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(A) A registrant’s failure to comply with provisions of this chapter shall constitute a violation of this chapter and shall subject the registrant to the code enforcement provisions and procedures as provided in F.S. Chapter 162, F.S. § 166.0415 and §§ 32.035 et seq. of this code of ordinances, as they may be amended. In addition, violation of this chapter may be punishable by a fine not to exceed $250 for an initial violation and not more than $500 for any repeat violations.
(B) In addition to any other remedies available at law, including but not limited to F.S. § 166.0415, and F.S. Chapter 162, or equity or as provided in this chapter, the city may apply any one or combination of the following remedies in the event a registrant violates this chapter, or applicable local law or order related to the public rights-of-way:
(1) Failure to comply with the provisions of this chapter or other law applicable to occupants of the public rights-of-way, may result in imposition of penalties to be paid by the registrant to the city so long as the violation continues.
(2) In addition to or instead of any other remedy, the city may seek legal or equitable relief from any court of competent jurisdiction.
(C) Before imposing a fine pursuant to division (B)(1) of this section, the city shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice, the registrant shall have 30 days to either:
(1) Cure the violation to the city's satisfaction and the city shall make good faith reasonable efforts to assist in resolving the violation; or
(2) File an appeal with the city to contest the alleged violation; § 121.21 of this chapter shall govern such appeal. If no appeal is filed and if the violation is not cured within the 30 day period, the city may collect all fines owed, beginning with the first day of the violation, through any means allowed by law.
(D) In determining which remedy or remedies are appropriate, the city shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the city determines are appropriate to the public interest.
(E) Failure of the city to enforce any requirements of this chapter shall not constitute a waiver of the city's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.
(F) In any proceeding before the city where there exists an issue with respect to a registrant's performance of its obligations pursuant to this chapter, the registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms and conditions of this chapter. The city may find a registrant that does not demonstrate compliance with the terms and conditions of this chapter in default and apply any one or combination of the remedies otherwise authorized by this chapter.
(G) The City Manager or designee shall be responsible for administration and enforcement of this chapter, and is authorized to give any notice required by law.
(Ord. 1380, passed 9-5-01; Am. Ord. 1760, passed 10-2-13; Am. Ord. 1903, passed 8-1-18)
(A) Upon abandonment of a communications facility or personal wireless service facility owned by a registrant in public rights-of-way, the registrant shall notify the city within 90 days.
(B) The city may direct the registrant to remove all or any portion of such abandoned facility at the registrant’s sole expense if the city determines that the abandoned facility's presence interferes with the public health, safety or welfare, which shall include, but is not limited to:
(1) Compromises safety at any time for any public rights-of-way user or during construction or maintenance in public rights-of-way;
(2) Prevents another person from locating facilities in the area of public rights-of-way where the abandoned facility is located when other alternative locations are not reasonably available; or
(3) Creates a maintenance condition that is disruptive to the public rights-of-ways use. In the event of division (2), the city may require the third person to coordinate with the registrant that owns the existing facility for joint removal and placement, where agreed to by the registrant.
(C) In the event that the city does not direct the removal of the abandoned facility, the registrant, by its notice of abandonment to the city, shall be deemed to consent to the alteration or removal of all or any portion of the facility by the city, another utility or person at such third party’s cost.
(D) If the registrant fails to remove all or any portion of an abandoned facility as directed by the city within a reasonable time period as may be required by the city under the circumstances, the city may perform such removal and charge the cost of the removal against the registrant.
(Ord. 1380, passed 9-5-01; Am. Ord. 1760, passed 10-2-13)
In the event a registrant’s performance of or compliance with any of the provisions of this chapter is prevented by a cause or event not within the registrant’s control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result, provided, however, that such registrant uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this chapter, causes or events not within a registrant’s control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within registrant’s control, and thus not falling within this section, shall include, without limitation, registrant’s financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of registrant’s directors, officers, employees, contractors or agents.
(Ord. 1380, passed 9-5-01; Am. Ord. 1760, passed 10-2-13)
(A) Each registrant shall, upon 30 calendar days written notice, if reasonably possible, but in no event less than 5 business days written notice, provide the city access to all books and records related to the construction, maintenance, or repair of the facility to the extent the city review of the books and records is necessary to manage its rights-of-way.
(B) Any and all non-proprietary or non-confidential books and records may be copied by the city. To the maximum extent permitted by F.S. § 202.195, as amended, such books and records shall be kept confidential and exempt from the provisions of F.S. § 119.07(1). A registrant is responsible for obtaining or maintaining the necessary possession or control of all books and records related to the construction, maintenance or repair of the facility, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that any record that is a public record must be maintained for the period required by state law.
(C) For purposes of this section, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the city at City Hall, except by agreement.
(D) If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a registrant may request that the inspection take place at some other location mutually agreed to by the city and the registrant, provided that the registrant must make necessary arrangements for copying documents selected by the city after its review; and the registrant must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee.
(E) Without limiting the foregoing, a registrant shall provide the city the following within 10 calendar days of their receipt or (in the case of documents created by the registrant or its affiliate) filing:
(1) Notices of deficiency or forfeiture related to the operation of the facility; and
(2) Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the operator or by any partnership or corporation that owns or controls the operator directly or indirectly.
(F) In addition, the city may, at its option, and upon reasonable notice to the registrant, inspect the facilities in the public rights-of-way to ensure the safety of its residents.
(Ord. 1380, passed 9-5-01; Am. Ord. 1760, passed 10-2-13)
(A) The city reserves the right to amend this chapter as it shall find necessary in the lawful exercise of its police powers.
(B) This chapter shall be applicable to all communications facilities placed in the public rights-of-way on or after the effective date of this chapter and shall apply to all existing communications facilities in the public rights-of-way prior to the effective date of this chapter, to the full extent permitted by state and federal law.
(C) The adoption of this chapter is not intended to waive any rights or defenses the city may have under existing franchise, local business tax receipt or other agreements with a communications services provider.
(D) Nothing in this chapter shall affect the remedies the city has available under applicable law.
(Ord. 1380, passed 9-5-01; Am. Ord. 1576, passed 4-18-07; Am. Ord. 1760, passed 10-2-13)
SMALL AND MICRO WIRELESS FACILITIES
This section was adopted pursuant to the authority provided in chapter 2017-136, Laws of Florida, which enacted F.S. § 337.401(7), known as the “Advanced Wireless Infrastructure Deployment Act,” as may be amended from time to time. To the extent of any conflict between this section and state law, the applicable provisions of state law shall control. To the extent of any conflict between this section and any other provision of Chapter 121, this section shall control.
(A) Definitions. For purposes of this section, the following definitions shall apply:
ANTENNA. Communications equipment that transmits or receives electromagnetic radio frequency signals used in providing wireless services.
APPLICABLE CODES. Uniform building, fire, electrical. plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address threats of destruction of property or injury to persons, or local codes or ordinances adopted to implement F.S. § 337.401. The term includes objective design standards adopted by ordinance that may require a new utility pole that replaces an existing utility pole to be of substantially similar design, material, and color or that may require reasonable spacing requirements concerning the location of ground-mounted equipment. The term includes objective design standards adopted by ordinance that may require a small wireless facility to meet reasonable location context, color, stealth, and concealment reguirements.
APPLICANT. A person who submits an application and is a wireless provider.
APPLICATION. A request submitted by an applicant to the city for a permit to collocate small wireless facilities.
CITY UTILITY POLE. A utility pole owned by the city and located in the right-of-way.
COLLOCATE or COLLOCATION. To install, mount, maintain, modify, operate, or replace one or more wireless facilities on, under, within, or adjacent to a wireless support structure or utility pole. The term does not include the installation of a new utility pole or wireless support structure in the public rights-of-way.
MICRO WIRELESS FACILITY. A small wireless facility having dimensions no larger than 24 inches in length, 15 inches in width, and 12 inches in height and an exterior antenna, if any, no longer than 11 inches.
SMALL WIRELESS FACILITY. A wireless facility that meets the following qualifications:
(a) Each Antenna associated with the facility is located inside an enclosure of no more than six cubic feet in volume or, in the case of Antennas that have exposed elements, each Antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet in volume; and
(b) All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, ground-based enclosures, grounding equipment, power transfer switches, cutoff switches, vertical cable runs for the connection of power and other services, and utility poles or other support structures.
UTILITY POLE. A pole or similar structure that is used in whole or in part to provide communications services or for electric distribution, lighting, traffic control, signage, or a similar function. The term includes the vertical support structure for traffic lights but does not include a horizontal structure to which signal lights or other traffic control devices are attached and does not include a pole or similar structure 15 feet in height or less unless the city grants a waiver for such pole.
WIRELESS PROVIDER. A wireless infrastructure provider or a wireless services provider.
WIRELESS SUPPORT STRUCTURE.
A
freestanding structure, such as a monopole, a guyed or self-supporting tower, or another existing or proposed structure designed to support or capable of supporting wireless facilities. The term does not include a utility pole.
(B) Location; alternative location procedure. Small wireless facilities shall not be subject to the minimum separation distances set forth in § 121.12(D)(6)(b)7 of the city code, except as expressly permitted by law. Within 14 days after the date of filing a complete application for a small wireless facility, the city may request that the proposed location of a small wireless facility be moved to another location in the right-of-way and placed on an alternative city utility pole or support structure or may place a new utility pole. The city and the applicant may negotiate the alternative location, including any objective design standards and reasonable spacing reguirements for ground-based equipment, for 30 days after the date of the request. At the conclusion of the negotiation period, if the alternative location is accepted by the applicant, the applicant must notify the city of such acceptance and the application shall be deemed granted for any new location for which there is agreement and all other locations in the application. If an agreement is not reached, the applicant must notify the city of such non-agreement and the city shall grant or deny the original application within 90 days after the date the application was filed. A request for an alternative location, an acceptance of an alternative location, or a rejection of an alternative location must be in writing and provided by electronic mail.
(C) Height. The height of a small wireless facility shall not exceed ten feet above the utility pole or structure upon which the small wireless facility is to be collocated. Unless waived by the city, the height for a new utility pole is limited to the tallest existing utility pole as of July 1, 2017, located in the same right-of-way, other than a utility pole for which a waiver has previously been granted, measured from grade in place within 500 feet of the proposed location of the small wireless facility. If there is no utility pole within 500 feet, the height of the utility pole upon which the small wireless facility is to be collocated shall not exceed 50 feet.
(D) Collocation application process. Within 14 days after receiving an application for a permit to place a small wireless facility, the city shall determine and notify the applicant by electronic mail as to whether the application is complete. If an application is deemed incomplete, the city shall specifically identify the missing information. An application is deemed complete if the city fails to provide notification to the applicant within 14 days. Pursuant to F.S. § 337.401(7), as may be amended from time to time, a complete application to place a small wireless facility is deemed approved if the city fails to approve or deny the application within 60 days after receipt of the application. If the city does not use the 30-day negotiation period provided in subsection (B) above, the parties may mutually agree to extend the 60-day application review period. The city shall grant or deny the application at the end of the extended period. A permit issued pursuant to an approved collocation application shall remain effective for one year unless extended by the city.
(E) Written approval or denial. The city shall notify the applicant of approval or denial by electronic mail. The city shall approve a complete application unless it does not meet the applicable codes. If the application is denied, the city shall specify in writing the basis for denial, including the specific code provision(s) on which the denial was based, and send the documentation to the applicant by electronic mail on the day the city denies the application. The applicant may cure the deficiencies identified by the city and resubmit the application within 30 days after notice of the denial is sent to the applicant. The city shall approve or deny the revised application within 30 days after receipt or the application is deemed approved. Any subsequent review shall be limited to the deficiencies cited in the denial.
(F) Consolidated application. An applicant seeking to collocate small wireless facilities within the city may, at the applicant’s direction, file a consolidated application and receive a single permit for the collocation of up to 30 small wireless facilities. If the application includes multiple small wireless facilities, the city may separately address small wireless facility collocations for which incomplete information has been received or which are denied.
(G) Basis for denial. The city may deny a proposed collocation of a small wireless facility in the public rights-of-wav if the proposed collocation:
(1) Materially interferes with the safe operation of traffic control equipment:
(2) Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes:
(3) Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement:
(4) Materially fails to comply with the 2010 edition of the Florida Department of Transportation Utility Accommodation Manual; or
(5) Fails to comply with applicable codes.
(H) Exemptions. The following shall not require permit approval, fees, or other charges:
(1) Routine maintenance;
(2) Replacement of existing wireless facilities with wireless facilities that are substantially similar or of the same or smaller size; or
(3) Installation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles in compliance with applicable codes by or for a communications services provider authorized to occupy the rights-of-way and who is remitting taxes under F.S. Chapter 202.
(I) Collocation on city utility poles.
(1) The fee to collocate a small wireless facility on a city utility pole shall be $150 per pole annually.
(2) The city may reserve space on a city utility pole for future public safety uses. However, a reservation of space may not preclude collocation of a small wireless facility. If replacement of the city utility pole is necessary to accommodate the collocation of the small wireless facility and the future public safety use, the pole replacement is subject to make-ready provisions and the replaced pole shall accommodate the future public safety use.
(3) For a city utility pole that supports an aerial facility used to provide communication services or electrical service, the city and applicant shall comply with the process for make-ready work under 47 U.S.C. § 224 and implementing regulations. The good faith estimate of the city for any make-ready work necessary to enable the pole to support the requested collocation must include pole replacement, if necessary.
(4) For a city utility pole that does not support an aerial facility used to provide communications services or electric service, the city shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation, including necessary pole replacement, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, shall be completed within 60 days after written acceptance of the good faith estimate by the applicant. Alternatively, the city may require the applicant seeking to collocate a small wireless facility to provide a make-ready estimate at the applicant’s expense of the work necessary to support the small wireless facility, including pole replacement, and perform the make-ready work. If pole replacement is reguired, the scope of the make-ready estimate is limited to the design, fabrication, and installation of a utility pole that is substantially similar in color and composition. The city may not condition or restrict the manner in which the applicant obtains, develops, or provides the estimate or conducts the make-ready work subject to usual construction restoration for work in the rights-of-way.
(5) The make-ready work specified in subsections (I)(3) and (4) of this section shall be subject to the city’s usual construction restoration standards for work in the right-of-way. The replaced or altered city utility pole shall remain the property of the city.
(J) Design standards. The city’s design standards set forth in the applicable codes may be waived by the City Manager, or his or her designee, upon a showing that the design standards are not reasonably compatible for the particular location of a small wireless facility or that the design standards impose an excessive expense for a small wireless facility. The waiver shall be granted or denied within 45 days after the date of the request.
(K) Permitting. An applicant for installation of a small wireless facility shall obtain a right-of-way permit from the city for any work that involves excavation, closure of a sidewalk, or closure of a vehicular lane.
(L) Airport airspace. A structure granted a permit and installed pursuant to this section shall comply with F.S. Chapter 333, and federal regulations pertaining to airport airspace protections.
(M) No authorization to collocate on city utility poles; no application to homeowner’s association restricted pole. This section does not authorize a person to collocate small wireless facilities or micro wireless facilities on a city utility pole, unless otherwise permitted by applicable law, or erect a wireless support structure in a location subject to covenants, conditions, restrictions, articles of incorporation, and bylaws of a homeowners’ association.
(Ord. 1903, passed 8-1-18)