(Ord. No. 5337, 3-1, 12-10-91; Ord. No. 7423, 3-11-2008; Ord. No. 8366, § 1, 8-13-2019)

(Ord. No. 5337, 3-2, 12-10-91; Ord. No. 8366, § 2, 8-13-2019)

(Code 1980, 3-17, 3-35; Ord. No. 5337, 3-3, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 3, 8-13-2019)

This article shall be known as the City of Kearney Construction Sign Code and is intended to protect the value of surrounding properties, the character of various use areas, and the health, safety, and welfare of the citizens of Kearney.

The principle features of the article are registration of permanent sign installers, construction and design standards for permanent signs, and permit requirements for permanent signs and applicable temporary signs. This article pertains to all permanent, exterior signs within the jurisdiction of the City of Kearney. This article works along with Chapter 50—Sign Regulations.

(Ord. No. 8367, § 2, 8-13-2019)

A.

No person, firm, or corporation shall engage in the business of installing, altering, repairing, or removing any sign within the corporate limits of the City, unless he/she is registered as a sign installer with the City.

Each person registering under the provisions of the above paragraph shall pay a two-year registration fee as set forth in the current City Comprehensive Fee Schedule.

B.

Any person engaged in making connections of any electric sign to any electrical power system shall be registered as an electrician with the City or shall be employed by a City registered sign installer and possess a current Special Electrician license issued by the State of Nebraska, as provided in Rule #9 of the State Electrical Board Rules, with proof of license on file in the Development Services Department.

(Ord. No. 8367, § 3, 8-13-2019)

A.

The City Council, by a majority vote, shall have the power to revoke the registration of any sign installer pursuant to this article, upon recommendation of the Building Official, if such registration was fraudulent, or if the sign installer is shown to be grossly incompetent or has twice, within a 12-month period, been found in violation of any provisions of this article. This penalty shall be cumulative and in addition to any and all penalties prescribed for the violation of the provisions of this article.

B.

Before registration can be revoked, notice shall be issued in writing enumerating the charges against him/her, and he/she shall be entitled to a hearing before the City Council, by appealing in writing no later than five (5) business days from the date of receipt of the notice. The registrant shall be given an opportunity to present testimony, oral or written, and shall have the right of cross-examination. All such testimony before the City Council shall be given under oath. The City Council shall have the power to administer oath, issue subpoenas, and compel the attendance of witnesses in such cases.

(Ord. No. 8367, § 4, 8-13-2019)

Every person applying for registration as a Registered Sign Installer shall present evidence to the Building Official that he/she has an insurance policy providing:

A.

Worker's compensation insurance.

B.

Minimum public liability and property damage insurance for the general public in the amounts of: one million dollars ($1,000,000.00) for each person, one million dollars ($1,000,000.00) each accident, and one hundred thousand dollars ($100,000.00) property damage, executed by an insurance company authorized to do business in the State of Nebraska and acceptable to the City.

C.

The City of Kearney shall be named a Certificate Holder, on the above liability and property damage insurance.

D.

A thirty (30) day written notice shall be given to the Building Official in the event of expiration or of proposed cancellation of the insurance policy.

(Ord. No. 8367, § 5, 8-13-2019)

A.

Applicability. A sign permit, approved by the Building Official, shall be required before the erection, construction, alteration, placing, or locating of all applicable signs and/or sign parts within corporate limits of the City or the extra-territorial jurisdiction conforming to this title. A change of sign copy within an unaltered cabinet or on an unaltered outdoor advertising sign is exempt from requiring a permit.

B.

Plans Submittal. A copy of plans and specifications shall be submitted to the Building Official for each sign regulated by this title. When requested by the Building Official, the applicant shall furnish a certification of the structural integrity of the sign, the reuse of existing elements, and its installation by a Nebraska registered professional engineer or architect with specialization in structures.

C.

Incomplete Applications. In the event insufficient information is received to issue a permit, the Development Services Department will request the balance of required information. If no response is received within thirty (30) calendar days of the request, said application will become null and void and information will no longer be kept on file. Any fees paid will be forfeited by applicant.

D.

Expiration. If the work authorized by a permit issued under the provisions of the Development Services Department has not been completed within six (6) months after the date of issuance, the permit shall become null and void.

E.

Appeals. Any person or persons aggrieved by the decision of the Building Official to approve or disapprove a sign permit, as provided by this Code section, may appeal such decision to the Board of Adjustment as provided by Section 59-108.

F.

Application Fees. Fees as prescribed in this article are set forth in the City of Kearney Comprehensive Fee Schedule.

1.

Where work for which a permit is required, for this article, is started prior to obtaining the prescribed permit, the fee specified in the City of Kearney Comprehensive Fee Schedule shall be doubled. The payment of such double fees shall not relieve any person from fully complying with the requirements of this article in the execution of the work or from any other penalties prescribed herein.

2.

A separate electrical permit is required for the hook-up of an electric sign. Fees are set forth in the City of Kearney Comprehensive Fee Schedule.

(Ord. No. 8367, § 6, 8-13-2019)

A.

Design; General Requirements. Signs shall be designed and constructed to comply with the provisions of the City of Kearney code for use of materials, loads, and stresses.

B.

Design; Drawings and Specifications. Where a permit is required, as provided in the adopted edition of the International Building Code, construction documents shall be required. These documents shall show the location, dimensions, materials, and required details of construction, including loads, stresses, and anchors

C.

Design; Clearances and Projections. All signs must maintain the following clearances and projections as well as any clearances and projections outlined in Chapter 50—Signs.

1.

Clearances. The lowest point of a sign must maintain the following minimum vertical clearances, unless otherwise stated in Chapter 50:

a.

Seven (7) feet, six (6) inches over sidewalks;

b.

Fifteen (15) feet over parking lots;

c.

Eighteen (18) feet over driveways.

2.

Projections. The projection regulation below shall stand, unless otherwise stated in Chapter 50:

a.

No sign or sign structure shall project into any street right-of-way.

b.

No sign or sign structure shall project into any public alley right-of-way.

D.

Design; Wind Load. Signs and sign structures shall be designed and constructed to resist wind forces as specified in the City adopted edition of the International Building Code.

E.

Design; Seismic Loads. Signs and sign structures shall be designed and constructed to resist seismic forces as specified in the City adopted edition of the International Building Code.

F.

Design; Working Stresses. In outdoor signs, the allowable working stresses shall conform to the requirements in the City adopted edition of the International Building Code. The working stresses of wire rope and its fastenings shall not exceed twenty-five percent (25%) of the ultimate strength of the rope of fasteners.

Exceptions:

1.

The allowable working stresses for steel and wood shall be in accordance with the provisions of Chapter 22 and Chapter 23 of the City adopted edition of the International Building Code.

2.

The working strength of chains, cables, guys, or steel rods shall not exceed one-fifth (⅕) of the ultimate strength of such chains, cables, guys, or steel.

G.

Design; Footing Design and Loading. The footing design and/or loading of signs shall be certified by an architect or engineer registered in the State of Nebraska with specialization in structures.

H.

Design; Identification. Every sign and awning erected in the City shall be plainly marked with the name of the person/company erecting such sign or awning, including the permit number under which it was erected. Every electric sign and awning shall have plainly marked thereon the voltage, amperage, rating, and the name of the person/company manufacturing such sign or awning. It shall be unlawful for any person to remove from any sign or awning the identification tag. However, whenever a sign or awning company assumes the maintenance of a sign or awning erected by another, he/she shall place his/her identification thereon. The identification tag shall be maintained so it is legible at all times.

(Ord. No. 8367, § 7, 8-13-2019)

A.

Construction; General. A sign shall not be erected in a manner that would confuse or obstruct the view of or interfere with building exit signs, required by the International Building Code, or with official traffic signs, signals, or devices.

Signs shall not be erected, constructed, or maintained so as to obstruct any fire escape or any window, door, or other opening used as a means of egress, or so as to prevent free passage from one part of a roof to other part thereof. A sign shall not be attached in any way, shape or manner to a fire escape, nor be placed in such manner as to interfere with any opening required for ventilation.

The supports for all signs or sign structures shall be placed in or upon private property and shall be securely built, constructed and erected in conformance with the requirements of this Code.

B.

Construction; Materials. Materials of construction for signs and sign structures shall be of the quality and grade as specified for buildings in Chapter 16 of the City adopted edition of the International Building Code.

1.

Awnings and Canopies: Shall comply with the requirements of Section 3105 of the City adopted International Building Code.

C.

Construction; Anchorage. Members supporting unbraced signs shall be so proportioned that the bearing loads imposed on the soil in either direction, horizontal or vertical, shall not exceed the safe values. Braced ground signs shall be anchored to resist the specified wind or seismic load acting in any direction. Anchors and supports shall be designed for safe bearing loads on the soil and for an effective resistance to pullout amounting to a force twenty-five percent (25%) greater than the required resistance to overturning. Anchors and supports shall penetrate to a depth below ground greater than that of the frost line.

Signs attached to masonry, concrete or steel shall be safely and securely fastened thereto by means of metal anchors, bolts, or approved expansion screws of sufficient size and anchorage to safely support the loads applied.

No wooden blocks, plugs, or anchors used in connection with screws or nails shall be considered proper anchorage, except in the case of signs attached to wood framing.

No anchor or support of any sign shall be connected to, or supported by, an unbraced parapet wall, unless such wall is designed in accordance with the requirements of parapet walls, specified for seismic zones as defined in the City adopted edition of the International Building Code.

D.

Construction; Display Surfaces. Display surfaces in all types of signs may be made of metal, glass, approved plastics, or wood where permitted elsewhere by this article. Glass thickness and area limitations shall be as set forth in Table No. 3-A.

Sections of approved plastics on wall signs shall not exceed two hundred twenty-five (225) square feet in area.

Exceptions:

1.

Section of approved plastics on signs other than wall signs may be of unlimited area if approved by the Building Official.

2.

Sections of approved plastics on wall signs shall be separated three (3) feet laterally and six (6) feet vertically by the required exterior wall construction.

a.

Sections of approved plastics on signs other than wall signs may be contiguous if approved by the Building Official.

E.

Construction; Approved Plastics. Notwithstanding any other provisions of this Code, plastics that burn at a rate not faster than two and a half (2 ½) inches per minute when tested in accordance with ASTM D635 shall be approved for use as the display surface material and for the letters, decorations, and facings on signs and outdoor display structures. Signs erected within five (5) feet of an exterior wall in which there are openings shall be constructed of noncombustible material.

F.

Construction; Electrical. Clearance from overhead power lines. When installed, signs shall maintain clearance from overhead power lines as follows:

1.

Less than seventy hundred fifty (750) volts: Seven (7) feet horizontally and vertically

2.

Over seven hundred fifty (750) volts: Ten (10) feet horizontally and vertically

The term "overhead conductors" as used in this article means any electrical conductor, bare or insulated, installed above the ground, except such conductors as are enclosed in iron pipe or other material covering of equal strength.

G.

Construction; Illumination. A sign shall not be illuminated by means other than electrical, and electrical devices and wiring shall be installed in accordance with the requirements of NFPA 70. An open spark or flame shall not be used for display purposes unless specifically approved.

Signs that require electrical service shall comply with NFPA 70. Every electric sign installed in the City shall bear the label of an approved testing agency and shall meet the applicable articles of the National Electric Code as adopted by the City.

H.

Construction; Inspection. All ground, monument, and pole signs must have a footing inspection approved prior to the placement of the footing and foundation materials. The City requires property lines to be clearly marked at the time of footing inspection, by identified corner pins with string line or survey markers. All signs must have a footing inspection approved by the Development Services Department. It shall be the responsibility of the permit holder to call for these required inspections.

I.

Maximum Size of Exposed Glass Panel

TABLE NO. 3-A—SIZE, THICKNESS, AND TYPE OF GLASS PANELS IN SIGNS

(Ord. No. 8367, § 8, 8-13-2019)

A.

Maintenance. Sign and sign support structures, together with their braces, guys, supports and anchor, shall be kept in repair and in proper state of preservation. The display surfaces of signs shall be kept neatly painted or posted at all times. Any sign or component thereof which is found to be defective must be repaired or replaced in accordance with the current requirements of this Code.

The changing of moveable parts of an approved sign that is designed for such changes, or repainting of display matter shall not be deemed an alteration.

B.

Alterations. No such sign may be enlarged, modified, or altered in any way; however, reasonable repairs may be permitted. Alterations also include the removal and replacement of the sign housing, cabinet, or decorative elements. Any alteration shall require a permit. A change of sign copy within an unaltered cabinet or on an unaltered outdoor advertising sign is not considered an alteration.

(Ord. No. 8367, § 9, 8-13-2019)

A.

Nonconformance of Signs. Where a sign exists at the effective date of adoption or amendment of the ordinance codified in this title or at the effective date of Article 1 of this chapter and Chapter 50, such sign shall be deemed a lawful nonconforming sign as it remains, subject to the following provisions:

1.

No such sign may be enlarged or altered in a way which increases its nonconformity; however, reasonable repairs and alterations may be permitted.

2.

Should such a sign be destroyed by any means to an extent of sixty (60) percent or more of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provision of Article 1 of this chapter and Chapter 50.

(Ord. No. 8367, § 9, 8-13-2019)

A.

Violation a Public Nuisance. If any person erects, alters, relocates, or maintains a sign in violation of the provisions of the sign standards, it is declared a public nuisance, and the City Attorney is authorized to bring an action in a court of competent jurisdiction to enjoin such person from continuing the violation.

B.

Violation Declared a Civil Infraction. It shall be a civil infraction for any person to violate any of the provisions of the sign standards.

C.

Discontinuance of Signs. If a sign or sign structure is in disrepair to a point of over fifty percent (50%) of the sign's total replacement value, the City Manager or designee may order the structure removed, at the owner's expense.

D.

Removal of Abandoned, Prohibited, and Illegal Signs by the Building Official. The Building Official shall enforce the sign standards in accordance with one or more of the following procedures:

1.

Administrative Enforcement.

a.

For any abandoned, discontinued, prohibited, or illegal sign, the Building Official or designee may send notice, via certified mail, to the record owner or occupier of the property to abate the nuisance within a reasonable time.

b.

The Building Official shall specify in the notice the nature of the complaint and penalties and abatement remedies for the violation. Abatement remedies shall consist of one or both of the following remedies:

i.

Removal of the sign; or

ii.

Obtaining the required permits and bringing the sign into compliance with the sign standards.

2.

Summary Abatement. The Building Official or designee may immediately remove any dangerous sign or sign that creates an imminent threat to public safety. The Building Official may immediately remove any prohibited sign or illegal sign that is located within the public right-of-way. Illegal signs located within the public right-of-way are hereby determined to create an imminent threat to public safety.

3.

Civil Citation. The Building Official or designee may issue or cause to be issued a civil citation or civil complaint to any person violating the provisions of the sign standards.

(Ord. No. 8367, § 10, 8-13-2019)

(Code 1958, 3.1; Code 1980, 3-1; Ord. No. 5337, 3-4, 12-10-91; Ord. No. 8366, § 4, 8-13-2019)

(Code 1958, 3.1; Code 1980, 3-2; Ord. No. 5337, 3-5, 12-10-91; Ord. No. 8366, § 4, 8-13-2019)

(Code 1958, 3.3; Code 1980, 3-3; Ord. No. 5337, 3-6, 12-10-91; Ord. No. 8366, § 4, 8-13-2019)

(Code 1980, 3-4; Ord. No. 5337, 3-7, 12-10-91; Ord. No. 8366, § 4, 8-13-2019)

(Code 1980, 3-5; Ord. No. 5337, 3-8, 12-10-91; Ord. No. 8366, § 4, 8-13-2019)

No person shall throw, deposit or distribute any commercial or noncommercial handbill in any parking lot or shopping center or upon any building therein if there is placed on said premises, in a conspicuous position near the entrance thereof, a sign bearing the words "no trespassing," "no peddlers or agents," "no advertisement," or any similar notice.

(Code 1980, 3-18; Ord. No. 5337, 3-9, 12-10-91)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-210

No person shall throw, deposit or distribute any commercial or noncommercial handbill in or upon private premises which are inhabited, except by handing or transmitting any such handbill directly to the owner, occupant or other person then present in or upon such private premises. Provided, however, that in case of inhabited private premises which are not posted, such person, unless requested by anyone upon such premises not to do so, may place or deposit any such handbill upon such premises if such handbill is so placed or deposited as to secure or prevent the same from being blown or drifted about such premises or sidewalks, streets or other public places, and except that mailboxes may not be so used when so prohibited by federal postal law or regulation.

(Code 1980, 3-19; Ord. No. 5337, 3-10, 12-10-91)

It shall be unlawful for any person to throw or deposit any commercial or noncommercial handbill in or upon any private premises which is uninhabited or vacant.

(Code 1980, 3-20; Ord. No. 5337, 3-11, 12-10-91; Ord. No. 5850, 10-25-94)

It shall be unlawful for any person to hand out or distribute or sell any commercial or noncommercial handbill in any public place; except that a handbill may be personally delivered to any person willing to accept the same.

(Code 1980, 3-21; Ord. No. 5337, 3-12, 12-10-91)

No person shall throw or deposit any commercial or noncommercial handbill in or upon any vehicle; provided, however, that it shall not be unlawful in any shopping center or parking lot for a person to hand out or distribute without charge to the receiver thereof a noncommercial handbill to any occupant of a vehicle who is willing to accept it.

(Code 1958, 3.2; Code 1980, 3-22; Ord. No. 5337, 3-13, 12-10-91)

No person shall throw or deposit any commercial or noncommercial handbill in or upon any shopping center or parking lot, nor shall any person hand out or distribute or sell any commercial handbill in any shopping center or parking lot; provided, however, that it shall not be unlawful in any shopping center or parking lot for any person to hand out or distribute without charge to the receiver thereof any noncommercial handbill to any person willing to accept it.

(Code 1980, 3-23; Ord. No. 5337, 3-14, 12-10-91)

The provisions of this Article shall not apply to the distribution of mail by the United States, nor to newspapers, except that newspaper shall be placed on private property in such a manner as to prevent their being carried or deposited by the elements upon any street, sidewalk or other public place or upon private property.

(Code 1980, 3-24; Ord. No. 5337, 3-15, 12-10-91)

(Ord. No. 5337, 3-16, 12-10-91; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8218, 2-13-2018; Ord. No. 8366, § 5, 8-13-2019)

(Ord. No. 5337, 3-17, 12-10-91; Ord. No. 8366, § 5, 8-13-2019)

(Ord. No. 5337, 3-18, 12-10-91; Ord. No. 8366, § 5, 8-13-2019)

(Ord. No. 7156, 3-22-2005; Ord. No. 8366, § 5, 8-13-2019)

(Ord. No. 5337, 3-20, 12-10-91; Ord. No. 8218, 2-13-2018; Ord. No. 8366, § 5, 8-13-2019)

(Ord. No. 2935, 1, 3-13-79; Code 1980, 3-51; Ord. No. 5337, 3-21, 12-10-91; Ord. No. 6964, 6-10-2003; Ord. No. 8366, § 6, 8-13-2019)

(Ord. No. 2935, 1, 3-13-79; Code 1980, 3-52; Ord. No. 5337, 3-22, 12-10-91; Ord. No. 8366, § 6, 8-13-2019)

(Ord. No. 5337, 3-23, 12-10-91; Ord. No. 8366, § 6, 8-13-2019)

(Ord. No. 2935, 1, 3-13-79; Code 1980, 3-55; Ord. No. 5337, 3-24, 12-10-91; Ord. No. 8366, § 6, 8-13-2019)

(Ord. No. 2935, 1, 3-13-79; Code 1980, 3-53; Ord. No. 5337, 3-25, 12-10-91; Ord. No. 8366, § 6, 8-13-2019)

(Ord. No. 2935, 3, 3-13-79; Code 1980, 3-62; Ord. No. 4005, 1, 4-12-88; Ord. No. 5337, 3-26, 12-10-91; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8366, § 6, 8-13-2019)

(Ord. No. 2935, 1, 3-13-79; Code 1980, 3-54; Ord. No. 5337, 3-27, 12-10-91; Ord. No. 8366, § 6, 8-13-2019)

(Ord. No. 5337, 3-28, 12-10-91; Ord. No. 8366, § 7, 8-13-2019)

(Ord. No. 5337, 3-29, 12-10-91; Ord. No. 8366, § 7, 8-13-2019)

(Ord. No. 5337, 3-30, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 7, 8-13-2019)

(Ord. No. 5337, 3-31, 12-10-91; Ord. No. 8366, § 7, 8-13-2019)

(Ord. No. 5337, 3-32, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 7, 8-13-2019)

(Ord. No. 5337, 3-33, 12-10-91; Ord. No. 6082, 2-27-96; Ord. No. 8366, § 7, 8-13-2019)

(Ord. No. 5337, 3-34, 12-10-91; Ord. No. 8366, § 7, 8-13-2019)

(Ord. No. 5337, 3-35, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-36, 12-10-91; Ord. No. 7062, 05-11-2004; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-37, 12-10-91; Ord. No. 7062, 5-11-2004; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-38, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-39, 12-10-91; Ord. No. 7062, 5-11-2004; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-40, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-41, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-42, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-43, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-44, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-45, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-46, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-47, 12-10-91; Ord. No. 8366, § 8, 8-13-2019)

(Ord. No. 5337, 3-48, 12-10-91; Ord. No. 8366, § 9, 8-13-2019)

(Ord. No. 5337, 3-49, 12-10-91; Ord. No. 8366, § 9, 8-13-2019)

(Ord. No. 5337, 3-50, 12-10-91; Ord. No. 8366, § 9, 8-13-2019)

(Ord. No. 5337, 3-51, 12-10-91; Ord. No. 8366, § 9, 8-13-2019)

(Ord. No. 5337, 3-52, 12-10-91; Ord. No. 8366, § 9, 8-13-2019)

(Ord. No. 5337, 3-53, 12-10-91; Ord. No. 8366, § 9, 8-13-2019)

(Ord. No. 5337, 3-54, 12-10-91; Ord. No. 8366, § 10, 8-13-2019)

(Ord. No. 5337, 3-55, 12-10-91; Ord. No. 8366, § 10, 8-13-2019)

(Ord. No. 2935, 3, 3-13-79; Code 1980, 3-61; Ord. No. 5337, 3-56, 12-10-91; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 3, 3-13-79; Ord. No. 3481, 1, 12-22-81; Ord. No. 3688, 1, 5-22-84; Code 1980, 3-63; Ord. No. 5337, 3-57, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 5337, 3-58, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 5337, 3-59, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 2, 3-13-79; Code 1980, 3-37; Ord. No. 5337, 3-60, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 2, 3-13-79; Code 1980, 3-38; Ord. No. 5337, 3-61, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 2, 3-13-79; Code 1980, 3-39; Ord. No. 5337, 3-62, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 3, 3-13-79; Code 1980, 3-64; Ord. No. 3688, 1, 5-22-84; Ord. No. 5337, 3-63, 12-10-91; Ord. No. 6865, 3-12-2002; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 3, 3-13-79; Code 1980, 3-65; Ord. No. 3688, 1, 5-22-84; Ord. No. 5337, 3-64, 12-10-91; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 3, 3-13-79; Code 1980, 3-66; Ord. No. 3481, 2, 12-22-81; Ord. No. 5337, 3-65, 12-10-91; Ord. No. 8366, § 11, 8-13-2019)

(Ord. No. 2935, 3, 3-13-79; Code 1980, 3-67; Ord. No. 5337, 3-66, 12-10-91; Ord. No. 8366, § 11, 8-13-2019)

See Sections 59-108 through 59-111 pertaining to the Board of Adjustment of Chapter 59, "Administration and Procedures" of the City Code.

(Ord. No. 5337, 3-67, 12-10-91; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

See Sections 59-108 through 59-111 pertaining to the Board of Adjustment of Chapter 59, "Administration and Procedures" of the City Code.

(Ord. No. 5337, 3-68, 12-10-91; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

See Sections 59-108 through 59-111 pertaining to the Board of Adjustment of Chapter 59, "Administration and Procedures" of the City Code.

(Ord. No. 5337, 3-69, 12-10-91; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

For the purpose of this Article, certain words and phrases shall be defined as herein set forth:

ALARM SYSTEM: Any mechanical or electrical device that is arranged, designed, or used to signal the occurrence in the City of Kearney of a burglary, robbery, other criminal offense, fire emergency, or medical emergency requiring urgent attention, and to which law enforcement, fire, or emergency medical personnel are expected to respond. Alarm systems include those through which public safety personnel are notified directly of such signals through automatic recording devices or are notified indirectly by way of third persons who monitor the alarm systems and who report such signals to public safety personnel. Alarm systems also include those designed to register a signal which is so audible, visible, or in other ways perceptible outside a protected building, structure, or facility as to notify persons in the neighborhood beyond the zoning lot where the signal is located, who may in turn notify the public safety personnel of the signal. Alarm systems do not include those affixed to automobiles. Further, alarm systems do not include auxiliary devices installed by telephone companies to protect telephone equipment or systems which might be damaged or disrupted by the use of an alarm system.

FALSE ALARM: Any signal created by an alarm system (including but not limited to alarm signals initiated by human error) which signal directly or indirectly notified public safety personnel of the occurrence of a burglary, robbery, other criminal offense, fire emergency or medical emergency when no such emergency exists and when law enforcement, fire, or emergency medical personnel are not needed to respond to a burglary, robbery, other criminal offense, fire emergency, or medical emergency.

SUBSCRIBER: Any person, firm, corporation, partnership, or entity who, or which, purchases, leases, contracts for, or obtains an alarm system.

VENDOR: Any person, firm, corporation, partnership, or entity associated with an alarm business or company, either indirectly or directly, whose duties include but are not limited to any of the following: selling, replacing, moving, repairing, maintaining, or installing an alarm system on or in any structure, building, or facility.

(Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-1)

A.

Duties of Subscriber. It shall be the responsibility of each subscriber to see that the standards of installation and maintenance set forth in this Article are adhered to.

B.

Duties of Vendor. It shall be the responsibility of any vendor causing installation of or maintaining an alarm system to cause such installation or maintenance to conform to the requirements of the fire code and the electric code applicable in the City of Kearney, Nebraska.

C.

Duties of Subscriber and Vendor. Each alarm system shall be utilized only for the purpose of summoning the public safety personnel for emergency and/or life hazard situations. Without the prior express consent of the City Manager or his/her designated representative, systems shall not be tested so as to transmit a signal to public safety personnel when an emergency or life hazard situation does not exist. It shall be the responsibility of each subscriber and also each vendor not to make such tests.

(Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-2)

A.

Notification. Each subscriber must provide to the City on a form provided by the City Manager or his/her designated representative, the name, address, and telephone number of the subscriber and of the vendor, if any, with whom the subscriber has contracted for maintenance of the alarm system. Each subscriber shall also provide the City with the names, addresses, and phone numbers of those persons (not less than two (2)) who can be contacted twenty-four (24) hours a day and seven (7) days a week to turn off or deactivate an alarm system. It shall be the obligation of the subscriber to keep this information current and correct through supplementary notifications filed from time to time on the same form.

B.

Designated Telephone Lines. No person shall use or cause to be used an alarm system or device of any kind that automatically dials or calls any telephone line of the offices of the City or any department or division thereof, except such telephone line or lines as may be designated by the City Manager or his/her designated representative for the specific purpose of receiving signals from alarm systems.

C.

Automatic Dialing or Calling Devices. Alarm systems that automatically dial or call a telephone line designated by the City Manager or his/her designated representative shall comply with the following requirements:

1.

Total length of the recorded message being transmitted to the department (including repetition of message) shall not exceed thirty (30) seconds duration;

2.

The recorded message transmitted shall be repeated not less than two (2) nor more than three (3) times;

3.

The recorded message being transmitted shall incorporate language specifically identifying the message as a "recording" with the balance of the message identifying by street number and street name the location of the emergency and the nature of the event which cause the alarm system to activate. If the location of the event signaled by the alarm system is in a multi-family building or a multi-unit office or commercial building, the message shall also identify by number and by floor the particular dwelling unit, office unit, or commercial unit in which the event occurred;

4.

The recorded message being transmitted to the department shall be appropriate for the purpose for which the alarm system was installed, and the message, in its entirety, shall be intelligible and spoken in the English language;

D.

Application of Standards to Existing and Future Alarm Systems.

1.

Every new system installed after the passage of this Article shall comply with the above standards;

2.

Every alarm system existing before the passage of this Article shall be placed in compliance with the above standards no later than three (3) months after such passage date. The City Manager or his/her designated representative may elect not to respond to any alarm system that is not in compliance within that time period or may elect to charge each subscriber not in compliance for each response at a rate to be adopted by resolution of the Kearney Council per false alarm, or to charge the City's direct and indirect costs for the time, labor, equipment, and other services used in responding to such alarm, whichever is greater.

(Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-3)

Systems installed after enactment of this Article shall comply with the following standards as to installation and maintenance (and, in addition, shall also comply with the standards set forth in Section 3-1203:

A.

Alarm systems must incorporate a device that allows an adequate delay before the time at which activation of the system would directly or indirectly signal public safety personnel. This delay is to permit the subscriber to stop a false alarm from being transmitted.

B.

The alarm system shall incorporate a device that limits any exterior signal to a period of time not to exceed sixty (60) minutes in duration. At the expiration of the maximum time permitted, the alarm system shall automatically cease to emit a signal.

(Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-4)

The City shall provide twenty-four (24) hour daily monitoring of all alarm systems, including automatic dialing or calling devices, and each subscriber shall pay to the City a fee for said services at a daily rate to be adopted by resolution of the Kearney Council. If not paid within thirty (30) days of receipt, the system alarm must be disconnected immediately in the manner described in Section 3-1206 (C). (Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-5)

If any alarm system produces four (4) false alarms in the calendar year, written notice of that fact shall be given by certified mail or delivery to the subscriber, or other appropriate party (available twenty-four (24) hours a day and seven (7) days a week) listed in the notification required in Section 3-1203.A at the addresses listed in the most recent such notification for that alarm system. Thereafter, the City Manager or his/her designated representative shall have the power to require the subscriber to comply with any one (1) or combination of the requirements set forth below as would minimize, in his/her judgment, such false alarms in the future:

A.

The subscriber may be charged for the direct and indirect costs to the City of time, labor, equipment, and other services rendered in responding to each subsequent alarm or may be charged a fee as set forth in the City of Kearney Comprehensive Fee Schedule per false alarm, whichever is higher. Such charges shall continue for each excessive false alarm until the end of that calendar year have elapsed during which no false alarms have been registered, and must be paid within thirty (30) days after notice thereof is given in the same manner as provided by this Section for notice of excessive false alarms;

B.

The subscriber may be required to cause the alarm system to comply immediately with the applicable standards referred to in Section 3-1204 (those standards otherwise being imposed only on alarm systems installed after enactment of this Article);

C.

The subscriber may be required to disconnect the alarm system immediately in such fashion that signals are not emitted so as to notify public safety personnel directly or indirectly through automatic telephone recording devices or to register a signal which is so audible, visible, or in other ways, perceptible outside a protected building, structure, or facility as to notify persons in the neighborhood who may in turn notify public safety personnel of the signal.

Notice of the determination of the City Manager or his/her designated representative shall be given in the same manner as provided by this Section for notice of excessive false alarms.

(Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-6; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 7951, 12-9-2014)

Nothing in this Article nor the existence of any other fact(s) shall be construed to require a response by public safety personnel to an address or location registering an alarm. The City shall neither assume nor bear any liability for its failure to respond to such an alarm signal.

(Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-7)

A.

Any person who violates Section 3-1202 shall be deemed to have committed a misdemeanor.

B.

Any person who fails to adhere to the standards and otherwise comply with Section 3-1203 or 3-1204 shall be deemed to have committed a misdemeanor.

C.

Any person who fails to comply with the specific direction of the City Manager or his/her designated representative as provided for under Section 3-1203 (D)(2) or Section 3-1206 shall be deemed to have committed a misdemeanor.

(Ord. No. 3572, 1, 1-11-83; Code 1980, 4.5-8)

Unless the context otherwise requires, the words and phrases defined in State law shall be adopted for the purpose of construing this Article; and such words and phrases are hereby incorporated by reference the same as though copied at full length herein.

(Code 1958, 5.1; Code 1980, 5-1)

State Law reference— Definitions, Neb. Rev. Stat. 53-103

All police officers of the City are hereby authorized to enter at any time upon any premises of any licensee under the State Liquor Control Act within the City to determine whether any of the provisions of such act or of this Article or any rules or regulations adopted by the City or by the State Liquor Control Commission have been or are being violated and at such time to examine sufficiently the premises of such licensee in connection therewith.

(Code 1958, 5.13; Code 1980, 5-2)

State Law reference— Neb. Rev. Stat. 53-134.03

No person shall, within the City, sell or give any alcoholic liquors to, or procure any such liquor for or permit the sale or gift of any such liquor to, or the procuring of any such liquor for any minor or any person who is mentally incompetent or any person who is physically handicapped or mentally incapacitated due to the consumption of such liquor.

(Code 1958, 5.3; Code 1980, 5-3)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-180

No alcoholic beverages, including beer and wine, shall be sold at retail or dispensed within the City on any day between 1:00 a.m. and 7:00 a.m.

(Code 1958, 5.4; Code 1980, 5-4; Ord. No. 7530, 6-23-2009; Ord. No. 7937, 10-14-2014; Ord. No. 8503, § 1, 6-22-2021)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-179

(Code 1958, 5.4; Ord. No. 3781, 1, 10-8-85; Ord. No. 5077, 1, 12-12-89; Code 1980, 5-6; Ord. No. 5698, 1-25-94; Ord. No. 6056, 12-12-95; Ord. No. 6761, 1-23-2001; Ord. No. 7530, 6-23-2009)

(Code 1958, 5.4; Code 1980, 5-7; Ord. No. 6761, 1-23-2001; Ord. No. 7314, 12-26-2006; Ord. No. 7786, 2-26-2013; Ord. No. 7937, 10-14-2014; Ord. No. 8503, § 2, 6-22-2021)

It shall be unlawful for any person in the City, except the manufacturer, distributor or wholesaler, to fill or refill in whole or in part any original package of alcoholic liquor with the same or any kind or quality of alcoholic liquor; and it shall be unlawful for any person in the City to have in his/her possession for sale at retail any bottles, casks or other containers containing alcoholic liquor except in original packages. Nothing in this Section shall prohibit the refilling of original packages of alcoholic liquor for strictly private use and not for resale.

(Code 1958, 5.8; Code 1980, 5-9)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-184

No nonbeverage user shall, within the City, sell, give away or otherwise dispose of any alcohol, purchased under a license as such nonbeverage user, in any form fit for beverage purposes.

(Code 1958, 5.10; Code 1980, 5-10)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-187

Every act or omission of whatsoever nature constituting a violation of any of the provisions of this Article by any officer, director, manager or other agent or employee of any licensee, if such act is committed or omission is made with the authorization, knowledge or approval of the licensee, shall be deemed and held to be the act of such employer or licensee; and such employer or licensee shall be punishable in the same manner as if such act or omission has been done or omitted by him/her personally.

(Code 1958, 5.11; Code 1980, 5-11)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-1,102

It shall be unlawful for any person in the City to evade or attempt to evade the payment of tax or duty on any alcoholic liquor in any manner whatever and upon conviction thereof, in addition to the general penalty prescribed for the violation in this Article, such person shall forfeit such alcoholic liquor.

(Code 1958, 5.14; Code 1980, 5-12)

State Law reference— Tax regulations, Neb. Rev. Stat. §53-160 et seq.

It shall be unlawful for any minor to consume or to have in his or her possession or physical control any alcoholic liquor or beverage, except that a minor may consume, possess, or have physical control of alcoholic liquor in his or her permanent place of residence or on the premises of a place of religious worship on which premises alcoholic liquor is consumed as a part of a religious rite, ritual, or ceremony. Any person violating the provisions of this Section shall be deemed guilty of a misdemeanor and upon conviction, shall be punished in accordance with the provisions of Section 1-111 of the Code for each offense. Each separate act of violation of the terms of this Section shall constitute a separate offense.

(Code 1958, 21.21-1; Ord. No. 3944, 1, 8-25-87; Code 1980, 5-13; Ord. No. 6836, 10-9-2001)

Cross reference— Tobacco; Possession By Minors, § 8-1515

State Law reference— Similar provisions, Neb. Rev. Stat. 53-180.02

No minor shall, within the City, represent that he/she is of age for the purpose of asking for, purchasing or receiving any alcoholic liquors from any person.

(Code 1958, 5.3; Code 1980, 5-14)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-180.01

A.

No license shall be issued for the sale at retail of any alcoholic liquor within one hundred fifty (150) feet of any church, school, hospital, or home for aged or indigent persons or for veterans, their wives or children. This prohibition does not apply (a) to any location within such distance of one hundred fifty (150) feet for which a license to sell alcoholic liquor at retail has been granted by the commission for two years continuously prior to making of application for license, (b) to hotels offering restaurant service, to regularly organized clubs, or to restaurants, food shops, or other places where sale of alcoholic liquor is not the principal business carried on, if such place of business so exempted was established for such purposes prior to May 24, 1935, or (c) to a college or university in the state which is subject to Section 53-177.01 of the Nebraska Revised Statutes.

B.

If a proposed location for the sale at retail of any alcoholic liquor is within one hundred fifty (150) feet of any church, a license may be issued if the commission gives notice to the affected church and holds a hearing as prescribed in Section 53-133 of the Nebraska Revised Statutes.

C.

This restriction does not apply to properties located in the Downtown Business District.

(Ord. No. 4066, 1, 3-14-89; Ord. No. 5048, 1, 9-12-89; Code 1980, 5-15; Ord. No. 7838, 9-10-2013; Ord. No. 8069, 4-12-2016)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-177

A.

No alcoholic liquor shall be sold for consumption on the premises within three hundred (300) feet from the campus of any college or university in the state, except that this section:

1.

Does not prohibit a nonpublic college or university from contracting with an individual or corporation holding a license to sell alcoholic liquor at retail for the purpose of selling alcoholic liquor at retail on the campus of such college or university at events sanctioned by such college or university but does prohibit the sale of alcoholic liquor at retail by such licensee on the campus of such nonpublic college or university at student activities or events; and

2.

Does not prohibit sales of alcoholic liquor by a community college culinary education program pursuant to Section 53-124.15 of the Nebraska Revised Statutes.

(Ord. No. 7838, 9-10-2013)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-177.01

A.

It shall be unlawful for any person to consume or possess an open container of alcoholic liquor in or on the public streets, public sidewalks, alleys, parking areas, roads or highways within the city, or upon property within the city owned by the state or any political subdivision thereof, unless authorized by the governing body having jurisdiction over such property and by the provisions of a license issued by the Nebraska Liquor Control Commission.

B.

It shall be unlawful for any person to consume alcoholic liquors inside vehicles while upon the public streets, alleys, parking areas, roads, or highways. This section shall not apply to persons who are passengers of, but not drivers of, a limousine or bus being used in a charter or special party service as defined by rules and regulations adopted and promulgated by the Public Service Commission of the State of Nebraska and subject to Chapter 75, Article 3. Such passengers may possess open alcoholic beverage containers and may consume alcoholic beverages while such limousine or bus is upon the public streets, alleys, parking areas, roads or highways if: (a) The driver of the limousine or bus is prohibited from consuming alcoholic liquor and (b) Alcoholic liquor is not present in any area that is readily accessible to the driver while in the driver's seat, including any compartments in such area. Drivers/Owners meeting the rules and regulations adopted by the Public Service Commission of the State of Nebraska shall have the ability to provide a copy of their licenses issued by the Public Service Commission and Nebraska Liquor Control Commission while providing said service while upon the public streets, alleys, parking areas, roads, or highways, upon request.

C.

It shall be unlawful for any person to consume alcoholic liquors within the city in any restaurant, café, club, or in any other place open to the public except as specifically permitted by a license issued by the Nebraska Liquor Control Commission.

(Ord. No. 7838, 9-10-2013; Ord. No. 7962, 1-13-2015; Ord. No. 8694, § 1, 8-27-2024)

It shall be unlawful for any person to manufacture for sale, sell, keep for sale or to barter, or exchange, transport for sale under any pretext any alcoholic liquor within the City unless such person shall have in full force and effect a license therefor as provided by the State Liquor Control Act.

(Code 1958, 5.2; Code 1980, 5-27)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-132(4)

For the purpose of raising revenue for the City, there is hereby levied on the businesses distributing and selling alcoholic liquor, including beer, an occupation tax as provided in Section 3-1816.

(Code 1958, 5.15; Code 1980, 5-28)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-148

Every licensee under the State Liquor Control Act within the City shall cause his/her license or licenses to be framed and hung in plain view in a conspicuous place on the licensed property.

(Code 1958, 5.9; Code 1980, 5-29)

A.

A retail license to sell alcoholic liquors, which the Council is legally empowered to revoke, may be either revoked or suspended by the Council whenever it shall find, after notice and hearing as provided by law, that the holder of any such license has violated any of the provisions of the State Liquor Control Act, or of this Article, or the rule or regulation of the State Liquor Control Commission or any statutory provision or ordinance of the City now existing or hereafter passed or enacted in the interest of good morals and decency or for any one (1) or more of the following causes:

1.

The licensee, his/her manager or agent in charge of the premises licensed has been convicted of or has pleaded guilty to a felony under the laws of the State or of any other state of the United States.

2.

The licensee, his/her manager or agent in charge of the premises licensed has been convicted of or has pleaded guilty to being the proprietor, manager or agent in charge of a gambling house or of pandering or other crime or misdemeanor opposed to decency and morality.

3.

The licensee, his/her manager or agent in charge of the premises licensed has been convicted of or pleaded guilty to violation of any Federal or State law concerning the manufacture, possession or sale of alcoholic liquors.

4.

The licensee either swore falsely to any question in his/her application for the license or has failed to comply with the statements and representations made by the answer to any question or questions in the application or has failed to perform in accordance with any other statement or representation or keep any promise, oral or written, made to the Council in connection with such licensee's requests for the license.

5.

The licensee, his/her manager or agent in charge of the premises licensed shall have forfeited bond to appear in court to answer charges for any one (1) of the violations of law or ordinances referred to in this Section.

6.

It shall be cause for revocation or suspension as herein provided if the licensee, his/her manager or agent shall allow any live person to appear, or if there is reasonable cause to believe that any live person shall appear in any licensed premises in a state of nudity to provide entertainment, to provide service, to act as host or hostess, manager or owner or to serve as an employee in any capacity, except as hereafter specified.

B.

For the purposes of this Section, the term "nudity" shall mean the showing of the human male or female genitals or pubic area. No live performance, contest or entertainment featuring the showing of the human female breast shall be conducted except between the hours of four (4:00) p.m. through nine (9:00) p.m. No person under the age of twenty-one (21) years shall be permitted or allowed on a licensed premises during the conduct of any said performance.

(Code 1958, 5.16; Res. No. 90-81, 1, 10-3-90; Code 1980, 5-30)

The Council shall only consider, in determining whether to approve or deny application for a liquor license, the requirements of the Nebraska Liquor Control Act and those criteria set forth by Section 53-134(2), RRS 1992 Cumulative Supplement, as the Section may be from time to time amended.

(Ord. No. 3841, 1, 4-22-86; Ord. No. 5047, 1, 9-12-89; Ord. No. 5182, 1, 10-23-90; Code 1980, 5-31)

The Council may, in the event that an applicant for a liquor license consents, agrees or stipulates to be so bound and obligated, fix or set certain specific requirements and conditions upon the license; and such requirements or conditions shall be deemed to be a part of the license as though fully endorsed thereon; and any violation or breach of any of the said requirements or conditions shall constitute good cause for revocation of the license.

(Ord. No. 5049, 1, 9-12-89; Code 1980, 5-31.1)

Any person or persons desiring to obtain a license to sell alcoholic liquor at retail shall file with the Liquor Control Commission. The Commission shall then notify the City Clerk by registered or certified mail. The Council shall then meet and determine the desirability of the application and report its recommendation for approval or denial of the application in writing or in person to the State Liquor Control Commission within forty-five (45) days of receipt from the Liquor Control Commission. The City Manager may examine, or cause to be examined, under oath, any applicant; examine, or cause to be examined, the books and records of any such applicant; to hear testimony; and to take proof for its information in the performance of its duties. For the purpose of obtaining any of the information desired, the Council may authorize the City Manager, or an agent appointed by him/her, or the City Attorney, to act on their behalf. The Council may hold the said examination and hearing upon the receipt from the Commission of the notice and copy of the application. The Council shall fix a time and place at which a hearing will be held, and at which time the Council may receive competent evidence under oath, either orally or by affidavit, from any person concerning the propriety of the issuance of such license . Notice shall be published in a legal newspaper in, or of general circulation in, the City one (1) time not less than seven (7) nor more than fourteen (14) days before the time of the hearing. Such hearing shall be held not more than twenty-one (21) days after the receipt of the Commission's letter of notice and after such hearing, the Council shall cause to be spread at large in the minute record of their proceedings a resolution recommending either issuance or refusal of said application. The City Clerk shall thereupon mail to the Commission a copy of the resolution which shall state the cost of the published notice.

(Ord. No. 3841, 2, 4-22-86; Code 1980, 5-32)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-134(7)

A.

Notice. Notice of a hearing held pursuant to Section 53-134 of the Nebraska Revised Statutes, as amended, shall be given to the applicant by the City Clerk and shall contain the date, time and location of the hearing.

B.

Procedure. Hearings will be informal and conducted by the Chairperson. The intent is an inquiry into the facts, not an adversary action. The Council shall not be bound by the strict rules of evidence and shall have full authority as to the control and procedures of the hearing, including the admission or exclusion of testimony or other evidence. The Council may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent individuals in the conduct of their affairs. The Chairperson may limit testimony where it appears incompetent, irrelevant, or unduly repetitious.

The order of proceedings is as follows:

1.

Presentation of evidence, witnesses and arguments by the applicant.

2.

Examination of the applicant by Council and/or City Manager, City Attorney, or a duly appointed agent.

3.

Cross-examination by the opposition to the applicant.

4.

Presentation of evidence, witnesses and arguments by those in opposition to the applicant.

5.

Cross-examination by the applicant.

6.

Rebuttal evidence by both parties and by city administration and agent.

7.

Summation by both parties, and recommendation of city administration and/or attorney/agent.

In all cases, the burden of proof and persuasion shall be on the party filing the application.

Any member of the Council may question any witness, call witnesses, or request information.

All witnesses shall be sworn.

The Council may make further inquiry and investigation following the hearing and may order the hearing to be recorded by an official court reporter at the expense of the applicant(s).

(Ord. No. 3841, 3, 4-22-86; Code 1980, 5-33)

All parties, persons, organizations, entities, individuals or corporations filing application for a special designated permit, as provided by Section 53-124.11 of the Nebraska Revised Statutes, for consumption of alcoholic liquors in or on the public streets, public sidewalks, alleys, parking areas, roads or highways within the city, or upon property within the city owned by the state or any political subdivision thereof, authorized by the governing body having jurisdiction over such at a location designated to be within the City shall, not later than five (5) days after the filing of the said application, also file with the City Clerk of the City a copy of a public liability policy, either on a form to be provided by the City Manager or on a form which is acceptable to the Council, with combined, single-limit coverage or bodily injury, including coverage for suits brought due to the handling, selling or dispensing of alcoholic beverages, issued to the applicant and bearing the name of the City as an additional named insured party, in the sum of not less than one million dollars ($1,000,000.00), said policy to be in force and effect during the period over which the permit is requested.

(Ord. No. 3671, 1, 3-13-84; Code 1980, 5-41; Ord. No. 8215, 2-13-2018)

No application for a permit shall be approved by the Council which designates or specifies a location in or on public streets, alleys, parking areas, roads or highway, or upon property owned by the State or any governmental subdivision thereof unless authorized by the governing bodies having jurisdiction over such properties. No application requesting a special designated permit which specifies a designated location within a residential zone will be approved by the Council.

(Ord. No. 3671, 2, 3-13-84; Ord. No. 3784, 1, 9-24-85; Code 1980, 5-42)

State Law reference— Similar provisions, Neb. Rev. Stat. 53-186

A.

CARNIVAL: Shall mean and include amusement activities, rides, merry-go-rounds, booths for the conduct of games, food dispensing facilities and sideshows. The term "carnival" shall not include gambling devices, games of chance, lotteries, punch boards or other activities in violation of City ordinances or Nebraska State law.

B.

STREET CARNIVAL or STREET SHOW: As used herein shall mean and include any carnival, show or other amusement to be given on any public street or sidewalk or in such public place that the only main accommodation for the public or the audience will be in or upon public streets, sidewalks or public places.

C.

CIRCUS: Shall mean any parties, persons, organizations, entities, individuals or corporations operating a traveling company or entertainment consisting typically of a variety of performances, including but not limited to acrobats, clowns, trapeze artists, feats of physical skill and daring, trained wild animal acts, and/or jugglers.

D.

PRIVATE PROPERTY: As used herein shall mean a lot or defined area of land which is not in the ownership of a local, state, or federal government entity.

E.

PUBLIC PROPERTY: As used herein shall mean all real property owned or controlled by the City whether in fee ownership or other interest. This definition shall not include school property or school safety zones and city owned property that is leased to a private person or another entity.

(Ord. No. 6338, 10-28-97; Ord. No. 8702, § 2, 11-12-2024)

A.

It shall be unlawful to conduct or operate within the City any carnival or circus which are open to the public without first securing a permit.

B.

Applications for such permit shall be made to the City Clerk and shall comply with all the general provisions of this Code relating to such application. A permit under this Section shall not be used or represented in any manner as an endorsement by this City or by any department, officer or employee thereof.

C.

The City Manager or their designee shall have at their discretion, the ability to determine if an event requires a permit as described in this Article.

(Ord. No. 6338, 10-28-97; Ord. No. 8702, § 3, 11-12-2024)

A.

In addition to other requirements set forth herein, the applicant shall furnish suitable evidence of his/her intention and ability to comply with the following conditions: The operator and sponsor of the carnival or circus shall be wholly responsible for maintaining order and security, and for keeping the site clean, free of trash, papers and other debris. Trash containers in adequate number shall be placed in convenient locations for the use of the public.

B.

Applicants for a permit shall present with their application copies of all licenses or permits issued to them by the State of Nebraska, including their Nebraska State Sales Tax Permit.

C.

Applicants shall tender payment of all occupation taxes required by Chapter 3 of the Code for the particular activity to be conducted, with their application. Concessions operated as a part of the carnival or circus shall individually pay the occupation tax set by Section 3-1823 of this Code.

D.

There shall be no overnight camping at the location of the carnival or circus and not more than one (1) camper or recreational vehicle may be parked at the site of the carnival or circus.

(Ord. No. 6338, 10-28-97; Ord. No, 7885, 4-22-2014; Ord. No. 7913, 7-8-2014; Ord. No. 8702, § 4, 11-12-2024)

This section shall apply to carnivals and circuses located on public property only.

A.

No permit shall be issued for conducting a carnival or circus until the applicant has placed on file with the City Clerk a certificate of insurance indicating general liability coverage, covering any damages, injuries, or suits arising out of the use and operation of any and all devices or facilities operated in connection with such carnival or circus.

B.

Such insurance coverages shall be in the minimum amounts of one million dollars ($1,000,000.00) each occurrence and two million dollars ($2,000,000.00) general aggregate, and shall list the City of Kearney as an additional insured. Additionally, proof of worker's compensation coverage shall be provided if required by State Statute. Effective dates shown on the certificate shall include the entirety of the event, including event set-up and tear-down.

(Ord. No. 6338, 10-28-97; Ord. No. 8702, § 5, 11-12-2024)

Upon receipt from the applicant of the appropriate occupation taxes, an administrative fee shall be paid to cover costs of issuance of the permit, a proper certificate of insurance, and approval of the application by the City Manager, the City Clerk shall issue such permit. Said fees are set forth in the City of Kearney Comprehensive Fee Schedule.

(Ord. No. 6338, 10-28-97; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8702, § 6, 11-12-2024)

The permit issued to the applicant hereunder by the City Clerk shall be posted in a conspicuous place and otherwise must be kept available by the applicant and exhibited at any time upon request.

(Ord. No. 6338, 10-28-97)

A.

When located on public property, the applicant shall provide security on the premises of each carnival or circus during all hours of operation; all security personnel shall be either off-duty law enforcement officers or persons certified in accordance with Nebraska State law.

B.

For a circus or carnival held on private property, security may be required during hours of operation, if deemed necessary by the City Manager or their designee.

(Ord. No. 6338, 10-28-97; Ord. No. 8702, § 7, 11-12-2024)

(Ord. No. 8702, § 8, 11-12-2024)

Any person, firm or corporation violating any of the provisions of this Article shall be punished in accordance with the general penalty section, Section 1-111 of this Code, for each offense, and a separate offense shall be deemed committed on each day during or on which a violation occurs or continues.

(Ord. No. 6338, 10-28-97; Ord. No. 8702, § 9, 11-12-2024)

Cross reference— Cross reference—Schedule; Carnivals and Circuses, § 3-1822, Schedule; Concessions, § 3-1823

For the purposes of this Chapter, the words "auction houses" shall mean and include companies, persons or establishments which sell personal property at auction for the general public on commission on a regular basis, or in any event, more than one (1) time during any calendar year, shall be operated only after obtaining a conditional use permit in accordance with Section 17 of the Kearney Zoning Code.

(Ord. No. 2809, 5(e), 4-28-78; Code 1980, 8-1)

No personal property shall be sold at auction in the City except in compliance with the provisions of this Chapter.

(Ord. No. 2809, 1, 4-25-78)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-237

The provisions of this Chapter shall not apply to auction sales conducted by the following:

A.

Trustees or referees in bankruptcy, receivers, personal representatives of estates, executors, administrators, guardians or other public officers acting under judicial process.

B.

Individuals selling their own household goods, tools, equipment and personal effects on their own residential premises.

C.

To a retailer selling damaged goods, stock or merchandise which has been damaged by fire, water or wind within the City.

D.

Farm sales or livestock sales, pavilions selling livestock and farm products.

E.

The sale of real property at auction.

F.

Any sale from which the proceeds are to be given to a charitable organization as defined by Nebraska Statutes.

(Ord. No. 2809, 9, 4-25-78; Code 1980, 8-3)

It shall be unlawful for any person to conduct an auction sale of personal property (goods, wares or merchandise) on any of the streets, sidewalks or public property of the City.

(Ord. No. 2809, 6, 4-25-78; Code 1980, 8-4)

Auctioneers and auction houses shall not, under any circumstances, allow any goods, merchandise, equipment or any other personal property to be stored or deposited on the sale premises, unless within the enclosed confines of a building, in excess of a period commencing at seven o'clock (7:00) A.M. on the day of sale until twelve o'clock (12:00) Noon of the day following. The City Manager may, in his/her discretion, require that fencing or screening be erected around the confines of an auction house.

(Ord. No. 2809, 7, 4-25-78; Code 1980, 8-5)

No loudspeaker or sound amplification equipment which disturbs the peace and quiet of residents of the City, and no such equipment shall be employed in any event after nine o'clock (9:00) P.M. in the conduct of auctions, unless such equipment is confined to use within an enclosed building, and the sounds therefrom do not emanate or carry from the said property.

(Ord. No. 2809, 8, 4-25-78; Code 1980, 8-6)

It shall be unlawful for any licensee, under the provisions of this Chapter, his/her auctioneer or their employees:

A.

To knowingly and intentionally make any false statements or misrepresentation as to the quality, character, condition, value, cost or general selling price of any property offered for sale, or to refuse to truthfully disclose any of such facts when asked to do so.

B.

To employ by-bidders, cappers or puffers and 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/her employ, either directly or indirectly, any person who shall make, or attempt to make, bids on any property being offered for sale by such 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.

C.

To sell any blind packages of merchandise.

D.

To neglect or refuse to deliver immediate possession of any article sold upon payment of valid consideration, with the exception of sales requiring transfer of title.

(Ord. No. 2809, 10, 4-25-78; Code 1980, 8-7)

Each article, when offered for sale under a license issued pursuant to the provisions of this Chapter, shall have attached to it, a tag which shall state the lot number.

(Ord. No. 2809, 11, 4-25-78; Code 1980, 8-8)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

(Ord. No. 8219, 2-13-2018)

No auction sale of personal property shall be conducted within any of the residential areas of the City as defined by the City's Zoning Code, except upon the issuance of a special permit therefor by the City Manager and in accordance with the express terms of such special permit.

(Ord. No. 2809, 5(a), 4-25-78; Code 1980, 8-40)

(Ord. No. 8219, 2-13-2018)

Application for a special permit to conduct an auction sale of personal property within the residential areas of the City shall be made to the City Manager on a form to be provided by him/her upon which shall be stated the nature and quantity of the goods to be sold and the number of days during which it is desired to conduct such auction sale.

(Ord. No. 2809, 5(b), 4-25-78; Code 1980, 8-42)

The fee for the special permit required by the provisions of this Article shall be as prescribed in Section 3-1818 of this Code.

(Ord. No. 2809, 5(b), 4-25-78; Code 1980, 8-43; Ord. No. 8578, § 1, 5-24-2022)

The City Manager shall issue the permit required by the provisions of this Article upon the payment of the required fee upon his/her determination that there is good and sufficient reason for the issuance of such special permit.

(Ord. No. 2809, 5(b), 4-25-78; Code 1980, 8-44)

The City Manager may refuse to issue or renew a special permit required by the provisions of this Article, or may revoke any special permit already issued, if he/she determines that there is good and sufficient reason for such refusal or revocation.

(Ord. No. 2809, 5(c), 4-25-78; Code 1980, 8-45)

Any individual aggrieved by the action of the City Manager in refusing to issue or renew or in revoking any special permit under the provisions of this Article shall have the right to appeal to the Council. (Ord. No. 2809, 5(c), 4-25-78; Code 1980, 8-46)

Upon the revocation of any special permit issued under the provisions of this Article by the City Manager and the communication of the fact of such revocation to the special permit holder, and pending the decision of an appeal from such revocation by the Council in the event that such an appeal be taken, it shall be unlawful for any individual to conduct any sale at auction in accordance with the terms of such special permit.

(Ord. No. 2809, 5(c), 4-25-78; Code 1980, 8-47)

Each special permit issued under the provisions of this Article shall specify the place or places within the residential areas of the City to which it pertains and the number of days for which such special permit is valid.

(Ord. No. 2809, 5(b), 4-25-78; Code 1980, 8-48)

For the purposes of this Article, the following words and phrases shall have the meanings respectively ascribed to them:

JUNK: Shall mean old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste or junked, dismantled, or wrecked automobiles, or parts thereof, iron, steel, or other old or scrap ferrous or nonferrous material and metal scraps, including aluminum scraps and metals and used bicycle or automobile tires.

JUNK DEALER: Any person engaged in the buying, selling, receiving, collecting, storing or dealing in junk, but excluding persons whose sole business consists of owning or operating machines which accept and automatically render payment for aluminum cans.

(Code 1958, 17.1; Ord. No. 5011, 1, 5-23-89; Code 1980, 19-1)

In cases where the business of buying and selling junk, including the buying, dismantling or storing of wrecked, junked, scrapped, ruined, used, or dismantled automobiles, or parts thereof, or the buying and selling of new or used automobile parts is carried on within the City in any location whether it be because of the use of the property prior to the adoption of regulations of the ordinances of the City or by virtue of permit issued under City authority or by consent of property owners or otherwise, and whether carried on inside a building or in the open, such business shall be governed by the following building regulations which are adopted to prevent the harboring of rodents, the spread of diseases and to protect adjoining property:

A.

Fences around auto-wrecking, etc., businesses. All dismantling or storage lots used for tearing down, or storage of automobiles or repair of automobiles, in the open shall be enclosed by an eight (8) foot solid fence to be kept in a good and substantial condition, which fence shall be placed on or inside the property line and shall conform with the setback required of all buildings, and on the front street side, in any case, shall not be placed closer than twenty (20) feet from the lot line.

B.

Fences around junk business. All junk businesses where junk, scrap and other material is piled in the open shall be enclosed with an eight (8) foot solid fence to be maintained in a good and substantial condition and if the same shall harbor rodents, shall have a cement or brick wall of like height to replace such board fence, to be placed on or inside the property line and shall conform with the setback for other buildings of the district and on the front street shall not be placed closer than twenty (20) feet from the property line.

C.

Cement floors. All buildings in which any business mentioned in this Article is conducted shall have cement floors and be otherwise constructed in accordance with any ordinances for the district in which the same are located and in addition shall be kept and maintained so that they shall be free from rodents. All new structures built or used in the business shall be built in conformance with the setback provisions for property where the same is located and upon the front street shall not be built closer than twenty (20') feet from the lot line.

D.

Nuisance. At any time upon written complaint of the Board of Health, filed with the Council, stating that any such business is so carried on or maintained so that the same is harboring rodents, or if the provisions of this Article are not complied with, it shall be the duty of the Council to declare the same a nuisance and to notify the owner of the business and the property owner by registered mail to correct the condition within ten (10) days. The owners shall notify the City Clerk within such time that the correction has been made. If the owners fail to correct the condition and to comply with this Section, the Council shall declare such condition a nuisance and the City Attorney shall bring suit to abate such nuisance.

(Code 1958, 17.10; Ord. No. 5011, 2, 5-23-89; Code 1980, 19-2)

Before any person shall engage in any business coming under the provisions of this Article, such person shall first obtain a permit therefor from the City Clerk.

(Code 1958, 17.2; Code 1980, 19-18)

Every person, before engaging in the business of dealing in junk shall pay the occupation tax set forth in Section 3-1826 of this Code.

(Code 1958, 17.2; Ord. No. 5011, 4, 5-23-89; Code 1980, 19-19)

Every person, before engaging in the business of dealing in junk shall give bond to the City in the sum of one thousand dollars ($1,000.00).

(Code 1958, 17.2; Ord. No. 5011, 5, 5-23-89; Code 1980, 19-20)

The bond required of junk dealers shall be signed by the principal and one (1) or more sufficient sureties, and shall be conditioned, among other things, including compliance with all laws and ordinances, upon the faithful performance by the principal, of each and every trust imposed by law or by usage, upon the kind of business for which the permit is issued, and shall be for the benefit of any person injured or damaged by any fraud or willful misconduct of the person engaged in such business, or for the benefit of the City in enforcing its ordinances. The surety on such bond may be a natural person or some responsible guaranty or surety company. If such surety shall be a natural person, he or she shall be a resident of the County and State and shall justify in the sum of at least double the amount of such bond. Such bond shall be approved by the City Clerk.

(Code 1958, 17.3; Ord. No. 5011, 6, 5-23-89; Code 1980, 19-21)

Upon the payment of the required tax and giving of the required bond, the City Clerk shall issue the permit required by this Article.

(Code 1958, 17.2; Code 1980, 19-22)

It shall be unlawful for any person not having a junk dealer's permit to display in front of, about or upon his/her premises any sign or advertisement asserting that any goods of the charter named in this Article are bought or sold on the premises, before the issuance of the permit.

(Code 1958, 17.5; Ord. No. 5011, 7, 5-23-89; Code 1980, 19-23)

Each permit issued under the provisions of this Article shall be valid for a period of one (1) year from the date of issuance.

(Code 1958, 17.2; Code 1980, 19-24)

No person to whom a permit shall have been granted under the provisions of this Article shall be allowed to do business in more than one (1) place under one (1) permit. Every permit shall state the place where such business is to be carried on.

(Code 1958, 17.4; Code 1980, 19-25)

No permit issued under the provisions of this Article shall be assignable. (Code 1958, 17.4; Code 1980, 19-26)

For the purpose of raising revenue, there is hereby levied an occupation tax upon each and every occupation and business carried on within the City as specified by this Article or in other sections of this Code making reference to this Article.

(Code 1958, 20.1; Code 1980, 24-1)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-205

On all occupations and businesses on which an occupation tax is levied at a yearly rate, the year for such tax shall be deemed to begin with the first (1st) day of May of each year and shall end on the last day of April following and the tax for that year shall be due and payable in advance on the first (1st) day of May of every year and thereafter shall be delinquent. On all occupations or businesses on which the tax is levied at a quarterly, daily or weekly rate, the tax shall be due and payable in advance before the business begins, for the number of quarters, days, or weeks, as the case may be, for which the occupation or business is to be carried on within the taxing year.

(Code 1958, 20.3; Ord. No. 2652, 2, 4-26-77; Code 1980, 24-2)

Every person carrying on the occupation or business coming under the provisions of this Article within the City shall pay to the Director of Finance annually the sum named by this Article as a tax upon the occupation or business.

(Code 1958, 20.2; Code 1980, 24-3; Ord. No. 8375, § 3, 9-10-2019)

It shall be the duty of each and every person to pay the tax levied against him or her at the time it becomes due.

(Code 1958, 20.4; Code 1980, 24-4)

Upon payment of the occupation tax or license fee required by this provisions of this Article, the Director of Finance shall issue a receipt therefor to the person paying the same, properly dated and specifying on behalf of whom and for what the sum is paid. Such receipt shall be the proper authority of any person to carry on and conduct the business specified in the receipt.

(Code 1958, 20.5; Ord. No. 2652, 2, 4-26-77; Code 1980, 24-5; Ord. No. 8375, § 4, 9-10-2019)

The Director of Finance shall keep a proper account of occupation taxes and license fees paid under the provisions of this Article.

(Code 1958, 20.5; Code 1980, 24-6; Ord. No. 8375, § 5, 9-10-2019)

Money collected under the provisions of this Article shall be credited to the general fund. Such money shall be and remain under the control of the Council for such use and purpose as other money belonging to the general fund.

(Code 1958, 20.2; Code 1980, 24-7)

Upon the failure of any person to pay any tax levied by this Article when the demand is made by the Director of Finance or other person designated by the Council, the Director of Finance is hereby authorized to issue a distress warrant over the corporate seal directed to the Chief of Police commanding the Chief of Police forthwith to collect, by distress and sale of the goods and chattels of the person named in the warrant, the occupation tax due and unpaid. The costs created by reason of the distress sale shall be paid out of the property levied upon in addition to the amount due on the occupation tax. Occupation taxes may also be collected by suit brought therefor in the name of the City against the person failing to pay the tax.

(Code 1958, 20.6; Code 1980, 24-8; Ord. No. 8375, § 6, 9-10-2019)

Every occupation tax levied at a daily or yearly rate or other rate must be paid in one (1) payment in advance before the business is commenced, whether the tax receipt is issued at the beginning of the day, year or other term, or at any time thereafter, but no tax receipt shall be issued at the beginning of the day, year or other term for any certain time less than the day, year or other term. No person paying occupation taxes shall be entitled to a refund of any part of the tax so paid.

(Code 1958, 20.7; Ord. No. 2652, 2, 4-26-77; Code 1980, 24-9)

Any person who shall refuse or neglect to pay the occupation taxes levied by this Article, or who transacts any such business or engages in any such occupation without having complied with the provisions of this Article shall be guilty of a violation of this Code; provided, that whenever any of the businesses or occupations shall be conducted by an agent for a corporation or a nonresident, such agent shall be subject to arrest and punishment under the provisions of this Article, if his/her or her principal shall not have complied with the provisions of this Article.

(Code 1958, 20.12; Code 1980, 24-10)

The receipt for the payment of an occupation tax due under the provisions of this Article shall be prominently displayed at the place of business for which such payment was made.

(Code 1980, 24-11)

The privilege in engaging in any business or occupation granted under the provisions of this Article may be suspended or revoked by the Council for the violation by the person engaging in such business or occupation, or his/her or her agents or employees, of any applicable provision of this Code, State law or City ordinance, rule or regulations.

(Code 1980, 24-12)

The provisions of this Article shall not extend nor affect individuals selling livestock, farm products or fuel raised or produced by the vendors or their employees.

(Code 1958, 20.9; Code 1980, 24-24)

All scientific and literary lectures and entertainments shall be exempt from payment of occupation taxes as well as concerts and other entertainment given exclusively by the citizens of the City.

(Code 1958, 20.10; Code 1980, 24-25)

Occupation taxes are not levied upon any business or occupation which is engaged in interstate commerce or which is done or conducted by any department of the government of the United States, the State, the City or the officers thereof in the course of their official duties, or by any county or subdivision of this State or its officers in the course of their official duties.

(Code 1958, 20.11; Code 1980, 24-26)

For the purpose of raising revenue, there is hereby levied upon distributors, retailers, and nonbeverage users of alcoholic liquor in the City of Kearney an annual occupation tax in accordance with the City of Kearney Comprehensive Fee Schedule. Such occupation tax, or any part of it, shall not be refunded for any cause.

The license year, unless otherwise provided in the Nebraska Liquor Control Act, shall commence on May 1 of each year and shall end on the following April 30, except that the license year for a Class C license shall commence on November 1 of each year and shall end on the following October 31. During the license year, no occupation tax shall be issued for a sum less than the amount of the annual occupation tax as fixed in City of Kearney Comprehensive Fee Schedule, regardless of the time when the application for such license has been made, except that (a) when there is a purchase of an existing licensed business and a new license of the same class is issued or (b) upon the issuance of a new license for a location which has not been previously licensed, the license fee and occupation taxes shall be prorated on a quarterly basis as of the date of issuance.

Such occupation tax shall be paid to the Director of Finance for the benefit of the City immediately after the final issuance of a license by the State for such business.

(Code 1958, 20.8(19-21); Ord. No. 2652, 1(8), 4-26-77; Ord. No. 2871, 1(8), 8-22-78; Ord. No. 3629, 1, 9-27-83; Ord. No. 5136, 1, 6-12-90; Code 1980, 24-27; Ord. No. 5912, 4-11-95; Ord. No. 6492, 12-22-98; Ord. No. 7162, 4-12-2005; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Cross reference— License for alcoholic beverages, § 3-1314 et seq.

State Law reference— Similar provisions, Neb. Rev. Stat. 53-132(4)

(Ord. No. 2809, 3, 4-25-78; Code 1980, 24-28; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8578, § 2, 5-24-2022)

The fee for a special permit to sell personal property in the residential areas of the City as defined by the City's zoning ordinance shall be as set forth in the City of Kearney Comprehensive Fee.

(Ord. No. 2809, 5(b), 4-25-78; Code 1980, 24-29; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Cross reference— Special permits for auctions in residential areas, 3-1518 et seq.

The annual occupation tax due under the provisions of this Article for the location of billboards upon private property or elsewhere within this City by persons for hire, profit or gain shall be as set forth in the City of Kearney Comprehensive Fee.

A "billboard" shall be defined as any sign advertising a person, business, product, event or subject unrelated to a business or profession conducted on or to a commodity, service, or activity sold or offered upon the premises where the sign is located.

(Code 1958, 20.8(2); Ord. No. 2652, 1(2), 4-26-77; Ord. No. 2871, 1(2), 8-22-78; Ord. No. 3321, 1, 2-24-81; Code 1980, 24-31; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

(Code 1958, 7A.2; Code 1980, 24-33; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 7398, 11-27-2007)

Cross reference— Bingo, Ch. 3, Art. 26

There is hereby imposed upon each person or entity engaged in the cable television business within the City under the terms and provisions of a franchise granted by the City Council, an annual occupation tax as set forth in the City of Kearney Comprehensive Fee of the gross revenues of such person or entity as more fully set forth in a franchise.

(Code 1958, 20.17; Ord. No. 3938, 1, 7-28-87; Code 1980, 24-36; Ord. No. 6336, 10-28-97; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Cross reference— Cablevision, Ch. 3, Art. 16

The daily occupation tax due under the provisions of this Article for the operation of a carnival or circus within the City shall be as set forth in the City of Kearney Comprehensive Fee Schedule.

(Code 1958, 20.8(4); Ord. No. 2652, 1(6), 4-26-77; Ord. No. 2871, 1(6), 8-22-78; Code 1980, 24-37; Ord. No. 6339, 10-28-97; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8702, § 10, 11-12-2024

Cross reference— Cross reference(s)— Carnivals and Circuses, Ch. 3, Art. 14

Each concession not otherwise classified in this Article, such as doll racks or other amusement stands of any kind or description, in the nature of a concession, including each concession connected with any carnival or circus doing business within the City shall pay a daily occupation tax as set forth in the City of Kearney Comprehensive Fee Schedule.

(Code 1958, 20.8(5); Ord. No. 2652, 1(7), 4-26-77; Ord. No. 2871, 1(7), 8-22-78; Code 1980, 24-38; Ord. No. 6339, 10-28-97; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8702, § 11, 11-12-2024)

Charter reference— Cross reference(s)—Carnivals and Circuses, Ch. 3, Art. 14

(Code 1958, 20.8(10); Ord. No. 2652, 1(10), 4-26-77; Ord. No. 2871, 1(10), 8-22-78; Code 1980, 24-40; Ord. No. 6339, 10-28-97; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8702, § 12, 11-12-2024)

(Ord. No. 2652, 1(12), 4-26-77; Ord. No. 2871, 1(12), 8-22-78; Code 1980, 24-43; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Cross reference— Fireworks, Ch. 4, Art. 6

The annual occupation tax due under the provisions of this Article for each junk dealer, as defined in Section 3-1701 of this Code, shall be as set forth in the City of Kearney Comprehensive Fee Schedule.

(Code 1958, 20.8(7); Ord. No. 2652, 1(15), 4-26-77; Ord. No. 2871, 1(15), 8-22-78; Code 1980, 24-46; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Cross reference— Junk dealers, Ch. 3, Art. 17

Transferred to Section 9-916 "Fee; Manufactured Home Parks" of Chapter 9 of the Code.

(Code 1958, 29.4(b); Ord. No. 3240, 1, 6-18-80; Ord. No. 3904, 1, 3-10-87; Code 1980, 24.27; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Cross reference— Manufactured homes, Ch. 9, Art. 9

(Code 1958, 20.8(14); Ord. No. 2652, 1(17), 4-26-77; Ord. No. 2871, 1(17), 8-22-78; Code 1980, 24-49; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Cross reference— Pawnbrokers, Ch. 3, Art. 23

State Law reference— Similar provisions, Neb. Rev. Stat. 69-202

(Ord. No. 2653, 1, 4-26-77; Code 1980, 24-53; Ord. No. 7325, 2-27-2007 effective April 1, 2007)

Cross reference— Telephone companies, Ch. 3, Art. 20

Each person engaged in the business of operating a hotel in the City shall pay an occupation tax in the amount as set forth in the City of Kearney Comprehensive Fee Schedule of the basic rental rates charged per occupied room per night.

(Ord. No. 6153, 8-27-96; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Hotel shall mean any facility in which the public may, for a consideration, obtain sleeping accommodations in any space ordinarily used for accommodations. The term shall include hotels, motels, tourist hotels, campgrounds, courts, lodging houses, inns and nonprofit hotels; but "hotel" shall not be defined so as to include hospitals, sanitariums, nursing homes, chronic care centers, or dormitories or facilities operated by an educational institution and regularly used to house students.

(Ord. No. 6153, 8-27-96)

A.

Occupied 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) continuous 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.

B.

The term "occupied room" shall not mean, and no tax imposed by this article shall be measured by or collected for:

1.

Complimentary or other sleeping accommodations for which no consideration is charged;

2.

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, as it is amended from time to time; or

3.

Sleeping accommodations leased by an employer for use by its employees when a specific room is the subject of the lease, the lease extends for more than thirty (30) consecutive days, and consideration is actually paid for use during at least thirty (30) consecutive days.

(Ord. No. 6153, 8-27-96)

The tax imposed by this article shall be collected by the hotel operator from the occupant of each room to which the tax applies. The tax may be shown as an add-on to the charge for occupancy of the rooms and shall be collectible at the time the lodging is furnished, regardless of when the charge for the occupancy is paid. The operator shall remain responsible for payment of all taxes imposed whether or not the taxes are actually collected from the guests.

(Ord. No. 6153, 8-27-96)

It shall be unlawful for any hotel operator subject to this article to fail to maintain or fail to make available to the City, upon seventy-two (72) hours' notice, written records accurately and completely evidencing the number of rooms occupied, the dates the rooms are occupied, the amount of occupation tax due or paid under this article, and such other information as is required by the Director of Finance. Such records shall be maintained for a period of three (3) years after the occupation tax is due.

(Ord. No. 6153, 8-27-96; Ord. No. 8375, § 7, 9-10-2019)

Notwithstanding any contrary provision of this chapter, the tax imposed by this article shall be due and payable on the first day of each calendar month next succeeding the month during which the room was occupied. All taxes not paid by the twenty-fifth day of the month in which they are due and payable shall be deemed to be delinquent. The operator shall be assessed a penalty of ten percent (10%) on all delinquent amounts as well as interest of one percent (1%) per month or fraction thereof from the first of the month in which such tax becomes due and payable until the date of payment.

(Ord. No. 6153, 8-27-96)

It is the intent of the City Council that a portion of the revenue generated by the occupation tax imposed by this Article shall be appropriated annually to fund the Kearney Visitors Bureau for the purposes set forth at Neb. Rev. Stat. §13-315.

(Ord. No. 6153, 8-27-96; Ord. No. 7012, 12-9-2003; Ord. No. 7303, 10-10-2006)

(Ord. No. 6153, 8-27-96; Ord. No. 6282, 5-13-97; Ord. No. 6287, 6-10-97; Ord. No. 7012, 12-9-2003; Ord. No. 7303, 10-10-2006)

Any person, partnership, firm or corporation violating any of the provisions of Sections 3-1830 through 3-1837 shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished in accordance with Section 1-111 of this Code. Each distinct act or violation of the terms of Sections 3-1830 through 3-1837 shall constitute a separate offense.

(Ord. No. 6153, 8-27-96)

There is hereby created and established a downtown improvement and parking district in the City.

(Code 1958, 20.24; Code 1980, 24-99)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-801 et seq.; 19-3401 et seq. (repealed laws 1979, LB 251, 26); 19-4015 et seq. (c.f. 19-4038)

The boundaries of the district are as follows: Commencing at Railroad Street one hundred and thirty (130) feet west of Second Avenue, thence east along Railroad Street to a point one hundred and thirty (130) feet east of Avenue B, thence north along a line one hundred and thirty (130) feet east of Avenue B to 25th Street, thence west along 25th Street to a point one hundred and thirty (130) feet west of Second Avenue, thence south along a line one hundred and thirty (130) feet west of Second Avenue to the place of beginning.

(Code 1958, 20.25; Code 1980, 24-100)

There is hereby created a Downtown Improvement Board.

The Downtown Improvement Board shall consist of five (5) members, all of whom must own, operate and/or manage businesses within the Downtown Improvement and Parking District as defined.

Names of persons willing to serve the City in the capacity of a member of the Downtown Improvement Board shall complete an Expression of Interest form. The members of the Downtown Improvement Board shall be appointed by the Mayor/President and approved by the Council.

(Ord. No. 7215, 9-27-2005)

All members of the Downtown Improvement Board shall serve without compensation.

The officers of the Downtown Improvement Board shall be Chairperson/President and Vice-Chairperson/Vice-President. The officers shall be elected on expiration of the following terms by the members of the Board:

A.

Chairperson/President: Two year term.

B.

Vice-Chairperson/Vice-President: Two year term.

C.

Secretary: Two year term.

(Ord. No. 7215, 9-27-2005)

The term of each appointed member of the Downtown Improvement Board shall be for five (5) years. All terms of office will expire on July 31.

(Ord. No. 6363, 2-24-98; Ord. No. 7215, 9-27-2005)

Members of the Downtown Improvement Board are expected to attend meetings on a regular basis. Whenever a Board member misses three (3) consecutive meetings or his/her attendance falls below seventy-five (75) percent in a 12-month period, the Mayor/President will formally request, by letter, clarification from the identified board member of the reason for lack of attendance. If no attendance improvement plan can be agreed upon by the Mayor/President and board member, the board member may be asked to consider resignation.

(Ord. No. 7215, 9-27-2005)

In case of illness, resignation, movement of the business out of the Downtown Improvement and Parking District or vacancy on the Board for any other reason, the Mayor/President, with Council approval, shall immediately appoint a member to the Board for the remainder of the unexpired term.

The Downtown Improvement Board may hold one (1) regular meeting in each month in the Council Chambers at City Hall at such time as may be fixed by the Board. Special meetings of the Board may be called by the Chairperson/President, or in his/her absence, by such other officer as may be designated by the Board, or by any three (3) members of the Board.

(Ord. No. 7215, 9-27-2005)

Three (3) members are needed at all meetings to conduct business and represent a quorum.

A majority vote of all the members present at a Board meeting shall be required to pass any measure or elect any officer of the Board.

The Downtown Improvement Board shall adopt rules for the transaction of its business and shall keep a record of its resolutions, transactions, findings and determinations, which records shall be public record.

It shall be the function and duty of the Downtown Improvement Board to advise and make recommendations to the Council regarding:

A.

The creation and implementation of plans to furnish adequate public parking facilities with the district;

B.

The creation and implementation of plans to acquire, construct, maintain and operate public off-street parking facilities for the benefit of the district area;

C.

Planning the beautification and improving the general architectural design of the district;

D.

Planning and promoting the improvement of streets, lighting and traffic control for the district;

E.

Improvement and decoration of any public place in the district area;

F.

Promotion, or coordination and administration of special events which are to take place on or in the district area; and

G.

Assist in the payment of general obligation bonds issued for the construction of such parking facilities.

(Ord. No. 7215, 9-27-2005)

(Code 1958, 20.26; Code 1980, 24-101; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.27; Code 1980, 24-102; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.28; Code 1980, 24-103; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.29; Code 1980, 24-104; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.30; Code 1980, 24-105; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.31; Code 1980, 24-106; Ord. No. 6363, 2-24-98; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.32; Code 1980, 24-107; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.33; Code 1980, 24-108; Ord. No. 7215, 9-27-2005)

(Code 1958, 20.34; Code 1980, 24-109; Ord. No. 7215, 9-27-2005)

In addition to uses otherwise authorized in the Offstreet Parking District Act, any money available from taxes or assessments levied pursuant to Section 19-3315 of the Nebraska Revised Statutes or revenue derived from the operation of an off-street parking facility may be used in the district for any one (1) or more of the following purposes:

1.

Improvement of any public place or facility, including landscaping, physical improvements for decoration or security purposes, and plantings;

2.

Construction or installation of pedestrian shopping malls or plazas, sidewalks or moving sidewalks, parks, meeting and display facilities, bus stop shelters, lighting, benches or other seating furniture, sculptures, trash receptacles, shelters, foundations, skywalks, and pedestrian and vehicular overpasses and underpasses, and any useful or necessary public improvements;

3.

Leasing, acquiring, constructing, reconstructing, extending, maintaining, or repairing parking lots or parking garages, both above and below the ground, or other facilities for the parking of vehicles, including the power to install such facilities in public areas, whether such areas are owned in fee or by easement;

4.

Creation and implementation of a plan for improving the general architectural design of public areas;

5.

Development of any public activities and promotion of public events, including the management, promotion, and advocacy of retail trade activities or other promotional activities;

6.

Maintenance, repair, and reconstruction of any publicly owned improvements or facilities;

7.

The creation by ordinance and operation of a revolving loan fund for the purpose of providing financing upon appropriate terms and conditions for capital improvements to privately owned facilities, subject to the following conditions:

(a)

No loan from such fund shall exceed an amount equivalent to forty-nine percent of the total cost of the improvements to be financed by the loan;

(b)

The city shall require and receive appropriate security to guarantee the repayment of the loan; and

(c)

The proposed improvements to be financed shall serve to foster the purposes of the act, promote economic activity, or contribute to the public health, safety, and welfare.

8.

Any other project or undertaking for the betterment of the public facilities, whether the project is capital or noncapital in nature;

9.

Enforcement of parking regulations and the provision of security; and

10.

Employing or contracting for personnel, including administrators, for any improvement program under the act, and providing for any service as may be necessary or proper to carry out the purposes of the act.

(Ord. No. 7215, 9-27-2005)

Commencing April 1, 2007, there is hereby levied upon every person, firm, partnership, limited liability company, corporation, or association engaged in the business of offering or providing telecommunications services to the public for hire in the City of Kearney an occupation tax as follows:

A.

A percentage as set forth in the City of Kearney Comprehensive Fee Schedule on the gross receipts resulting from any toll services and charges on basic local exchange services and wireless services as follows:

1.

Basic local exchange services shall include the access and transmission of two-way switched communications within the city, including local telephone and telecommunication services; and

2.

Wireless services shall include any cellular communication services provided pursuant to license or authority granted by the Federal Communications Commission and charged to a service address within the City regardless of where the charges are actually paid.

B.

Gross receipts shall not include any toll services and charges as follows:

1.

For interstate telecommunications between persons in this city and persons outside of this state;

2.

For local carrier access charges, transmission facilities and switching services provided to telecommunications companies; and

3.

From accounts charged to the United States government or any of its departments, or the State of Nebraska, or any of its agencies, subdivisions or departments.

No part or portion of the tax provided for in this chapter shall be levied upon or assessed against or taken from any such gross receipts so excepted from the provisions hereof.

(Ord. No. 2653, 1, 7-26-77; Ord. No. 3858, 1, 8-12-86; Code 1980, 24-121; Ord. No. 7325, 2-27-2007 effective April 1, 2007; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

(Ord. No. 2653, 1, 7-26-77; Code 1980, 24-122; Ord. No. 7325, 2-27-2007 effective April 1, 2007)

The payment of the occupation tax levied pursuant to Sections 3-2001 to 3-2010 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.

(Ord. No. 2653, 2, 7-26-77; Code 1980, 24-123)

The occupation tax levied pursuant to Sections 3-2001 to 3-2010 shall be paid to the Director of Finance at the time provided by Sections 3-2001 to 3-2010 and the Director of Finance shall issue and deliver a receipt therefore upon the payment thereof. The amount of payment shall be credited to the general fund.

(Ord. No. 2653, 3, 7-26-77; Code 1980, 24-124)

All payments of the occupation tax levied pursuant to Sections 3-2001 to 3-2010 which are made after the due date thereof shall draw interest at the rate of one percent (1%) per month and, after payment thereof has been in default for six (6) months, a penalty of five percent (5%) shall be added thereto in addition to such interest charges, which shall be paid by any company subject to this occupation tax.

(Ord. No. 2653, 4, 7-26-77; Code 1980, 24-125)

All telecommunication services companies doing business in this City shall, at the time they make their quarterly payments of the occupation tax levied pursuant to Sections 3-2001 to 3-2010, file with the Director of Finance a full, complete and detailed statement of the gross receipts subject to such occupation tax; which 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.

(Ord. No. 2653, 5, 7-26-77; Code 1980, 24-126; Ord. No. 7325, 2-27-2007 effective April 1, 2007)

Each succeeding quarterly payment of the occupation tax levied pursuant to this Article may include any adjustment which is shown on the report provided for by Section 3-2006 which may be necessary for the consideration of uncollectibles or any other matters which may have resulted in either an excess or a deficiency in the amount of tax paid in any previous quarter.

(Ord. No. 2653, 6, 7-26-77; Code 1980, 24-127)

The City shall have the right at any time to inspect, through its officers, agents or representatives, the books and records of any telecommunication services companies, for the purpose of verifying any report submitted pursuant to the requirements of Section 3-2006.

(Ord. No. 2653, 7, 7-26-77; Code 1980, 24-128; Ord. No. 7325, 2-27-2007 effective April 1, 2007)

In case any telecommunication services companies shall refuse, fail or neglect to furnish or file any report required by Section 3-2006 at the time required for such filing, 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, then the occupation tax for the preceding quarter shall be the sum of twenty thousand dollars ($20,000.00), and such amount shall be paid within forty-five (45) days following the end of the calendar quarter as required by Section 3-2003 and such amount shall draw interest and be subject to penalties as provided by Section 3-2005.

(Ord. No. 2653, 8, 7-26-77; Code 1980, 24-129; Ord. No. 7325, 2-27-2007 effective April 1, 2007)

In case any telecommunication services companies shall fail to make payment of the occupation tax provided for by Sections 3-2001 to 3-2010 at the time specified for such payment, the City shall have the right to sue any such company in any court of competent jurisdiction for the amount of such occupation tax due and payable under the terms and provisions of Sections 3-2001 to 3-2010 and may recover judgment against any such company for such amount due, together with interest and penalties, and may have execution thereon.

(Ord. No. 2653, 9, 7-26-77; Code 1980, 24-130; Ord. No. 7325, 2-27-2007 effective April 1, 2007)

Each natural gas distribution company doing business in the City is required to pay an occupation tax to the City in an amount as set forth in the City of Kearney Comprehensive Fee Schedule per therm for gas delivered to residential and commercial customers within the City on the natural gas company's distribution system.

(Ord. No. 2860, 1, 7-25-78; Code 1980, 24-142; Ord. No. 6361, 3-10-98; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

There shall be excepted from the provisions of Sections 3-2101 to 3-2110 all receipts for natural gas service to governmental agencies, departments or other bodies whether they are federal, state or local.

(Ord. No. 2860, 1, 7-25-78; Code 1980, 24-143)

The payment of the occupation tax levied pursuant to Sections 3-2101 and 3-2110 shall be in monthly payments. Each monthly payment shall be due thirty (30) days after the termination of each month.

(Ord. No. 2860, 2, 7-25-78; Code 1980, 24-144; Ord. No. 6361, 3-10-98)

The occupation tax levied pursuant to Sections 3-2101 to 3-2110 shall be paid to the Director of Finance at the time provided by Sections 3-2101 to 3-2110 and the Director of Finance shall issue and deliver a receipt therefore upon the payment thereof. The amount of payment shall be credited to the general fund.

(Ord. No. 2860, 3, 7-25-78; Code 1980, 24-145)

All payments of the occupation tax levied pursuant to Sections 3-2101 to 3-2110 which are made after the due date thereof shall draw interest at the rate of one percent (1%) per month and, after payment thereof has been in default for six (6) months, a penalty of five percent (5%) shall be added thereto in addition to such interest charges, which shall be paid by any company subject to this occupation tax.

(Ord. No. 2860, 4, 7-25-78; Code 1980, 24-146)

All natural gas companies shall, at the time they make their monthly payments of the occupation tax levied pursuant to Sections 3-2101 to 3-2110, file with the Director of Finance a full, complete and detailed statement of the gross receipts subject to such occupation tax, which 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.

(Ord. No. 2860, 5, 7-25-78; Code 1980, 24-147; Ord. No. 8375, § 8, 9-10-2019)

Each succeeding quarterly payment of the occupation tax levied pursuant to Sections 3-2101 to 3-2110 may include any adjustment which is shown on the report provided for by Section 3-2106 which may be necessary for the consideration of uncollectibles or any other matters which may have resulted in either any excess or a deficiency in the amount of tax paid in any previous quarter.

(Ord. No. 2860, 6, 7-25-78; Code 1980, 24-148)

The City shall have the right upon request and during business hours, to inspect, through its officers, agents or representatives, the books and records of any natural gas company, for the purpose of verifying any report submitted pursuant to the requirements of Section 3-2106.

(Ord. No. 2860, 7, 7-25-78; Code 1980, 24-149)

In case any natural gas company shall refuse, fail or neglect to furnish or file any report required by Section 3-2106 at the time required for such filing, 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, then the occupation tax for the preceding quarter shall be the sum of twenty thousand dollars ($20,000.00), and such amount shall be paid within forty-five (45) days following the end of the calendar quarter as required by Section 3-2103 and such amount shall draw interest and be subject to penalties as provided by Section 3-2105.

(Ord. No. 2860, 8, 7-25-78; Code 1980, 24-150)

In case any natural gas company shall fail to make payment of the occupation tax provided for by Sections 3-2101 to 3-2110 at the time specified for such payment, the City shall have the right to sue any such company in any court of competent jurisdiction for the amount of such occupation tax due and payable under the terms and provisions of Sections 3-2101 to 3-2110 and may recover judgment against any such company for such amount due, together with interest and penalties, and may have execution thereon.

(Ord. No. 2860, 9, 7-25-78; Code 1980, 24-151)

A.

There is hereby adopted a sales and use tax to be effective on and after April 1, 2006, of one and One-half percent (1½%) upon the same transactions within the corporate limits of the City of Kearney, Buffalo County, Nebraska, as the same may from time to time be extended, on which the State of Nebraska is authorized to impose a tax pursuant to the provisions of the Nebraska Revenue Act of 1967, Nebraska Revised Statutes Section 77-2701 et seq., as amended from time to time.

B.

The administration of the sales and use tax imposed by this Section, the making of returns for the ascertainment and assessment, the provisions for tax claims and remedies, the laws governing consumption of sales, penalties and collection, and the disposition and distribution of the taxes so imposed and collected shall be as provided by Nebraska Revised Statutes Section 77-2701 et seq. and including Nebraska Revised Statutes Section 77-27,142 et seq., as amended, said latter statutes being known as the Local Option Revenue Act.

C.

One percent (1%) of all revenue collections from the imposition of sales and use tax on affected transactions within the corporate limits of the City and any interest accruing on the same shall be used for property tax relief purposes. One-half percent (½%) of all revenue collections from the imposition of sales and use tax on affected transactions within the corporate limits of the City and any interest accruing on the same shall be used for funding capital improvements and equipment purposes.

D.

To ensure compliance with subsection C above, the current City Auditor shall review and audit the use of sale and use tax revenue collections and annually report its findings to the Council at a regularly scheduled Council meeting.

E.

This Section specifically repeals, effective March 31, 2006 Ordinance No. 5094, passed and approved on the 27th day of February, 1990; and that all other ordinances and resolutions or parts of ordinances and resolutions in conflict herewith are also hereby repealed.

F.

This Section of the official City Code shall not be amended or repealed except by a vote of the electors of the City or by subsequently enacted State statutes as long as there is a sales and use tax imposed on affected transactions within the corporate limits of the City.

(Ord. No. 5094, 1, 2-27-90; Code 1980, 24-161; Ord. No. 7225, 11-22-2005)

Any person engaged in the business of lending money upon chattel property for security and requiring possession of the property so mortgaged on 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, is declared to be a pawnbroker within the meaning of this Article.

(Code 1958, 22.1; Code 1980, 27-1; Ord. No. 6506, 1-26-99)

It shall be unlawful for any person within the City to carry on the business of a pawnbroker without having first obtained a permit to do so.

(Code 1958, 22.2; Code 1980, 27-17; Ord. No. 6506, 1-26-99)

State Law reference— Similar provisions, Neb. Rev. Stat. 69-202

Any person desiring to conduct the business of a pawnbroker within the City, shall apply for a permit, on a form provided by the City, and the Permit shall provide the following information:

1.

The name, address, social security number and date of birth of the owner and manager of the business;

2.

If 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;

5.

Any criminal records or convictions of the owner, manager or, in the event of a corporate applicant, the officers and shareholders.

Failure to complete an application properly or to fraudulently or knowing provide false information on the application shall be considered a violation of this Code.

(Ord. No. 6506, 1-26-99)

Every person engaged in business of pawnbrokering shall pay to the Director of Finance the annual sum as set forth in the City of Kearney Comprehensive Fee Schedule. The permit fee shall be paid in advance and shall be valid until December 31 of the year issued.

(Ord. No. 6506, 1-26-99; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8375, § 9, 9-10-2019)

Any person desiring to conduct the business of a pawnbroker within the City shall file with the City Clerk a bond to the City in the sum of five thousand dollars ($5,000.00) with one (1) or more sureties to be approved by the City Manager, conditioned for the faithful observance of all provisions of this Code, other ordinances and regulations of the City and State relating to pawnbrokers, the honest and faithful conduct of such business, and the faithful performance by the principal of each and all of the trusts imposed by law or by usage attached to pawnbrokers. The bond shall be for the benefit of any person injured or damaged by the fraud or willful misconduct of the business.

(Ord. No. 2727, 1, 10-25-77; Code 1980, 27-18; Ord. No. 6506, 1-26-99)

State Law reference— Similar provisions, Neb. Rev. Stat. 69-202

There is hereby levied on all persons engaged in the business of pawnbroker, an occupation tax as provided by Section 3-1828 of this Code.

(Code 1958, 22.4; Code 1980, 27-19; Ord. No. 6506, 1-26-99)

State Law reference— License fee, Neb. Rev. Stat. 69-202

Upon compliance with the provisions of this Article, and approval of the application by the City Manager, the Clerk shall issue a permit which shall be signed by the City Manager and the City Clerk and shall be attested by the City seal. In the event that the City Manager denies approval of the application, the applicant may appeal to the City Council.

(Code 1958, 22.4; Code 1980, 27-20; Ord. No. 6506, 1-26-99)

No persons shall be allowed to do business in more than one location under one permit. Each permit shall state the place where such business is to be carried on, and shall not be assigned. Goods, wares, and merchandise shall be kept or stored only at those locations specifically listed in the permit application.

It shall be unlawful for any person not having a permit as required by this Article to display any sign or advertisement stating that money is lent on goods or that goods are purchased as described in Section 3-2301.

(Ord. No. 6506, 1-26-99)

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 restrictions 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 Neb. Rev. Stat. Sections 25-1093 to 25-10,110.

(Code 1958, 22.7; Code 1980, 27-3; Ord. No. 6506, 1-26-99)

All persons who shall be engaged in the business of pawnbrokers, dealers in secondhand goods, or junk dealers, shall keep a ledger and complete a card, to be furnished by the city, on 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 or her 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.

Entries shall not in any manner be erased, obliterated, or defaced.

(Ord. No. 6506, 1-26-99)

It shall be the duty of every pawnbroker in the City, every day except Sunday before twelve o'clock (12:00) Noon, to deliver to the Police Department a legible and correct copy of each card or ledger required by Section 3-2310 of this Code for the transactions of the previous day. Transactions occurring on Saturday 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, or 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 the mayor or any law enforcement officer when demanded. Dealers in scrap metals, except gold and silver, shall not be included in the provisions of this Article.

(Code 1980, 27-4; Ord. No. 6506, 1-26-99)

The person receiving a loan or selling property shall receive, at no charge, a plain written or printed pawn ticket for the loan, or a plain written or printed receipt for the articles sold, containing a copy of the entries required by this Article.

All persons who shall be engaged in the business of pawnbroker shall 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 to fingerprint every person pawning or selling an item.

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

(a)

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

(b)

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

(c)

It shall be unlawful for any pawnbroker knowingly to receive on pawn or deposit any personal property of any kind which the pawnbroker knows does not belong to the person attempting to pawn the property.

(Code 1958, 22.8; Code 1980, 27-5; Ord. No. 6506, 1-26-99)

No personal property received or purchased by any pawnbroker, dealer in secondhand goods, or junk dealer, shall be sold or permitted to be taken from the place of business of such person for fourteen days or, in the case of secondhand jewelry, for five days, after the copy of the card or ledger entry required to be delivered to the police department or sheriff's office shall have been delivered as required by this Article. Secondhand jewelry shall not be destroyed, damaged, or in any manner defaced for a period of seventy-two hours after the time of its purchase or receipt. For purposed 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, copper, brass, or pewter.

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 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, sheriff, or other authorized law enforcement officer.

(Ord. No. 6506, 1-26-99)

It shall be unlawful for any pawnbroker to sell any goods purchased or received as described in this article, during the periods of four months from the date of purchasing or receiving such goods. (Ord. No. 6506, 1-26-99)

Every broker, agent, or dealer mentioned in this article who shall violate any of the provisions thereof, shall be guilty of a misdemeanor, subject to a maximum of $100.00 fine with no imprisonment for each offense or violation.

(Ord. No. 6506, 1-26-99)

Any permit issued pursuant to this article 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 City Manager in order to show cause why the permit should not be revoked or suspended. Such hearing shall be held within seven days of the date of the notice.

(Ord. No. 6506, 1-26-99)

It shall be the duty of any railroad company owning, maintaining or operating a railroad within the corporate limits of the City to construct and keep in repair ditches, drains and culverts along and under its railroad tracks at all places within the limits of the City, where the same may be necessary for the escape of water and the proper draining of the territory on either side of the railroad tracks.

(Code 1958, 25.1; Code 1980, 32-1)

State Law reference— Similar provisions, Neb. Rev. Stat. §16-211, 16-212

When any drains, ditches or culverts may be necessary for the escape of water and the proper drainage of the territory on either side of any railroad track, the Mayor/President and Council may, by resolution, call upon the proper railroad company to construct or repair the drain, ditch or culvert and to place the same in proper condition for the escape of water for the proper drainage of the territory on either side of the railroad track. A copy of every such resolution shall be served upon the local agent of the railroad company whose duty it is to construct or keep in repair any such drain, ditch or culvert; and for a failure or refusal to comply with any such resolution within fourteen (14) days after the service thereof, as aforesaid, such railroad company, its local agent, section foreman or the employee in charge of the maintenance and way through the City shall be deemed guilty of a misdemeanor.

(Code 1958, 25.2; Code 1980, 32-2)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

It shall be the duty of all railroad companies owning, operating and maintaining a railroad passing through the corporate limits of the City to place, keep or maintain all places within their right-of-way where the public streets or alleys of the City intersect and cross any of the railroad tracks in a suitable and safe condition for public travel over and across the same.

(Code 1958, 25.4; Code 1980, 32-3)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

If any railroad crossing shall be at any time in bad condition or unsafe or inconvenient for public travel, the Council may by resolution, call upon the proper railroad company to repair or replace the crossing and render the same safe and convenient for public travel. A copy of every such resolution shall be served upon the local agent of the railroad company whose duty it is to maintain such crossing; and for a failure or refusal to comply with such resolution within thirty (30) days after the service thereof, as aforesaid, such railroad company shall be deemed guilty of a misdemeanor.

(Code 1958, 25.5; Code 1980, 32-4)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

At all points within the corporate limits of the City, where any railroad or railway track shall intersect any platted street, there shall be installed and maintained, when ordered by the motion or resolution of the Council, wholly at the expense of the railroad company maintaining such intersecting railroad, an electric light of at least such power and strength as in commonly used by the City for its street lighting, which electric light shall be kept lighted at all times between one (1) hour after sunset in the evening and one (1) hour before sunrise in the morning following.

(Code 1958, 25.6; Code 1980, 32-5)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

When ordered by the Council, approved automatic lights or signals shall be installed at designated crossings. Such wigwag lights and bells shall be kept in good working order at all hours of the day or night so that all persons approaching the crossings will be warned of the danger of approaching trains, engines or cars on the tracks.

(Code 1958, 25.7; Code 1980, 32-6)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

It shall be unlawful for any person or railway company, or any employee or agent managing, operating or controlling any locomotive engine, car or train of cars, to run or permit to be run or propelled or operated any locomotive engine, car or train of cars between Eighth (8th) Avenue and Avenue Q within the limits of the City at a rate of speed greater than forty-five (45) miles per hour.

(Ord. No. 2807, 1, 4-25-78; Code 1980, 32-7)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

It shall be unlawful for any railroad company operating a railroad into the City to obstruct any of the public streets within the City by leaving trains or cars standing thereon so as to prevent the public from crossing the rail track for a longer period at one time than five (5) minutes except in cases of inevitable accident.

(Code 1958, 25.3; Code 1980, 32-8)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

It shall be unlawful for any agent or servant of any railroad to make any running or flying switches on any of the railroad lines within the City.

(Code 1958, 25.8; Code 1980, 32-9)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

Railroad companies within the corporate limits of the City, shall, wholly at their own expense, construct and maintain on their depot platforms electric lights at such height and of such candlepower ample to light such platform, as the Mayor/President and Council shall by resolution direct.

(Code 1958, 25.9; Code 1980, 32-10)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

It shall be unlawful for any person to loiter about any railroad track, or to hitch, tie on, or otherwise connect a sled, toboggan, bobsled, coaster, wagon or other small vehicle for the purpose of coasting to the rear of any vehicle within the City.

(Code 1958, 25.10; Code 1980, 32-11)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

It shall be unlawful for any person to jump off or on any train while the same is at rest or in motion; provided, however, that nothing in this Section shall be construed to apply to any employee of a railroad or the owner of any of the vehicles, or to any person authorized by them to use the same or to any person boarding a train as a passenger at a depot or station.

(Code 1958, 25.1-1; Code 1980, 32-12)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-212

(Ord. No. 5341, 1, 12-23-91; Ord. No. 8085, 6-28-2016)

State Law reference— Neb. Rev. Stat. 38-1060

(Ord. No. 5341, 2, 12-23-91; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 3, 12-23-91; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 4, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 5, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 6, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 7, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 8, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 9, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 10, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 11, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 12, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 13, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 14, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 15, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 16, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 17, 12-23-91; Ord. No. 8085, 6-28-2016)

(Ord. No. 5341, 18, 12-23-91; Ord. No. 8085, 6-28-2016)

(Code 1958, 7A.1; Ord. No. 3638, 1, 9-27-83; Code 1980, 25-83; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.5; Code 1980, 25-85; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.6; Ord. No. 3638, 2, 9-27-83; Ord. No. 5205, 1, 2-12-91; Code 1980, 25-86; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 7398, 11-27-2007)

A copy of all information filed with the department pursuant to Section 9-232.01 shall also be filed with the county clerk of the county in which the bingo is to be conducted, and if the bingo is conducted within the limits of the City, a copy shall also be filed with the City Clerk. Such information shall be filed within five (5) days after its filing with the department.

(Code 1958, 7A.7; Code 1980, 25-87; Ord. No. 7398, 11-27-2007)

State Law reference— Similar provisions, Neb. Rev. Stat. §9-237

(Code 1980, 25-88; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.2; Code 1980, 25-95; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.3; Code 1980, 25-96; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.2; Code 1980, 25-97; Ord. No. 5325, 11-12-91; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.2; Code 1980, 25-98; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.2; Code 1980, 25-100; Ord. No. 5325, 11-12-91; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.2; Code 1980, 25-101; Ord. No. 7398, 11-27-2007)

(Code 1958, 7A.4; Code 1980, 25-102; Ord. No. 7398, 11-27-2007)

The lottery operator whom the Governing Body contracts to conduct its lottery shall not operate the lottery at a sales outlet location other than the location of the lottery operator without prior approval of the sales outlet location by the Governing Body. The Governing Body shall approve or disapprove each sales outlet location requested by the lottery operator and each individual, sole proprietorship, partnership, or corporation which desires to conduct the lottery at its sales outlet location solely on the basis of the qualification standards prescribed in Section 3-2702.

Any individual, sole proprietorship, partnership, or corporation which seeks to have its location approved as an authorized sales outlet location:

A.

May first obtain a retail liquor license for consumption on the premises pursuant to Chapter 53, article 1, RS Neb.;

B.

Shall not have been convicted of, forfeited bond upon a charge of, or pleaded guilty to forgery, larceny, extortion, conspiracy to defraud, willful failure to make required payments or reports to a governmental agency at any level, filing false reports with any such agency, or any similar offense or offenses or any crime, whether felony or misdemeanor, involving gambling activity or moral turpitude;

C.

Shall not have had a gaming license revoked or canceled under the Nebraska Bingo Act, the Nebraska Pickle Card Lottery Act, the Nebraska Lottery and Raffle Act or the Nebraska County and City Lottery Act; and

D.

Shall be fit, willing, and able to properly provide the service proposed in conformance with all provisions and requirements of the Nebraska County and City Lottery Act and the rules and regulations adopted and promulgated pursuant to the act.

If the person seeking to have its location approved as an authorized sales outlet location is a partnership or corporation, the qualification standards shall apply to every partner of such partnership, every officer of such corporation, and stockholder owning more than ten (10) percent of the stock of such corporation.

The Governing Body shall notify the Department of Revenue of all approved lottery locations within thirty (30) days of approval.

State Law reference— Similar provisions, Neb. Rev. Stat. 9-642.01

The purpose of this Division is to:

a.

Establish a local policy concerning telecommunications providers and services;

b.

Establish clear and nondiscriminatory local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications providers and services;

c.

Promote competition in telecommunications;

d.

Minimize unnecessary local regulation of telecommunications providers and services;

e.

Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the City;

f.

Permit and manage reasonable access to the public rights-of-way of the City for telecommunications purposes on a competitively neutral basis;

g.

Conserve the limited physical capacity of the public rights-of-way held by the City;

h.

Assure that the City's current and ongoing costs of granting and regulating private access to and use of the public rights-of-way are fully paid by the persons seeking such access and causing such costs;

i.

Secure fair and reasonable compensation to the City and the residents of the City, in a nondiscriminatory manner, for permitting private use of the rights-of-way;

j.

Assure that all telecommunications carriers providing facilities or services within the City comply with the ordinances, rules and regulations of the City;

k.

Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare;

l.

Enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.

(Ord. No. 6470, 12-8-98)

Terms used in this Chapter shall have the following meanings:

A.

AFFILIATE shall mean a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another Person.

B.

CITY shall mean the City of Kearney.

C.

CITY MANAGER shall mean the duly appointed person acting as City Manager or an officer of employee designated by the City Manager.

D.

CITY PROPERTY shall mean all real property owned or controlled by the City whether in fee ownership or other interest.

E.

CODE shall mean the Kearney City Code, as amended.

F.

EXCESS CAPACITY shall mean the volume or capacity in any existing, or future duct, conduit, manhole, handhole or other utility facility within the right-of-way that is or will be available for use for additional Telecommunications Facilities.

G.

FCC or Federal Communications Commission shall mean the Federal administrative agency, or lawful successor, authorized to regulate and oversee Telecommunications Carriers, Services and Providers on a national level.

H.

GRANTEE shall mean both Licensees and Franchisees granted certain rights and obligations as more fully described herein.

I.

NEBRASKA PUBLIC SERVICE COMMISSION or NPSC shall mean the State administrative agency, or lawful successor, authorized to regulate and oversee Telecommunications Carriers, Services and Providers in the State of Nebraska to the extent prescribed by law.

J.

OPERATOR shall mean Nebraska Public Power District (hereinafter known as "NPPD") who has been granted the authority to operate City's Electrical Distribution System, pursuant to the terms of a long-term Professional Retail Operations Agreement with City, which Distribution System includes the electric distribution facilities consisting of wires, poles and appurtenant fixtures, meters, services, distribution transformers, and street lighting owned by the City, as such Distribution System may be modified from time to time, or any other successor, person or entity authorized by Contract to operate the City's Electrical Distribution System, or in the event no contract is in effect with NPPD or a successor, the City of Kearney.

K.

OVERHEAD FACILITIES shall mean utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

L.

PERSON shall mean corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities and individuals.

M.

PUBLIC WAYS includes the surface of a space above and below any real property in the City which the City owns or in which it holds an interest as a trustee for the public including, but not limited to, all public streets, highways, roads, alleys, easements, tunnels, viaducts, bridges, skyways, or any other public place, area or property under the ownership or control of the City, and any rights-of-way established, dedicated or devoted for public utility purposes; but does not include any property specifically exempted by Order of the City Council.

N.

RIGHTS-OF-WAY shall mean all City Property and Public Ways, dedicated for public right-of-way use, collectively, within the City, but shall not include any property specifically exempted by Order of the City Council.

O.

STATE shall mean the State of Nebraska.

P.

SURPLUS SPACE shall mean that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the orders and regulations of the Nebraska Public Service Commission to allow its use by a Telecommunications Carrier for a pole attachment, and which complies with the Ordinances, rules and regulations of the City of Kearney.

Q.

TELECOMMUNICATIONS CARRIER includes every Person that directly or indirectly owns, controls, operates or manages Telecommunications Facilities used or to be used to transmit, receive, distribute, provide or offer Telecommunications Service.

R.

TELECOMMUNICATIONS FACILITIES shall mean the plant, equipment and property within the City used to transmit, receive, distribute, provide or offer Telecommunications Service.

S.

TELECOMMUNICATIONS PROVIDER includes every Person who provides Telecommunications Service over Telecommunications Facilities.

T.

TELECOMMUNICATIONS SERVICE shall mean the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium, unless excluded or exempted by local, state or federal law. This definition specifically excludes the provision of cable television services which may only be provided under a Franchise granted in accordance with the provisions of Section 3-1601 et seq. of the Kearney City Code. In the event that the telecommunication provider also provides cable television service, but is held or determined by a court to not be a cable television provider, the services provided shall be deemed to constitute telecommunication services as defined herein.

U.

UNDERGROUND FACILITIES shall mean Utility and Telecommunications Facilities located under the surface of the ground, excluding the underground foundations or supports for Overhead Facilities.

V.

USABLE SPACE shall mean the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the Nebraska Public Service Commission, which has been approved by the Operator, and which complies with the Ordinances, rules and regulations of the City of Kearney.

W.

UTILITY FACILITIES shall mean the plant equipment and property including, but not limited to, the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within Rights-of-Way and used or to be used for the purpose of providing Utility or Telecommunications Services.

(Ord. No. 6470, 12-8-98)

Any Person who violates, disobeys, omits, neglects or refuses to comply with any of the provisions of this Chapter shall be guilty of an infraction. Upon conviction any person violating any provision of this Chapter shall be subject to fines as provided by Section 1-112 of this Code. A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues.

(Ord. No. 6470, 12-8-98)

Nothing in this Chapter shall be construed as limiting any other remedies at law or in equity that the City may have for enforcement of this Chapter. The City Manager is authorized to establish regulations and procedures for the implementation of this Chapter.

(Ord. No. 6470, 12-8-98)

A.

To the extent permitted by law and except as otherwise provided herein, all Telecommunications Carriers or Providers engaged in the business of transmitting, supplying or furnishing of telecommunications service originating, terminating, or existing, within the City shall register with the City pursuant to this Chapter and pay all fees as provided herein, unless otherwise required to apply for and obtain a license or franchise pursuant to this Chapter.

B.

A registration shall remain in effect for a period of five (5) years from the date which the City Manager certifies that the information required pursuant to Section 3-2806 has been submitted to the City Manager. A registration may be renewed by either; (1) submitting information in duplicate to the City Manager as set forth in Section 3-2806, or (2) submitting affidavits in duplicate attesting that the information submitted for the initial registration remains unchanged except to the extent modified by attachments to said affidavits. Upon filing a registration renewal the registrant shall pay all fees as provided herein.

(Ord. No. 6470, 12-8-98)

All telecommunications carriers or providers required to register pursuant to Section 34-2805 shall register with the City by submitting information in duplicate to the City Manager which shall include the following:

A.

The identity of the registrant.

B.

The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement.

C.

A general description of registrant's existing or proposed Telecommunications Facilities within the City.

D.

A description of the telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City.

E.

Information sufficient for the City to determine whether the registrant is subject to licensing or franchising.

F.

Copies of the registrant's Certificate of Convenience and Necessity issued by the Nebraska Public Service Commission.

G.

A copy of the relevant portions of the registrant's Certificate of Convenience and Necessity application may be filed in lieu of items (c), (d) and (e) above.

H.

Such other information as the City may require for purposes of this Chapter.

(Ord. No. 6470, 12-8-98)

A.

The purpose of registration is to:

1.

Provide the City with accurate and current information concerning the telecommunications carriers and providers who offer or provide telecommunications services within the City, or that own or operate telecommunication facilities within the City;

2.

Assist the City in enforcement of this Chapter;

3.

Assist the City in the collection and enforcement of any municipal taxes, occupation taxes, franchise fees, license fees or charges that are lawfully permissible and may be due the City; and

4.

Assist the City in monitoring compliance with local, state and federal laws.

B.

A person which provides telecommunications services solely to itself, its affiliates or members between points in the same building, or between closely located buildings under common ownership or control is exempted from the provisions of this Chapter, provided that such company or person does not use or occupy any public ways or property of the City.

(Ord. No. 6470, 12-8-98)

To the extent permitted by law and except as otherwise provided herein, any Telecommunications Carrier who desires to construct, install, operate, maintain or otherwise locate Telecommunications Facilities in Public Ways, but who does not provide Telecommunications Service to Persons and areas within the City shall first obtain a license granting the use of such Public Ways from the City pursuant to this Chapter and pay all the fees as provided herein. A license shall not be required by any person that obtains a franchise pursuant to Section 3-2819.

(Ord. No. 6470, 12-8-98)

All Telecommunications Carriers required to obtain a license pursuant to Section 3-2808 shall apply for a license from the City by submitting information in duplicate to the City Manager which shall include the following:

A.

The identity of the applicant.

B.

The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the license application.

C.

A general description of applicant's existing or proposed Telecommunications Facilities within the geographic area to be covered by the license.

D.

A confirmation that the Telecommunications Service that the applicant intends to offer or provide, or is currently offering or providing, is to persons, firms, businesses or institutions outside the City.

E.

Information sufficient for the City to determine whether applicant is subject to licensing or franchising.

F.

Copies of the applicant's Certificate of Convenience and Necessity issued by the Nebraska Public Service Commission.

G.

A copy of relevant portions of the applicants' Certificate of Convenience and Necessity application may be filed in lieu of items (c), (d), and (e) above.

H.

Such other information as the City may require for purposes of this Chapter.

(Ord. No. 6470, 12-8-98)

After receiving a complete application hereunder, the City Manager shall make a recommendation to the Mayor and City Council to grant or deny the license application in whole or in part. If the application is recommended for denial, the recommendation shall include the reasons for denial. The Mayor and the City Council shall grant or deny the license application in whole or in part after receiving a recommendation of the City Manager. The decision of the Mayor and City Council on the application shall be made within sixty (60) days of the filing of a complete application; provided, time may be extended upon request of the applicant or to permit the City to obtain additional information relevant to the application. The following standards shall apply when determining to grant or deny the license application:

A.

The legal status of the applicant.

B.

The capacity of the public ways to accommodate the applicant's facilities.

C.

The capacity of the public ways to accommodate additional utility and Telecommunications Facilities if the application is granted.

D.

The damage or disruption, if any, to existing or future public or private facilities, improvements, service, travel or landscaping if the application is granted, giving consideration to an applicant's willingness and ability to mitigate and/or repair same.

E.

The public interest in minimizing the cost and disruption of construction within the public ways.

F.

The type of service that applicant will provide.

G.

The availability of alternate routes or locations for the proposed facilities.

H.

Applicable federal, state and local laws, regulations, rules and policies.

I.

The effect, if any, on the operation of the City's Electrical Distribution System due to the capacity requirements necessary to accommodate additional utility or telecommunication facilities, as recommended and approved by the Operator.

(Ord. No. 6470, 12-8-98)

No license granted hereunder shall be effective until the City Council has approved a written agreement with the applicant setting forth the particular items and provisions under which the license to occupy and use public ways will be granted. A license granted hereunder shall be limited to a grant of rights to use specific public ways and defined portions thereof, as may be indicated in the license agreement.

(Ord. No. 6470, 12-8-98)

No license granted hereunder shall confer any exclusive right, privilege or license to occupy or use the public ways or property or to provide telecommunications services or any other purposes.

(Ord. No. 6470, 12-8-98)

A.

No license granted hereunder shall convey any right, title or interest in public ways, but shall be deemed a license only to use and occupy specified portions of the public ways for the limited purposes and term stated in the Grant.

B.

No license granted hereunder shall authorize or excuse a licensee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use public ways.

C.

No license granted hereunder shall be construed as any warranty of title.

D.

Unless otherwise specified in a license agreement, a license granted hereunder shall be in effect for a term of not more than five (5) years from the date of execution of the license agreement by the Mayor following approval by the City Council.

(Ord. No. 6470, 12-8-98)

All licensees shall obtain all required construction permits for all projects and pay all fees required by law.

(Ord. No. 6470, 12-8-98)

In the absence of state or federal law to the contrary, each license granted hereunder is subject to the City's right, which is hereby expressly reserved, to annually fix a fair, reasonable and non-discriminatory compensation to be paid for use of public ways or property, and to impose and/or collect such municipal, occupation, or license taxes as are authorized by state and federal law. City will provide thirty (30) days' notice to affected carriers and providers of any proposed increases with an opportunity for hearing and comments.

(Ord. No. 6470, 12-8-98)

A.

A new license application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public ways which are not included in a license and license agreement previously granted hereunder. The license application supplement shall consist of such information as would have been required but was not included in the initial license application pursuant to Section 3-2809.

B.

If ordered by the City to locate or relocate its telecommunications facilities in public ways not included in a previously granted license, the City shall grant a license amendment without further application.

(Ord. No. 6470, 12-8-98)

A.

Unless applicable state or federal law establishes a different time period for renewal, a licensee that desires to renew its license hereunder shall not more than one hundred eighty (180) days nor less than sixty (60) days before expiration of the current license, file an application with the City for renewal of its license which shall include updated information required for a license application. A license may be renewed by either submitting information in duplicate to the City Manager as set forth in Section 3-2809 or submitting affidavits in duplicate attesting that the information submitted for the initial license application remains unchanged except to the extent modified by prior amendments or attachments to said affidavits. Upon filling a license renewal, the applicant shall pay all fees as provided herein.

B.

Within sixty (60) days after receiving a complete application hereunder, the Mayor and City Council shall make a determination on behalf of the City granting or denying the renewal application in whole or in part. If the application is denied, the determination shall include the reasons for denying approval of the application. The standards enumerated in Section 3-2810 shall apply when determining to grant or deny the application, plus a determination of the applicant's compliance with the requirements of this Chapter and the license agreement.

(Ord. No. 6470, 12-8-98)

No license shall be renewed until any ongoing violations or defaults in the licensee's performance of the license agreement of the requirements of this Chapter and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured or a plan detailing the corrective action to be taken by the licensee has been approved by the City Manager.

(Ord. No. 6470, 12-8-98)

A.

To the extent permitted by law and except as otherwise provided herein, any telecommunications carrier or provider who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in public ways and who provides telecommunications service, including but not limited to local exchange service, to persons or areas within the City, shall first obtain a franchise granting the use of such public ways from the City for the purpose of providing telecommunication service pursuant to this Chapter, and pay all the fees as provided herein.

B.

A person providing telecommunications services on purely a resale basis through another grantees' facilities is exempt from the provisions of this Chapter, except to the extent that such resellers have an obligation to pay their pro rata share of all taxes and fees prescribed under City Codes and passed through to them by the wholesaler pursuant to Neb. Rev. Stat. 86-810.

(Ord. No. 6470, 12-8-98)

All telecommunications carriers required to obtain a franchise pursuant to Section 3-2819 shall apply for a franchise from the City hereunder by submitting information in duplicate to the City Manager which shall include the following:

a.

The identity of the applicant.

b.

The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the franchise application.

c.

A general description of applicant's existing or proposed telecommunications facilities within the geographic area to be covered by the franchise. To the extent permitted by the Laws of Nebraska, public access, with the exception of the Operator, to such descriptions, which are stamped, marked, or otherwise certified by a company representative to be or constitute proprietary trade secrets, with the specific exception of the present location of lines in the right-of-way, will be denied under the provisions of Neb. Rev. Stat. Section 84-712.05(3).

d.

A general description of the telecommunications service that the applicant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City.

e.

Information sufficient for the City to determine whether applicant is subject to licensing or franchising.

f.

Information sufficient for the City to determine whether the transmission, origination or receipt of the telecommunications services provided or to be provided by the applicant constitutes an occupation or privilege subject to any municipal tax, or permit, license or franchise fee.

g.

Copies of the applicant's pertinent Certificate(s) of Convenience and Necessity issued by the Nebraska Public Service Commission.

h.

A copy of the relevant portions of the applicant's Certificate of Convenience and Necessity application may be filed in lieu of items (c), (d) and (e) above.

i.

Such other information as the City may require for purposes of this Chapter.

j.

The effect, if any, on the operation of the City's Electrical Distribution System due to the capacity requirements necessary to accommodate additional utility or telecommunications facilities, as recommended and approved by the Operator.

(Ord. No. 6470, 12-8-98)

After receiving a complete application hereunder, the City Manager shall make a recommendation to the Mayor and City Council to grant or deny the franchise application in whole or in part. If the application is recommended for denial, the recommendation shall include the reasons for denial. The Mayor and City Council shall grant or deny the franchise application in whole or in part after receiving a recommendation of the City Manager. The decision of the Mayor and City Council on the application shall be made within sixty (60) days of the filing of a complete application; provided time may be extended upon request of the applicant or to permit the City to obtain additional information relevant to the application. The following standards shall apply when determining to grant or deny the franchise application:

a.

The legal status of the applicant.

b.

The capacity of the public ways to accommodate the applicant's facilities.

c.

The capacity of the public ways to accommodate additional utility and telecommunications facilities if the application is granted.

d.

The damage or disruption, if any, to existing or future public or private facilities, improvements, service, travel or landscaping if the application is granted, giving consideration to an applicant's willingness and ability to mitigate and/or repair same.

e.

The public interest in minimizing the cost and disruption of construction within the public ways.

f.

The availability of alternate routes or locations for the proposed facilities.

g.

Applicable federal, state and local laws, regulations, rules and policies.

(Ord. No. 6470, 12-8-98)

No franchise granted hereunder shall be effective until the Mayor and City Council have approved a written agreement with the applicant setting forth the particular items and provisions under which the franchise to occupy and use public ways will be granted. A franchise granted hereunder shall be limited to a grant of rights to use specific public ways and defined portions thereof, as may be indicated in the franchise agreement.

(Ord. No. 6470, 12-8-98)

No franchise granted hereunder shall confer any exclusive right, privilege or franchise to occupy or use the public ways or property for the purpose of providing telecommunications services or any other purposes.

(Ord. No. 6470, 12-8-98)

A.

No franchise granted hereunder shall convey any right, title or interest in public ways but shall be deemed a franchise only to use and occupy specified portions of the public ways for the limited purposes and term stated in the Grant.

B.

No franchise granted hereunder shall authorize or excuse a franchisee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use public ways.

C.

No franchise granted hereunder shall be construed as any warranty of title.

D.

Unless otherwise specified in a franchise agreement, a franchise granted hereunder shall be in effect for a term of not more than five (5) years from the date of execution of the franchise agreement by the Mayor following approval by the Mayor and City Council.

(Ord. No. 6470, 12-8-98)

All franchisees shall obtain permits and pay all fees required by law prior to commencement of construction.

(Ord. No. 6470, 12-8-98)

In the absence of state, federal or other law to the contrary, each franchise granted hereunder is subject to the City's right, which is expressly reserved, to annually fix a fair, reasonable and non-discriminatory compensation to be paid for use of public ways and/or such municipal, franchise or occupation taxes as are authorized by state and federal law. City will provide thirty (30) days' notice to affected carriers and providers of any proposed increases with an opportunity for hearing and comments.

(Ord. No. 6470, 12-8-98)

A.

A franchise application supplement and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public ways which are not included in a franchise and franchise agreement previously granted hereunder. The franchise application supplement shall consist of such information as would have been required but was not included in the initial franchise application pursuant to Section 3-2820.

B.

If ordered by the City to locate or relocate its Telecommunications Facilities in public ways not included in a previously granted franchise, the City shall grant a franchise amendment without further application.

C.

To the extent the franchisee amends its pertinent Certificate(s) of Convenience and Necessity issued by the Nebraska Public Service Commission, it must amend its franchise agreement and pay the corresponding fee.

(Ord. No. 6470, 12-8-98)

A.

Unless applicable state or federal law establishes a different time period for renewal, a franchisee that desires to renew its franchise hereunder shall not more than one hundred eighty (180) days nor less than sixty (60) days before expiration of the current franchise, file an application with the City for renewal of its franchise which shall include updated information required for a franchise application. A franchise may be renewed by either submitting information in duplicate to the City Manager as set forth in Section 3-2820 or submitting affidavits in duplicate modified by prior amendments or attachments to said affidavits. Upon filing a franchise renewal, the applicant shall pay all fees as provided herein.

B.

Within sixty (60) days after receiving a complete application hereunder, the Mayor and City Council shall make a determination on behalf of the City, either granting or denying the renewal application in whole or in part. If the application is denied, the determination shall include the reasons for denying approval of the application. The standards enumerated in Section 3-2821 shall apply when determining to grant or deny the application, plus a determination of the applicant's compliance with the requirements of this Chapter and the license agreement.

(Ord. No. 6470, 12-8-98)

No Franchise shall be renewed until any ongoing violations or defaults in the franchisee's performance of the franchise agreement or of the requirements of this Chapter and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured or a plan detailing the corrective action to be taken by the licensee has been approved by the City Manager of his/her designee.

(Ord. No. 6470, 12-8-98)

A.

All Grantees shall comply with all requirements of the Kearney City Code.

B.

All Grantees shall provide written confirmation sufficient for customary land survey and land title insurance purposes concerning the location of its facilities in public ways and disclaiming any interest in public ways where it has no license or franchise to construct or operate its facilities.

C.

Any act that a grantee is or may be required to perform pursuant to this Ordinance, a license or franchise or applicable agreement or law shall be performed at the grantee's expense.

(Ord. No. 6470, 12-8-98)

No Grantee may locate or maintain its telecommunications facilities so as to interfere with the use of the public ways by the City, or other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by and at the expense of the Grantee, temporarily or permanently, as determined by the City.

(Ord. No. 6470, 12-8-98)

Any Grantee or any Person acting on a Grantee's behalf that impairs or damages any public way, or other property located in, on or adjacent thereto, shall restore said public way or other property in conformance with Section 3-2840 of this chapter.

(Ord. No. 6470, 12-8-98)

Unless otherwise provided in a license or franchise agreement, no Grantee, or any Person acting on the Grantee's behalf, shall commence any non-emergency work in or about the public ways without providing three (3) working days advance written notice to the City. Any private property owner whose property will be affected by a Grantee's work shall be afforded the same notice.

(Ord. No. 6470, 12-8-98)

In the event of an unexpected repair or emergency, a Grantee may commence such repair and emergency response work as required under the circumstances, provided the Grantee shall notify the Director of Public Works and Director of Utilities as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.

(Ord. No. 6470, 12-8-98)

Each Grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements.

(Ord. No. 6470, 12-8-98)

A.

Within thirty (30) days following written notice from the City, a Grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the City Manager or his/her designee shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

(1)

The construction, repair, maintenance or installation of any City or other governmental entity public improvement in or upon the public ways.

(2)

The operations of the City or other governmental entity in or upon the public ways.

(3)

The vacation of a public street or the release of a utility easement.

(4)

Public health and safety reasons.

B.

Provided the City has complied with the One Call Notification System Act, the City shall not be liable for any damage to or loss of any telecommunication facility within the public ways as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling or work of any kind in the public ways by or on behalf of the City unless directly or proximately caused by the willful, intentional or malicious acts of the City.

(Ord. No. 6470, 12-8-98)

Within thirty (30) days following written notice from the City, any Grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways shall at its own expense, remove such facilities or appurtenances from the public ways. If such Grantee fails to remove such facilities or appurtenances, the City may cause the removal and charge the grantee for the costs incurred. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

a.

Upon expiration or termination of the Grantee's license or franchise.

b.

Upon abandonment of a facility within the public ways.

c.

If the system or facility was constructed or installed without the prior grant of a license or franchise.

d.

If the system or facility was constructed or installed without the prior issuance of a required construction permit.

e.

If the system or facility was constructed or installed at a location not permitted by the Grantee's license or franchise.

f.

Any such other circumstances deemed reasonably necessary by the City Manager in order to protect public health, safety and welfare.

(Ord. No. 6470, 12-8-98)

The City retains the right and privilege to cut or move any telecommunications facilities located within the public ways as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall use its best efforts to notify the grantee prior to cutting or removing the grantees telecommunication facilities.

(Ord. No. 6470, 12-8-98)

The Grantees shall comply with the following:

A.

When a Grantee, or any person acting on its behalf, does any work in or affecting any public ways, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property including trees, landscaping and grounds to substantially the same condition which existed before the work was undertaken.

B.

If weather or other conditions do not permit the complete restoration required hereunder, the Grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Grantee's sole expense and the Grantee shall promptly undertake and complete the required permanent restoration when the weather conditions no longer prevent such permanent restoration.

C.

A Grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such public ways.

D.

The City Manager may order Grantees to perform such restoration work by a date certain.

(Ord. No. 6470, 12-8-98)

Each Grantee shall provide the City with an accurate as-built map or maps certifying only the location of all of the grantees telecommunications facilities within the public ways. Each Grantee shall provide updated as-built maps annually unless no material changes have occurred. To the extent permitted by the Laws of Nebraska, public access, with the exception of the Operator, to maps stamped, marked, or otherwise certified by a company representative to be or constitute proprietary trade secrets, with the exception of the present locations of lines, will be denied under the provisions of Neb. Rev. Stat. Section 84-712.05(3). Commencing on January 1, 2002 the "As-Built" Facilities Map must be delivered in digital form with GPS coordinates locating all facilities to at least sub-decimeter accuracy. The digital format will be compatible with the City's Geographic Information System (GIS) system so that it can be displayed as a layer or theme in the City's GIS system. Commencing January 1, 2002, the digital "As Built" Facilities Map will be updated and delivered to the City monthly, except that delivery will not be required if no change to the Facility has been made in the preceding month.

(Ord. No. 6470, 12-8-98)

Within ten (10) days of a written request from the City Manager or designee each Grantee shall furnish the City Manager with information sufficient to demonstrate:

a.

That Grantee has complied with all requirements of this Chapter.

b.

That all taxes and fees due the City in connection with the telecommunications services and facilities provided by the Grantee has been property collected and paid by the Grantee.

c.

That all books, records, maps and other documents maintained by the Grantee with respect to its facilities within the Public Ways shall be made available for inspection by the City Manager or designee at reasonable times and intervals and shall remain proprietary and confidential to the extent provided by law if so requested in writing by Grantee.

(Ord. No. 6470, 12-8-98)

A Grantee which enters into interconnection and resale agreements with any telecommunications carrier or provider in order to provide telecommunications service, including but not limited to local exchange service, to persons or areas within the City, shall:

a.

Furnish the City with a notice of any such interconnection or resale agreement which shall contain the following information:

1.

The identity and legal status of the transferee.

2.

The name, address, and telephone number of an officer or agent of the transferee.

3.

Sufficient general information concerning the proposed lease or agreement and the transferee for the City to make a determination concerning whether said transferee is subject to filling a registration or an application for franchise pursuant to this chapter.

b.

The proposed transferee, lessee, or person shall comply with all applicable requirements of the City Code.

c.

Notice as provided herein shall be submitted to the City Manager within ten (10) business days of execution of such agreement by the grantee.

(Ord. No. 6470, 12-8-98)

Unless otherwise provided in a license or franchise agreement, each Grantee occupying or using public ways or property shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the Grantee and the City, and its elected and appointed officers, officials, agents, representatives and employees as additional named insured with:

a.

Comprehensive general liability insurance with limits not less than:

(1)

Five Million Dollars ($5,000,000.00) for bodily injury or death to each person;

(2)

Five Million Dollars ($5,000,000.00) for property damage resulting from any one accident; and,

(3)

Five Million Dollars ($5,000,000.00) for all other types of liability.

b.

Automobile liability for owned, non-owned and hired vehicles with a limit of Three Million Dollars ($3,000,000.00) for each person and Three Million Dollars ($3,000,000.00) for each accident.

c.

Worker's compensation within statutory limits and employer's liability insurance with limits of not less than One Million Dollars ($1,000,000.00).

d.

Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three Million Dollars ($3,000,000.00)

e.

The liability insurance policies required by this Section shall be maintained at all times by the grantee. Each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Clerk of such intent to cancel or not to renew."

f.

Within sixty (60) days after receipt by the City of said notice, and in no event later that thirty (30) days prior to said cancellation, the Grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Chapter.

(Ord. No. 6470, 12-8-98)

In addition to and distinct from the insurance requirements of this Chapter, each grantee shall agree as part of its license or franchise agreement to defend, indemnify and hold the City and its officers, officials, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorneys' fees and costs of suit or defense arising out of, resulting from or alleged to arise out of or result from the acts, omissions, failure to act or misconduct of the Grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its Telecommunications Facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Chapter or by a license or franchise agreement made or entered into pursuant to this Chapter.

(Ord. No. 6470, 12-8-98)

All grantees are required to cooperate with the City and with each other as follows:

a.

By March 1 of each year, grantees shall provide the Director of Public Works and Director of Utilities with a schedule of their proposed construction activities which may affect the Rights-of-Way for that year.

b.

Each grantee shall meet with the City or grantees and users of the public ways annually or as determined by the City to schedule and coordinate construction.

c.

All construction locations, activities and schedules shall be coordinated to minimize public inconvenience, disruption and/or damages.

(Ord. No. 6470, 12-8-98)

The grantee shall file with the City Manager a copy of any order issued by the Nebraska Public Service Commission or notification filed with the commission in connection with any change of ownership or control of the grantee. Following the filing of such order or notification, the City shall notify the grantee or its successor whether a new license or franchise is required as a result of the change of ownership or control.

(Ord. No. 6470, 12-8-98)

A license or franchise granted by the City to use or occupy public ways may be revoked for any one or more of the following reasons:

a.

Construction or operation at an unauthorized location.

b.

Unauthorized transfer of control of the Grantee.

c.

Unauthorized assignment of a license or franchise.

d.

Unauthorized sale, assignment or transfer of the grantee's franchise or license assets or an interest therein.

e.

Misrepresentation or fraud by or on behalf of a grantee in any application to the City.

f.

Abandonment of telecommunications facilities in the public ways.

g.

Failure to relocate or remove Facilities as required in this Chapter.

h.

Failure to pay lawfully permitted taxes, compensation, fees or costs when and as due the City.

i.

Insolvency or bankruptcy of the grantee.

j.

Violation of a material provision of this Chapter or the City Code.

k.

Violation of a material term of a license, franchise or associated agreement.

(Ord. No. 6470, 12-8-98)

In the event that the City Manager believes that grounds exist for revocation of a license or franchise, the grantee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time, not exceeding thirty (30) days, to furnish evidence:

a.

That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation of noncompliance.

b.

That rebuts the alleged violation or noncompliance.

In the event that a grantee fails to provide evidence pursuant to Section 3-2850 reasonably satisfactory to the City Manager, the City Manager shall refer the apparent violation or noncompliance to the Mayor and City Council. The Mayor and City Council shall provide a grantee with notice and reasonable opportunity to be heard concerning this matter.

(Ord. No. 6470, 12-8-98)

Based on a preponderance of the evidence that the grantee has violated or failed to comply with a material provision of this Chapter or its license or franchise or associated agreement, the City Council shall determine whether to revoke the license or franchise, and issue a written decision relating thereto, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

a.

Whether the misconduct was egregious.

b.

Whether substantial harm resulted.

c.

Whether the violation was intentional.

d.

Whether there is a history of prior violations of the same or other requirements.

e.

Whether there is a history of overall compliance.

f.

Whether the violation was voluntarily disclosed, admitted or cured.

(Ord. No. 6470, 12-8-98)

Telecommunications facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations including, but not limited to, the International Building Code, National Electrical Code, National Electric Safety Code, Uniform Plumbing Code and A.N.S.I. standards.

(Ord. No. 6470, 12-8-98; Ord. No. 7062, 5-11-2004)

Applications for permits to construct telecommunications facilities shall be submitted by letter to the Director of Public Works. To the extent permitted by the Laws of Nebraska, public access, with the exception of the Operator, to applications, along with accompanying documents and plans, which are stamped, marked, or otherwise certified by a company representative to be or constitute proprietary trade secrets, with the specific exception of present location of lines in the right-of-way, will be denied to the public under the provisions of Neb. Rev. Stat. Section 84-712.05(3). The applicant shall pay all associated fees and shall include any additional information as requested by the Director of Public Works. The application shall be accompanied by five (5) sets of drawings, plans and specifications. The plans shall include a title sheet, a vicinity map and construction drawings on standardized sheets drawn to scale. The drawings, plans and specifications shall be accompanied by five (5) sets of half (½) size drawings and shall be of sufficient detail to demonstrate:

a.

That the facilities will be constructed in accordance with all applicable codes, rules and regulations.

b.

The location and route of all Facilities to be installed on existing utility poles, subject to the provisions of Section 3-2856.

c.

The location and route of all facilities to be located under the surface of the ground including the line and grade proposed for the burial at all points along the route which are within the public way.

d.

The location of all existing underground utilities, conduits, ducts, pipes, mains and installations, if known, which are within the public way along the underground route proposed by the applicant.

e.

The location of all other facilities to be constructed within the city, but not within the public ways.

f.

The construction methods to be employed for protection of existing structures, fixtures and facilities within or adjacent to the public ways.

g.

A summary of the total length of the project and the footage that occupies public right-of-way.

h.

That the applicant has notified all other utilities occupying the right-of-way and existing within the City of the applicant's proposed construction.

(Ord. No. 6470, 12-8-98)

Operator has entered into a long-term Professional Retail Operations Agreement with the City for lease of City's Distribution System, which includes the electric distribution facilities consisting of wires, poles and appurtenant fixtures, meters, services, distribution transformers, and street lighting owned by the City on the effective date of the execution of the Professional Retail Operations Agreement, as such Distribution System may be modified from time to time by Operator. Grants of licenses or franchises which authorize attachment to or construction of telecommunication facilities on City's existing or future owned utility poles shall be subject to review and approval of Operator as provided in Section 3-2856.

(Ord. No. 6470, 12-8-98)

No Grantee shall construct, attach, or maintain any telecommunications facilities on City's existing or future owned utility poles, unless the Grantee shall have complied with the following conditions:

The Grantee has received the written approval of Operator for the construction or attachment of its telecommunications facilities on City's existing or future owned utility poles, as evidenced by the execution of a Joint Pole Agreement between the Grantee and the Operator.

A.

The Grantee has received the written approval of Operator for the construction or attachment of its telecommunications facilities on City's existing or future owned utility poles, as evidenced by the execution of a Joint Pole Agreement between the Grantee and the Operator.

B.

The Grantee has paid to Operator any applicable fees or pole rentals as set forth in the Joint Pole Agreement.

(Ord. No. 6470, 12-8-98)

All permit applications shall be accompanied by the certification of a representative of the applicant that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations.

(Ord. No. 6470, 12-8-98)

All permit applications which involve work on, in, under, across or along any public way used for vehicular or pedestrian traffic shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed.

Contractor(s) shall provide, erect and maintain necessary barricades, suitable and sufficient lights, danger signals, signs, and other traffic control devices. They shall take all necessary precautions to protect the work and safeguard the public. Streets closed to traffic shall be protected by effective barricades, and obstructions shall be illuminated during hours of darkness. Warning signs shall be provided to control and direct traffic properly. All signage shall be in compliance with all Federal, State and local requirements.

(Ord. No. 6470, 12-8-98)

Within thirty (30) days, or a longer period of time which is reasonable under the circumstances after submission of all plans and documents required of the applicant and payment of the permit fees lawfully required by the City, the Building Inspection Department, if satisfied that the application, plans and documents comply with all requirements of this Chapter, shall issue a permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as the Director of Public Works and Director of Utilities may deem necessary or appropriate; provided, however, the issuance of a construction permit which includes construction upon City's existing or future owned utility poles, shall be subject to the provisions of Section 3-2856.

(Ord. No. 6470, 12-8-98)

Subject to the provisions in this Ordinance regarding emergency work, the permittee shall submit a written construction schedule to the Director of Public Works and Director of Utilities ten (10) working days before commencing any work in or about the public ways. The permittee shall further provide written notification to the Director of Public Works and Director of Utilities not less than five (5) working days in advance of any excavation or work in the Public Ways. Before any work is commenced, requisite approvals and permits from the City and City Staff must first be obtained.

(Ord. No. 6470, 12-8-98)

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The Director of Public Works, Director of Utilities and Building Official or their respective representatives and designees shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements; provided, however, all construction practices and activities upon City's existing or future owned utility poles shall be subject to the provisions of Section 3-2856.

(Ord. No. 6470, 12-8-98)

The permittee shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the Director of Public Works, Director of Utilities and Building Official or their respective designees at all times when construction work is occurring. (Ord. No. 6470, 12-8-98)

Upon order of the City Manager all work which does not comply with the permit, the approved plans or specifications for the work, or the requirements of this Chapter shall be removed. The permittee, at its expense in cooperation with other existing facility owners, shall relocate any facilities which are not located in compliance with permit requirements and then provide as-built maps to the City to show conformance.

(Ord. No. 6470, 12-8-98)

Within thirty (30) days after completion of construction, the permitee shall furnish the Public Works Department with two (2) complete sets of plans, drawn to scale and certified to the City as accurately depicting only the location of all telecommunication facilities constructed pursuant to the permit. To the extent permitted by the Laws of Nebraska, public access, with the exception of the Operator, to "As-Built" drawings stamped, marked, or otherwise certified by a company representative to be or constitute proprietary trade secrets, with the exception of the present location of lines, will be denied under the provisions of Neb. Rev. Stat. Section 84-712.05(3). Commencing on or before January 1, 2002, "As-Built" drawings must be delivered in digital format acceptable to the City. Digital versions of all previous "As-Built" drawings will also be delivered to the City, if available, on or before January 1, 2002. The drawing files will be tied to the Facilities Map so that "As-Builts" for the portion of the system being viewed on the Facilities Map can be easily selected and displayed.

(Ord. No. 6470, 12-8-98)

Unless otherwise required in current or future City ordinances regarding underground construction requirements, all facilities shall be constructed, installed and located in accordance with the following terms and conditions unless hardship or a valid reason to locate elsewhere can be demonstrated to the City Manager:

a.

A franchisee with written authorization to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles, subject to the provisions of Section 3-2856, and then only if surplus space is available. If either of the foregoing do not exist, Grantee, with prior written approval of the Director of Utilities, may construct additional poles.

b.

Whenever all existing telephone, electric utilities, cable facilities or telecommunications facilities are located underground within public ways, a franchisee with written authorization to occupy the same public ways must also locate its telecommunications facilities underground.

c.

Whenever all new or existing telephone, electric utilities, cable facilities or telecommunications facilities are located or relocated underground within public ways, a franchisee that currently occupies the same public ways shall concurrently relocate its facilities underground at its expense.

(Ord. No. 6470, 12-8-98)

No additional poles may be erected on the public rights-of-way by the telecom providers, unless specifically authorized by the City Council. In furtherance of the public purpose of reduction of right-of-way excavation, it is the goal of the City to encourage both the shared occupancy of underground conduit as well as the construction, whenever possible, of excess conduit capacity for occupancy of future Right-of-Way occupants.

(Ord. No. 6470, 12-8-98)

Fees shall be paid in connection with the administration of this Article as set forth in the City of Kearney Comprehensive Fee Schedule. Applicants for a license or franchise shall be responsible for Compliance with the provisions of Section 3-2856 and for payment of the fees to the Operator.

(Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Prior to the acceptance of an application by the City, the applicant shall participate in a conference with the City Manager and city staff for the purpose or reviewing the application, confirming information and identifying issues related to compliance with this Chapter and the issuance of a license or franchise.

(Ord. No. 6470, 12-8-98)

The purpose of this Article is to prevent fraud and other crimes, to protect citizens of Kearney from undue invasions of privacy, from undue annoyance and harassment, and to maintain the health, safety and welfare of residents of the City, by means of regulation of itinerant and transient merchants, peddlers, and solicitors.

(Ord. No. 6775, 4-10-2001)

For the purposes of this Article, the following words or phrases shall have the meanings respectively ascribed to them by this Section:

A.

ITINERANT MERCHANT: Shall include the terms "transient merchant," "transient vendor," and "itinerant vendor" and means any person whether as owner, agent, or consignee, who engages in a temporary business of selling goods within the city and who, in the furtherance of such business, uses any building, structure, vehicle, or any place within the city.

B.

PEDDLER:

1.

Any person who travels from place to place by any means carrying goods for sale, or making sales, or making deliveries; or

2.

Any person who, without traveling from place to place, sells or offers goods for sale from any public place within the city.

A person who is a peddler is not an itinerant merchant. This Section shall not apply to those who sell or offer for sale in person, any item set forth in Section 3-2904 of this Article. This Article shall not include any peddler who sells to permitted dealers or retailers only, but shall apply to any person who solicits orders and, as a separate transaction, makes deliveries to purchasers as part of a scheme or design to evade the provisions of this chapter.

C.

SOLICITOR: Any person who travels by any means from place to place, house to house, or from street to street taking or attempting to take orders for sale of goods to be delivered in the future or for services to be performed in the future. A person who is a solicitor is not a peddler.

(Ord. No. 6775, 4-10-2001; Ord. No. 8087, 6-28-2016; Ord. No. 8150, 6-13-2017; Ord. No. 8342, § 1, 5-14-2019; Ord. No. 8702, § 13, 11-12-2024)

It is unlawful for any itinerant merchant, peddler, or solicitor, other than a solicitor doing business by appointment, to engage in any such business within the City of Kearney without first obtaining and possessing a valid registration permit therefore in compliance with the provisions of this Article. In addition to the permit required under this Section, any person who shall sell edible products must also obtain the applicable food license or health permit under the provisions of state law. No permit shall be issued by the City without such proof being presented at the time application is made to the Chief of Police for an itinerant merchant, peddler or solicitor permit.

A permit issued under this Article shall not be used or represented in any manner as an endorsement by the City of Kearney, or by any department, officer or employee thereof.

(Ord. No. 6775, 4-10-2001; Ord. No. 7914, 7-8-2014)

(Ord. No. 8087, 6-28-2016; Ord. No. 8150, 6-13-2017; Ord. No. 8343, § 1, 5-14-2019)

(Ord. No. 8087, 6-28-2016; Ord. No. 8343, § 2, 5-14-2019)

The provisions of this Article shall not apply to, nor shall the terms peddler, solicitor, or itinerant merchant be construed to include, the following:

1.

Persons, including farmers or farmers' cooperative associations, selling, offering for sale or soliciting orders for the following items grown or produced by them and not purchased by them for sale: Newspapers, firewood, Christmas trees, vegetables, or fruits; provided, that a dairy who uses on the streets of the City one (1) or more delivery trucks or vehicles, may sell and deliver from its trucks, or vehicles, milk, butter, cream and eggs, dairy products, and frozen food products on customer subscribed routes.

2.

The sale of food, beverages, goods, wares or other merchandise within an established farmers markets or special event containing multiple vendors.

3.

Persons soliciting on behalf of a candidate for public office or on behalf of a political party.

4.

Salesman or agents for wholesale houses or firms who solicit orders from, or sell to, retail dealers in the county for resale or other commercial purposes or to manufacturers for manufacturing or other commercial purposes.

5.

Sales to wholesale or retail merchants, by sample, for future delivery made by representatives of established wholesalers or manufacturers.

6.

A manufacturer taxable on intangible property by the state who peddles the goods, wares or merchandise manufactured by him at the plant, the intangible property of which is taxed by the state and who peddles no other goods, wares or merchandise.

7.

Yard sales conducted on residentially zoned property.

8.

The distribution of goods for which there is no charge.

9.

Persons giving, selling or offering for sale goods, wares or merchandise, or soliciting orders for sale of same who qualify as bona fide nonprofit organizations under Section 501(c) of the Internal Revenue Code or which are organized and operated exclusively for nonprofit, religious, charitable, educational or civic purposes or where persons selling or offering for sale goods, wares or merchandise, or soliciting orders for sale of the same do so in an event held exclusively for nonprofit, religious, charitable, educational or civic purposes.

10.

The sale of merchandise or services through an event sponsored by a governmental subdivision.

11.

Any and all activities specifically authorized in a valid agreement with the city.

(Ord. No. 6775, 4-10-2001; Ord. No. 8150, 6-13-2017)

At the time of application, applicants for a registration permit shall present a valid driver's permit or other acceptable form of identification and file with the Chief of Police a written sworn application signed by the applicant showing the following:

A.

The local, and permanent, address and phone number of the applicant.

B.

The place or places in the City where it is proposed to carry on the applicant's business, and the length of time which it is proposed such business shall be conducted.

C.

The identification of any automotive vehicle being used.

D.

A statement of the nature of the merchandise to be sold or offered for sale by the applicant.

E.

The name, address, and phone number of the individual, partnership, firm, or corporation for whose account the business will be carried on, if any.

F.

A disclaimer of City liability relating to any action caused or charged against the applicant.

G.

Such other relevant information as may be required for the investigation of the applicant.

H.

Thumbprint of applicant affixed by the Chief of Police.

I.

The applicant's Nebraska sales tax permit number and Federal tax identification number.

(Ord. No. 6775, 4-10-2001; Ord. No. 7914, 7-8-2014)

Upon receipt of such application, a copy shall be referred to the Chief of Police, who shall cause within three (3) work days after the receipt thereof such an investigation of the applicant to the extent permitted by law and facilities, and, if applicable, the individual, partnership, firm or corporation who the applicant is representing, to be made as he deems necessary for the protection of the public good. If, as a result of such investigation, the applicant's character or business responsibility is found to be unsatisfactory, the Chief of Police shall endorse on such application his disapproval and his reasons for the same who shall notify the applicant that his/her application is disapproved and that no permit will be issued. Similarly, if the business responsibility of the individual, partnership, firm or corporation who the applicant is representing is found to be unsatisfactory, the Chief of Police shall endorse on such application his disapproval and his reasons for the same who shall notify the applicant that his/her application is disapproved and that no permit will be issued.

No permit shall be issued to any person:

A.

who has been convicted of or who is currently under indictment for a felony, or a crime involving moral turpitude within ten years preceding the date of the filing of such application with the Chief of Police.

B.

who is under the age of sixteen.

C.

whose permit has previously been revoked for one of the following:

1.

Any fraud, misrepresentation, or false statement contained in the application for a permit.

2.

Any fraud, misrepresentation, or false statement made in connection with the selling of goods, wares, or merchandise.

3.

Any violation of this Article and its stipulations contained within.

4.

Conviction of the permittee of any felony or of a misdemeanor involving moral turpitude.

5.

Conducting the business permitted under this Article in an unlawful manner or in such a manner as to threaten the health, safety, or general welfare of the public.

If, as a result of the investigation, the character and business responsibility of the applicant and, if applicable, the individual, partnership, firm or corporation the applicant is representing, are found to be satisfactory, the Chief of Police shall endorse on the application the approval and who shall notify the applicant that his/her application has been approved.

(Ord. No. 6775, 4-10-2001; Ord. No. 7914, 7-8-2014)

All solicitors, peddlers, itinerant merchants and transient vendors of merchandise, magazines, publications, wares, and services shall pay an occupation tax in accordance with the City of Kearney Comprehensive Fee Schedule. No proration of the tax provided for by this article shall be permitted.

(Ord. No. 6775, 4-10-2001; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 7914, 7-8-2014; Ord. No. 8150, 6-13-2017; Ord. No. 8342, § 2, 5-14-2019)

All solicitations to private residences, including but not limited to homes, residences, rooming houses, duplexes, and apartments shall occur only between the hours of 8:00 a.m. and 8:00 p.m., unless otherwise posted and prohibited by the private property owner or by someone with apparent authority to act for the owner. This regulation does not apply where the solicitor is on the property by the express, prior invitation of the person residing on the premises. A person engaged in solicitation shall not:

A.

Make physical contact with the person being solicited unless that person's permission is obtained.

B.

Misrepresent the purpose of the solicitation.

C.

Misrepresent the affiliation of those engaged in the solicitation.

D.

Continue efforts to solicit from an individual once that individual informs the solicitor that he/she does not wish to give anything to or buy anything from that solicitor.

E.

Represent the issuance of any permit or registration under this Article as an endorsement or recommendation of the solicitation.

F.

Enter upon any private premises when the same is posted with a sign stating, "No Peddlers Allowed" or "No Solicitation" or other words to that effect.

G.

Block, obstruct, or unduly hinder passage on public sidewalks or passageways, restrict or interfere with the ingress or egress of the abutting property owner or tenant; create or become a public nuisance; increase traffic, congestion or delay; constitute a hazard to life, health or property; or obstruct adequate access for fire, police, sanitation or emergency vehicles. For the purposes of this Article, the judgment of a police officer, exercised in good faith, shall be deemed conclusive as to whether an area is blocked, obstructed, passage is hindered, or the public is impeded or inconvenienced.

(Ord. No. 6775, 4-10-2001; Ord. No. 8150, 6-13-2017)

A permit issued under this Article shall contain a permit number, the name of the permit holder, the kind of goods to be sold thereunder, the name of the employer, if any, the date of issuance, the date of expiration, a listing of the places which the applicant has identified as the place or places at which he intends to do business, and the signature of the Chief of Police or his authorized agent. Every permit shall set out the prohibition of nighttime solicitation set forth in Section 3-2908.

(Ord. No. 6775, 4-10-2001)

Every peddler and solicitor or itinerant merchant shall carry the permit issued to him under this chapter on his person at all times while engaged in selling, peddling or soliciting in the City. It shall also be the duty of every peddler and solicitor to exhibit such permit when requested so to do by any law enforcement officer or other department personnel designated by the Chief of Police, or any person with whom the peddler, solicitor or itinerant merchant attempts to do business.

(Ord. No. 6775, 4-10-2001)

The permit to the permittee hereunder by the Chief of Police shall be posted in a conspicuous place if the permittee is using a vehicle or a building in his/her business and otherwise must be kept by the person and exhibited at any time upon request.

Any person who shall exercise the vocation of an itinerant merchant, peddler or solicitor shall display the permit, and permit expiration date issued by the Chief of Police. Transient merchants shall post conspicuously in their place of business the permit issued hereunder, which permit shall be shown at the request of any citizen or law enforcement officer.

(Ord. No. 6775, 4-10-2001; Ord. No. 7914, 7-8-2014)

Each peddler, solicitor or itinerant merchant must secure a personal permit. No permit shall be used at any time by any person other than the person to whom it is issued.

(Ord. No. 6775, 4-10-2001)

1.

No itinerant merchant shall advertise, represent or hold any sale as an insurer, bankrupt, insolvent, assignee, trustee, estate, executor, administrator, receiver, wholesaler or manufacturer's closing out sale, or as a sale of any goods damaged by smoke, fire, wreck, water or otherwise, or in any similar form, unless he or she shall have first so stated under oath before the Chief of Police or his designee, either in the application form required hereunder, or in a supplementary application subsequently filed and copied on the permit, all the facts relating to the reasons and character of such sale so advertised or represented; including a statement of the names of the persons from whom the goods, wares or merchandise were obtained, the date of delivery to the person applying for the permit, and the place from which such goods, wares and merchandise were last taken, and all details necessary to locate exactly and fully identify all goods, wares and merchandise to be so sold.

2.

Any false statement in an application, either original or supplementary, under this Section, and any failure on the part of the permittee to comply with all requirements of this Section, shall subject such itinerant merchant, peddler or solicitor to the same penalty as if he had no permit.

3.

No itinerant merchant, peddler, or solicitor shall conduct business or sales upon or from any public property, including but not limited to, public streets including right-of-way, sidewalks, alleys, drives, parking lots, parks, unless authorized by the City Council in accordance with the terms of Section 19-4301, of the Nebraska Revised Statutes.

(Ord. No. 6775, 4-10-2001)

Permits issued pursuant to this Article may be revoked by the City Manager, after notice has been issued. Said notice shall include the City Manager's reasoning for such revocation. Notice shall be sent by registered mail, postage prepaid, to the permittee at his/her last known permanent address.

(Ord. No. 6775, 4-10-2001)

Any person aggrieved by the decision of the City Manager or the Chief of Police in regard to the denial of an application for a permit under this Article or in connection with the revocation of a permit shall have the right to appeal to the City Council. Such appeal shall be taken by filing with the Council, within fourteen (14) days after notice of the decision has been mailed to such person's last known permanent address, a written statement setting forth the grounds for appeal. The Council shall set the time and place for a hearing on such appeal and notice of such hearing shall be sent by registered mail, postage prepaid, to the permittee at his/her last known permanent address. The order of the Council on such appeal shall be final.

(Ord. No. 6775, 4-10-2001; Ord. No. 7914, 7-8-2014)

Nothing in this Article shall be construed or enforced so as to be in derogation of interstate commerce.

(Ord. No. 6775, 4-10-2001)

It shall be the duty of the City police to examine all places of business and persons subject to the provisions of this Article and to enforce the provisions herein against any person found to be violating the same.

(Ord. No. 6775, 4-10-2001)

Any person, partnership, firm or corporation violating any of the provisions of this Article shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished in accordance with Section 1-111 of this Code. Each distinct act or violation of the terms of this Article shall constitute a separate offense.

(Ord. No. 6775, 4-10-2001)

A.

The City Council determines that persons engaging in restaurant and drinking place businesses are benefited from tourism and recreational activity that places unique demands on the City's resources but which is activity that should be promoted and encouraged. Further, residents and non-residents who patronize these businesses are enjoying a discretionary activity that is dependent upon, and generating revenue from, the business's location within the city and the business's access to the services provided by the city. Subjecting the business's revenue to taxation for general city purposes is fair, reasonable, and just.

B.

Pursuant to the authority of Nebraska Revised Statute R.R.S. 1943, Section 16-205, the City Council finds, determines, and declares that restaurant and drinking place business form a discrete class of occupation engaged in within the City and it is appropriate that a tax be imposed on this class of businesses for the purpose of constructing a youth baseball/softball complex and an indoor sports complex. This determination is made with due recognition of the inherent value of business conducted within the City and the relation business has to the municipal welfare and the expenditures required of the City, and with consideration of the just, proper and equitable distribution of tax burdens within the City.

C.

The City Council further determines that some activity or revenue that might fall within the scope of this ordinance should be excluded from its scope because (i) the activity has a primary purpose other than to generate revenue for the business by the sale of food or drink, (ii) because the revenue is generated from activity that does not have the discretionary characteristics and qualities that support using restaurant or drinking place revenue as a measure of taxation, and/or, (iii) the sale of food or drink is primarily intended to encourage and support civic, charitable, educational, or religious activities of a nonprofit corporation.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015; Ord. No. 8553, § 1, 2-8-2022, effective January 1, 2023)

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:

A.

DRINKING PLACE shall mean any establishment offering on premises consumption of food and/or non-alcoholic beverages. Beginning January 1, 2023, Drinking Place shall mean any establishment offering on premises consumption of food and/or alcoholic and non-alcoholic beverages. Such businesses include, but are not limited to, bars, taverns, night clubs, dance halls, restaurants, and arenas.

1.

The term does not include a place offering beverages on premises owned or operated by a civic, charitable, educational, religious, governmental, or political organization exempt from income taxes under the United States Internal Revenue Code.

B.

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

C.

PERSON shall mean any natural person, individual, partnership, association, organization or corporation of any kind or character engaging in the business of operating a drinking place or restaurant.

D.

RESTAURANT shall mean any place that is kept, used, maintained, or advertised as a place where food is prepared and sold for immediate consumption on the premises. It shall also 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 prepared "take out," "drive through," or "to go" food.

1.

This term includes, but is not limited to, cafes, grills, bistros, delicatessens, coffee shops, bakeries, lunch counters, sandwich stands, temporary stands, grocery stores, convenience stores, supermarkets, arenas, push carts, lunch wagons, ice cream trucks, or other mobile facilities from which food ready for consumption is sold. 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. A restaurant may also be a drinking place.

2.

The term does not include:

(i)

a place operated by a religious, civic, educational, charitable, governmental, or political organization exempt from income taxes under the United States Internal Revenue Code where food is offered solely to its members or students;

(ii)

a public or private daycare center that offers food solely to its employees or the children staying at the center;

(iii)

a convalescent home, nursing home, home for the aged or infirmed, or substance abuse facility that offers food solely to its residents;

(iv)

premises where food is obtained solely from vending machines operated by coin, cards, or other per-purchase operation regardless of whether the food may be consumed on the premises;

(v)

temporary stands at festivals or other similar events from which food ready for consumption is sold unless entrance to the place at which the food is sold is subject to an admission charge; or

(vi)

a place offering food on premises owned or operated by a civic, charitable, educational, religious, governmental, or political organization exempt from income taxes under the United States Internal Revenue Code.

E.

TAXPAYER shall mean any person engaged in the business of operating a drinking place or restaurant as herein defined who is required to pay the tax herein imposed.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015; Ord. No. 8087, 6-28-2016; Ord. No. 8553, § 2, 2-8-2022, effective January 1, 2023)

A.

Beginning February 1, 2015 at 4:00 a.m. and in each calendar month thereafter there is hereby imposed a restaurant and drinking place occupational tax upon each and every person operating a drinking place or restaurant within the City for any period of time during a calendar month. The amount of such tax shall be one percent (1%) of all gross receipts for each calendar month derived from the drinking places and restaurant subject to this tax. Such tax shall be imposed on the gross receipts resulting from the sales of food within the corporate limits of the City which are subject to the sales and use tax imposed by Article 22 of Chapter 3 of the Kearney City Code.

B.

The person engaged in operating a drinking place or restaurant 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.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015)

A.

Each and every person engaged in the business of operating a drinking place or restaurant within the City shall prepare and file, on or before the 25th day of January, April, July, and October of each year on a form prescribed and furnished by the Director of Finance, a return for the taxable three-month period, and at the same time pay to the City the tax herein imposed. The return shall be verified and sworn to by the officer in charge of the business. The return shall be considered filed on time if mailed in an envelope properly addressed to the Director of Finance, postage prepaid and postmarked before midnight of the 25th of the appropriate month.

B.

As reimbursement for the cost of collecting the tax, a taxpayer may deduct and withhold from the taxes otherwise due and paid two percent (2%) of the amount paid to the City.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015)

A.

The levy of the 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.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015)

The one percent (1%) occupation tax imposed by this Article shall be used for the purpose of constructing a youth baseball/softball complex and an indoor sports complex.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015; Ord. No. 8553, § 3, 2-8-2022, effective January 1, 2023)

A.

If any person neglects or refuses to file a return or make payment of the taxes as required by this Article, the Director of Finance 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 (1) interest on such delinquent taxes, at the rate of one percent (1%) per month, or fraction thereof from the date when due and, when applicable, (2) a penalty equal to ten percent (10%) thereof.

B.

The Director of Finance 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 Director of Finance 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 Director of Finance for a revision or modification of such assessment and shall, within such ten-day period, furnish the Director of Finance 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.

Thereupon, the Director of Finance 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.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015)

A.

The administration of the provisions of this Article are hereby vested in the Director of Finance, or his/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 four (4) years all such books, invoices and other records, which shall be open for examination at any time by the Director of Finance or his/her duly designated persons. If such person keeps or maintains his books, invoices, accounts or other records, or any thereof, outside of the state, upon demand of the Director of Finance he/she shall make the same available at a suitable place within the City, to be designated by the Director of Finance, for examination, inspection and audit by the Director of Finance or his/her duly authorized persons. The taxpayer shall reimburse the City for the reasonable costs of the examination, inspection and audit if the Director of Finance determines that the taxpayer paid ninety percent (90%) or less of the tax owing for the period of the examination.

3.

The Director of Finance, in his/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 person 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 person 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 person, the Director of Finance or his/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 person.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015)

A.

The Director of Finance 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 Buffalo 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 Director of Finance, 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.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015)

If the City Manager or the City Manager'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.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015)

The occupation tax imposed by this chapter shall terminate and collections of the tax shall cease no later than January 31, 2042 at 12:00 P.M.

(Ord. No. 7945, 11-25-2014, effective February 1, 2015; Ord. No. 8553, § 4, 2-8-2022, effective January 1, 2023)

Regulate mobile food vending units operating on public and/or private property with policies that balance the operation of mobile food vending units with brick-and-mortar businesses that impact the health, safety and general welfare of the public.

(Ord. No. 8702, § 14, 11-12-2024)

As used in this Article, unless the context otherwise requires:

A.

FOOD: All edible refreshment or nourishment, whether solid, semi-solid, liquid or otherwise.

B.

DOWNTOWN DISTRICT: For the purposes of this Article, the Downtown District shall be described as beginning at the southwest corner of the intersection located at Highway 30 and 1st Avenue, thence east along the south side of Highway 30 to the east side of an alley located between A Avenue and B Avenue; thence south, along the east side of said alley to the south side of North Railroad Street; thence west from the east side of an alley located between A Avenue and B Avenue and along the south side of North Railroad Street, to the east side of A Avenue; thence south continuing along the east side of A Avenue to the south side of 18th Street; thence west from the east side of A Avenue and along the south side of 18th Street, to the west side of an alley located between 1st Avenue and Central Avenue; thence north, along the west side of said alley, to the south side of North Railroad Street; thence west, along the south side of North Railroad Street, to the west side of an alley located between 1st Avenue and 2nd Avenue; thence north, along the west side of said alley to the north side of 22nd Street; thence east, along the north side of 22nd Street, to the west side of 1st Avenue; thence north along the west side of 1st Avenue, to the point of beginning.

C.

MOBILE FOOD VENDING UNIT: Any motorized or non-motorized vehicle, cart, stand, trailer, or other device designed to be portable and not permanently attached or affixed to the ground from which food and/or beverages are served or offered for sale which shall not be used for any purpose other than as a mobile food vending unit and that may or may not be currently licensed through a North American Department of Motor Vehicles.

D.

MOBILE FOOD VENDOR: The individual, company, restaurant, organization or entity operating a mobile food vending unit.

E.

PRIVATE PROPERTY: A lot or defined area of land which is not in the ownership of a local, state, or federal government entity.

F.

PROPERTY OWNER: Any person, agent, operator, firm or corporation having a legal or equitable interest in the property; or recorded in the official records of the state, county or municipality as holding title to the property; or otherwise having a control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession or real property by a court.

G.

PUBLIC PROPERTY: All real property owned or controlled by the City whether in fee ownership or other interest. This definition shall not include school property or school safety zones and city owned property that is leased to a private person or another entity.

H.

PUBLIC RIGHT-OF-WAY: All city property and the surface of a space above and below any real property in the City which the City owns or in which it holds an interest as a trustee for the public including, but not limited to, all public streets, highways, roads, alleys, easements, tunnels, viaducts, bridges, skyways, or any other public place, area or property under the ownership or control of the City, dedicated or devoted for public utility purposes, collectively, within the City, but shall not include any property specifically exempted by order of the City Council.

I.

SPECIAL EVENT: An event or celebration or any such activity or gathering or assemblage of people upon public property or in the public right-of-way for a street closure, race event, parade, or other like event sponsored by a civic, business, educational, government, community or veteran's organization for which a permit is granted by the City of Kearney.

(Ord. No. 8702, § 14, 11-12-2024)

A.

It shall be unlawful for any mobile food vendor to operate a mobile food vending unit within Kearney city limits without first obtaining and possessing a valid permit issued under this Article.

B.

No permit shall be issued by the City Manager or their designee without providing a copy, at the time of application, all required state licenses or permits under the provisions of Nebraska State law to operate in Nebraska, which shall also include all permits issued by the Nebraska Liquor Control Commission pertaining to the sale of alcohol; a current State of Nebraska sales tax permit(s) and federal tax identification number or proof of an applicable sales tax exemption; a certificate of insurance listing the City of Kearney as an additional insured that includes the following coverages shown when locating on public property:

1.

Minimum general liability coverage of one million dollars ($1,000,000.00) per occurrence/two million dollars ($2,000,000.00) aggregate.

2.

Workers compensation, if required by State Statute.

3.

Automobile policy/trailer-cart coverage policy.

C.

Any other such information as requested by the City Manager or their designee.

D.

Mobile food vending unit permits shall expire on December 31st of each year.

A permit issued under this Article shall not be used or represented in any manner as an endorsement by the City of Kearney, or by any department, officer or employee thereof.

(Ord. No. 8702, § 14, 11-12-2024)

The provisions of this Article shall not apply to, nor shall the terms mobile food vendor or mobile food vending unit be construed to include the following:

A.

Individuals, groups, organizations, or businesses considered an itinerant merchant, peddler, or solicitor as defined in Section 3-2902 of this Code who shall make application for an itinerant merchant, peddler, or solicitor permit pursuant to Article 29 of this Code.

B.

Individuals, groups, organizations, or businesses selling or offering food or beverages for sale within an established farmers market.

C.

Individuals, groups, organizations, or businesses selling or offering food or beverages for sale who qualify as a nonprofit organization under Section 501(c) of the Internal Revenue Code or which are organized and operated exclusively for nonprofit, religious, charitable, educational or civic purposes.

D.

Mobile caterers who are hired for private catering purposes to serve guests of a catered event, so long as the mobile caterer is parked entirely on private property; service is limited to the guests of the catered event only, and no payment transaction occurs for individual orders taken by the mobile caterer.

E.

Any other individual, group, organization, or business at the discretion of the City Manager or their designee.

(Ord. No. 8702, § 14, 11-12-2024)

All mobile food vendors pursuant to this Article shall file with the City Clerk an application, that shall contain the following information and be accompanied by the following documentation:

A.

Local and permanent address, phone number, and email address of the applicant.

B.

Name, permanent address, phone number, and email address of any additional owners of partnerships, firm, or corporations who also have an interest in the mobile food vending unit.

C.

Copy of current driver's license.

D.

Copy of current registration for mobile food vending units required to be licensed through a North American Department of Motor Vehicles.

F.

Certificate of insurance with coverage as outlined in Section 3-3108(B) of this Article.

G.

Copy of current State and Federal Sales Tax permit.

H.

Copy of all applicable State of Nebraska licenses required to operate within the State of Nebraska.

I.

Description of the nature of food and/or beverage to be sold or offered for sale by the mobile food vendor.

J.

Any such other information as may be required or requested by the City Manager or their designee.

(Ord. No. 8702, § 14, 11-12-2024)

A.

Upon receipt of such application, the City Clerk or their designee shall review the application to determine the compliance of this Article. The City Clerk or their designee may request and take into consideration the recommendations of other affected City Departments prior to the City Manager or their designee's approval of the application.

B.

No permit shall be issued or renewed for any mobile food vendor for the following reason(s):

1.

Submittal of incomplete application.

2.

Application submitted without accompanying required documentation and fees.

3.

False or misleading information contained in the application.

4.

Cancellation of any required State of Nebraska permit throughout the permitted year.

5.

Three (3) or more separate violations of this Article within the preceding twelve (12) months of the application's submission.

6.

Outstanding or unpaid local restaurant and drinking place occupation tax.

7.

Conducting business in an unlawful manner or in such a manner as to threaten the health, safety, or general welfare of the public that is in direct conflict of this Article.

(Ord. No. 8702, § 14, 11-12-2024)

A.

All mobile food vendors selling or offering for sale food or beverages shall submit a non-refundable processing fee as set forth in the City of Kearney Comprehensive Fee Schedule.

B.

All mobile food vendors selling or offering for sale food or beverages shall pay the City of Kearney Restaurant and Drinking Place Occupation Tax in accordance with Article 30 of this Code. No proration of the Kearney Restaurant and Drinking Place Occupation Tax provided for by this article shall be permitted.

(Ord. No. 8702, § 14, 11-12-2024)

A permit issued under this Article shall expire on December 31 of each year unless such permit is renewed for the upcoming year prior to expiration. Renewal of such permit shall consist of an application updating or confirming the information on file with the City Clerk and payment of the non-refundable annual processing fee as set forth in the City of Kearney Comprehensive Fee Schedule.

(Ord. No. 8702, § 14, 11-12-2024)

A.

Permit shall be posted in a conspicuous place at all times.

B.

All trash or debris accumulating within twenty (20) feet of any mobile food vending unit operating location shall be collected by the mobile food vendor and deposited in a trash container provided by the mobile food vendor adjacent to or as a part of their mobile food vending unit.

C.

Discharging or dumping material, trash, or waste of any kind into or onto public property is prohibited.

D.

Devices that produce loud noise such as loudspeakers, public address systems, radios, sound amplifiers, or similar devices to attract public attention, unless previously authorized by the City Manager or their designee is prohibited.

E.

Public sidewalks shall remain open to pedestrian traffic and in compliance with all Americans with Disability Act (ADA) requirements.

F.

Locations that cause customers to form a line, waited on, or be served, in a portion of a street being traversed by motor vehicle traffic are prohibited.

G.

Fire suppression equipment or devices in operable condition as required by local, state, or federal law shall be present in mobile food vending unit at all times.

H.

Mobile food vending unit shall not be parked adjacent to the corner of a street intersection or driveway access point that would hinder vehicular traffic and visibility.

I.

The sale, transfer, or assignment of a mobile food vending unit permit is expressly prohibited.

J.

Written authorization to operate within R-1, R-1D, and R-2 zoning districts from the Neighborhood Association, or Homeowner's Association shall be provided to the City Clerk's office prior to locating in such zoning districts. If such an organization does not exist or is not currently active, written authorization from neighboring property owners shall be provided instead.

K.

Any mobile food vendor operating on private property shall have the ability to provide written consent from the property owner or their designee to locate on their property at the request of the City Manager or their designee.

L.

The City Manager or their designee may require a mobile food vending unit to move locations if such location causes an obstruction or otherwise endangers the health or safety of the general public, may prohibit locations where mobile food vending units may park at any time within publicly-owned property or public right-of-way, and shall have the discretion to revoke the mobile food vending unit's permit if provisions of this Article are violated.

(Ord. No. 8702, § 14, 11-12-2024)

A.

Mobile Food Vendors operating in the Downtown District as described in Section 3-3107 of this Article shall meet the following conditions as applicable:

1.

Hold a current City of Kearney Mobile Food Vending Unit permit.

2.

Operating as part of a city-approved special event.

3.

Operating as part of a city-approved downtown business owner-sponsored event and shall be located directly in front of the downtown business owner's business.

4.

In receipt of prior approval from the City Manager or their designee to locate in a public parking lot.

B.

Mobile food vending units located next to a city-approved special event but not a part of the special event shall require a separate permit.

(Ord. No. 8702, § 14, 11-12-2024)

A.

Mobile food vendors shall choose to pay either a non-refundable per day or annual fee as set forth in the City of Kearney Comprehensive Fee Schedule when at least one (1) of the conditions are met in Section 3-3115 of this Article.

B.

Mobile food vendors shall be exempt from payment of the additional Downtown District Fee if:

1.

Mobile food vending unit is part of a city-approved special event and located within the special event boundary area shown on the special event application map.

2.

Operating on private property within the Downtown District.

(Ord. No. 8702, § 14, 11-12-2024)

A.

Permits issued pursuant to this Article may be suspended or revoked by the City Manager or their designee, for violating any provisions of this Article, City Ordinance, or State or Federal Law after notice has been issued. Said notice shall include the City Manager's reasoning for such revocation. Notice shall be sent by registered mail, postage prepaid, to the permittee at their last known permanent address.

B.

A suspension or revocation shall result after three (3) violations of this Article occur within a 12-month timeframe. Upon revocation, the Mobile Food Vendor shall immediately surrender their City of Kearney Mobile Food Vending Unit permit to the City Clerk's office.

C.

Re-application by a Mobile Food Vendor whose permit has been revoked under this Article may not re-apply for a new permit for a period of six (6) months after the effective date of the revocation.

(Ord. No. 8702, § 14, 11-12-2024)

Any person aggrieved by the decision of the City Manager or their designee in regard to the denial of an application for a permit under this Article or in connection with the suspension or revocation of a permit shall have the right to appeal to the City Council. Such appeal shall be taken by filing with the Council, within fourteen (14) days after notice of the decision has been mailed to such mobile food vendor's last known permanent address, a written statement setting forth the grounds for appeal. The Council shall set the time and place for a hearing on such appeal and notice of such hearing shall be sent by registered mail, postage prepaid, to the mobile food vendor at their last known permanent address. The order of the Council on such appeal shall be final.

(Ord. No. 8702, § 14, 11-12-2024)

Any mobile food vendor or a partner or member of a firm or corporation who own a mobile food vending unit violating any of the provisions of this Article shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished in accordance with Section 1-111 of this Code. Each distinct act or violation of the terms of this Article shall constitute a separate offense.

(Ord. No. 8702, § 14, 11-12-2024)

The City may grant one or more cable television franchises containing such provisions as are reasonably necessary to protect the public interest. This Ordinance may be amended from time to time, provided no such amendment shall in any way impair any contract right or increase the obligations of a franchisee under an outstanding and effective franchise except as permitted in the lawful exercise of the City's police power.

(Ord. No. 6335, 10-28-97)

It shall be unlawful for any person other than the City to construct, install, operate or maintain in, under, on, over or along the streets, public ways, alleys and public areas, or elsewhere within the corporate limits of the City, a cable television system or provide cable service without first obtaining from the City a franchise authorizing the same to the extent such franchise is required by federal, state or local law. A cable system shall not be deemed as operating within the City, even though service is offered or rendered to one or more subscriber(s) within the City, if no public right-of-way is used, crossed or occupied.

(Ord. No. 6335, 10-28-97)

A.

A franchise authorizes use of public rights-of-way for installing, operating and maintaining cables, wires, lines, optical fiber, underground conduit, and other facilities, equipment and devices necessary and appurtenant to the operation of a cable system within the City, but does not expressly or implicitly authorize a franchisee to provide service to or install a cable system on private property without owner consent (except for use of compatible easements pursuant to and consistent with applicable law) or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners.

B.

In addition to other matters contained in a franchise, a franchise is non-exclusive and will not explicitly or implicitly preclude the issuance of other franchises to operate cable systems, affect the City's right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes it deems appropriate.

C.

All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the City reserves the right to reasonably designate where a franchisee's facilities are to be placed within the public rights-of-way through its generally applicable permit procedures.

D.

A franchisee shall at all times be subject to and shall comply with all applicable federal, state and local laws. A franchisee shall at all times be subject to all lawful exercise of the police powers of the City including, but not limited to, all rights the City may have regarding zoning, supervision of construction and control of public rights-of-way. Any person who occupies public rights-of-way for the purpose of operating or constructing a cable system or who provides cable service and who does not hold a valid franchise from the City may be required by the City to enter into a franchise agreement within thirty (30) days of receipt of a written notice to such person from the City that a franchise is required, and to the extent cable franchisees and cable systems are similarly situated, cable franchise agreements shall be issued on materially and substantially the same terms and conditions so as to prevent disparate treatment of persons which operate or construct cable systems or provide cable service. In the absence of such a franchise being signed, the City may require such person to remove its property and restore the affected area to a condition satisfactory to the City within such time period prescribed by the City; direct City personnel to remove the property and restore the affected area to a condition satisfactory to the City and charge the person the cost therefor, including by placing a lien on the person's property as provided in connection with abating nuisances; or the City may take any other action it is entitled to take under applicable law.

(Ord. No. 6335, 10-28-97)

A.

A person commits theft if he or she obtains services, which he or she knows are available only for compensation, by deception or threat or by false token or other means to avoid payment for the service. Services include labor, professional service, telephone service, electric service, cable television service, or other public service, accommodation in hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or other movable property. When compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, refusal to pay or absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.

B.

A person commits theft if, having control over the disposition of services of others to which he or she is not entitled, he or she diverts such services to his or her own benefit or to the benefit of another not entitled thereto.

C.

For purposes of this subsection, telecommunications service shall include, but not be limited to, telephone service and cable television service, and device shall include, but not be limited to, instrument, apparatus, equipment, and plans or instructions for making or assembling the same.

It shall be a misdemeanor for any person to:

1.

Knowingly make or possess any device designed to or commonly used to obtain telecommunications service fraudulently from a licensed cable television franchisee with the intent to use such device in the commission of an offense described in subsection A of this Section;

2.

Knowingly tamper with, interfere with, or connect to any cables, wires, converters, or other devices used for the distribution of telecommunications services by any mechanical, electrical, acoustical, or other means without authority from the operator of the service with the intent of obtaining telecommunications service fraudulently; or

3.

Sell, give, transfer, or offer or advertise for sale a device which such person knows or should know is intended to be used for the purpose of obtaining telecommunications service fraudulently.

(Ord. No. 6335, 10-28-97)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 5824, 8-23-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 6335, 10-28-97; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 7614, 9-14-2010)

(Ord. No. 5816, 7-26-94; Ord. No. 6335, 10-28-97; Ord. No. 7614, 9-14-2010)