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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 .............R.'Y....... ........ ...... ,,.., /,a� _ and by cm c nom— 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