HomeMy WebLinkAbout1977-06-13 272 AE ORDER272 AE
Introduced by Councilor McKernan, June 13. 1977
CITY OF BANGOR
(TITLE.) Wrlba,_--Approving Request Prom Freese s -Sidewalk Display,
By the (Try Cannell of B. Ary OrFduy :
ORDERED.
THAT the request from Freese's, Inc, to display merchandise
on the public sidewalk area of Merchants Plaza at various times
during the months of June, July and August, 1977, be and hereby
is approved, subject to such conditions as may be imposed by the
Public Safety Committee. _
272 AS
IN CITY OIMCIL.
June 13, 1977
-: Refected to public Safety 0 R ➢ E R µps
Committee, Consider next meeting.
.fade. ®/.�. na Title,
,ci1R'cI§t Cn
after "display" In let line.
As Amended, passed by the following
yea and no vocal Councilors voting
Pass Brownies, HCRernan, Soucy,
Soulas, Willey and 8endaian. Councilors
voting n Finnigan and Gass. Councilor
Henderson absent.
keen/ A
CITY CLBHI(
RECEIVED
CITY. OF 8ANCOR
CITY CLERH'L OFFICE
'77 JUt! 9 Ph 3 56
revl Re oast
^PP....°6...4........................
Eaum Preeae�e
IN CI1Y
COUNCIL
June 27,
1977
Consider
next meeting.
Stdawalk Bis 1
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and
by
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0 CITY
July il,
COUNCIL
19P977
`Introduced
�fi{led`
Amended
by adding "end sell"
Councilman
after "display" In let line.
As Amended, passed by the following
yea and no vocal Councilors voting
Pass Brownies, HCRernan, Soucy,
Soulas, Willey and 8endaian. Councilors
voting n Finnigan and Gass. Councilor
Henderson absent.
keen/ A
CITY CLBHI(
RECEIVED
CITY. OF 8ANCOR
CITY CLERH'L OFFICE
'77 JUt! 9 Ph 3 56
et, ,
MLMORANDUH
July 11, 19]]
TO: Councilor Jams S. Sanderson
FROM: Robert E. Miller, City Solicitor
The purpose of this Memorandum is to respond to some of the questions
raised by you at the last regular meeting of the Council in respect to Council
Order #272 AT. The order, If adopted, would authorise Freese's, Inc. to
. . . display merchandise on the public sidewalk area of Merchants Plaza at
various times during the months of June, July and August, 19)), . subject
to such conditions as may be imposed by the public Safety Committee,". Inasmuch
an the issue is of interest to the entire Council, copies of this Memorandum
ate being distributed to the ocher, members.
frustrating On the issue, a fair statement Of the law generally in
this field is found in 39 not Jur 2d "Highways, Streets, and Bridges", as follows:
'The ubllc is titled to the unobstructed and uninterrupted
of the width on
f M1igswaya, atxeere one tdew,1k8
e [ Insofaencr the ubl is uthority o abutting o
[Bitted to encroach n n L1[e primary rules xitha LO as limited
extent r fox actenpo[ary puxoo a nz The rule that any es or -
o[t2ed obeC[uction acbme nt which materially impedes o
interferes with the usenot a highway by the public for trawland
Fr poxtatio constitutes a public nuisance, which may be
forbidden and prohibited.
_ The public right t unobstructed a of a street i all Its parts
is not absolute, but relative. Travelers a[ not entitled to '�\ abaolo[elY level and vmbatxuc[ed pas eageway along a public h way
or street; salons, certain ¢ acharents [hereof may be tolerated
xmp_ permitted, and It is the duty of the travelers to exercise their
right of passage with regard to much lawful encroachments. But the
law ne saidto nav cna ed his states from that of a
traveler to a at of a nuiea ie c
t properly said a s matter of law that [M1e plaintiff
had lost his rights atraveler." Ihid, at 351. (Onphasis -
Ours) Note: The case
was determined on other issues not
relevant to the present question.
A case more factually similar to the prevent issuers State v
Barbelais LCI Me. 512 (1906). In this case, the defendant was selling
fruit out of a pushcart on the Streets of Auburn. Local officials prosecuted
him under a then existing Auburn ordinance which Stated that: "M, person
shall in any part of a public street catty on any trade or business unless
the same is especially allowed by law or some ordinance
of the city without
a written permit so to do from the Board of Mayor and Aldermen, or some person
by them duly authorized to grant the same.
The Court stated that:
'The ordinance not inconsistent with any provision of law,
and we are nable to perceive anything unreasonable in an
ordinance,when reasonably construed, the object of which is
to prevent the carrying on of trade or business in the public
streets of a city. Upon the contrary it seto us to be a
salutary regulation by themunicipality as to the a of its
public streets. Streets are located and c nstructede and the - -
private property of individuals taken therefor, by the exercise
of the right of eminent domain, when necessary, for the public
purpose of travel and. wt tiwt "otherindividuels may a thea_
streets far [he rfvate [ 1 n trade business
therein. No[ is it a objection toocthe validity of such a
ord" regulating the a of the s eet$, that the acts npro
hfbitedcwould not i and ofethemselves me rily obstruct
travel., or in any war create a cThea rrying o of
rade or, business in the publicstreetsby one, or by a few
persons, might not be of sufficient consequence to materially
obstruct the public travel, while if the same should be done by
many it might create aserious
u
obstruction and n and
what may be done by o in this respect, all must haveanequal
righto do. The purposes
of this ordinance was to preserve the
use of the streets in .the city for the public purposes for which
all streets aM ways are constructed."
The Court went on to consider whether the facts in thepresent action
constituted a violation of the ordinance. In reaching its decision, the Court
stated that;
"The ordinance meat, of co reasonable
construction. It w not intendedtoprohibit two persons
who happened to be on the street from commencing any
consummating a business transaction, n necessarily that
e per may not make a sale of a article to another
upon the street, as the result of private negotiation, but
it does mean, we think, that a person shall not, among other
things, offer articles for sale to the public and in a public
either from a permanent stand or from a cart which he
da t
r pushes along the a with frequenttops whenever
anyto n the street desires tomake a purchased him. A
pe[eonwho is offering fox sale articles in this manner is using
the streets of [he cit ,w[ far Che DUrDose of travel also the
streets in going from place [o place but as a p a business,
aM such acts a with
in the p[oh ib i[ion of the o[d mance ." turn
at sic-sls. (BroAasis Mrs)
The present application by Freese is
apparently sought under the
provisions of Chapter VI, Article 1, Settlon2 of the ordinances of the City
of Bangor which provide in part as follows;
"Sec. 3 Sale of Merchandise on Fublic weyn Restricted. No person
shall
offer for sale any goods, w and merchandise at retail
in any street, lane, upon any sidewalk or public place
within the City, without first obtaining permission
from the Municipal Officers or by some person by them
authorized,...." (The deleted provisions do art relate
to the present iso um).
As, is obvious from the plain meaning of the terms of the Bangor
.ordinance, the sale of merchandise upon the public ways is only authorized when
permission has been granted by the City Council. (A similar requirement was
found in the Auburn ordinance quoted in Barbelais, Ibid. Apparently the
defendant in that case had refused to seek the necessary permit.)
I personally would prefer to see the pending order spell out the exact
days and terms under which the permission is given, and not have the matter
decided by a committee. dowevex, the applicable ordinance does suggest that
such decisions may be made by a subordLmta agency or person, such as the
PublicFafety Committee.
Whether it be the City Councilor the public Safety Committee which
most make the decision, it most be kept in mind that the right of the general
citizenry to use the public ways, including the sidewalks, for travel remains
superior to any other use of the area. gowever, authorised temporary uceasooab Le"
obstructions and interference with the public ways by others and -which do not
interfere with reasonable use of abutting property may, in my judgment, be
approved.
In conclusion, I would suggest that before Order M. 272 AS may be
adopted, the Council meat determine, in its own tight, that the public right
to use the sidewalks near Freese's will not be unreasonably obstructed by the
proposed sale, including members of the public shedding the sale. A similar
type of judgment and consideration comes fate play when a.scaffolding permit
(Chapter VI, Art. 9, Sec. 4) or a parade permit (Chapter VI, Art. 11) are
issued; or when a law enforcement officer asks somone to move along under the
newly revised provisions of the City's Long -e istingloitering ordinance. (We
have had a loitering ordinance on the books since at least 1915). In other
words, so long as the way exists for the benefit of the traveling public, their
right to unobstructed travel remain supreme.
As an additional guide, I refer you to the comments of the Maim
Supreme Judicial Court in George 5. Cha men vs. City of Portland i reviewing
the City's decision to limit the number of taxicab stands along Portland streets.
The citizen has a constitutional and common law
tight to travel and transport his property by motor
vehicles over the public highways, including the st rents
of a city. sand, subject to statutory c[municipal regulation,
has the right to make a reasonable us of such vehicles in
the business of carrying passengers or freight for hire.
Th fs i h[ [a ca civet a private business on the public
highway, M1owe , is not fnne[ nt vested, but is in [M1e
E 'a1 privilege wh or the State or muntciValitZ
under its delegated power, may either conaltion, restrain,
extend or prohibit (citations omitted) The City of Portland
undoubtedly, In the a of Its delegated police power,
1s authorized to limit the number of public vehicle atande
upon its streets and fu their location, or even to prohibit
them altogether, to the end that, without undue impairment of
the public hackney service, traffic Congestion may be prevented
and the safety aM c en ie nce of public travel p[ cede" George
S. Chapman vs. City of Port la 13L Me. 242, 245-2716 (1932)
(Ensues is Our e)
to
City Manage[
Police Chief
P.S. For your information, o w Criminal' Codec tains a provision
u
prohibiting the sonable"rplac sent of obstruction$ to foot or vehicular
traffic on public ways. See 17-A MRSA $505. This new
statutory provision, a
s
in the of our loitering ordinance, does not create aviolation of the law
until the person refuses to cease or remove the prohibited obstruction after a
lawful order from a law enforcement officer. Mother provision
relating to
obstructions of a more permanent nature is found in 17 MPSA12802.
R.%.M