
Authority means the
Metropolitan Extension Telecommunications Rights-of-Way Oversight Authority
created pursuant to Section 3 of the Act.
MPSC means the Michigan
Public Service Commission in the Department of Consumer and Industry Services,
and shall have the same meaning as the term "Commission" in the Act.
Person means an
individual, corporation, partnership, association, governmental entity, or any
other legal entity.
Public Right-of-Way means
the area on, below, or above a public roadway, highway, street, alley, easement
or waterway. Public right-of-way does
not include a federal, state, or private right-of-way.
Telecommunication Facilities or
Facilities means the equipment or personal property, such as copper and
fiber cables, lines, wires, switches, conduits, pipes, and sheaths, which are
used to or can generate, receive, transmit, carry, amplify, or provide
telecommunication services or signals.
Telecommunication facilities or facilities do not include antennas,
supporting structures for antennas, equipment shelters or houses, and any
ancillary equipment and miscellaneous hardware used to provide federally
licensed commercial mobile service as defined in section 332(d) of part I of
title III of the communications act of 1934, chapter 652, 48 Stat. 1064, 47
U.S.C. 332 and further defined as commercial mobile radio service in 47 CFR
20.3, and service provided by any wireless, two-way communication device.
Telecommunications Provider,
Provider and Telecommunications Services mean those terms as defined
in Section 102 of the Michigan telecommunications act, 1991 PA 179, MCL
484.2102. Telecommunication provider
does not include a person or an affiliate of that person when providing a federally
licensed commercial mobile radio service as defined in Section 332(d) of part I
of the communications act of 1934, chapter 652, 48 Stat. 1064, 47 U.S.C. 332
and further defined as commercial mobile radio service in 47 CFR 20.3, or
service provided by any wireless, two-way communication device. For the purpose of the Act and this ordinance
only, a provider also includes all of the following:
(a) A cable television operator that provides a
telecommunications service.
(b) Except as
otherwise provided by the Act, a person who owns telecommunication facilities
located within a public right-of-way.
(c) A person providing broadband internet
transport access service.
Sec. 15-183. Permit Required.
(a) Permit Required. Except as otherwise provided in the Act, a
telecommunications provider using or seeking to use public rights-of-way in the
City for its telecommunications facilities shall apply for and obtain a permit
pursuant to this ordinance.
(b) Application.
Telecommunications providers shall apply for a permit on an application
form approved by the MPSC in accordance with Section 6(1) of the Act. A telecommunications provider shall file one
copy of the application with the City Clerk, one copy with the City Manager,
and one copy with the City Attorney.
Upon receipt, the City Clerk shall make four (4) copies of the
application and distribute a copy to the City Engineer, the Director of
Planning & Community Development, the Director of Public Services, and the
Utilities Director. Applications shall
be complete and include all information required by the Act, including without
limitation a route map showing the location of the provider's existing and
proposed facilities in accordance with Section 6(5) of the Act.
(c) Confidential Information. If a telecommunications provider claims that
any portion of the route maps submitted by it as part of its application
contain trade secret, proprietary, or confidential information, which is exempt
from the Freedom of Information Act, 1976 PA 442, MCL 15.231 to 15.246, pursuant
to Section 6(5) of the Act, the telecommunications provider shall prominently
so indicate on the face of each map.
(d) Application Fee. Except as otherwise provided by the Act, the
application shall be accompanied by a one-time non-refundable application fee
in the amount of $500.00.
(e) Additional Information. The City Manager may request an applicant to
submit such additional information, which the City Manager deems reasonably
necessary or relevant. The applicant
shall comply with all such requests in compliance with reasonable deadlines for
such additional information established by the City Manager. If the City and the applicant cannot agree on
the requirement of additional information requested by the City, the City or
the applicant shall notify the MPSC as provided in Section 6(2) of the Act.
(f) Previously Issued Permits. Pursuant to Section 5(1) of the Act,
authorizations or permits previously issued by the City under Section 251 of
the Michigan telecommunications act, 1991 PA 179, MCL 484.2251 and
authorizations or permits issued by the City to telecommunications providers
prior to the 1995 enactment of Section 251 of the Michigan telecommunications
act but after 1985 shall satisfy the permit requirements of this ordinance.
(g) Existing Providers.
Pursuant to Section 5(3) of the Act, within 180 days from November 1,
2002, the effective date of the Act, a telecommunications provider with
facilities located in a public right-of-way in the City as of such date, that
has not previously obtained authorization or a permit under Section 251 of the
Michigan telecommunications act, 1991 PA 179, MCL 484.2251, shall submit to the
City an application for a permit in accordance with the requirements of this
ordinance. Pursuant to Section 5(3) of
the Act, a telecommunications provider submitting an application under this
subsection is not required to pay the $500.00 application fee required under
subsection (d) above. A provider under
this subsection shall be given up to an additional 180 days to submit the
permit application if allowed by the Authority, as provided in Section 5(4) of
the Act.
Sec. 15-184. Issuance of Permit.
(a) Approval or Denial. The authority to approve or deny an
application for a permit is hereby delegated to the City Manager. Pursuant to Section 15(3) of the Act, the
City Manager shall approve or deny an application for a permit within
forty-five (45) days from the date a telecommunications provider files an
application for a permit under Section 15-183(b) of this ordinance for access
to a public right-of-way within the City.
Pursuant to Section 6(6) of the Act, the City Manager shall notify the
MPSC when the City Manager has granted or denied a permit, including
information regarding the date on which the application was filed and the date
on which permit was granted or denied.
The City Manager shall not unreasonably deny an application for a
permit.
(b) Form of Permit. If an application for permit is approved, the
City Manager shall issue the permit in the form approved by the MPSC, with or
without additional or different permit terms, in accordance with Sections 6(1),
6(2) and 15 of the Act.
(c) Conditions. Pursuant to Section 15(4) of the Act, the
City Manager may impose conditions on the issuance of a permit, which
conditions shall be limited to the telecommunications provider's access and
usage of the public right-of-way.
(d) Bond Requirement. Pursuant to Section 15(3) of the Act, and
without limitation on subsection (c) above, the City Manager may require that a
bond be posted by the telecommunications provider as a condition of the
permit. If a bond is required, it shall
not exceed the reasonable cost to ensure that the public right-of-way is
returned to its original condition during and after the telecommunications
provider's access and use.
Sec. 15-185.
Construction/Engineering Permit.
A
telecommunications provider shall not commence construction upon, over, across,
or under the public rights-of-way in the City without first obtaining a construction
or engineering permit as required under chapter 22 of this Code, as amended,
for construction within the public rights-of-way. No fee shall be charged for such a
construction or engineering permit.
Sec. 15-186. Conduit or Utility Poles.
Pursuant to Section 4(3) of
the Act, obtaining a permit or paying the fees required under the Act or under
this ordinance does not give a telecommunications provider a right to use
conduit or utility poles.
Sec. 15-187. Route Maps.
Pursuant to Section 6(7) of
the Act, a telecommunications provider shall, within 90 days after the
substantial completion of construction of new telecommunications facilities in
the City, submit route maps showing the location of the telecommunications
facilities to both the MPSC and to the City.
The route maps should be in electronic format unless and until the MPSC
determines otherwise, in accordance with Section 6(8) of the Act.
Sec. 15-188. Repair of Damage.
Pursuant to Section 15(5) of
the Act, a telecommunications provider undertaking an excavation or
construction or installing telecommunications facilities within a public
right-of-way or temporarily obstructing a public right-of-way in the City, as
authorized by a permit, shall promptly repair all damage done to the street
surface and all installations under, over, below, or within the public
right-of-way and shall promptly restore the public right-of-way to its
preexisting condition.
Sec. 15-189.
Establishment and Payment of Maintenance Fee.
In
addition to the non-refundable application fee paid to the City set forth in
subsection 4(d) above, a telecommunications provider with telecommunications
facilities in the City's public rights-of-way shall pay an annual maintenance
fee to the Authority pursuant to Section 8 of the Act.
Sec. 15-190.
Modification of Existing Fees.
In
compliance with the requirements of Section 13(1) of the Act, the City hereby
modifies, to the extent necessary, any fees charged to telecommunications
providers after November 1, 2002, the effective date of the Act, relating to
access and usage of the public rights-of-way, to an amount not exceeding the
amounts of fees and charges required under the Act, which shall be paid to the
Authority. In compliance with the
requirements of Section 13(4) of the Act, the City also hereby approves
modification of the fees of providers with telecommunication facilities in
public rights-of-way within the City's boundaries, so that those providers pay
only those fees required under Section 8 of the Act. The City shall provide each
telecommunications provider affected by the fee with a copy of this ordinance,
in compliance with the requirement of Section 13(4) of the Act. To the extent
any fees are charged telecommunications providers in excess of the amounts
permitted under the Act, or which are otherwise inconsistent with the Act, such
imposition is hereby declared to be contrary to the City's policy and intent,
and upon application by a provider or discovery by the City, shall be promptly
refunded as having been charged in error.
Sec. 15-191. Savings Clause.
Pursuant
to Section 13(5) of the Act, if Section 8 of the Act is found to be invalid or
unconstitutional, the modification of fees under Section 11 above shall be void
from the date the modification was made.
Sec. 15-192.
Use of Funds.
Pursuant
to Section 10(4) of the Act, all amounts received by the City from the
Authority shall be used by the City solely for rights-of-way related purposes.
Sec. 15-193.
Annual Report.
Pursuant
to Section 10(5) of the Act, the City Manager shall file an annual report with
the Authority on the use and disposition of funds annually distributed by the
Authority.
Sec. 15-194.
Cable Television Operators.
Pursuant
to Section 13(6) of the Act, the City shall not hold a cable television
operator in default or seek any remedy for its failure to satisfy an
obligation, if any, to pay after November 1, 2002, the effective date of this
Act, a franchise fee or similar fee on that portion of gross revenues from
charges the cable operator received for cable modem services provided through
broadband internet transport access services.
Sec. 15-195. Existing Rights.
Pursuant
to Section 4(2) of the Act, except as expressly provided herein with respect to
fees, this ordinance shall not affect any existing rights that a
telecommunications provider or the City may have under a permit issued by the
City or under a contract between the City and a telecommunications provider
related to the use of the public rights-of-way.
Sec. 15-196.
Compliance.
The
City hereby declares that its policy and intent in adopting this ordinance is
to fully comply with the requirements of the Act, and the provisions hereof
should be construed in such a manner as to achieve that purpose. The City shall comply in all respects with
the requirements of the Act, including but not limited to the following:
(a) Exempting
certain route maps from the Freedom of Information Act, 1976 PA 442, MCL 15.231
to 15.246, as provided in Section 4(c) of this ordinance;
(b) Allowing
certain previously issued permits to satisfy the permit requirements hereof, in
accordance with Section 4(f) of this ordinance;
(c) Allowing existing providers additional time
in which to submit an application for a permit, and excusing such providers
from the $500 application fee, in accordance with Section 4(g) of this
ordinance;
(d) Approving or denying an application for a
permit within forty-five (45) days from the date a telecommunications provider
files an application for a permit for access to and usage of a public
right-of-way within the City, in accordance with Section 5(a) of this
ordinance;
(e) Notifying the MPSC when the City has
granted or denied a permit, in accordance with Section 5(a) of this ordinance;
(f) Not unreasonably denying an application
for a permit, in accordance with Section 5(a) of this ordinance;
(g) Issuing a permit in the form approved by
the MPSC, with or without additional or different permit terms, as provided in
Section 5(b) of this ordinance;
(h) Limiting the conditions imposed on the
issuance of a permit to the telecommunications provider's access and usage of
the public right-of-way, in accordance with Section 5(c) of this ordinance;
(i) Not requiring a bond of a
telecommunications provider which exceeds the reasonable cost to ensure that
the public right-of-way is returned to its original condition during and after
the telecommunication provider's access and use, in accordance with Section
5(d) of this ordinance;
(j) Not charging any telecommunications
providers any additional fees for construction or engineering permits, in
accordance with Section 6 of this ordinance;
(k) Providing each telecommunications provider affected by the City's right-of-way fees with a copy of this ordinance, in accordance with Section 11 of this ordinance;
(l) Submitting an annual report to the
Authority, in accordance with Section 14 of this ordinance; and
(m) Not holding a cable television operator in default for a failure to pay certain franchise fees, in accordance with Section 15 of this ordinance.
Sec. 15-197.
Reservation of Police Powers.
Pursuant
to Section 15(2) of the Act, this ordinance shall not limit the City's right to
review and approve a telecommunication provider's access to and ongoing use of
a public right-of-way or limit the City's authority to ensure and protect the
health, safety, and welfare of the public.
Sec. 15-198.
Severability.
The
various parts, sentences, paragraphs, sections, and clauses of this ordinance
are hereby declared to be severable. If
any part, sentence, paragraph, section, or clause of this ordinance is adjudged
unconstitutional or invalid by a court or administrative agency of competent
jurisdiction, the unconstitutionality or invalidity shall not affect the
constitutionality or validity of any remaining provisions of this ordinance.
Sec. 15-199. Authorized
City Officials.
The
City Manager or his or her designee is hereby designated as the authorized City
official to issue municipal civil infraction citations (directing alleged
violators to appear in court) or municipal civil infraction violation notices
(directing alleged violators to appear at the municipal chapter violations
bureau) for violations under this ordinance as provided by the City Code.
Sec. 15-200.
Municipal Civil Infraction.
A
person who violates any provision of this ordinance or the terms or conditions
of a permit is responsible for a municipal civil infraction, and shall
be subject to Section 34-6 of the City of Midland Code of Ordinances. Nothing in this Section shall be construed to
limit the remedies available to the City in the event of a violation by a
person of this ordinance or a permit.
Sec. 15-201.
Repealer.
All ordinances and portions of ordinances inconsistent
with this ordinance are hereby repealed.
(Ord. No. 1546, § 1, 10-28-02)
ARTICLE VII.
DIVISION 1.
GENERAL PURPOSE AND GENERAL REQUIREMENTS
Sec. 15-220.
Purpose.
The purpose of this article is to provide for the
local regulation of alcoholic beverage licenses for consumption on the
premises. Applicants for a liquor
license are asking the people, through their duly constituted representatives,
for a permit to conduct an alcoholic beverage establishment. No applicant, existing licensee, person or
firm has any “right” to a license. As no
one has a “right” to a license, any consideration given to applicants must be
secondary to the requirements of the community-at-large. Alcoholic beverage licenses will be approved
to foster economic growth of the City at large and to provide a service to the
community. It should be generally
interpreted that any applicant for a liquor license shall be seeking this
license to be used in conjunction with some primary business activity other
than the serving of beer, wine, or spirits.
Some examples of this would include restaurants, hotels, motels, bowling
alleys, etc. It shall, however, be the
responsibility of the City Council to evaluate each application on an
individual basis and to determine that each license is in the best interest of
the City of Midland. Approval of any new
or reclassification of existing alcoholic beverage licenses for consumption on
the premises will be based upon the moral and business character of the
prospective licensee, the ability of the establishment to be erected and
operated within the limitations of State laws, and the current standards of
existing municipal ordinances, except as hereafter specified.
Sec. 15-221. Definitions.
For the purposes of this chapter the following
definitions are adopted:
(1) “Alcohol” means the product of distillation of fermented
liquid, whether or not rectified or diluted with water, but does not mean ethyl
or industrial alcohol, diluted or not, that has been denatured or otherwise
rendered unfit for beverage purposes.
(2) “Class
C License” means a place licensed by the liquor control commission to sell at
retail beer, wine, mixed spirit drink, and spirits for consumption on the
premises.
(3) “Class
A Hotel” means a hotel licensed by the liquor control commission to sell beer
and wine for consumption on the premises only, which provides for the rental
of, and maintains the availability for rental of, not less than 25 bedrooms if
located in a local governmental unit with a population of less than 175,000 or
not less than 50 bedrooms if located in a local governmental unit with a
population of 175,000 or more.
(4) “Class B Hotel” means a hotel licensed by the liquor control
commission to sell beer, wine, mixed spirit drink, and spirits for consumption
on the premises only, which provides for the rental of, and maintains the
availability for rental of, not less than 25 bedrooms if located in a local
governmental unit with a population of less than 175,000 or not less than 50
bedrooms if located in a governmental unit with a population of 175,000 or
more.
(5) “Liquor Control Commission” means the liquor control
commission provided for and created in Section 209 of Public Act 58 of 1998.
(6) “License” means a contract between the liquor control
commission and the licensee granting authority to that licensee to sell
alcoholic liquor in the manner provided by the liquor control act.
(7) “Mixed
spirit drink” means a drink produced and packaged or sold by a mixed spirit
drink manufacturer or an outstate seller of mixed spirit drink which contains
10% or less alcohol by volume consisting of distilled spirits mixed with
nonalcoholic beverages or flavoring or coloring materials and which may also
contain 1 or more of the following:
a. Water.
b. Fruit juices.
c. Fruit adjuncts.
d. Sugar.
e. Carbon dioxide.
f. Preservatives.
(8) “Resort
license” means a license that may be issued by the liquor control commission
without regard to a limitation because of population that meets the applicable
requirements in Section 531 of Public Act 58 of 1998.
(9) “Spirits” means a beverage that contains alcohol obtained by
distillation, mixed with potable water or other substances, or both, in
solution, and includes wine containing an alcoholic content of more than 21% by
volume, except sacramental wine and mixed spirit drink.
(10) Tavern” means any place
licensed by the liquor control commission to sell at retail beer and wine for
consumption on the premises only.
Sec. 15-222.
Liquor License Distribution.
In order that there may be a
fair distribution of available licenses, the city will consider whether an
applicant has a license in the Midland trading area or has an interest in a
firm or corporation having such a license.
The extent of such interest, the similarity of the facility involved,
and the overall good of the community will be considered in deciding any
application which may result in a single individual or firm having a substantial
interest in more than one license in the area.
Efforts will be made in securing a geographic distribution of available
licenses so that the various commercial areas of the City will be properly
accommodated. The location proposed by
the applicant will be considered with this factor in mind.
Sec. 15-223.
Application required; fee.
After filing an application
with the liquor control commission, each applicant seeking any new, or a
reclassification of an existing license, must submit an application to the City
on forms that will be provided by the City Clerk. Such an application pertains to City of
Midland approval only, and is in addition to the separate application required
by the liquor control commission. An
application fee of $250.00 shall be paid at the time the application is
submitted. Reclassification of an
existing license requiring a city application shall include:
(1) Transfer or change of ownership or stock
interest at same location for a Class “C”, Hotel “B”, Resort, and Tavern license. The transfer in the aggregate to another
person during any single licensing year of more than 10% of the outstanding
stock of a licensed corporation or more than 10% of the total interest in a
licensed limited partnership shall be considered to be a transfer requiring the
prior approval of the City Council.
(2) New
locations or new structures with same owner for a Class “C”, Hotel “B”, and
Tavern license. A resort license may not
be transferred to a new location.
(3) New
locations or new structures with change of ownership or stock interest for a
Class “C”, Hotel “B”, and Tavern license.
A resort license may not be transferred to a new location.
(Ord. No. 1552, § 1,
11-25-02; Ord. No. 1553, § 1, 12-09-02)
Sec.
15-224. Required information supplemental
to application.
In addition to the City’s
application, the applicant must submit to the office of the City Manager the
following:
(1)
A minimum of
three written letters of character reference.
(2)
A written
statement showing history of business activity, if any.
(3)
Show, by way of
drawings and/or written documentation, where and how the proposed establishment
will operate.
(4)
Show that the
establishment will conform to the current standards of existing building
ordinances, and other municipal laws and regulations, and that all new
applicants conform to the current zoning ordinance.
(5)
Satisfactory
evidence of having established or being prepared to establish the
implementation of procedures to prevent alcohol abuse on its premises or
related to its premises by instituting a program such as Training for
Intervention Procedures by Servers of Alcohol (T.I.P.S.), Techniques of Alcohol
Management (T.A.M.) or the Management/Server Alcohol Awareness Program.
(6)
Satisfactory
evidence to show the applicant has the financial ability to complete his
project according to his plans and within a reasonable period of time.
(7)
In the case of a
new license, the applicant shall specify the type of license and if the
establishment will require a permit for dance and entertainment.
(8)
Any other
information that may be requested by the City Manager that is pertinent to the
proper consideration of the application.
If the above information is
not received within sixty (60) days from date of the application, the
application will automatically be returned to the applicant without further
consideration. Receipt of the above
information, however, is not a guarantee of acceptance.
When all of the above information has been submitted
by the applicant, the City Manager will refer the application to the Chief of
Police, Fire Chief, Building Department, Health Department, Planning Department
and to such other officers or employees as the City Manager may desire, who
shall cause a thorough investigation to be made of the persons and
premises. The findings and
recommendations resulting from such investigations shall be reported by the
City Manager to the City Council within ninety (90) days of receipt of the
application.
Sec.
15-225. City Council approval –
transfer or change of ownership or stock interest at same location.
If
the city council is satisfied that the proposed owner or interest
(1)
has the necessary
qualified business character, based on references and evidence of business
history, to successfully operate the business;
(2)
has an interest
in any other liquor license in the Midland trading area and considering the
extent of such interest and the similarity of the facility involved, that the
overall good of the community is not jeopardized;
(3)
will likely
operate a business which in terms of operations and facilities will constitute
an asset to the City of Midland and the ownership would be in the best interest
of the community;
(4)
for a resort
license, be in accord with Section 15-240;
(5)
exhibits the
necessary high moral character, based on references, public comments and lack
of a significant history of criminal convictions, to conduct all aspects of the
business within the law;
Factors which may be taken into
account concerning lack of a significant history of criminal convictions may
include one or more of the following:
a.
period of time
from the date of the conviction of the offense until the date of the
application;
b.
the comparative
seriousness of the offense for which the applicant was convicted;
c.
whether the
offense for which the applicant was convicted involved the use of an alcoholic
beverage or beverages;
d.
the age of the
applicant at the time of the conviction; or
e.
the number of
convictions.
then the City Council may adopt
a resolution recommending approval by the liquor control commission.
Sec. 15-226.
City Council Approval – New or altered facility with same owner.
If the City Council is satisfied that the
new or altered facility will
(1)
conform to all
applicable requirements of State statute and local ordinances;
(2)
constitute an
asset to the City of Midland and be in the best interest of the community;
(3)
for a new
location, be in accord with Section 15-220;
(4)
for a new
location, will be a location which takes into consideration the policy on
geographic distribution described in Section 15-222;
(5)
for a Resort
License, be in accord with Section 15-240
then the City
Council may adopt a resolution recommending approval by the liquor control
commission.
Sec. 15-227.
City Council approval -- New locations or new structures with change of
ownership or stock interest.
If the City Council is
satisfied that the new or altered facility and the proposed owner or interest
are in compliance with Sections 15-224, 15-225 and 15-226, then the City
Council may adopt a resolution recommending approval by the liquor control
commission.
Division 2.
NEW LICENSES
Sec. 15-235. New Licenses.
If
the liquor control commission grants a new license to the city as a result of
the federal decennial census or a special census, the city will be asked by the
liquor control commission to recommend a liquor license applicant “above all
others”. Upon formal notification of the
availability of a new license by the liquor control commission, the city
manager shall inform the city council at a regular meeting of the city
council. The City Council may hold the
new license in abeyance or proceed with the following process to recommend an
applicant above all others. During said
regular city council meeting, the city council shall announce its intent to
either hold the license in abeyance or proceed with this process to award the
license
(1)
The city manager shall
notify all interested parties and publish a similar notification in a newspaper
published or circulated within the city that will announce the availability of
the new license and the date upon which applications for the new license will
be made available. The notification
shall include a deadline for application, which deadline shall not be less than
ninety (90) days from the date of the availability of applications.
(2)
Within sixty (60)
days of the application deadline, the city manager shall complete the review of
all applications and report the results of the review to the city council at
the next available regular meeting of the city council following the completion
of the city manager’s review.
(3)
Upon receiving
the city manager’s review of applicants, the city council shall schedule a
public hearing at which time each applicant will be given an opportunity to
make a presentation to the city council explaining why his/her application
should be recommended to the liquor control commission above all others.
(4)
Following the
public hearing, the city council may adopt the resolution provided by the
liquor control commission recommending that the license be issued to one
applicant above all others, or its own resolution granting tentative approval
in accord with Section 15-236.
Sec. 15-236. Tentative
License Approval.
If the City Council is satisfied that the
establishment for which a new license is requested will constitute an asset to
the City of Midland and is in the best interest of the City of Midland, but
desires additional assurance that the applicant will complete the project as
represented to the city council, the city council may adopt a resolution
granting tentative approval, subject to satisfaction of conditions stated in
the resolution. After adoption of the
resolution granting tentative approval, the city council shall not adopt the
liquor control commission resolution until the conditions listed in the
resolution granting tentative approval have been met, or the city council
determines that the conditions are no longer necessary.
Sec. 15-237.
Conditions of Tentative Approval.
Tentative approval shall not be transferable, and is
valid for nine (9) months from date of adoption, after which time its
continuance is subject to review by the City Council. The City Council may, by resolution, require
an applicant having been granted tentative approval to furnish evidence, six
months from the date of adoption of said tentative approval, that the applicant
has made reasonable progress toward complying with the conditions upon which
tentative approval was granted. In the
event the applicant shall fail to present evidence of reasonable progress, the
City Council may withdraw said tentative approval.
Sec. 15-238.
Assurance of City Approval.
Tentative approval does not
result in the issuance of a license, but does assure the applicant that the
City Council will approve the applicant’s license when the applicant’s
building, remodeling or other facilities have been completed as represented in
the applicant’s presentation to the City, and the applicant has complied with
all terms of the tentative approval resolution.
Sec. 15-239.
Final License Approval.
When the applicant’s building or remodeling is
completed and it is determined that the applicant has met all State
regulations, current standards of existing City Building and Zoning Codes,
Sanitary and Fire Regulations, representations made to the City by the
applicant, and all terms of the tentative approval resolution, the City Council
will adopt the liquor control commission’s resolution recommending to the
Commission that the license be issued to the applicant above all others. A copy of the resolution granting the City’s
final approval will be sent to the Commission for final action.
Sec. 15-240. Resort Licenses.
In regard to the new issuance of a resort license, the
City Council may reject the license if the City Council has reason to believe
that the existence of a resort license will prevent the City of Midland from
obtaining additional Class “C” liquor licenses as the City becomes eligible
through the normal quota procedure.
Approval by the City Council requires that
all of the following criteria be fulfilled:
(1)
The proposed
licensed establishment is located in or in close proximity to a facility or
facilities to which large numbers of tourists and visitors come each year for
recreational, educational, or entertainment purposes.
(2)
The primary
purpose of the proposed licensed establishment is to attract and accommodate
tourists and visitors and its primary business is not the sale of alcoholic
liquor.
(3)
The proposed
licensed establishment shall serve food and have dining facilities to seat not
less than 100 persons.
(4)
The proposed
licensed establishment shall offer one (1) of the following:
a.
Some type of
recreational or entertainment activity on the premises or, in the alternative,
some type of recreational or entertainment activity which is available to the
public in close proximity to the proposed licensed establishment.
b.
Sleeping facilities,
meeting or conference rooms, or convention facilities.
(5)
In considering
approvals of Resort Licenses, all other provisions of this article will be
considered to the extent possible.
(6)
Before a resort
license can be recommended for approval, proof must be presented to the City
Council that a resort condition exists.
Sec. 15-241. Waiver of Requirements.
The City Council reserves the
right to waive any specific requirement herein that does not conflict with
State or municipal regulations. The waiver
of any requirement will be for hardship only and not be construed as granting
favor in any way.
Division 3.
RENEWAL AND REVOCATION OF LICENSES.
Sec. 15-250. Annual Review of Licenses.
The City Manager shall cause
an annual review of each licensee. All
applicants and licensees should be aware that, once a license is received,
compliance with all State and City regulations is necessary and that failure of
such compliance can result in the City Council requesting the Commission not to
renew or revoke said license.
Sec. 15-251. Nonconformance.
It is recognized the locations and establishments of
licensees, lawfully existing in our City at the time of the adoption of this
ordinance or hereafter approved may not conform to all of the current standards
of the existing building, zoning and other municipal laws and regulations, as
amended. It is not the general intent of
this ordinance to now require such conformance, but rather to continue to
recognize the non-conforming building and use rights of existing licensees at
the time they are reviewed for the renewal of their licenses; provided,
however, all applicants and licensees should be aware that the City Council
may, at any time, amend this ordinance and require conformance with any part or
all of such existing standards or any new standards created hereafter. This exception shall not apply to applicants
for new licenses or reclassification of existing licenses except applicants for
reclassification shall not be required to conform to current zoning
requirements.
Sec. 15-252. Notification of Licensee.
The City Manager shall, at least sixty (60) days
before a license is due for renewal or at any time in the case of a possible
recommendation for revocation, inform the licensee of the City Manager’s intent
to recommend to the City Council that the City should or should not file an
objection with the Commission concerning renewal or a recommendation of
revocation; and, if an objection concerning renewal or a recommendation of
revocation is to be recommended to the City Council, what corrective action the
licensee must take to make such a recommendation unnecessary. Such a recommendation by the City Manager
shall not be considered the same as approval of the recommendation by the City
Council.
Sec. 15-253. Basis of recommendation of non-renewal or
revocation.
In connection with any
recommendation made by the City Manager to the City Council pursuant to Section
15-250 concerning non-renewal or revocation of a liquor license and any
subsequent decision by the City Council to recommend non-renewal or revocation
of a liquor license to the Commission, both the City Manager and the City
Council shall make said recommendations on the basis of whether any one or more
of the following exists or has occurred:
(1) Maintenance of a nuisance upon the premises;
(2)
Failure to comply
with the requirements of the Michigan Liquor Control Act or the administrative
rules of the Commission;
(3)
Failure to comply
with any federal law, state statute or city ordinance in the conduct of its
business;
(4)
Failure to comply
with any of the other requirements of this ordinance;
(5)
Failure to comply
with any promises or statements made by the applicant for a license to the City
Council at the time the liquor license was approved by the City Council or the
failure to comply with any conditions imposed upon the applicant in connection
with the approval of said license by the City Council; or
(6)
A knowingly false
statement made in the application for a liquor license or by the applicant or
the applicant’s agent or assign in the application, non-renewal or revocation
procedure.
(7)
Non-use of the
liquor license for a consecutive period of time of three (3) or more years from
the time the liquor license is first placed into escrow with the Liquor Control
Commission. (The term “non-use” shall be
interpreted to mean the absence of actual use or utilization of a specific
Class “C” liquor license or a specific liquor license other than a Class “C”
liquor license which also permits consumption of alcoholic beverages on the
premises in connection with the actual operation of a primary business activity
as the latter term is described in Section 15-220.) During the annual review, the City Manager
shall notify each escrowed license holder that the escrowed license must be
activated prior to the end of the third consecutive year the license is in
escrow. If a license remains in escrow
after two consecutive years, the City Manager shall initiate the revocation
process in Section 15-254 six (6) months prior to the third consecutive
anniversary of the date the license was placed in escrow by the Liquor Control
Commission.
(8)
Failure to have
implemented procedures to prevent alcohol abuse on its premises or related to
its premises by instituting a program such as Training for Intervention
Procedures by Servers of Alcohol (T.I.P.S.), Techniques of Alcohol Management
(T.A.M.) or the Management/Server Awareness Program.
(9)
Non-payment of
any taxes due the municipality on properties holding a liquor license.
Sec. 15-254. Notice of Show Cause Hearing.
In the event the City Manager makes a recommendation
for non-renewal or revocation of a liquor license to the City Council and
before any decision is made by the City Council on said recommendation, the
City Council shall direct the City Manager to serve the license holder by
certified mail, with a notice of a show cause hearing to be held before the
City Council, which notice shall contain the following:
(1)
Notice of the
show cause hearing as to why the recommendation of the City Manager for
non-renewal or revocation of a liquor license should not be approved by the
City Council and transmitted to the Commission as the City Council’s
recommendation for non-renewal or revocation.
(2) Reasons for the proposed action;
(3) Date, time and place of the hearing;
(4)
Notification that
the license holder may present evidence and testimony, question adverse
witnesses and be represented by counsel.
Sec. 15-255. Show Cause Hearing.
At the date, time and place of
the show cause hearing, the City Manager or members of his administrative staff
shall present evidence to the City Council in support of his recommendation for
non-renewal or revocation of the liquor license in question. The license holder and/or his representative
will be afforded an opportunity to present evidence and testimony, question any
adverse witnesses and to show cause why the City Council should not approve the
recommendation of the City Manager.
Following the show cause hearing, the City Council shall make a determination as to whether to recommend non-renewal or revocation of the license in question and shall submit to the license holder and the Commission a written statement of its findings and determination in this respect.
(Ord. No. 1552, § 1,
11-25-02)