City of Norfolk    
   

Chapter 13

PERMITS AND BUSINESS REGULATIONS*

*Cross references-Certain taxation ordinances saved from repeal, § 1-3(15); financial affairs, § 2-31 et seq.; alarm systems, Ch. 2.5; alcoholic beverages, Ch. 3; occupation tax on alcoholic beverages, § 3-27; fee for dogs and cats, § 4-11; bicycle registration, § 5-2; regulation of building contractors, § 6-36 et seq.; registration and regulations for electricians, § 6-71 et seq.; certification of plumbers, § 6-131 et seq.; permit for private garbage collectors, § 10-21; permit for public swimming pool, § 11-46 et seq.; permits for mobile home parks, § 15-31 et seq. 

   
Art.     I. In General, §§ 13-1--13-15
Art.    II. Permits, §§ 13-16--13-30
Art.   III. Bingo, §§ 13-31--13-40
Art.   IV. Salvage Yards, §§ 13-41--13-56
Art.    V. Secondhand Dealers, §§ 13-57--13-69
Art.   VI. Pawnbrokers, §§ 13-70--13-77
Art.  VII. Telephone Companies, §§ 13-78--13-110
    Div. 1.  Generally, §§ 13-78, 13-79
    Div. 2.  Occupation Tax, §§ 13-80--13-110
Art. VIII. Itinerant Merchants, Peddlers, Solicitors, Street Vendors and Temporary Merchants, §§ 13-111--13-140
Art.   IX. Occupation Taxes for Conducting Games of Chance and/or Lotteries and Distributing Gambling Devices, §§13-141--13-149
Art.    X. Lodging §§13-161--13-171
Art.    XI. Food and Beverage §§13-181--13-191
Art.   XII. Horse-Drawn Carriages §§13-201--13-212
Art.   XIV. Small Wireless Facilities §§13-225--13-240
Art.   XV. Sidewalk Cafes §13-301--13-311

ARTICLE I.  IN GENERAL†

†Editor's note-Ord. No. 3331, §§ 1--9, adopted July 16, 1985, repealed Art. I, §§ 13-1, 13-2, in its entirety and enacted new provisions which have been set out herein as Art. VIII in order to maintain Code format.  Former § 13-1 was concerned with solicitation without invitation and derived from Code of 1962, § 5-18-1, and Ord. No. 3058, § 1(18), adopted March 1, 1982.  Former § 13-2 was concerned with revocation or suspension of licenses or permits and derived from Code 1962, § 1-3-3.

 

ARTICLE II.  PERMITS‡

‡State law reference--Occupational licenses authorized, R.R.S. 1943, § 16-205.

 

Sec. 13-16.  Levied.

 

Every person carrying on an occupation or business as herein mentioned, within the city limits, shall pay into the treasury of the city the sums named in section 13-17 as a special permit fee. 

 

Source:  Code 1962, § 5-1-1; Ord. No. 3500, § 3, 9-8-87

 

Sec. 13-17.  Fees.

 

(a)   Each circus operating within the city shall pay the fee set forth in Section 2-5 of this Code to the city; provided, however, that no fee shall be required of any circus operated by a nonprofit organization or a civic club.  All circuses shall provide the city with a certificate of insurance, naming city as an additional insured, in the following minimum amounts prior to commencing their operation within the city:

 

General Aggregate $1,000,000
a. Bodily Injury/Property Damage $1,000,000 each occurrence
b. Personal Injury Damage $1,000,000 each occurrence
c. Contractual Liability $1,000,000 each occurrence
d. Products Liability & Completed Operations $1,000,000 each occurrence
e. Fire Damage $   100,000 any one fire
f. Medical Expense $       5,000 any one person

 

(b)   Carnivals, when held on public property, shall pay a permit fee as set forth in Section 2-5 of this Code; and in addition thereto, shall provide the city with a certificate of insurance, naming city as an additional insured, in the following minimum amounts prior to commencing their operation within the city:

 

General Aggregate $1,000,000
a. Bodily Injury/Property Damage $1,000,000 each occurrence
b. Personal Injury Damage $1,000,000 each occurrence
c. Contractual Liability $1,000,000 each occurrence
d. Products Liability & Completed Operations $1,000,000 each occurrence
e. Fire Damage $   100,000 any one fire
f. Medical Expense $       5,000 any one person

 

Source:  Code 1962, § 5-1-2; Ord. No. 3209, §§ 10, 11, 5-7-84; Ord. No. 3243, § 1, 9-4-84; Ord. No. 3500, § 4, 5, 9-8-87; Ord. No. 4672, § 1, 8-4-03; Ord. No. 5135, § 9, 9-7-10

 

Sec. 13-18.  Issuance and transfer.

 

All permits provided for under the provisions of this article shall be issued and signed by the city clerk.  Permits shall specify the date when issued, the amount of money paid, the kind of permit issued, the name of the person receiving the permit and the length of time for which the same was issued.  The city clerk shall attest all permits with the seal of the city and deliver the same to the persons applying therefor, upon the production of a receipt signed by the city treasurer, for the proper sum of money required by this article.  No permit shall be transferable in any manner whatsoever. 

 

Source:  Code 1962, § 5-1-4; Ord. No. 3500, § 6, 9-8-87

 

 ARTICLE III.  BINGO*

*Cross reference--Gambling, § 14-206 et seq.

 

Sec. 13-31.  Tax; annual fee.

 

(a)   A tax on the gross receipts received from the conducting of bingo within the city is hereby imposed in the amount as provided by Section 9-165 of the Nebraska Revised Statutes of 1943, as the same may be from time to time amended; in addition, there is provided an annual fee for those conducting bingo games, as provided by Section 9-166 of the Nebraska Revised Statutes of 1943, as the same may from time to time be amended.

 

(b)   Such tax shall be credited to the general fund of the city.  Such tax shall be paid to the clerk and the clerk shall transmit the tax to the treasurer of such subdivision.  The tax shall be remitted quarterly, not later than thirty (30) days from the close of the preceding quarter, together with such reports as may be required. 

 

Source:  Code 1962, § 5-13-6; Ord. No. 3209, § 13, 5-7-84

State law reference-Tax required, R.R.S. 1943, 9-165.

 

ARTICLE IV.  SALVAGE YARDS†

†Cross reference--Zoning, Ch. 27.

 

Sec. 13-41.  Definition.

 

The term "salvage yard," as used in this article, shall mean any business where: junk; scrap iron and metals such as gold, silver, brass, copper or tin; old machinery or parts thereof; car bodies and unuseable parts of motor vehicles; old tires or scrap rubber; rags; bones; paper; wreckage from old buildings; used or secondhand lumber; used or secondhand building materials or discarded material which may be treated or prepared so as to be used again in some form, are purchased, sold or exchanged. 

 

Source:  Code 1962, § 5-4-1; Ord. No. 3058, § 1(19), 3-1-82; Ord. No. 3243, § 2, 9-4-84

 

Sec. 13-42.  Permit.

 

(a)   No person shall engage in the salvage yard business without a permit, which permit shall be issued by the city clerk, upon payment to the city of a permit fee as set forth in Section 2-5 of this Code, which permit shall be good for one year only; the permit year shall be from May 1 to April 30.  Such permit may be revoked by the city council if any of the provisions of this article are violated by the permittee.  No more than one permit shall be granted to the same person during one permit year.  Permits may be renewed after review by the department of planning and community development.

 

(b)   No person to whom a permit shall have been granted under the provisions of this article, shall do business in more than one place under one permit.  Every permit shall state the place, and legal description of the real estate where such business is to be carried on, which shall be the place where junk is to be stored either inside or outside of any building located thereon and include the office building of said business.  The storage of junk, or doing business upon, any real estate other than that described in the permit shall be considered a violation of the terms of this article.  In case a permittee at the time of the issuance of his permit shall have any junk stored upon any real estate other than the particular real estate described in his permit, he shall remove the same therefrom within thirty (30) days after the issuance of his permit.

 

Source:  Code 1962, § § 5-4-2, 5-4-3; Ord. No. 3058, § 1(20), 3-1-82; Ord. No. 3209, § 9, 5-7-84; Ord. No. 3243, § 3, 9-4-84; Ord. No. 5135, § 9, 9-7-10

 

Sec. 13-43.  Obstruction of streets or sidewalks.

 

Storing, loading, unloading, and all other work usually per­formed in connection with a salvage yard business, shall be done and performed upon the premises of said business, and not upon the sidewalks, streets, or alleys adjacent thereto. 

 

Source:  Code 1962, § 5-4-6; Ord. No. 3058, § 1(20), 3-1-82

 

Sec. 13-44.  Nuisance declared.

 

The operation of any junk business within this city by any person engaged herein in violation of and contrary to any of the provisions of this article shall make such business a nuisance, which nuisance may be abated or enjoined by proper action in the courts of this state. 

 

Source:  Code 1962, § 5-4-8

 

ARTICLE V.  SECONDHAND DEALERS*

*Editor's note-Ord. No. 3243, § 4, adopted September 4, 1984, repealed Art. V, in its entirety and enacted in its place new §§ 13-59--13-62.  Former §§ 13-57--13-64 were concerned with secondhand dealers and pawnbrokers, and derived from Code 1962, § 5-3-1, 5-3-3, and Ord. No. 3058, § 1(22), (23), 3-1-82.

 

Sec. 13-57.  Definitions.

 

(a)   Secondhand dealer as used in this article shall mean any person who shall engage in the business of buying, selling or dealing in secondhand clothing, jewelry, goods, wares or merchandise.  The provisions of this article shall apply to any garage sale or rummage sale that shall be conducted in excess of three (3) consecutive days in excess of two (2) consecutive weeks.  The provisions of this article shall not apply to dealers in secondhand automobiles or dealers whose sales are primarily sales of new goods and the handling of secondhand goods is only incidental thereto.

 

(b)   Antique dealer as used in this article shall mean any per­son who shall engage in the business of buying, selling or dealing in secondhand furniture or household goods.

 

(c)   Auctioneer as used in this article shall mean any person, whether acting for himself or as an agent of another, who sells at auction any goods, wares, or merchandise or interest therein, at any street stand or other place in the city, or in any way adver­tises or holds himself or herself out as auctioneer, or advertises any building, or room or rooms, as an auction building room, or rooms, for public patronage, or to receive any fees as a commis­sion for his services.  The provisions of this article shall not apply to anyone who shall be acting under the provisions of any state law or license issued by the State of Nebraska. 

 

Source:  Ord. No. 3243, § 4, 9-4-84

 

Sec. 13-58.  Permit--Required.

 

(a)  It shall be unlawful for any person to engage in business as a secondhand dealer, antique dealer or auctioneer, without first obtaining a permit therefor from the city clerk.  The fee for an annual permit to engage in the business of dealing in secondhand goods, antiques and/or auctioneering shall be as set forth in Section 2-5 of this Code. The city clerk shall authorize the issuance of an annual permit to engage in the business of dealing in secondhand goods, antiques and/or auctioneering upon payment of the required permit fee by the applicant therefor.  Every permit to engage in the business of dealing in secondhand goods shall state the place where such business is to be carried on.

 

(b)  Notwithstanding the provisions of subsection (a) of this section, any person engaging in the business of dealing in secondhand goods who acquires said goods by way of a gift or donation shall not be required to obtain a permit.

 

Source:  Ord. No. 3243, § 4, 9-4-84; Ord. No. 3534, § 1, 4-4-88; Ord. No. 4254, § 1, 4-7-97; Ord. No. 5135, § 9, 9-7-10

 

Sec. 13-59.  Permit--Assignment; restrictions.

 

Permits to engage in the business of dealing in secondhand goods, antiques and/or auctioneering shall be deemed personal to the permittee and shall not be assignable.  Every permit for the business of dealer in secondhand goods, antiques and/or auctioneering shall expire on April 30 of each year.  No person engaging in the business of dealing in secondhand goods, antiques and/or auctioneering shall be allowed to do business in more than one place under one permit. 

 

Source:  Ord. No. 3243, § 4, 9-4-84

 

Sec. 13-60.  Records to be kept.

 

(a)   For any property that is intended to be resold at a price of twenty-five dollars ($25.00) or more, a person or persons who engage in the business of secondhand goods, antiques and/or auctioneering shall maintain a ledger book, legibly written in ink, showing the purchases and acquisitions made by said person or persons showing the following information:

 

(1)        The date of the purchase;

 

(2)        The name and address of the person from whom the prop­erty was purchased or acquired;

 

(3)        The driver's license number or social security number of the person from whom the property was purchased or acquired;

 

(4)        An accurate description of the property purchased or acquired.

 

(b)   Every secondhand dealer, antique dealer and/or auctioneer or his or her employees shall allow a police officer at any reason­able time during normal business hours to examine the ledger required to be kept hereunder, and shall allow such police officer to place restriction on the disposition of any property for which a reasonable belief exists that it has been stolen. 

 

Source:  Ord. No. 3243, § 4, 9-4-84

 

Sec. 13-61.  Boosting bids.

 

It shall be unlawful for any auctioneer in the city to use or employ any scheme or plan such as by-bidding or other similar artifice for the purpose of inducing increased bids; or to have in his employ, either directly or indirectly, any person who shall make, or attempt to make, bids on any property being offered for sale by the auctioneer for the purpose of increasing the price to be paid for such property or for the purpose of causing or inducing other persons to increase their bids.

 

Source:  Ord. No. 3243, § 4, 9-4-84

 

Sec. 13-62.  Sale of mortgaged property.

 

Any auctioneer who shall sell any personal property, title to which is in a person other than such auctioneer's principal, or upon which there is a lien or mortgage duly recorded according to law, shall be liable to the owner or mortgagee of the property so sold to the extent of such owner's or such mortgagee's interest in such property for any damages resulting to such owner or mort­gagee by reason of such sale. 

 

Source:  Ord. No. 3243, § 4, 9-4-84

 

ARTICLE VI.  PAWNBROKERS*

*Editor's note-Ord. No. 3243, § 6, adopted September 4, 1984, enacted a new Art. VI. Sec. 5 of said ordinance redesignated former Art. VI as Art. VII and renumbered §§ 13-76--13-81 as §§ 13-80--13-85.

 

Sec. 13-70.  Definition.

 

As used in this article, the term pawnbroker shall mean any person engaged in the business of lending money upon chattel property for security or condition of returning the same upon payment of a stipulated amount of money, or purchasing prop­erty on condition of selling it back at a stipulated price. 

 

Source:  Ord. No. 3243, § 6, 9-4-84

State law reference-Pawnbroker defined, R.R.S. 1943, 69-201.

 

Sec. 13-71.  Permit and bond.

 

(a)   It shall be unlawful for any person to engage in business as a pawnbroker within the city, without first having obtained a permit for each such business.  The application for such permit shall contain the following information:

 

(1)       The name and address of the owner and the manager of the business;

 

(2)       If the applicant is a corporation, a copy of the articles of incorporation and the names of its officers and shareholders;

 

(3)       The exact location where the business is to be conducted; and

 

(4)       The exact location where any goods, wares, and merchandise may be stored or kept if other than the business location.

 

(b)   Such application shall be filed with the city clerk who upon the payment of a permit fee as set forth in Section 2-5 of this Code and the furnishing of a five thousand dollar ($5,000.00) surety bond conditioned for the faithful performance by the principal of each and all of the trusts imposed by law or by usage attached to pawnbrokers shall refer such application to the governing body, and upon approval by the governing body shall issue such permit.  Provided, however, that no permit shall be issued to any applicant who has been convicted of a felony or, if the applicant is a corporation, no permit shall be issued when any officer or shareholder has been convicted of a felony.  All permits shall expire on December 31 of each calendar year.  A person desiring the issuance or renewal of such a permit shall pay a fee as set forth in Section 2-5 of this Code to the city.

 

Source:  Ord. No. 3243, § 6, 9-4-84; Ord. No. 5135, § 9, 9-7-10

 

Sec. 13-72.  Records and place of business.

 

(a)   All persons who shall be engaged in the business of pawn­brokers, shall keep a ledger and complete a card following the format furnished by the city which shall be legibly written in ink, at the time of any loan or purchase, the following information:

 

(1)       The date of the loan or purchase;

 

(2)       The name of the person from whom the property is pur­chased or received, his signature, date of birth, and driver's license number or other means of identification;

 

(3)       A full and accurate description of the property purchased or received, including any manufacturer's identifying in­signia or serial number;

 

(4)       The time when any loan becomes due;

 

(5)       The amount of purchase money, or the amount lent and any loan charges, for each item; and

 

(6)       The identification and signature of the clerk or agent for the business who handled the transaction.

 

(b)   Entries shall not in any manner be erased, obliterated, or defaced.  The person receiving a loan or selling property shall receive at no charge a plain written or printed ticket for the loan, or a plain written or printed receipt for the articles sold, contain­ing a copy of the entries required by this section.

 

(c)   Every pawnbroker, or employee of a pawnbroker, shall admit to the pawnbroker's premises at any reasonable time during normal business hours any law enforcement officer for the pur­pose of examining any property and records on the premises, and shall allow such officer to place restriction on the disposition of any property for which a reasonable belief exists that it has been stolen.  Any person claiming an ownership interest in property received by a pawnbroker for which a reasonable belief exists that such property has been stolen may recover such property as provided by state statute. 

 

Source:  Ord. No. 3243, § 6, 9-4-84

 

Sec. 13-73.  Reports.

 

It shall be the duty of every such pawnbroker, every day except Sunday before the hour of twelve o'clock noon, to deliver to the police department of the city a legible and correct copy of each card or ledger entry required by section 13-72 for the transac­tions of the previous day.  Transactions occurring on Saturday or Sunday shall be reported on the following Monday.  No card shall be required for goods purchased from manufacturers or wholesale dealers having an established place of business, of goods pur­chased at open sale from any bankrupt stock or from any other person doing business and having an established place of busi­ness in the city, but such goods must be accompanied by a bill of sale or other evidence of open and legitimate purchase, and must be shown to any law enforcement officer when demanded.  Dealers in scrap metals, except gold, silver, copper and brass shall not be included in the provisions of this section.

 

Source:  Ord. No. 3243, § 6, 9-4-84

 

Sec. 13-74.  Storage and resale of property.

 

(a)   No personal property received or purchased by any pawn­broker shall be sold or permitted to be taken from the place of business of such person for fourteen (14) days or, in the case of secondhand jewelry, for five (5) days, after the copy of the card or ledger entry required to be delivered to the police department shall have been delivered as required by section 13-73.  Second­hand jewelry shall not be destroyed, damaged, or in any manner defaced for a period of seventy-two (72) hours after the time of its purchase or receipt.  For purposes of this section, jewelry shall mean any ornament which is intended to be worn on or about the body and which is made in whole or in part of any precious metal, including gold, silver, platinum or pewter.

 

(b)   All property accepted as collateral security or purchased by a pawnbroker shall be kept segregated from all other property in a separate area for a period of forty-eight (48) hours after its receipt or purchase, except that valuable articles may be kept in a safe with other property if grouped according to the day of purchase or receipt.  Notwithstanding the provisions of this sec­tion, a pawnbroker may return any property to the person pawn­ing the same after the expiration of such forty-eight-hour period or when permitted by the chief of police or other authorized law enforcement officer. 

 

Source:  Ord. No. 3243, § 6, 9-4-84

 

Sec. 13-75.  Violations.

 

Every broker, agent or dealer mentioned in this article who shall violate any of the provisions hereof, shall be guilty of an offense.  In addition, any permit issued pursuant to section 13-71 may be revoked or suspended if the holder of such permit violates any provision of state law classified as a misdemeanor or felony.  Before any permit may be revoked or suspended the holder shall be given notice of the date and time for a hearing before the governing body which issued the permit to show cause why the permit should not be revoked or suspended.  Such hearing shall be held within seven (7) days of the date of the notice. 

 

Source:  Ord. No. 3243, § 6, 9-4-84

 

Sec. 13-76.  Sale of goods.

 

It shall be unlawful for any pawnbroker to sell any goods purchased or received as described in section 13-70 during the period of four (4) months from the date of purchasing or receiving such goods. 

 

Source:  Ord. No. 3243, § 6, 9-4-84

 

Sec. 13-77.  Restrictions.

 

(a)   All persons who shall engage in the business of pawnbroker shall, in addition to the requirements of section 13-72, obtain and keep a single legible fingerprint of each person pawning, pledg­ing, mortgaging or selling any goods or articles.  The fingerprint shall be taken from the right index finger or, if the right index finger is missing, from the left index finger.  Each pawnbroker shall display a notice to customers, in a prominent location, stating that such pawnbroker is required by state law and city ordinance to fingerprint every person pawning or selling an item.

 

(b)   No pawnbroker shall accept as collateral security or pur­chase any property:

 

(1)        From any person who is under eighteen (18) years of age, or who appears to be under the influence of alcohol, nar­cotic drug, stimulant or depressant, or appears to be men­tally incompetent; or

 

(2)        On which the serial numbers or other identifying insignia have been destroyed, removed, altered, covered or defaced. 

 

Source:  Ord. No. 3243, § 6, 9-4-84

 

ARTICLE VII.  TELEPHONE COMPANIES*

*Note--See editor’s note to Art. VI.

Cross references-Refusing to yield a party line, § 14-307; intimidation by phone call, § 14-308; interference with a public service company, § 14-309.

DIVISION 1. GENERALLY

DIVISION 2. OCCUPATION TAX

Sec. 13-80.  Required.

 

Commencing January 1, 2017, there is hereby levied upon every person, firm, partnership, corporation, or association engaged in the business of offering or providing telecommunication services to the public for hire in the City of Norfolk a three (3%) occupation tax on the gross receipts from telecommunications services as defined in Nebraska Sales and Use Tax regulation 1-065 which are subject to City of Norfolk sales tax per the sourcing rule in Nebraska Local Sales and Use Tax regulation 9-001.04 as such regulations are changed from time to time.

 

Source:  Code 1962, § 5-21-1; Ord. No. 4897, § 1, 9-8-06; Ord. No. 5439, § 1, 11-21-16

 

Sec. 13-81.  Payments, penalties for late payment, etc.

 

(a)   The payment of the occupation tax herein levied shall be in quarterly payments, using the calendar quarter year as a basis for determining and computing the amount of tax payable.  Each quarterly payment shall be due forty-five (45) days after the termination of each calendar quarter year.  All payments of tax made after the due date shall draw interest at the rate of one percent per month and, after payment has been in default for six (6) months, a penalty of fourteen (14) per cent shall be added thereto in addition to the interest charges and shall be paid by the company or companies subject to this occupation tax.  Each succeeding payment may make such adjustment to be shown on the report hereinafter provided for as may be necessary for uncollectibles or any other matters which may have resulted in either an excess or deficiency in the amount of tax paid in any previous quarter.

 

(b)   The occupation tax herein levied shall be paid the treasurer at the time provided in this division and he or she shall issue and deliver his or her receipt therefor on the payment thereon, and the amount of payment shall be credited by the treasurer to the general fund or as otherwise directed by resolution.

 

Source:  Code 1962, § § 5-21-2, 5-21-5; Ord. No. 4926, § 1, 2-5-07

 

Sec. 13-82.  Reports and inspections.

 

(a)   All telephone companies at the same time as they make such quarterly payments of tax herein required shall file with the clerk a full, complete and detailed statement of the gross receipts subject to the occupation tax provided for in this divi­sion.  Said statement shall be duly verified and sworn to by the manager in charge of the business of the particular company in the city or by a higher managerial employee of such company, and the city shall have the right at any time to inspect through its officers, agents or representatives the books and records of such company for the purpose of verifying such reports.

 

(b)   If the telephone company shall refuse, fail or neglect to furnish or file such reports at the time required by this division or shall fail or refuse to permit the city to inspect the books and records of such company for the purpose of verifying such report or reports, then the occupation tax for the preceding quarter shall be twenty-five thousand dollars ($25,000.00); said amount shall be paid within forty-five (45) days following the end of the calendar quarter as required by herein, and said amount shall draw fourteen (14) per cent interest and penalties as further provided herein.

 

Source:  Code 1962, § 5-21-3

 

Sec. 13-83.  Lawsuits to collect.

 

In case any such company or companies shall fail to make payment of the occupation tax as herein provided at the times herein specified, the city shall have the right and may sue any such company or companies in any court of competent jurisdiction for the amount of the occupation tax due and payable under the terms and provi­sions of this division and may recover judgment against any such company or companies for the amount so due, together with fourteen (14) per cent interest penalties, and may have execution thereon.

 

Source:  Code 1962, § 5-21-4

 

ARTICLE VIII.  ITINERANT MERCHANTS, PEDDLERS, SOLICITORS, STREET VENDORS AND TEMPORARY MERCHANTS*

*Editor's note-Ord. No. 3331, § § 1--9, adopted July 16, 1985, has been set out herein as §§ 13-111--13‑119 at the discretion of the editor.  See the editor's note to Art.  I in reference to its repeal by the aforesaid ordinance.

 

Sec. 13-111.  Definitions.

 

For the purposes of this article, the following definitions shall apply:

 

(a)   Itinerant merchant shall mean every person, firm, partner­ship, corporation, association, receiver or trustee buying for the purpose of sale in any form or selling or offering to buy for the purpose of sale in any form or to sell in the city, at wholesale or retail, any goods, wares, merchandise or chattels of any descrip­tion and transporting the same by the use, upon any public highway, of a motor truck or trucks or any other vehicle or vehicles except as otherwise provided in this section.  The term does not include those engaged in the business of transporting property by motor vehicle for hire or operating vehicles in such business as agents, employees, lessees or contractors, and who do not act on the cargo transported, or interest therein, and who do not act for any party in the acquiring, purchase, sale or disposi­tion of the cargo transported.  In addition, itinerant merchant shall not mean or include, and there shall be exempt from the provisions of this section:

 

(1)       Those using such vehicles for the transportation of grain, fruits, vegetables, hay, livestock or other agricultural prod­ucts by them;

 

(2)       Those transporting products or property when such trans­portation is incident to a business conducted by them at an established place of business operated by them at an estab­lished place of business operated by them either within or without the city, and when the property is being trans­ported to and from the established place of business, and when the entire course of such transportation extends not more than two hundred fifty (250) miles from the established place of business; provided, that when the entire course of the transportation is for the purpose of delivery of the property subsequent to sale thereof, the two hundred fifty (250) miles restriction shall not apply;

 

(3)       Those using such vehicles for the transportation, sale and delivery at retail of any particular group of products hav­ing a common trademark, trade name or brand, as agents, employees, or retail dealers of the manufacturers or whole­sale distributors of such products through whom they mar­ket the same;

 

(4)       Those having the purpose of hauling products for the use of the owner of such vehicle, or for the use of others where no charge is made for the use of such vehicle, or those using vehicles in the exchange of work;

 

(5)       Those using such vehicles exclusively within the limits of the city and who are bona fide residents hereof;

 

(6)       Those using such vehicles for the transportation of live­stock bought or sold at any livestock market; and

 

(7)       The provisions of this section shall not apply to grain.

 

(b)   Peddler shall mean a person, or persons, traveling from place to place selling and delivering at the same time.

 

(c)   Person or persons shall mean any natural person and any firm, proprietorship, partnership or corporation.

 

(d)   Solicitor shall mean a person, or persons, who travel from place to place not carrying his goods with him, but taking orders for future delivery to the general public.

 

(e)   Street vendor shall mean a person, or persons, who travel from street to street upon public or private property, carrying, conveying or transporting such items as food, beverages, flowers and balloons, offering and exposing the same for sale by hand or from a mobile-type device such as a push cart.

 

(f)    Temporary merchant shall mean a person, or persons, who occupies a temporary, fixed location, and sells and delivers goods from stock on hand, and/or provides services, and does business in much the same manner as a permanent business.

 

Source:  Ord. No. 3331, § 1, 7-16-85; Ord. No. 5158, § 1, 4-18-11

 

Sec. 13-112.  Licenses and permits.

 

(a)   No itinerant merchant shall engage in business as such without:

 

(1)       Obtaining a sales tax permit as required by Section 77-2705, R.R.S. 1943, as amended; and

 

(2)       Paying any occupation tax or permit fee as set forth in Section 2-5 of this Code.  In addition, every person, partnership, firm or cor­poration desiring to engage in business as an itinerant merchant shall, before engaging in such business, make an application to the city clerk for an itinerant merchant's permit.  Such application shall be in the form pre­scribed by the city.  All applications shall set forth the name and address of the applicant, his or her post office or residence address, an exact description of the ve­hicle or vehicles to be used in the conduct of his or her business, and such other information as may be prescribed by the city.

 

(b)   All peddlers, solicitors, temporary merchants, and street vendors shall obtain a permit from the city clerk prior to engaging in any activities defined in section 13-111 of this article.

 

(c)    Each permit issued to a temporary merchant or street vendor shall be valid for no more than two (2) locations.

 

(d)   The permit and fees provided for under section 13-113 of this article shall not pertain to those persons whose entire profits from such activity are contributed to a charitable, religious or education organization, association or institution and/or those persons who conduct business in conjunction with a community festival or event. 

 

Source:  Ord. No. 3331, § 2, 7-16-85; Ord. No. 5189, § 1, 11-21-11; Ord. No. 5455, § 1, 2-21-17

 

Sec. 13-113.  Occupation taxes and permit fees.

 

Itinerant merchants, peddlers, solicitors, street vendors and temporary merchants shall pay the following occupation taxes or permit fees as follows:

 

(a)   Itinerant merchant.  Each itinerant merchant shall pay a permit fee as set forth in Section 2-5 of this Code along with an occupation tax for each vehicle to be used in his or her business, in the amount of fifty dollars ($50.00) per vehicle, per calendar year to the city clerk.  All fees and occupation taxes are nonrefundable.

 

(b)  Peddler or solicitor.  Each peddler or solicitor shall pay a permit fee as set forth in Section 2-5 of this Code.  In addition, each peddler or solicitor shall pay a permit fee as set forth in Section 2-5 of this Code per vehicle used by him or her.  Any person who shall transport, sell or deliver at retail of any particular group of products having a common trademark, trade name, or brand, as agents, employees or retail dealers of the manufacturers or wholesale distributors of such products through whom they market the same shall be exempt hereunder.

 

(c)   Street vendor or temporary merchant.  Each street vendor or temporary merchant shall pay a permit fee as set forth in Section 2-5 of this Code. This fee is nonrefundable.  In addition, each street vendor or temporary merchant shall pay a permit fee as set forth in Section 2-5 of this Code per vehicle used by him or her. 

 

Source:  Ord. No. 3331, § 3, 7-16-85; Ord. No. 5135, § 9, 9-7-10; Ord. No. 5189, § 1, 11-21-11; Ord. No. 5253, § 1, 5-6-13; Ord. No. 5455, § 2, 2-21-17

 

Sec. 13-114.  General requirements.

 

Itinerant merchants, peddlers, solicitors, street vendors and temporary merchants shall meet the following standards and conditions:

 

(1)       Provide personal identification including date of birth, driver's license number and/or other appropriate identification, to­gether with a recent photograph of the individual, or indi­viduals, who will be selling within the community.

 

(2)       Supply copies of any state or county licenses which are also required to operate or conduct activities proposed by the applicant.

 

(3)       Specify a local agent to receive complaints against the business.

 

(4)       List the names and identification of all individuals within the area who will be working for the applicant.

 

(5)       Provide a description of the merchandise or services offered for sale. 

 

Source:  Ord. No. 3331, § 4, 7-16-85; Ord. No. 5158, § 2, 4-18-11; Ord. No. 5189, § 1, 11-21-11

 

Sec. 13-115.  Special standards for itinerant merchants, peddlers and solicitors.

 

(a)  An itinerant merchant, peddler and solicitor shall limit their hours of operation to only those hours between 8:00 a.m. and 8:00 p.m.

 

(b)  No person, while engaged in the business of itinerant mer­chant, peddler or solicitor, shall enter uninvited into a private building, structure or room.

 

(c)  An itinerant merchant, peddler or solicitor shall perform the following requirements when soliciting door to door:

 

(1)       Within thirty (30) seconds after beginning the conversa­tion, the itinerant merchant, peddler or solicitor shall:

 

a.        Provide identification of both the person and whom the person represents;

 

b.        Explain the purpose of the person's call;

 

c.        Provide a description in commonly understood terms of the goods or services offered for sale; and

 

d.         Inquire whether the person being solicited is inter­ested in listening to a sales presentation and immedi­ately discontinue the solicitation if the person being solicited gives a negative response.

 

(2)       During the course of the solicitation, state the total cost of the goods or services offered for sale and the number, timing and amount of installment payments if payment on an installment basis is available to the person being solic­ited.

 

(3)        Carry on their person at all times while engaging in the activities defined in Section 13-111 of this article the permit issued to them as an itinerant merchant, peddler, or solicitor.

 

Source:  Ord. No. 3331, § 5, 7-16-85; Ord. No. 4422, § 1, 7-6-99;Ord. No. 5455, § 3, 2-21-17

 

Sec. 13-116.  Special standards for temporary merchants and street vendors.

 

A temporary merchant or street vendor shall adhere to the following additional standards and conditions:

 

(1)       If located on private property, the temporary merchant shall obtain a signed, written consent from the owner of the property which authorizes the temporary merchant to conduct business from the property.  A copy of said written consent shall be filed with the city clerk.

 

(2)       The temporary merchant or street vender shall obtain a written authorization from the police division to allow any sales of merchandise or services from public property.

 

(3)       The activities of the temporary merchant shall not impair or impede the proper flow of traffic on public or private property.

 

(4)       The activities of the temporary merchant shall not unduly restrict parking spaces on public or private property.  Any parking spaces which are customarily in use during normal working hours shall not be used as a location for a temporary merchant or street vendor.

 

(5)       Permits for temporary merchants and street vendors shall be displayed by the temporary merchant or street vendor in a visible location and they are required to show their permit to any customer or police officer upon request.

 

(6)       Temporary merchants shall comply with all zoning set­back requirements, and no sign, storage, display or sales of goods or services may take place in an area inside the required setback (front yard) area except as otherwise allowed in this subsection.  When adjacent real property closest to that side of the property on which a temporary merchant is conducting lawful business activities has a building that is located closer to the street than what is allowed by the setbacks applicable to the property on which the temporary merchant is located, then the temporary merchant shall be allowed to place its sign, storage, display or sales of goods or services in a location that is up to or even with the plane of the front of the building on the adjacent real property closest to that side of the property on which the temporary merchant is located.

 

(7)       Temporary merchants and street vendors shall comply with all vision clearance requirements set forth in Chapter 27, Article IX of this Code.

 

(8)       Signs for street vendors shall be of professional appear­ance and mounted upon the mobile-type device or push cart used for sales.  No accessory signs shall be permitted.

 

(9)       Temporary merchants are limited to the use of no more than two (2) signs which shall have a professional appearance and comply with the provisions of Chapter 27, Article XI of this Code.

 

(10)      Temporary merchants shall be located only on property that is currently being used for commercial or industrial purposes.

 

(11)      Temporary merchants shall not be located on property that is either zoned as residential or which property's primary use is residential.

 

(12)      Temporary merchants shall not be located on any area that is not hard-surfaced with concrete or asphaltic concrete as approved by the city engineer.

 

(13)      Temporary merchants shall comply with off-street parking space requirements set forth in Section 27-347 of this Code.

 

Source:  Ord. No. 3331, § 6, 7-16-85; Ord. No. 5158, § 3, 4-18-11; Ord. No. 5455, § 4, 2-21-17

 

Sec. 13-117.  Permit approval, authority and appeals.

 

The city clerk shall have the authority to approve or deny any application for a permit to be issued under this article.  Any application for a permit which is denied may be appealed to the city council.  The city council shall affirm or revoke the denial, or issue the permit on the basis of the evidence presented at the hearing.  All appeals must be made by submitting a formal request of an appeal to the city clerk, together with a nonrefundable processing fee as set forth in Section 2-5 of this Code.

 

A permit shall not be issued to any applicant where any of the following has been determined during the initial investigation and review of the application:

 

(1)       If the applicant has been convicted of a crime, the nature of which indicates a lack of honesty and reliability which would lead one to believe that future violations of the law could occur.  An example of such crimes would be theft, burglary, robbery, fraud, deceit or any other crime of violence.

 

(2)       Any previous history relating to the manner in which the applicant made door-to-door sales which resulted in a violation of the law.

 

(3)       Providing false information on the application form.

 

(4)       A failure to comply with any condition, standard or requirement of this article or any city, county or state regulation. 

 

Source:  Ord. No. 3331, § 7, 7-16-85; Ord. No. 5135, § 9, 9-7-10; Ord. No. 5189, § 1, 11-21-11

 

Sec. 13-118.  Parking for certain purposes prohibited.

 

(a)   It shall be unlawful for any person, who is not required to have a permit or pay an occupation tax under this article, to stand or display any animal, goods or merchandise whatsoever, upon the street or sidewalk, or terrace any vehicle displayed for sale without the prior consent of the mayor and city council; provided, however, that duly organized trade associations may apply for and receive consent for all members of their association.

 

(b)   It shall be unlawful for an owner or occupant or a place of business to allow any wagon, cart, carriage or other vehicle, whether left for safekeeping, repair, refueling or otherwise, to be or remain standing on the sidewalk, street or alley adjoining or in front of any such place of business.

 

Source:  Ord. No. 3331, § 8, 7-16-85

 

Sec. 13-119.  Penalty.

 

Any person identified within section 13-111 of this article who engages in activities within the city limits without having first paid the occupation tax or applied for and obtained the permit herein provided for or who violates any other of the provisions of this article shall be guilty of an offense and, upon conviction thereof, be punished by a payment of a fine of not less than fifty dollars ($50.00) for each and every offense.  Every day of a continuing violation shall be deemed a separate offense for the purposes of these penalties.

 

Source:  Ord. No. 3331, § 9, 7-16-85; Ord. No. 5189, § 1, 11-21-11

 

ARTICLE IX.  OCCUPATION TAXES FOR CONDUCTING GAMES OF CHANCE AND/OR LOTTERIES AND DISTRIBUTING GAMBLING DEVICES*

*Editor's note-Ord.  No. 3752, §§1-9, adopted Oct. 15, 1990, did not specifi­cally amend the Code and at the discretion of the editor said provisions have been included herein as Art. IX, §§13-141--13-149.

Cross references-Bingo, § 13-31; gambling, § 14-206 et seq.

 

Sec. 13-141.  Definitions.

 

For the purposes of this article the following definitions shall apply:

 

Distributor shall mean any person who engages in the business of selling, leasing, or delivering possession or custody of gambling devices for consideration to a person engaged in the occupation of conducting games of chance and/or lotteries.

 

Gambling device shall mean any and all machines or devices used by a person engaged in the occupation of conducting games of chance and/or lotteries.

 

Games of chance and/or lotteries shall mean those forms of gam­bling authorized by the State of Nebraska pursuant to Article III, Section 24 of the Constitution of the State of Nebraska.

 

Person engaged in the occupation of conducting games of chance and/or lotteries shall mean any person who operates, owns or is the lessee of a place of business where any game of chance and/or lottery activity is conducted, whether or not any other type of business is conducted on the premises; or, any person who either directly controls or manages the games of chance and/or lotteries, or owns any machine or device used to engage in the occupation of games of chance and/or lotteries, but does not sell, lease or deliver possession or custody of such a device to other persons. 

 

Source:  Ord. No. 3752, § 1, 10-15-90

 

Sec. 13-142.  Occupation tax imposed.

 

An occupation tax is hereby imposed on each person engaged in the occupation of conducting games of chance and lottery activi­ties within the City of Norfolk, Nebraska in the amount and manner specified in section 13-143.

 

Source:  Ord. No. 3752, § 2, 10-15-90

 

Sec. 13-143.  Amount of occupation tax for persons engaged in the occupation of conducting games of chance and lotteries.

 

The occupation tax for each person engaging in the occupation of conducting games of chance and lottery activities within the city of Norfolk, Nebraska shall be five (5) per cent of the gross receipts received by said person in each quarter of a calendar year. 

 

Source:  Ord. No. 3752, § 3, 10-15-90

 

Sec. 13-144.  Amount of occupation tax for distributor of gambling devices.

 

The occupation tax for engaging in the occupation of distrib­uting gambling devices within the City of Norfolk, Nebraska shall be five (5) per cent of the gross receipts received by a distributor in each quarter of the calendar year. 

 

Source:  Ord. No. 3752, § 4, 10-15-90

 

Sec. 13-145.  Permit requirement.

 

It shall be unlawful for any person to engage in the occupation of conducting games of chance or lottery activities without first obtaining a permit to do so. 

 

Source:  Ord. No. 3752, § 5, 10-15-90

 

Sec. 13-146.  Permit application.

 

Every person desiring a permit required by the provisions of this article shall make application to the city clerk.  Accompa­nying each application shall be:

 

(1)       A sworn statement by each designated supervising member that such member will be responsible for compliance with the rules and regulations for each occasion of games of chance and/or lotteries which he supervises.

 

(2)       A sworn statement by the member designated as respon­sible for the proper utilization of gross receipts that no commission, fee, rent, seller profits, compensation, reward or recompense shall be paid to any person or organization not sanctioned by the laws of the State of Nebraska and the City of Norfolk, Nebraska; and that all profits shall be spent for a lawful purpose. 

 

Source:  Ord. No. 3752, § 6, 10-15-90

 

Sec. 13-147.  Display of permit.

 

Every permit issued under the provisions of this article shall be conspicuously displayed at the place where the game of chance or lottery activity is conducted at all times during the conduct thereof. 

 

Source:  Ord. No. 3752, § 7, 10-15-90

 

Sec. 13-148.  Permit fee.

 

The permit fee for engaging in the occupation of conducting games of chance and lotteries within the City of Norfolk, Nebraska shall be as set forth in Section 2-5 of this Code for each location wherein such activity is conducted. 

 

Source:  Ord. No. 3752, § 8, 10-15-90; Ord. No. 5135, § 9, 9-7-10

 

Sec. 13-149.  Exemption.

 

Nonprofit organizations that desire to participate in games of chance and/or lotteries, that are in compliance with the Small Lotteries and Raffles Act of the State of Nebraska, are exempt from the provisions of this article. 

 

Source:  Ord. No. 3752, § 9, 10-15-90

 

Sec. 13-150--13-160  Reserved.

ARTICLE X.  LODGING

Sec. 13-161.  Purpose

 

Pursuant to the authority of Nebraska Revised Statute R.R.S. 1943, Section 16-205, the City Council finds, determines and declares that it is appropriate that a tax be imposed on all hotels as herein defined for the purpose of raising revenues. The foregoing determination is made with due consideration of business in the city and the relation of business to the municipal welfare, together with relation thereof to expenditures required by the city, and with consideration of just, proper and equitable distribution of the tax burdens within the city and other properly associated matters.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-162.  Definitions.

As used in this article, the following words and phrases shall have the meanings ascribed to them in this section, except where the context clearly indicates or requires a different meaning:

 

City shall mean the City of Norfolk and the area within the corporate limits of the City of Norfolk.

 

Hotel shall mean any commercial, nonprofit, or state-owned facility where the public may obtain sleeping accommodations for payment. This includes any hotel, motel, tourist hotel, campground (charges for RV pads or tent sites), or inn. "Hotel" does not include: the portion of a health care facility (licensed under the Health Care Facility Licensure Act) which provides rooms, lodging, or sleeping accommodations for a charge; or a facility operated by an approved educational institution used to house students.

 

Person shall mean any natural person, individual, partnership, association, organization or corporation of any kind or character engaging in the business of operating a hotel.

 

Room shall mean any space ordinarily used for sleeping accommodations and for which any occupant has, for consideration, obtained the use or possession, or the right to use or possess, for a period not to exceed thirty (30) contiguous days. The term shall include camping space, trailer space or recreational vehicle space. The term does not include a function room such as a ballroom, banquet room, reception room, or meeting room, provided it is not used as temporary sleeping accommodations, nor for complimentary or other sleeping accommodations for which no consideration is charged or for sleeping accommodations for which the consideration is paid by a person not subject to the sales and use tax imposed by the Nebraska Revenue Act of 1967.

 

Taxpayer shall mean any person engaged in the hotel business herein defined who is required to pay the tax herein imposed.

 

Total consideration charged for occupancy shall mean any and all charges that are subject to the lodging tax under the Nebraska Visitors Development Act, Neb. Rev. Stat. 81-1245 et seq. excluding the city's lodging occupation tax.

 

Source  Ord. No. 5143, § 1, 11-15-10

Sec. 13-163.  Tax Imposed; Collection of Tax.

(a) On or after February 1, 2011, each person engaged in the business of operating a hotel in the city shall pay an occupancy tax in the amount of four percent (4%) of the hotel consideration charged for occupancy per occupied room per night.

 

(b) The tax imposed by this article may be shown as an add-on to the charge for occupancy of the rooms. The hotel operator shall remain responsible for payment of all taxes imposed, whether or not the taxes are actually collected from the guests.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-164.  Return.

Each and every person engaged in the business of operating a hotel within the city for the calendar month beginning February 2011, and for each and every month thereafter, shall prepare and file, on or before the 25th day of the following month on a form prescribed and furnished by the city, a return for the taxable calendar month, and at the same time pay to the city the tax herein imposed. The return shall be verified and sworn to by an owner or officer of the business. The return shall be considered filed on time if mailed with payment enclosed in an envelope properly addressed to the City Finance Division, postage prepaid and postmarked before midnight of the 25th of the appropriate month. If the city offers online filing, the return will also be considered filed on time if filed online and electronic payment submitted to the City of Norfolk by midnight of the 25th of the appropriate month.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-165.  Tax Cumulative.

(a) The levy of tax under this article is in addition to all other fees, taxes, excises and licenses levied and imposed under any contract or any other provisions of this Code or ordinances of the city, in addition to any fee, tax, excise or license imposed by the state.

 

(b) Payment of the tax imposed by this article shall not relieve the person paying the same from payment of any other tax now or hereafter imposed by contract or ordinance or by this Code, including those imposed for any business or occupation he or she may carry on, unless so provided therein. The occupational taxes imposed by this article shall be cumulative except where otherwise specifically provided.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-166.  Use of Revenue.

The four percent (4%) occupation tax imposed by this article, less any administrative expenses which shall not exceed two percent (2%) of the tax collected, shall be used to fund debt service on general obligation bonds authorized at the November 2, 2010 general election or related refunding bonds.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-167.  Failure to File Return; Delinquency; Assessment by City Finance Officer.

(a) If any person neglects or refuses to file a return or make payment of the taxes as required by this article, the City Finance Officer shall make an estimate, based upon such information as may be reasonably available, of the amount of taxes due for the period or periods for which the taxpayer is delinquent, and upon the basis of such estimated amount, compute and assess in addition thereto a penalty equal to two percent (2%) per month or fraction thereof from date when due, together with interest on such delinquent taxes, at the rate of one percent (1 %) per month or fraction thereof from the date when due.

 

(b) The City Finance Officer shall give the delinquent taxpayer written notice of such estimated taxes, penalty, and interest, which notice must be served personally or by certified mail.

 

(c) Such estimate shall thereupon become an assessment, and such assessment shall be final and due and payable from the taxpayer to the City Finance Officer ten (10) days from the date of service of the notice or the date of mailing by certified mail; however, within such ten (10) day period the delinquent taxpayer may petition the City Finance Officer for a revision or modification of such assessment and shall, within such ten-day period, furnish the City Finance Officer the facts and correct figures showing the correct amount of such taxes.

 

(d) Such petition shall be in writing, and the facts and figures submitted shall be submitted in writing and shall be given under oath of the taxpayer.

 

(e) The City Finance Officer may then modify such assessment in accordance with the facts which he or she deems correct. Such adjusted assessment shall be made in writing, and notice thereof shall be mailed to the taxpayer within ten (10) days; and all such decisions shall become final upon the expiration of thirty (30) days from the date of service, unless proceedings are commenced within that time for appeal in the District Court.

 

(f) It shall be an offense for any person to fail to file a return or make payment of the taxes as required by this article.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-168.  Administration of Article; Miscellaneous Provisions.

(a) The administration of the provisions of this article are hereby vested in the City Finance Officer, or his or her designee, who shall prescribe forms in conformity with this article for the making of returns, for the ascertainment, assessment and collection of the tax imposed hereunder, and for the proper administration and enforcement hereof.

 

(b) All notices required to be given to the taxpayer under the provisions of this article shall be in writing. Notices shall be mailed by registered or certified mail, postage prepaid, return receipt requested, to the taxpayer at his or her last known address.

 

(c) It shall be the duty of every taxpayer to keep and preserve suitable records and other books or accounts as may be necessary to determine the amount of tax for which he/she is liable hereunder.

 

(1 )      Records of the gross revenue by which this tax is measured shall be kept separate and apart from the records of other sales or receipts in order to facilitate the examination of books and records as necessary for the collection of this tax.

 

(2)       It shall be the duty of every such taxpayer to keep and preserve for a period of three (3) years all such books, invoices and other records, which shall be open for examination at any time by the City Finance Officer or his or her duly designated persons. If such taxpayer keeps or maintains the books, invoices, accounts or other records, or any part thereof, outside of the state, upon demand of the City Finance Officer such taxpayer shall make the same available at a suitable place within the city, to be designated by the City Finance Officer, for examination, inspection and audit by the City Finance Officer or his or her duly authorized persons. The taxpayer shall reimburse the city for the reasonable costs of the examination, inspection and audit if the City Finance Officer determines that the taxpayer paid ninety percent or less of the tax owing for the period of the examination.

 

(3)       The City Finance Officer, in his or her discretion, may make, permit or cause to be made the examination, inspection or audit of books, invoices, accounts or other records so kept or maintained by such taxpayer outside of the state at the place where same are kept or maintained or at any place outside the state where the same may be made available, provided such taxpayer shall have entered into a binding agreement with the city to reimburse it for all costs and expenses incurred by it in order to have such examination, inspection or audit made in such place.

 

(d) For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax due from any taxpayer, the City Finance Officer or his or her duly authorized persons, may conduct investigations concerning any matters covered by this article; and may examine any relevant books, papers, records or memoranda of any such taxpayer.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-169.  Recovery of Unpaid Tax by Action at Law.

(a) The City Finance Officer may also treat any such taxes, penalties or interest due and unpaid as a debt due the city.

 

(b) In case of failure to pay the taxes, or any portion thereof, or any penalty or interest thereon when due, the city may recover at law the amount of such taxes, penalties and interest in any court of Madison County, Nebraska or of the county wherein the taxpayer resides or has its principal place of business having jurisdiction of the amounts sought to be collected.

 

(c) The return of the taxpayer or the assessment made by the City Finance Officer, as herein provided, shall be prima facie proof of the amount due.

 

(d) The City Attorney may commence an action for the recovery of taxes due under this article and this remedy shall be in addition to all other existing remedies, or remedies provided in this article.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-170.  Suspension or Revocation of Licenses for Failure to Pay Tax; Hearing.

If the Mayor or the Mayor's designee, after holding a hearing, shall find that any person has willfully evaded payment or collection and remittance of the tax imposed by this article, such official may suspend or revoke any city license, permit or other approval held by such tax evader. Said person shall have an opportunity to be heard at such hearing to be held not less than seven (7) days after notice is given of the time and place of the hearing to be held, addressed to the last known place of business of such person. Pending the notice, hearing and finding, any license, permit or other approval issued by the city to the person may be temporarily suspended. No suspension or revocation hereunder shall release or discharge the person from civil liability for the payment or collection and remittance of the tax, nor from prosecution for such offense.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-171.  Sunset Provision.

The occupation tax imposed by this article shall terminate and collection of the tax shall cease upon the city paying all general obligation bonds authorized at the November 2, 2010 general election or related refunding bonds.

 

Source:  Ord. No. 5143, § 1, 11-15-10

Sec. 13-172--13-180.  Reserved.

ARTICLE XI.  FOOD AND BEVERAGE

Sec. 13-181.  Purpose.

Pursuant to the authority of Nebraska Revised Statute R.R.S. 1943, Section 16-205, the City Council finds, determines and declares that it is appropriate that a tax be imposed on all restaurants and alcohol sales establishments, as herein defined, for the purpose of raising revenues. The foregoing determination is made with due consideration of business in the city and the relation of business to the municipal welfare, together with relation thereof to expenditures required by the city, and with consideration of just, proper and equitable distribution of the tax burdens within the city and other properly associated matters.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-182.  Definitions.

As used in this article, the following words and phrases shall have the meanings ascribed to them in this section, except where the context clearly indicates or requires a different meaning:

 

City shall mean the City of Norfolk and the area within the corporate limits of the City of Norfolk.

 

Alcohol sales establishment shall mean any establishment offering the public food and/or beverages, alcoholic or non-alcoholic, for consumption on the premises or off the premises of the establishment. Such establishments include, but are not limited to, bars, taverns, night clubs, dance halls, restaurants, liquor stores, convenience stores, grocery stores, race tracks, and arenas.

 

Food shall include all edible refreshment or nourishment, whether solid, semi-solid, liquid or otherwise.

 

Person shall mean any natural person, individual, partnership, association, organization or corporation of any kind or character engaging in the business of operating a restaurant or alcohol sales establishment.

 

Restaurant shall mean any place that is kept, used, maintained, advertised, or held out to the public as a place where food is prepared and sold for immediate consumption on the premises. It shall include the sales of food in a restaurant with facilities for consumption on the premises even if the food and beverages are not actually consumed on the premises, including the receipts from "take out," "drive through," or "to go" food, and receipts from the sale of food and beverages from a vending machine, or as a concession at a race track, arena, carnival, or similar event. Restaurant includes, but is not limited to, cafes, grills, bistros, delicatessens, coffee shops, bakeries, lunch counters, sandwich stands, temporary stands, grocery stores, convenience stores, and supermarkets. The term includes a space or area within a hotel, motel, bed and breakfast, boarding house, hospital, office building, or reception hall where food is sold or consumed if a separate charge is made for such food.

 

Taxpayer shall mean any person engaged in the business of operating a restaurant or alcohol sales establishment as herein defined who is required to pay the tax herein imposed.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-183.  Tax Imposed; Collection of Tax.

(a) On or after February 1, 2011 and in each calendar month thereafter there is hereby imposed a restaurant and alcohol sales establishment occupational tax upon each and every person operating a restaurant or alcohol sales establishment within the city for any period of time during a calendar month. The amount of such tax shall be two percent (2%) of all gross receipts for each calendar month derived from the restaurant or alcohol sales establishment subject to this tax. Such tax shall be imposed on the gross receipts resulting from the sales of food within the city which are subject to the sales and use tax imposed by Chapter 2, Article III, Sec. 2-34 of the City of Norfolk Municipal Code.

 

(b) The person engaged in operating a restaurant or alcohol sales establishment may itemize the tax levied on a bill, receipt, or other invoice to the purchaser, but each person engaged in such business shall remain liable for the tax imposed by this article.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-184.  Return.

(a) Each and every person engaged in the business of operating a restaurant or alcohol sales establishment within the city for the calendar month beginning February 2011, and for each and every month thereafter, shall prepare and file, on or before the 25th day of the following month on a form prescribed and furnished by the city, a return for the taxable calendar month, and at the same time pay to the city the tax herein imposed. The return shall be verified and sworn to by an owner or officer of the business. The return shall be considered filed on time if mailed with payment enclosed in an envelope properly addressed to the City Finance Division, postage prepaid and postmarked before midnight of the 25th of the appropriate month. If the city offers online filing, the return will also be considered filed on time if filed online and electronic payment submitted to the City of Norfolk by midnight of the 25th of the appropriate month.

 

(b) The City Finance Officer may, by regulation, specify a uniform class of taxpayer that may make reports and remittances quarterly in lieu of monthly taking into consideration the amount of tax due. In addition, a person subject to the tax imposed herein may, upon written application to and with the written consent of the City Finance Officer, make reports and remittances on a quarterly basis in lieu of monthly. Such quarterly reports shall be due on the 25th day of April, July, October, and January of each year and shall report the gross receipts and the amount due for the three (3) months immediately preceding the months in which the reports and remittances are required.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-185.  Tax Cumulative.

(a) The levy under this article is in addition to all other fees, taxes, excises and licenses levied and imposed under any contract or any other provisions of this Code or ordinances of the city, in addition to any fee, tax, excise or license imposed by the state.

 

(b) Payment of the tax imposed by this article shall not relieve the person paying the same from payment of any other tax now or hereafter imposed by contract or ordinance or by this Code, including those imposed for any business or occupation he or she may carry on, unless so provided therein. The occupational taxes imposed by this article shall be cumulative except where otherwise specifically provided.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-186.  Use of Revenue.

The two percent (2%) occupation tax imposed by this article, less any administrative expenses which shall not exceed two percent (2%) of the tax collected, shall be used to fund debt service on general obligation bonds authorized at the November 2, 2010 general election or related refunding bonds.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-187.  Failure to File Return; Delinquency; Assessment by City Finance Officer.

(a) If any person neglects or refuses to file a return or make payment of the taxes as required by this article, the City Finance Officer shall make an estimate, based upon such information as may be reasonably available, of the amount of taxes due for the period or periods for which the taxpayer is delinquent, and upon the basis of such estimated amount, compute and assess in addition thereto a penalty equal to two percent (2%) per month or fraction thereof from date when due, together with interest on such delinquent taxes, at the rate of one percent (1 %) per month or fraction thereof from the date when due.

 

(b) The City Finance Officer shall give the delinquent taxpayer written notice of such estimated taxes, penalty, and interest, which notice must be served personally or by certified mail.

 

(c) Such estimate shall thereupon become an assessment, and such assessment shall be final and due and payable from the taxpayer to the City Finance Officer ten (10) days from the date of service of the notice or the date of mailing by certified mail; however, within such ten (10) day period the delinquent taxpayer may petition the City Finance Officer for a revision or modification of such assessment and shall, within such ten-day period, furnish the City Finance Officer the facts and correct figures showing the correct amount of such taxes.

 

(d) Such petition shall be in writing, and the facts and figures submitted shall be submitted in writing and shall be given under oath of the taxpayer.

 

(e) The City Finance Officer may then modify such assessment in accordance with the facts which he or she deems correct. Such adjusted assessment shall be made in writing, and notice thereof shall be mailed to the taxpayer within ten (10) days; and all such decisions shall become final upon the expiration of thirty (30) days from the date of service, unless proceedings are commenced within that time for appeal in the District Court.

 

(f) It shall be an offense for any person to fail to file a return or make payment of the taxes as required by this article.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-188.  Administration of Article; Miscellaneous Provisions.

(a) The administration of the provisions of this article are hereby vested in the City Finance Officer, or his or her designee, who shall prescribe forms in conformity with this article for the making of returns, for the ascertainment, assessment and collection of the tax imposed hereunder, and for the proper administration and enforcement hereof.

 

(b) All notices required to be given to the taxpayer under the provisions of this article shall be in writing. Notices shall be mailed by registered or certified mail, postage prepaid, return receipt requested, to the taxpayer at his or her last known address.

 

(c) It shall be the duty of every taxpayer to keep and preserve suitable records and other books or accounts as may be necessary to determine the amount of tax for which the taxpayer is liable hereunder.

 

 (1)      Records of the gross revenue by which this tax is measured shall be kept separate and apart from the records of other sales or receipts in order to facilitate the examination of books and records as necessary for the collection of this tax.

 

(2)       It shall be the duty of every such taxpayer to keep and preserve for a period of three (3) years all such books, invoices and other records, which shall be open for examination at any time by the City Finance Officer or his or her duly designated persons. If such taxpayer keeps or maintains the books, invoices, accounts or other records, or any part thereof, outside of the state, upon demand of the City Finance Officer such taxpayer shall make the same available at a suitable place within the city, to be designated by the City Finance Officer, for examination, inspection and audit by the City Finance Officer or his or her duly authorized persons. The taxpayer shall reimburse the city for the reasonable costs of the examination, inspection and audit if the City Finance Officer determines that the taxpayer paid ninety percent or less of the tax owing for the period of the examination.

 

(3)       The City Finance Officer, in his or her discretion, may make, permit or cause to be made the examination, inspection or audit of books, invoices, accounts or other records so kept or maintained by such taxpayer outside of the state at the place where same are kept or maintained or at any place outside the state where the same may be made available, provided such taxpayer shall have entered into a binding agreement with the city to reimburse it for all costs and expenses incurred by it in order to have such examination, inspection or audit made in such place.

 

(d) For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax due from any taxpayer, the City Finance Officer or his or her duly authorized persons, may conduct investigations concerning any matters covered by this article; and may examine any relevant books, papers, records or memoranda of any such taxpayer.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-189.  Recovery of Unpaid Tax by Action at Law.

(a) The City Finance Officer may also treat any such taxes, penalties or interest due and unpaid as a debt due the city.

 

(b) In case of failure to pay the taxes, or any portion thereof, or any penalty or interest thereon when due, the city may recover at law the amount of such taxes, penalties and interest in any court of Madison County, Nebraska or of the county wherein the taxpayer resides or has its principal place of business having jurisdiction of the amounts sought to be collected.

 

(c) The return of the taxpayer or the assessment made by the City Finance Officer, as herein provided, shall be prima facie proof of the amount due.

 

(d) The City Attorney may commence an action for the recovery of taxes due under this article and this remedy shall be in addition to all other existing remedies, or remedies provided in this article.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-190.  Suspension or Revocation of Licenses for Failure to Pay Tax; Hearing.

If the Mayor or the Mayor's designee, after holding a hearing, shall find that any person has willfully evaded payment or collection and remittance of the tax imposed by this article, such official may suspend or revoke any city license, permit or other approval held by such tax evader. Said person shall have an opportunity to be heard at such hearing to be held not less than seven (7) days after notice is given of the time and place of the hearing to be held, addressed to the last known place of business of such person. Pending the notice, hearing and finding, any license, permit or other approval issued by the city to the person may be temporarily suspended. No suspension or revocation hereunder shall release or discharge the person from civil liability for the payment or collection and remittance of the tax, nor from prosecution for such offense.

 

Source:  Ord. No. 5143, § 2, 11-15-10

Sec. 13-191.  Sunset Provision.

The occupation tax imposed by this article shall terminate and collection of the tax shall cease upon the city paying all general obligation bonds authorized at the November 2, 2010 general election or related refunding bonds.

 

Source:  Ord. No. 5143, § 2, 11-15-10

ARTICLE XII.  HORSE-DRAWN CARRIAGES

Sec. 13-201.  Definitions.

Horse shall include all equine species and equine subspecies, including but not limited to horses, donkeys, mules, and burros.

 

Horse-drawn carriage or carriage shall mean any vehicle which is operated or pulled by a horse which may be hired for the transportation of passengers and which is operated within the city.

 

Source:  Ord. No. 5184, § 1, 11-21-11

Sec. 13-202.  License required.

The operation of any horse-drawn carriage upon the streets of the city for the purpose of transporting persons for hire or as a contractual service is a violation of this Code unless it is operated in accordance with valid business license issued pursuant to this chapter.

 

Source:  Ord. No. 5184, § 1, 11-21-11

Sec. 13-203.  Application for license.

 

Applications for horse-drawn carriage business licenses shall be made to the city clerk on forms provided by the city.  In addition to the other information required by this chapter, the application shall contain:

 

(1)       The name and address of the applicant.

 

(2)       A certificate that all carriages to be used for the transportation of persons have been inspected and are in good working order and in full compliance with all applicable state laws.

 

(3)       A routine route for the business which complies with Sec. 13-204.

 

(4)       A schedule of rates and charges to be made to passengers shall be on file with the city and shall not be changed without ten (10) days prior notice to the city.  The applications shall include a written agreement by the applicant to operate the business, if licensed, strictly in accordance with Sec. 13-205 and indemnify and hold harmless the city for all judgments, liens and expenses arising out of the operation permitted by the license.

 

Source:  Ord. No. 5184, § 1, 11-21-11

 

Sec. 13-204.  Carriage route and operation schedule.

 

(a)   Horse-drawn carriage businesses shall operate upon routine routes approved as provided in this section.  The route filed with the city shall contain the following:

 

(1)        A map of the routine routes on which the carriages will operate;

 

(2)        The location of the site or sites to be used for off-street storage, stabling and loading of carriages and horses.

 

(b)   The city shall refer the route requests to the chief of police who may reject any route that is unsafe or inappropriate use of public streets.

 

(c)   This section shall not be construed to prohibit transportation of passengers, pursuant to a contract, on other streets in the city for a non-recurring event.

 

Source:  Ord. No. 5184, § 1, 11-21-11

 

Sec. 13-205.  Operation of horse-drawn carriage business.

 

Horse-drawn carriage businesses shall operate only in accordance with the following regulations:

 

(1)       A copy of the horse-drawn carriage business license shall be displayed in all carriages used in such business.  The city, upon issuance of the license, shall issue the number of duplicates as requested in the application, for the carriages to be used under the business license.

 

(2)       Each horse-drawn carriage shall be operated by a person who is qualified by this article to be a driver.

 

(3)       Horse-drawn carriages, when in motion, shall be operated only in the curb-most traffic lane on any public street and the driver shall obey all applicable state and local traffic laws, ordinances, and regulations.

 

(4)       No horse-drawn carriage shall be operated on a public street unless a valid liability insurance policy as specified in Sec. 13-206 is on file with the city.

 

(5)       It shall be the duty of the driver of a horse-drawn carriage to inform any person hiring the carriage of all the rates and charges before any services are rendered, which shall be the same as those on file with the city.

 

(6)       Horse-drawn carriages shall pick up and discharge passengers only upon the curb lane.

 

(7)       Occupancy of a horse-drawn carriage shall not exceed the rated seating capacity of the carriage.

 

(8)       No passengers shall be allowed to ride on any part of the carriage while in motion except seated inside the carriage.

 

(9)       Drivers shall  not solicit patronage in a loud tone of voice or in any manner to annoy or obstruct the movement of a person, or follow any person for the purpose of soliciting patronage.

 

(10)     Drivers are prohibited from smoking while carrying passengers.

 

(11)     No person may drink any alcoholic liquor while such person is riding in or operating a horse-drawn carriage.

 

(12)     All horses shall wear either no horseshoes or the proper type of rubber horseshoe from April 1 to November 1.  Any form of cleated horseshoe is prohibited on public streets except when needed for icy conditions.

 

(13)     No carriage shall be operated on city streets unless it or the horse is equipped with a manure-catching device to hold manure until the operator is able to dispose of it or in lieu of a manure-catching device, in the event manure falls to the street surface, the manure must be immediately collected and removed from the street surface.

 

(14)     No person shall work any horse more than twelve (12) hours per day in the operation of the horse-drawn carriage business.

 

Source:  Ord. No. 5184, § 1, 11-21-11

 

Sec. 13-206.  Insurance.

Before any permit for a horse-drawn carriage shall be issued, the owner shall file with the city a certificate of insurance issued by an insurance company licensed to do business in this state, showing insurance coverage for each and every horse-drawn carriage owned, operated or leased by the applicant with a minimum of one million dollars ($1,000,000) for the injury or death of any person and one million dollars ($1,000,000) for the injury or death of any number of persons in any one accident, and one million dollars ($1,000,000) for property damage resulting from any one accident, regardless of whether the horse-drawn carriages were being driven by the owner, his or her agent, an employee, lessee or permittee.  The certificate of insurance shall contain a provision requiring the city to be notified by the insurance company of any cancellation, termination or expiration of the policy thirty days prior to said event.  The cancellation or other termination of any insurance policy issued for or in compliance with the provisions for this section shall automatically terminate any license issued for the horse-drawn carriage covered by such insurance policy unless another policy complying with the provision of this section shall be provided and in full force and effect at the time of such cancellation or termination.

 

Source:  Ord. No. 5184, § 1, 11-21-11

Sec. 13-207.  Issuance of license.

Upon receipt of a completed application pursuant to Sec. 13-203, approval of the route pursuant to Sec. 13-204, filing of insurance is required by Sec. 13-206, and payment of the application and license fee provided in Sec. 13-211, the city clerk shall issue a horse-drawn carriage license to the applicant.  All licenses shall expire on December 31.

 

Source:  Ord. No. 5184, § 1, 11-21-11

Sec. 13-208.  Horse-drawn carriages.

 

(a)   No horse-drawn carriage shall be operated upon the streets of the city for transporting persons for hire or by contract unless licensed by the city.

 

(b)   A horse-drawn carriage shall comply with all applicable laws relating to the operation of motor vehicles on public rights of way.

 

(c)   Only vehicles constructed and equipped as follows may be licensed:

 

(1)        Carriages shall have no less than one and one-fourth (1 1/4) inch spoked wheels with a rubber covering thick enough to protect the streets from damage and to keep noise to a minimum;

 

(2)        All carriages shall be equipped with brakes, taillights and brake lights on the rear of the vehicle;

 

(3)        Carriages shall be equipped with front lights on both sides that will emit light to the front and side that will be visible from a distance of 500 feet;

 

(4)        Each carriage shall be equipped with a device to catch horse manure from falling on the pavement or with necessary equipment to immediately collect and remove manure that falls to the street;

 

(5)        Each carriage shall be equipped with a slow moving vehicle sign approved by the State of Nebraska and attached to the rear of the vehicle or two red flashing lights visible from the rear, in good operational order.

 

Source:  Ord. No. 5184, § 1, 11-21-11

 

Sec. 13-209.  Requirements for driver.

 

A driver shall:

 

(1)       Possess a valid, current, motor vehicle operator's license;

 

(2)       Be at least 16 years of age;

 

(3)       Be free of defective vision, defective hearing, and any other infirmities that would render him or her unfit for safe operation of a horse-drawn carriage.

 

Source:  Ord. No. 5184, § 1, 11-21-11

 

Sec. 13-210.  Denial, suspension and revocation.

 

(a)   Any denial of license application may be appealed within ten (10) days to the city administrator.

 

(b)   Any violation of this article by the holder of a license issued hereunder shall be grounds for suspension or revocation of the license by the city administrator after notice and hearing.

 

(c)   Any denial of a license application appeal by the city administrator or any license suspension or revocation by the city administrator may be appealed within ten (10) days to the city council.

 

Source:  Ord. No. 5184, § 1, 11-21-11

 

Sec. 13-211.  Annual license fees.

The annual fee for a horse-drawn carriage business license shall be as set forth in Section 2-5 of this Code.

 

Source:  Ord. No. 5184, § 1, 11-21-11

Sec. 13-212.  Penalties.

Anyone violating the provisions of this article is guilty of a municipal infraction and shall, upon conviction, be subject to the provisions of Sec. 1-16.

 

Source:  Ord. No. 5184, § 1, 11-21-11

ARTICLE XIII.  INTERIM APPLICATION PROCESS FOR WIRELESS TELECOMMUNICATIONS FACILITIES

Sec. 13-221. 

 

Source:  Ord. No. 5472, § 1, 5-15-17; Ord. No. 5677, § 1, 08-17-2020;

ARTICLE XIV.  SMALL WIRELESS FACILTIES

Sec. 13-225.  Purpose.

It is the purpose of this article:

  

(a)          To set forth policies and procedures applicable to small wireless facilities located within the city’s public rights-of-way;

 

(b)          To regulate the placement and use of small wireless facilities in a manner which both promotes the rapid deployment of small wireless facilities and preserves the aesthetic character of the community by, among other things, (i) encouraging the placement of small wireless facilities in a manner which minimizes potential effects on the community; (ii) minimizing the visual and physical impact of small wireless facilities to the extent permitted by state and federal law; and (iii) promoting the efficient modification and upgrade of existing wireless facilities to accommodate evolving technologies and increasing demand;

 

(c)          To minimize the visual impact of wireless facilities on the community, particularly in and near the downtown area, residential zones, and in historic districts;

 

(d)          To preserve the opportunity for continued and growing service from the wireless industry;

 

(e)          To accommodate the growing consumer need and demand for wireless services;

 

(f)           To establish clear guidelines, standards and an orderly process intended to facilitate the deployment of wireless equipment, and to provide advanced services to the city, its residents, businesses and the community at large; and

 

(g)          To comport with the Small Wireless Facilities Deployment Act, Nebraska Revised Statutes, Sections 86-1201 to 86-1244 (the “Act”), and comply with FCC Orders and Federal laws, rules and regulations regarding small wireless facilities.

 

  It is not the purpose of this article to, and its provisions shall not be interpreted or applied in a manner which would, (a) prohibit or effectively prohibit the provision of wireless services; (b) unreasonably discriminate among functionally equivalent wireless  services providers, or (c) regulate wireless facilities on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the Federal Communications Commission.

   

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-226.  Definitions.

As used in this article, the following terms have the meanings set forth below, except to the extent that such definitions conflict with, or are otherwise inconsistent with, the defined terms provided in the Act, in which case the statutory definitions of the Act shall control. Undefined terms used in this article that are defined terms under the Act shall have the meanings provided for in the Act.
 
            Antenna means communications equipment that transmits or receives electromagnetic radio frequency signals used in providing wireless services.

 

Applicable codes means uniform building, fire, safety, electrical, plumbing or mechanical codes adopted by a recognized national code organization or local amendments to such codes so long as such amendments are not in conflict with the Act and to the extent such codes have been adopted by the city and are generally applicable in the city.

 

Applicant means any person who submits an application and is a wireless provider.

 

Application means a written request submitted by an applicant to an authority (1) for a permit to collocate small wireless facilities on an existing utility pole or wireless support structure or (2) for a permit for approval for the installation, modification, or replacement of a utility pole to support the installation of a small wireless facility.

 

City pole means a utility pole owned, managed, or operated by or on behalf of the city.

 

Collocation or Collocate means to install, mount, maintain, modify, operate, or replace small wireless facilities on or adjacent to a wireless support structure or utility pole. Collocation or collocate does not include the installation of a new utility pole or new wireless support structure in the right-of-way.

 

Communications service provider means a cable operator as defined in 47 U.S.C. 522, a provider of information service as defined in 47 U.S.C. 153, or a telecommunications carrier as defined in 47 U.S.C. 153, as such sections existed on January 1, 2019. Communications service provider includes a wireless provider.

 

Decorative pole means a City pole that is specially designed and placed for aesthetic purposes.

 

FAA means the Federal Aviation Administration.

 

FCC means the Federal Communications Commission.

 

Fee means a one-time, nonrecurring charge.

 

Historic district means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places, in accordance with Stipulation VI.D.1.a (i)-(v) of the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission codified at 47 C.F.R. part 1, Appendix C, as such regulation existed on January 1, 2019, or designated pursuant to state historic preservation law if such designation exists at the time of application.

 

Law means federal, state, or local law, statute, common law, code, rule, regulation, order, resolution or ordinance.

 

Macro cell means an antenna or antennas mounted on or in a tower, ground-based mast, rooftops or structures, at a height that provides coverage to the surrounding area, excluding small wireless facilities.

 

Microwireless facility means a small wireless facility that is not larger in dimension than twenty-four inches in length, fifteen inches in width, and twelve inches in height and with any exterior antenna no longer than eleven inches.

 

Permit means a written authorization required by an authority to perform an action, initiate, continue, or complete installation of a small wireless facility on an existing utility pole or attached to an existing wireless support structure, or to install, modify, or replace a utility pole to support installation of a small wireless facility.

 

Person means an individual, a corporation, a limited liability company, a partnership, an association, a trust, or any other entity or organization, including an authority.

 

Public power supplier means a public power district or any other governmental entity providing electric service.  Public power supplier includes a municipal electric utility or a rural public power supplier.  Except as otherwise provided in the Act, the Act does not apply to utility poles owned, operated, or managed by a public power supplier including, without limitation, collocation of wireless facilities on such public power supplier poles.

 

Rate means a recurring charge.

 

Right-of-way means the area on, below, or above a public roadway, highway, street, sidewalk, alley, dedicated utility easement, or similar property, but not including a freeway, the National System of Interstate and Defense Highways, or a private easement.

 

Small Wireless Facility means a wireless facility that meets each of the following conditions: (1) the facilities are (a) mounted on a structure 50 feet or less in height, including the antennas, or (b) are mounted on structures no more than 10 percent taller than other adjacent structures; (2) each antenna associated with the deployment is no more than three cubic feet in volume; (3) all other equipment associated with the structure, whether ground-mounted or pole-mounted, is no more than twenty-eight cubic feet in volume; (4) the facilities do not require antenna structure registration under 47 C.F.R. part 17, as such regulation existed on January 1, 2019; (5) the facilities are not located on tribal lands, as defined in 36 C.F.R. 800.16(x), as such regulation existed on January 1, 2019; and (6) the facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified in 47 C.F.R. 1.1307(b), as such regulation existed on January 1, 2019.

 

Street light means, for purposes of this article, poles used or to be used for the City’s lighting in the right-of-way. The term street lights includes non-standard street lights; however, the term does not include traffic signal poles, electric transmission and distribution poles, or light poles for sports fields or arenas, stadium lighting or other lighting of any kind.

 

Technically Feasible means that by virtue of engineering or spectrum usage, the proposed placement for a small wireless facility, or its design or site location, can be implemented without a reduction in the functionality of the small wireless facility.

 

Traffic signal means a set of automatically operated colored lights, typically red, amber, and green, for controlling traffic at road intersections and crosswalks.  Traffic control signals are devices placed along, beside, or above a roadway to guide, warn, and regulate the flow of traffic, which includes motor vehicles, motorcycles, bicycles, pedestrians and other road users.

 

Utility pole means a pole located in the right-of-way that is used for wireline communications, lighting, the vertical portion of support structures for traffic control signals or devices or a similar function, or for the collocation of small wireless facilities and located in the right-of-way.  Utility pole does not include (1) wireless support structures, (2) any transmission infrastructure owned or operated by a public power supplier or rural public power supplier, and (3) any distribution or communications infrastructure owned or operated by a rural public power supplier.

 

Wireless facility means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including (a) equipment associated with wireless communications and (b) radio transceivers, antennas, coaxial or fiber-optic cable, regular power supply, and small back-up battery, regardless of technological configuration. Wireless facility includes small wireless facilities.  Wireless facility does not include (a) the structure or improvements on, under, or within the equipment which is collocated, (b) coaxial or fiber-optic cable that is between wireless structures or utility poles or that is otherwise not immediately adjacent to, or directly associated with, a particular antenna, or (c) a wireline backhaul facility.

 

Wireless infrastructure provider means any person, including a person authorized to provide telecommunications service in Nebraska, when acting to build or install wireless communication transmission equipment, wireless facilities, or wireless support structures, but that is not a wireless services provider.

 

Wireless provider means a wireless services provider or a wireless infrastructure provider when acting as a co-applicant for a wireless services provider.

 

Wireless services mean any services using licensed or unlicensed spectrum, including the use of Wi-Fi, whether mobile or at a fixed location, provided to the public using wireless facilities.

 

Wireless services provider means a person who provides wireless services.

 

Wireless support structure means a structure such as a guyed or self-supporting tower, billboard, building, or other existing or proposed structure designed to support or capable of supporting wireless facilities other than a structure designed solely for the collocation of small wireless facilities. Wireless support structure does not include a utility pole.

 

Wireline backhaul facility means an above-ground or underground facility used to transport communications services from a wireless facility to a communications network.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-227.  Authority.

Except as provided by the Act or applicable Federal law, the city shall continue to exercise zoning, land-use, planning, and permit-granting authority within its territorial boundaries, including with respect to wireless support structures and utility poles, except that the city shall not have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any college or university campus, stadium, or athletic facility not owned or controlled by the city, other than to comply with applicable codes. The city shall evaluate the structure classification for wireless support structures under the standard of the American National Standards Institute found in ANSI/TIA-222, as such standard existed on January 1, 2019.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-228.  Scope.

(a)       Except as otherwise provided in this article, a wireless provider shall have the right, as a permitted use not subject to zoning review or approval, to collocate small wireless facilities and install, maintain, modify, operate or replace utility poles along, across, upon, and under the right-of-way so long as such facilities and poles do not obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by utilities or the safe operation of their systems or provision of service.

 

(b)       No person may site, install, mount, maintain, modify, or operate any small wireless facility or component thereof, or similar infrastructure within the city’s public rights-of-way, including collocations on utility poles owned, managed, or operated by the city, without first having filed an application with and received approval from the city. The city’s approval of any application may be denied or withdrawn upon an applicant’s failure to comply with applicable federal and state laws and regulations and this Code, including without limitation, this article.

 

(c)        All small wireless facilities installed after the date of this article shall be subject to these regulations.

 

(d)       Small wireless facilities are permitted uses pursuant to this article so long as they comport with all of the provisions of this article and the Act.

 

(e)       Any new or modified utility pole installed in a right-of-way shall not exceed the greater of (i) five feet in height above the tallest existing utility pole in place as of September 1, 2019, located within five hundred feet of the new utility pole in the same right-of-way or (ii) fifty feet above ground level.  New small wireless facilities in a right-of-way shall not extend more than the greater of (i) fifty feet in height, including antenna, or (ii) more than five feet above an existing utility pole in place as of September 1, 2019, and located within five hundred feet in the same right-of-way.

 

(f)        Preexisting antennas shall not be required to meet the requirements of this article unless modified as described by this article.

 

(g)       The following are exempt from this article:

 

1          FCC licensed amateur (ham) radio facilities;

 

2.         Satellite earth stations, dishes and/or antennas used for private television reception not exceeding one (1) meter in diameter;

 

3.         A wireless facility installed upon the declaration of a state of emergency by the federal, state or local government, or a written determination of public necessity by the city; except that such facility must comply with all federal and state requirements.  The wireless facility shall be exempt from the provisions of this article for up to one month after the duration of the state of emergency;

 

4.         A temporary, commercial wireless facility installed for providing coverage of a special event such as news coverage or sporting event, subject to administrative approval by the city. The wireless facility shall be exempt from the provisions of this article for up to two weeks before and one week after the duration of the special event;

 

5.         Antennas attached to existing structures (such as commercial buildings, houses or apartments) for Internet purposes and uses, solely for occupants of the building, for which the antennas are attached as long as the height limitations of the zoning district are not exceeded and the antenna design is satisfactory to the city.

 

(h)       For public safety and welfare considerations, the city discourages wireless providers from placing small wireless facilities on any poles for traffic signals.  Instead, the city encourages wireless providers to place small wireless facilities on street lights or elsewhere in the right-of-way.  The city also encourages wireless providers to place small wireless facilities on structures or buildings outside of the right-of-way rather than placing new poles in the right-of-way.

 

(i)        The city shall not require an Application, permit or other approval or charge fees or rates where the proposed activities are limited to: (1) routine maintenance of small wireless facilities; (2) replacement of small wireless facilities with small wireless facilities that are substantially similar in weight or windage or the same size or smaller;  or (3) for the installation, placement, maintenance, operation, or replacement of microwireless facilities that are strung on cables between existing utility poles in compliance with the National Electrical Safety Code.  The city may require a permit for work that exceeds original weight or windage or requires the excavation or closing of sidewalks or vehicular lanes within the right-of-way for such activities.

 

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-229.  Permit required.

It shall be unlawful for any person to install, maintain, or operate a small wireless facility, unless such person shall have previously obtained a permit under this article from the city expressly authorizing such small wireless facility. It shall be unlawful for any person to collocate a small wireless facility on or associated with an existing utility pole or support structure, unless such person shall have previously obtained a permit under this article from the city expressly authorizing the attachment or association of that specific small wireless facility. It shall be unlawful for any person to construct, install, replace, maintain, or operate a new utility pole or support structure, to which will be attached or associated, a small wireless facility, unless such person shall have previously obtained a permit under this article.  All small wireless facilities and associated equipment, utility poles, and support structures shall comply with the permit and approved final plans and specifications.  In the event of nonconformance with the permit or approved final plans and specifications in any material respect, the city may suspend the associated permit until such time as there is substantial conformance.

  

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-230.  Application.

 

(a)        Form and content. An application for a permit under this article shall be filed with the Public Works Department, on a form provided by that Department. On or in addition to that form, an application shall include the following:

 

1.         The applicant's name, address, telephone number, and e-mail address, including emergency contact information for the applicant.

 

2.         The names, addresses, telephone numbers, and e-mail addresses of all consultants, if any, acting on behalf of the applicant with respect to the application.

 

3.         A description of the proposed work and wireless facility sufficient to demonstrate compliance with the criteria in this article.

 

4.         Any and all additional forms and necessary documentation for all permits required for the installation, maintenance, or operation of a small wireless facility, including but not limited to electrical permits, excavation permits, and certificates of approval for facilities within a landmark or historic district.

 

5.         If applicable, documentation or authorization from the owner of the utility pole or wireless support structure on or in which the wireless facility will be placed or attached, if not the city. Alternatively, a wireless provider may satisfy this requirement by providing an attestation with the application that all required approvals from third parties will be obtained before attaching to a utility pole or wireless support structure owned by a third party.

 

6.         Construction and engineering drawings regarding the proposed small wireless facility, and any associated equipment and utility pole or support structure. The drawings shall show the location, dimensions, elevations, equipment specifications, and attachment methods for the small wireless facility, all equipment, and the utility pole or support structure.

 

7.         For any new above ground wireless facilities, accurate visual depictions or representations, if not included in the construction drawings.

 

8.         A full description of any make-ready work to be performed by the city in preparation for the proposed installation and use of the small wireless facility, associated equipment and utility pole or wireless support structure.

 

9.         The application fee as required by this article.

 

10.       Bonds and insurance coverage as required in this article or by the City Code and as applicable to all users of the right-of-way.

 

11.       The application form shall include:

 

a.         Language providing for the indemnification of the city by the applicant, registrant and wireless provider as required by this article; and

 

b.         An attestation by the applicant that the small wireless facility shall be operational for use by a wireless services provider within nine months after the later of the completion of all make-ready work or the permit issuance date, unless a delay is caused by a lack of commercial power or communications transport facilities to the site, in which case the deadline shall be extended for up to nine months.  The city and applicant may mutually agree to an additional extension.

 

The applicant’s signature on and submittal of the application shall constitute agreement to subsections 11 a. and b. above.

 

(b)       Other information.  An applicant shall not be required to provide more information to obtain a permit than a communications service provider that is not a wireless provider, except as directly related to the impairment of wireless service in the immediate area of the proposed small wireless facility and except that an applicant may be required to include construction and engineering drawings and information demonstrating compliance with the Act.

 

(c)        Batching. An applicant seeking to collocate small wireless facilities may apply for more than one but no more than five small wireless facilities in a single application, provided that all information required by this article is provided for each separate small wireless facility. Provided full and complete information is submitted for each small wireless facility, a single set of documents may address more than one small wireless facility. Application fees shall be paid for each small wireless facility, as provided in this article. Each small wireless facility within a consolidated application is subject to individual review, except that the denial of one or more small wireless facilities in a consolidated application shall not delay processing of any other small wireless facilities in the same application or be a basis upon which to deny the consolidated application as a whole. A decision regarding all of the applicant's batched wireless facilities shall be rendered in a single administrative proceeding.

 

(d)       Replacement or modification. A permittee shall be required to file an application and pay an application fee for the proposed replacement or modification of an existing small wireless facility, antenna equipment, or associated utility pole or support structure. In such case, the application shall include updated drawings of the facilities showing such replacement or modification. Such proposed replacement or modification shall be reviewed and acted upon by the city as if it were an initial application. This subsection (d) does not apply to ordinary maintenance or repair, or to the replacement of a small wireless facility with a small wireless facility that is substantially similar in weight or windage or the same size or smaller, in which case no permit, application or fee is required.

 

(e)       Shot clocks. Except as otherwise provided in this subsection, the city shall act on a filed application, and all associated requests, on or before the expiration of the following State shot clock periods.

 

1.         The shot clock period for a small wireless facilities application is the sum of:

 

a.         Ninety days, plus an additional ten business days if requested in writing by the city prior to the expiration of the 90 days, plus

 

b.         Such additional number of days of the tolling period, if any, pursuant to subsection (e)(2) below.

 

2.         Unless a written agreement between the applicant and the city provides otherwise, the tolling period for an application, if any, is as set forth below:

 

a.         If the city notifies the applicant in writing on or before the twentieth day after submission that the application is incomplete, and specifically identifies the missing documents or information, the shot clock date calculation shall restart on the date the city notifies the applicant of the first finding of incompleteness. The applicant may resubmit the completed application within 30 days without additional charge.

 

b.         Subsequent findings of incompleteness shall further toll the shot clock from the time the city sends written notice of incompleteness until the time the applicant provides the missing information.  The application processing deadline also may be tolled by agreement of the applicant and the city.

 

c.         If the applicant submits new or additional documents or information that include material changes not otherwise required by the city, a new application and application fee shall be submitted.

 

d.         The city may extend the application processing deadline for a single period of ten business days if the city notifies the applicant in advance before the day on which approval or denial is originally due.  Upon mutual agreement between the applicant and the city, the city may extend the period for consideration of an application for thirty days.

 

3.         The shot clock deadline for an application is determined by counting forward, beginning on the day after the date when the application was submitted, by the number of calendar days of the shot clock period identified pursuant to this subsection (e); provided, that if the deadline calculated in this manner falls on a weekend or holiday, the deadline shall be the next business day after such date. The term "business day" means any day that is not a weekend day or holiday.

 

4.         An application shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within 90 days after receipt of the application, or such longer period as permitted under this subsection (e).

 

5.         Notwithstanding the provisions above, pursuant to applicable FCC Orders, rulings and Federal law, the city shall act on a small wireless facility application for placement on an existing structure within sixty (60) days of the application submittal and on a small wireless facility application for placement on a new structure within ninety (90) days subject to application incompleteness and tolling. For the foregoing application types, the city must notify an applicant of application incompleteness within ten (10) days. If such a notification occurs, the corresponding shot clock will be reset one time and thereafter tolling provisions may apply.

 

6.         If Federal law changes regarding the placement of small wireless facilities on an existing structure or a new structure in the right-of-way, then the above time frames in (e)(5) will be automatically amended to reflect the new time period(s) without further action by the city.

 

(f)         Permit issuance. Approval of an application and issuance of any required permits, which shall include but not be limited to appropriate building, electrical or excavation permits, authorizes the permittee to maintain and operate the small wireless facilities and any associated utility pole covered by the permit for a period of five years, subject to applicable relocation requirements and the permittee's right to terminate at any time. The city shall renew such permit for an equivalent duration so long as the permittee complies with the criteria of this article as of the time the permit was issued.

 

(g)       Denial of application.  The city may deny a proposed collocation of a small wireless facility or installation, modification, or replacement of a utility pole that meets the requirements of this article only if the proposed application:

 

1.         Materially and demonstrably interferes with the safe operation of traffic control equipment or the right-of-way;

 

2.         Materially interferes with sight lines or clear zones for air or land transportation or pedestrians;

 

3.         Materially interferes with compliance with the federal Americans with Disabilities Act of 1990 or similar federal or state standards regarding pedestrian access or movement;

 

4.         Fails to comply with reasonable and nondiscriminatory spacing requirements of general application adopted by ordinance or resolution that concern the location of ground-mounted equipment and new utility poles. Such spacing requirements shall not prevent a wireless provider from serving any location;

 

5.         Fails to comply with applicable codes of general application that do not apply exclusively to wireless facilities;

 

6.         Fails to comply with the city’s aesthetic requirements that are reasonable and published in advance; or

 

7.         Designates the location of a new utility pole within seven feet in any direction of an electrical conductor unless the wireless provider obtains the written consent of the public power supplier that owns or manages the electrical conductor.

 

(h)       Documentation of reason for denial.  The city will document the basis for a denial, including the specific code provisions on which the denial was based, and send the documentation to the applicant on or before the day the city denies an application. The applicant may cure the deficiencies identified by the city and resubmit the application within 30 days of the denial without paying an additional application fee. The city will approve or deny the revised application within 30 days.  Any subsequent review will be limited to the deficiencies cited in the denial.

 

(i)         Scope and effect of approval.  Installation or collocation for which a permit is granted pursuant to this article shall be completed within one year of the later of the completion of all make-ready work or the permit issuance date unless a delay is caused by the lack of commercial power or communications transport facilities at the site.  In such case the applicant shall have an extension of up to nine months. The city and the applicant may also agree to an additional extension. Applications for collocations on utility poles owned, managed, or operated by the city shall be processed in a manner consistent with the Act. Approval of an application authorizes the applicant to:

 

1.         Undertake the installation or collocation; and

 

2.         Operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of not less than five years, subject to applicable relocation requirements and the applicant’s right to terminate at any time, which must be renewed for equivalent durations so long as they are in compliance with the criteria set forth in this article as such criteria existed at the time the permit was granted.

 

(j)         Authority granted; no property right or other interest created.  An approval by the city authorizes an applicant to undertake only certain activities in accordance with this article and does not create a property right or grant authority to the applicant to impinge upon the rights of others who may already have an interest in the right-of-way, utility easement or other privately owned property.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

 

Sec. 13-231.  Application fees and rates.

(a)       Application fees.

  

1          The application fees for collocation of small wireless facilities on an existing city pole shall be as set forth in Section 2-5 of this Code.

 

2.         The application fees for the installation, modification or replacement of a utility pole and the collocation of an associated small wireless facility that are a permitted use in accordance with the specifications in the Act shall be as set forth in Section 2-5 of this Code.

 

(b)       Annual rates.

  

1.         An annual rate for use of the city’s right-of-way shall be the occupation tax levied under Section 13-80 of this Code.

 

2.         The rate for collocation of a small wireless facility on a city pole in the right-of-way shall be as set forth in Section 2-5 of this Code.

 

3.         The annual rate(s) shall be paid on or before January 1, in advance for the ensuing year.

 

4.         The city shall not require a wireless provider to pay any rate, fee, or compensation to the city or other person other than what is expressly authorized by Nebraska Revised Statutes Section 86-704, or, where applicable, Nebraska Revised Statutes Sections 14-109, 15-203, 16-205, or 17-525, or the Act for the right to use or occupy a right-of-way for the collocation of small wireless facilities on wireless support structures or utility poles in the right-of-way or for the installation, maintenance, modification, operation, and replacement of utility poles in the right-of-way.

 

5.         If the city charges occupation taxes under Nebraska Revised Statutes Section 86-704, it shall not charge a wireless services provider any additional amount for the use of a right-of-way.  The city may charge a wireless provider that does not pay the city’s occupation tax under Nebraska Revised Statutes Section 86-704 either a rate of $250 for each small wireless facility each year, or a fee equal to the occupation tax charged by the city under Nebraska Revised Statutes Sections 14-109, 15-203, 16-205, or 17-525.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-232.  Make-ready work.

 

(a)       The rates, fees, terms, and conditions for make-ready work to collocate on a city pole shall be nondiscriminatory, competitively neutral, and commercially reasonable and shall reimburse all reasonable costs incurred by the city in compliance with the Act.

 

(b)       The city shall provide a good faith estimate for any make-ready work necessary to enable the city pole to support the requested collocation by an applicant, including pole replacement if necessary, within one hundred twenty days after receipt of a completed application. Make-ready work, including any pole replacement, shall be completed within ninety days after written acceptance of the good faith estimate by the applicant. The city may require replacement of the city pole only if it determines and provides details indicating that the collocation would make the city pole structurally unsound.  The city shall have the option to require the applicant to order and install any replacement poles when necessary.

 

(c)       The person owning, managing, or controlling the city pole shall not require more make-ready work than required to meet applicable codes or industry standards. Fees for make-ready work shall not include costs related to known preexisting or prior damage or noncompliance. Fees for make-ready work, including any pole replacement, shall not exceed actual costs or the amount charged to other communications service providers for reasonably similar work and may include reasonable consultant fees or expenses.

 

(d)       For purposes of this Section, make-ready work generally refers to the modification of utility poles or lines or the installation of guys and anchors to accommodate additional facilities.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

 

Sec. 13-233.  No limitation of city's proprietary rights and interests.

For all small wireless facilities to be located on city property other than right-of-way, the applicant, prior to submitting any application, must have entered into a valid license, lease, or other such agreement, as applicable, with the city. Nothing in this article shall be construed in any way to waive or limit the city’s proprietary rights over its real and personal property. If it is determined the city has authority to exert greater rights or impose additional conditions or limitations beyond those set forth in this article, the city reserves the right to do so as it determines appropriate or necessary.

  

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-234.  Design, safety and aesthetic standards within the rights-of-way.

 

(a)       Standards.  All deployments of small wireless facilities within the city’s rights-of-way must conform to the design and aesthetic standards set forth in this article and as they may be hereafter adopted by the city so long as they are reasonable and published in advance.

 

(b)       City’s Right to Propose Alternative.  With regard to the placement of a utility pole in the right-of-way, the city reserves the right to propose a technically feasible alternate to the location proposed in the application, and the wireless provider shall cooperate with the city to address the city’s reasonable proposal.  The city shall not require the placement of small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole.

 

(c)       Lighting.  Small wireless facilities may not be illuminated except as otherwise required for compliance with state or federal regulations.  To the extent technically feasible, any lights associated with electronic equipment must be down-shielded from public view.  This subsection does not prohibit deployments on streetlight poles, nor does it prohibit the installation of deployments designed to look like streetlight poles.

 

(d)       Color.  To the extent technically feasible, the antennas shall be placed and colored to blend into the architectural detail and coloring of the host structure.  To the extent technically feasible, utility poles, wireless support structures and related equipment shall be painted a color that best allows them to blend into the surroundings.  The use of grays, blues, greens, dark bronze, browns or other site-specific colors may be appropriate.

 

(e)       Signs.  No wireless facilities may bear any signage other than that required by law or expressly permitted or required by the City. No wireless facilities may bear any advertisements.

 

(f)        Nebraska811.  Prior to the installation or construction of a wireless facility within the right-of-way, the wireless provider shall notify and comply with Nebraska811.

 

(g)       Accessory Equipment. All accessory equipment located at the base of a utility pole or wireless support structure shall be placed (at the wireless provider’s choice) underground or in an equipment cabinet that is designed to blend in with existing surroundings, using architecturally compatible construction and colors consistent with the proper functioning of the wireless facilities.

 

(h)       Maps and As-Builts.  The wireless provider shall furnish to the City both paper and electronic maps showing the location of its equipment in the right-of-way and as-builts after construction is completed.

 

(i)         Security.  All equipment cabinets, boxes, cases, covers, or similar enclosures associated with a deployment must be reasonably secured in a manner which prevents unauthorized access.

 

(j)         Utilities.  All utilities serving a deployment should be installed underground to the maximum extent possible, provided doing so is technically feasible.

 

(k)        Safety.  All construction, excavation, maintenance, operation, repair and removal work done by the permittee or wireless provider shall be done in a safe, workmanlike and expeditious manner which minimizes inconvenience to the city and the general public.  The city shall have the right to inspect all such work to ensure compliance with applicable codes, laws and permits and may order the permittee or wireless provider to perform corrective work.  If the permittee or wireless provider fails to timely do so after written notice from the city, the city may take the required action, and the permittee or wireless provider shall pay the city the reasonable documented cost of such action and associated attorneys’ fees.

 

(l)         Antennas.  If technically feasible, antennas must either be mounted to the top of the utility pole or wireless support structure and aligned with the centerline of the utility pole or wireless support structure or mounted to the side of the utility pole or wireless support structure such that the vertical centerline of the antenna enclosure lines up with the utility pole or wireless support structure. If technically feasible, a side-mounted antenna must be placed at least 25 feet above ground level at its lowest point for safety reasons.

 

(m)      Cables and Wires.  External cables and wires related to deployments must not hang off the utility pole or wireless support structure.  Excess cables or wires may not be spooled or otherwise visibly stored on or near the deployment except within the structure or other enclosure. New service lines must be placed underground whenever technically feasible.

 

(n)       Alignment.  If technically feasible, new deployments should be placed in alignment with existing trees and utility poles relative to the width of the right-of-way and equidistant between existing trees and utility poles, with a minimum of 15 feet separation from any existing tree.

 

(o)       Restrictions on Placement.  No deployment may impede, obstruct, or hinder public pedestrian or vehicular traffic; obstruct the legal use of a right-of-way by a utility provider; violate or conflict with city code or state or federal laws or regulations; or be placed in a manner that negatively affects the structural integrity of the associated wireless support structure or utility pole. If technically feasible, a new structure should not be placed in line with the centerline of an entrance or window of a commercial building or residence.

 

(p)       Ground-mounted Equipment.  Outdoor ground-mounted equipment serving a deployment should be avoided to the greatest extent technically feasible, and any such equipment or structures mounted on the ground should be similar in character to adjacent deployments in the right-of-way and the surrounding environment.

 

(q)       Pole-mounted Equipment.  To the extent technically feasible, all deployments installed on utility poles should: (1) be installed to minimize impacts to the visual profile; (2) be painted, color-blended, or coated in flat, non-reflective colors to reasonably match the utility pole; and (3) must not unreasonably obstruct the view of vehicular or pedestrian traffic signals or road signs. In the case of existing wood utility poles, finishes of conduit may be zinc, aluminum, or stainless steel, or colored to match those metal finishes, and equipment cabinets may be the color of brushed aluminum, all to the extent technically feasible.

 

(r)        New Poles.  If technically feasible, new poles installed to support deployments must be made of the same or similar material as existing utility poles in the immediate area.  To the extent technically feasible, new poles must be designed to match the existing light fixtures and other poles.

 

(s)        Historic Districts.  Small wireless facilities installed in historic districts established prior to January 1, 2019 shall be of such design or concealment measures that they reasonably blend in with the character of the historic districts.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

 

Sec. 13-235.  Additional regulations.

All small wireless facilities must conform to the additional regulations set forth in this section, and the city’s approval of any application shall be conditioned upon the applicant’s continued compliance with these regulations.

 

(a)          Compliance.  To protect the public safety, all small wireless facilities must be constructed, operated, maintained, repaired, and removed in compliance with all applicable provisions of this article, the Act and applicable federal and local laws.  Any failure by the city to enforce compliance with any applicable laws shall not relieve any applicant or owner of its obligations.

 

(b)          Insurance.  No person or entity may own or operate a small wireless facility within the city or its extraterritorial jurisdiction, if any, without having secured, and at all times maintained, insurance coverage which conforms to the following:

 

1.         Comprehensive general liability, automobile, workers compensation, and employer’s liability of not less than $1,000,000 each occurrence and $2,000,000 aggregate (an umbrella policy is an acceptable means of reaching the minimum limits);

 

2.         For a small wireless facility in the public right-of-way or on city property, the comprehensive general liability insurance and automobile policies must specifically include the city as an additional insured;

 

3.         All insurance policies must be issued by an agent or representative of an insurance company licensed to do business in Nebraska and with a Best’s rating of at least A; and

 

4.         Policies must include a minimum Medical Expense amount of $5,000 per person.

 

(c)        Indemnification.  Each permit issued for a small wireless facility located on city property or in the right-of-way shall be deemed to have as a condition of the permit a requirement that the applicant, registrant and wireless provider defend, indemnify and hold harmless the city and its officers, agents, employees, volunteers, and contractors from any and all liability, damages, or charges (including attorneys’ fees and expenses) arising out of claims, suits, demands, actions or causes of action as a result of the permit process, a granted permit, construction, installation, location, performance, operation, maintenance, repair, replacement, removal, or restoration of the small wireless facility.

 

(d)       Abandoned and Discontinued Small Wireless Facility.  Any small wireless facility that is not operated for a continuous period of ninety days after completion of initial installation, excluding non-operation due to a natural disaster or other unforeseeable circumstance or temporary equipment failure, shall be considered abandoned.  If a small wireless facility is abandoned, the small wireless facility owner shall notify the city within thirty days of the abandoned status of such facility and such owner shall remove the abandoned facility at the owner’s expense.  The related utility pole shall also be removed unless such pole is otherwise being used by another utility or is owned by a party other than the owner of the removed small wireless facility.

 

(e)       Removal.

 

1.         In the event that any wireless facility of a permittee or wireless provider in city right-of-way obstructs or hinders the usual travel or public safety or obstructs the legal use of such right-of-way by utilities or other authorized users, the city may provide written notice to the permittee or wireless provider of such physical interference and of the need to resolve such interference.  If such physical interference is not resolved in a timely manner, the permittee or wireless provider shall, at its own expense, remove its wireless facilities from that location.  In such case, the permittee or wireless provider may apply for the relocation of similar facilities at another location, without payment of an application fee.

 

2.         Within ninety days following written notice from the city, the permittee or wireless provider shall, at its own expense, protect, support, disconnect, remove, relocate, change or alter the position of any of its wireless facilities whenever the city has determined, in its sole discretion, that such disconnection, removal, relocation, change or alteration is necessary for the construction, repair, maintenance or installation of any city improvement, in, under or upon the public right-of-way.  The permittee or wireless provider shall be responsible to the city for any damages or penalties the city may incur as a result of the permittee’s or wireless provider’s failure to adhere to any of the requirements of this subsection.

 

3.         If the permittee or wireless provider fails to timely perform any of the requirements or its obligations under this Section, the city or its contractor may do so.  In such case, the permittee or wireless provider shall pay all reasonable costs and attorneys’ fees related to such work.

 

(f)        Remediation Required.  A wireless provider must repair, at its sole cost and expense, any damage to the right-of-way caused by its activities in the right-of-way. The wireless provider must return the right-of-way to equal or better condition to that as existed prior to the damage pursuant to competitively neutral and reasonable requirements and specifications of the city.  If the applicant, permittee or wireless provider fails to make the repairs that are reasonably required by the city within fourteen days after written notice, the city may undertake such repairs and charge the wireless provider the reasonable, documented cost of such repairs.  The city shall grant an extension of up to ten days to complete such repairs if the wireless provider requests such extension within the original fourteen-day period.  In the event of immediate threat to life, safety, or to prevent serious injury, the city may immediately undertake to restore the site and then notify the applicant, permittee or wireless provider and charge the applicant, permittee or wireless provider for all reasonable restoration costs.

 

(g)       Emergency Removal or Relocation.  The city retains the right to cut or move any small wireless facility or poles located within the right-of-way, as the city may determine to be necessary, appropriate, or useful in response to any public emergency.  If circumstances permit, the city will notify the wireless provider and provide it an opportunity to move its small wireless facility or poles prior to cutting or removing them and shall notify the wireless provider after cutting or removing a small wireless facility or pole.

 

(h)       Structural Report.  To the extent the small wireless facility involves collocation on a pole or support structure, a structural report prepared by a licensed professional engineer is required evidencing that the pole or support structure will support the collocation (or that the pole or support structure will be modified to meet structural requirements) in accordance with applicable codes and safety standards.

 

(i)         Radio Frequency (RF) Emissions Compliance Report. To protect the public safety and welfare and be responsive to its citizens, the city may require a written report prepared, signed and sealed by a licensed professional engineer which assesses whether the operations of the small wireless facilities demonstrate compliance within the RF emissions limits established by the FCC.  In no event shall any small wireless facilities, either individually or collectively with those of others, exceed the maximum permissible RF emission standards of the FCC.  In the event that the FCC’s maximum permissible RF emission standards are exceeded as determined by the FCC, the city shall refer the matter to the FCC for enforcement.

 

(j)         Electrical Permit. The applicant shall obtain an electrical permit from the city prior to any electrical work being done on any wireless facility. Before obtaining an electrical permit, the electrical contractor shall be properly licensed by the State of Nebraska Electrical Board (Norfolk City Code Sec. 6-72) and be a registered contractor with the City of Norfolk (Norfolk City Code 6-78).

  

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-236.  Exceptions to standards.

 

 No small wireless facility can be used or developed contrary to any provision of  this article, unless an exception is authorized herein and has been granted pursuant to this section.

 

(a)       Approval Authority. The Public Works Department is the approval authority for all exceptions requested by an applicant.  If the Department denies the exception request, then within seven (7) days the applicant may submit a written request to the city council to review the request and approve or deny it.

 

(b)       Submittal Requirements. A request for an exception under this section shall include:

  

1.         A written statement which (a) identifies the standard for which an exception is requested; (b) describes the proposed manner in which the application deviates from the standard; and (c) provides a thorough explanation of the technical, commercial, or other justifications demonstrating the necessity of the exception requested.

 

2.         A site plan which:

 

a.         Describes the proposed small wireless facility’s design and dimensions, as it would appear with and without the exception;

 

b.         Includes elevations showing all components of the small wireless facility, as it would appear with and without the exception; and

 

c.         Includes color simulations of the small wireless facility after construction demonstrating compatibility with the surrounding environment, as it would appear with and without the exception.

 

(c)          Criteria.  The Department will consider the following in determining whether to grant an exception requested hereunder:

  

1.         Whether the exception is consistent with the purpose of the standard for which the exception is sought; and

 

2.         Whether the alternative proposed as an exception to the standard otherwise minimizes the visual impact to the site and surrounding area to the greatest extent feasible.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

 

Sec. 13-237.  Violation of this article.

Violation of any of the provisions of this article shall be punishable by a fine of up to $500 for each violation. Each day that a violation occurs or is allowed to exist by the applicant or wireless provider constitutes a separate offense.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-238.  Laws, rules and regulations.

This Ordinance shall be subject to all applicable laws, rules and regulations now or hereafter enacted.

  

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-239.  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 is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of the Ordinance shall not be affected thereby.

   

Source:  Ord. No. 5678, § 1, 09-08-2020;

Sec. 13-240.  Conflicts.

In the event of a conflict between the provisions of Federal law and the Act, the more restrictive shall control. Any local ordinance or part thereof in conflict with the provisions of this Ordinance is hereby repealed to the extent of such conflict.

 

Source:  Ord. No. 5678, § 1, 09-08-2020;

ARTICLE XV.  SIDEWALK CAFES

Sec. 13-301.  Definitions.

Sidewalk café shall mean that portion of the public right-of-way kept, used, maintained, and held out to the public as a temporary place where food and/or drink are served for consumption on the premises.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-302.  Purpose.

 

It is found and declared that sidewalk cafés promote the public interest by:

 

a.         Making downtown Norfolk an active and attractive pedestrian environment;

 

b.         Providing the opportunity for creative, colorful, pedestrian-focused commercial activities on a day/night and seasonal basis;

 

c.         Encouraging commercial activities which add excitement, charm, vitality, diversity, and good design to downtown Norfolk; and

 

d.         Encouraging the up-grading of store fronts and the development of compatible and well-designed elements within downtown Norfolk.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

 

Sec. 13-303.  Licenses.

The record owners of business property abutting public space in areas in downtown Norfolk may, subject to the provisions of this article and despite any provisions in this Code to the contrary, obtain a license to utilize so much of the surface space on which their properties abut as the city determines is not needed for the use of the general public during specified times on specified days for sidewalk cafés.  Any record owner who desires to authorize another to occupy the public space abutting the record owner's property shall file with the city clerk a notarized copy of the agreement covering the space to be occupied prior to the issuance of the license.  A sidewalk café license may not be issued for a business which proposes to sell alcoholic drinks unless that business demonstrates that the sale of alcoholic drinks is not the primary purpose of the business and that the business is primarily a restaurant deriving more that 35% of its gross profits from the sale of food.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-304.  Application for license; context.

Application for such license shall be made to the city clerk upon a form to be furnished by the city, which application shall set forth the following:

 

a.  Owner and manager of applicant business;

 

b.   Hours and days of operation;

 

c.   How the extended premises will be supervised and maintained;

 

d.   Description of any permitted advertising and a description or photo of street furniture to be used, if any;

 

e.   Maximum number of patrons to be accommodated and description of the seating to accommodate the maximum number of patrons;

 

f.   Two copies of a plat or drawing indicating, to scale, the amount of surface the applicant is seeking permission to use and the location of the furniture, equipment, and any other article occupying public space, if any;

 

g.   Description of the food and drink (alcoholic and/or non-alcoholic) to be offered for sale.  If alcoholic drinks are to be offered for sale, documentation must be included with the application demonstrating to the satisfaction of the city that:

 

 (1)      The business has a licensed kitchen and offers a full menu during the hours and days of operation of the sidewalk café; or

 

(2)       The business is primarily a restaurant deriving more than 35% of its gross profits from the sale of food.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-305.  Review and grant of license.

The city clerk shall forward the application to the council for review.  If the council approves the application and desires to grant a sidewalk café licnese, an agreement shall be entered into between the applicant and the city setting forth the provisions under which the license is granted.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-306.  License conditions.

The terms of the sidewalk café license shall be as set forth in the license agreement between the applicant and the city and may be amended at any time upon agreement of the parties.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-307.  Suspension or revocation of license.

 

Any license issued pursuant to this article may be suspended or revoked by the council after notice for any of the following causes:

 

a.         Fraud, misrepresentation, false statement contained in the application for the license;

 

b.         Violation of this article or any of the provisions of this code;

 

c.         Conduct of the business licensed under this article in an unlawful manner or in such a way as to constitute a menace to the health or safety of the public;

 

d.         Upon demand of the council.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

 

Sec. 13-308.  Insurance.

The applicant shall provide insurance as set forth in the license agreement between the applicant and the city.  Any termination or lapse of such insurance shall automatically revoke any license granted pursuant to this article.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-309.  Bond.

If the city determines that the sidewalk café use requested is different from the regular and normal use of the surface space, the city may require as a condition of granting such license the providing of a surety bond to guarantee the removal of the applicant's personal property and restoration of the surface space to its prior condition.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-310.  License period, expiration, and renewal.

All licenses shall be due and payable in the office of the city clerk on the first day of May of each year and all licenses shall expire on the thirtieth day of April following issuance.  After the initial approval of a license by the city council for a specific location, annual renewals of such licenses may be made for one year by the licensee paying the renewal fee in the office of the city clerk at least thirty (30) days prior to expiration of any current license.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

Sec. 13-311.  License fee and renewal fee.

Any person issued a license under this article shall pay to the city a license fee and/or annual renewal fee as set forth in Section 2-5 of this Code.

 

Source:  Ord. No. 5614, § 1, 05-06-19;

The public information contained herein is furnished as a public service by the City of Norfolk. The official record is maintained by the City Clerk's Office as required by Neb. Rev. Stat. § 16-317. A printed version of the Norfolk Municipal Code is available at the City Clerk's Office and the Norfolk Public Library.

 

The City Clerk's Office may be contacted at (402) 844-2000 or by email bduerst@norfolkne.gov 

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