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HomeMy WebLinkAbout18. 12-168 MARCH 27, 2012 APRIL 10, 2012 12-148 12-168 ORDINANCE FIRST READING SECOND READING (CARRIED________ LOST________ LAID OVER___X____ WITHDRAWN_______) UNTIL 4/24/2012 PURPOSE: REPEAL & AMEND MUNICIPAL ORDINANCES RELATED TO THE CITY OF OSHKOSH BOARD OF HEALTH & HEALTH SERVICES DIVISION / AUTHORIZE WINNEBAGO COUNTY DEPARTMENT OF HEALTH TO ENFORCE CITY ORDINANCES DURING CONSOLIDATION PERIOD INITIATED BY: CITY ADMINISTRATION A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING SECTION 1- 5.3(4) AUTHORIZING THE EMPLOYEES OF THE WINNEBAGO COUNTY HEALTH DEPARTMENT TO ACT AS THE AGENTS OF THE CITY OF OSHKOSH DURING THE PERIOD OF TIME NECESSARY FOR FULL CONSOLIDATION WITH WINNEBAGO COUNTY AND THE CITY OF NEENAH FOR PURPOSES OF ENFORCING, INCLUDING ISSUING CITATIONS, THOSE PORTIONS OF CHAPTER 6 OF THE CITY’S MUNICIPAL CODE PERTAINING TO COMMERCIAL AND BOARDING KENNELS, GROOMING SALONS AND PET SHOPS; CHAPTER 14 PERTAINING TO FOOD AND FOOD ESTABLISHMENTS; CHAPTER 15 PERTAINING TO HEALTH, EXCEPT THOSE SECTIONS PERTAINING TO EXCESSIVE NOISE AND PRIVATE WELLS; REPEALING AND RECREATING SECTION 1-5.3(3)(A) OF THE OSHKOSH MUNICIPAL CODE PERTAINING TO ISSUANCE OF CITATIONS FOR VIOLATIONS OF ORDINANCES – SCHEDULE OF DEPOSITS; REPEALING AND RECREATING SECTION 1-5.3(4) (FIRST UNNUMBERED PARAGRAPH) PERTAINING TO THE DESIGNATION OF CITY OFFICIALS WHO MAY ISSUE CITATIONS; REPEALING SECTION 2-35(B)(3) PERTAINING TO THE DUTIES OF THE DEPARTMENT OF COMMUNITY DEVELOPMENT – OPERATION OF HEALTH DIVISION AND RENUMBERING CONSECUTIVELY THE REMAINING SECTIONS OF SECTION 2-35(B); REPEALING SECTION 2-45(A) PERTAINING TO THE BOARD OF HEALTH; REPEALING AND RECREATING SECTION 4-4(A) PERTAINING TO LIQUOR LICENSE INVESTIGATION AND APPROVAL; REPEALING AND RECREATING SECTION 4-10 PERTAINING TO LIQUOR LICENSED PREMISES HEALTH RULES; REPEALING SECTIONS 5-1 THROUGH 5-13 (INCLUSIVE) PERTAINING TO THE LICENSING, INVESTIGATION AND REGULATION OF DANCE HALLS; REPEALING AND RECREATING SECTION 5-18(I) (THIRD UNNUMBERED PARAGRAPH) PERTAINING TO SPECIAL EVENTS; REPEALING AND RECREATING SECTION 5-18(IV)(A)(3) PERTAINING TO CONTACTS FOR SPECIAL EVENTS; REPEALING AND RECREATING SECTION 5-18(IV)(A)(4) PERTAINING TO CITY DEPARTMENTS TO BE PROVIDED WITH COPIES OF SPECIAL EVENTS APPLICATIONS; REPEALING SECTIONS 6-1(A) (4)-(6) AND (9) PERTAINING TO THE DEFINITIONS OF COMMERCIAL AND BOARDING KENNELS, GROOMING PERTAINING TO THE DEFINITION OF OFFICER FOR PURPOSES OF ENFORCEMENT OF THE CITY'S ANIMAL ORDINANCES; REPEALING AND RECREATING SECTION 6- 5.6 (B) AND (C) PERTAINING TO HEARINGS AND HEARING OFFICERS FOR ABATEMENT ORDERS RELATED TO THE CITY'S ANIMAL ORDINANCES;AMENDING THE TITLE TO ARTICLE IV OF CHAPTER 6 PERTAINING TO ANIMAL SHELTER AND IMPOUNDMENT OF ANIMALS; REPEALING AND RECREATING SECTION 6-13 PERTAINING TO THE ADOPTION OF STATE STATUTES RELATED TO IMPOUNDMENT; AND REPEALING SECTION 6-15(B)-(F) PERTAINING TO THE RABIES CONTROL PROGRAM; REPEALING AND RECREATING SECTION 6-16 PERTAINING TO VICIOUS ANIMALS; REPEALING SECTION 6-19 PERTAINING TO LICENSING AND REGULATION OF PET STORES, COMMERCIAL KENNELS, BOARDING KENNELS AND GROOMING SALONS; CREATING SECTION 6-19 PERTAINING TO SALE OF PROHIBITED ANIMALS; REPEALING SECTIONS 6-20(B) AND (E) AND 6-21(E) PERTAINING TO THE PENALTIES FOR VIOLATION OF THE CITY'S ANIMAL ORDINANCES AND RELETTERING REMAINING SUBSECTIONS OF SECTION 6-20; REPEALING CHAPTER 14 PERTAINING TO FOOD AND FOOD ESTABLISHMENTS; REPEALING CHAPTER 15 PERTAINING TO HEALTH; REPEALING SECTIONS 17-33, 17-34 AND 17-35 PERTAINING TO PUBLIC NUISANCES ARE HEREBY REPEALED AND RECREATING SECTION 17-33 PERTAINING TO PUBLIC NUISANCES; REPEALING AND RECREATING SECTION 17-38(A) PERTAINING TO THE INSPECTION OF PREMISES FOR PUBLIC NUISANCES; CREATING SECTION 17- 42 PERTAINING TO EXCESSIVE NOISE; REPEALING SECTION 20-4(E) PERTAINING TO THE INSPECTION OF PREMISES FOR PUBLIC NUISANCES; CREATING SECTION 20-12.2 PERTAINING TO PRIVATE WELLS; AND CREATING SECTION 30-35(L) PERTAINING TO HIGH RISK SEXUAL CONDUCT ESTABLISHMENTS; ALL PERTAINING TO CITY OF OSHKOSH BOARD OF HEALTH AND HEALTH DEPARTMENT DUTIES AND RESPONSIBILITIES WHEREAS, the City of Oshkosh, City of Neenah, and Winnebago County have entered into an Agreement for the Consolidation of Health Services under Winnebago County and to reflect the transfer of public health employees to Winnebago County; and WHEREAS, it is necessary for the City of Oshkosh to repeal and amend its Municipal Code to allow Winnebago County to enforce appropriate health regulations within the City of Oshkosh; and WHEREAS, it is necessary for the City of Oshkosh to designate the employees of the Winnebago County Health Department as its agents for the purposes of enforcing certain ordinances during a short period of time necessary for the full transfer of health services to Winnebago County. The Common Council of the City of Oshkosh does ordain as follows: SECTION 1. That Section 1-5.3(4) of the Oshkosh Municipal Code pertaining to the designation of city officials who may issue citations is hereby amended to add the following paragraph immediately following the first unnumbered paragraph in this subsection: In addition, the employees of the Winnebago County Health Department are hereby designated as City officials who may issue citations with respect to those portions of Chapter 6 of the City's Municipal Code pertaining to Commercial and Boarding Kennels, Grooming Salons and Pet Shops; Chapter 14 pertaining to Food and Food Establishments; and Chapter 15 pertaining to Health, except those sections pertaining to Excessive Noise and Private Wells. (This paragraph shall automatically repeal on July 1, 2012 without further action being necessary for its repeal.) SECTION 2. That Section 1-5.3(3)(a)of the Oshkosh Municipal Code pertaining to Issuance of Citations for Violations of Ordinances — Schedule of Deposits is hereby repealed and recreated to read as follows: (3) SCHEDULE OF DEPOSITS. (a) The following schedule of cash deposits is established for use with citations issued under this ordinance. For violations of Chapter 7 of the Oshkosh Municipal Code (Building Code), Chapter 11 of the Oshkosh Municipal Code (Electrical Code), Chapter 16 of the Oshkosh Municipal Code (Housing), Chapter 20 of the Oshkosh Municipal Code (Plumbing), Chapter 29 of the Oshkosh Municipal Code (Weights and Measures) - $75.00 plus 15% penalty provisions plus costs. All other citations issued under this ordinance shall carry a cash deposit as prescribed in Section 1-5.1 of the Oshkosh Municipal Code. SECTION 3. That Section 1-5.3(4) (first unnumbered paragraph) of the Oshkosh Municipal Code pertaining to the designation of city officials who may issue citations is hereby repealed and recreated to read as follows: (4) ISSUANCE OF CITATION. Law Enforcement Officer. Any law enforcement officer may issue citations authorized by this municipal code. In addition, the following are hereby designated as City officials who may issue citations with respect to ordinances directly related to their official responsibilities: Fire Chief, Fire Inspector, Building Inspector, Electrical Inspector, Weights and Measures Inspector, Plumbing Inspector and Plumbing Supervisor, Housing Inspector, Sanitation Superintendent, Director of Community Development, and Director of Public Works/City Engineer. In addition, the above mentioned individuals may delegate, with the approval of the City Manager, the authority to their assistants or other designee. SECTION 4. That Section 2-35(B)(3) of the Oshkosh Municipal Code pertaining to the Duties of the Department of Community Development—Operation of Health Division is hereby repealed and the remaining subsections renumbered consecutively. SECTION 5. That Section 2-45 of the Oshkosh Municipal Code pertaining to the Board of Health is hereby repealed. SECTION 6. That Section 4-4(A)of the Oshkosh Municipal Code pertaining to liquor license investigation and approval is hereby repealed and recreated to read as follows: SECTION 4-4 LICENSE INVESTIGATION AND APPROVAL (A) Investigation by Officials The City Clerk shall notify the Chief of Police, the Winnebago County Health Department, and the Chief of the Fire Department of each application, and these officials shall inspect or cause to be inspected each application and the premises, together with such other investigation as shall be necessary to determine whether the applicant and the premises sought to be licensed comply with the regulations, ordinances, and laws applicable thereto, including those governing sanitation in restaurants, and whether the applicant is a proper person to be the recipient of a license. These officials shall each file with the City Clerk,the information derived from such investigation accompanied by a recommendation as to whether a license should be granted or refused. No license shall be renewed without an inspection of the records relating to the premises and reinspection of the premises if deemed appropriate by the officials designated. The City Clerk shall also notify the Chief of Police who shall interview or cause to be interviewed the applicant for purposes of completing the Council Questionnaire. SECTION 7. That Section 4-10 of the Oshkosh Municipal Code pertaining to liquor licensed premises Health Rules is hereby repealed and recreated to read as follows: SECTION 4-10 HEALTH RULES Each licensed premises shall have a current Health Permit or Restaurant License. SECTION 8. That Sections 5-1 through 5-13 inclusive of the Oshkosh Municipal Code pertaining to the Licensing, Investigation, and Regulation of Dance Halls is hereby repealed. SECTION 9. That Section 5-18(1) (third unnumbered paragraph) of the Oshkosh Municipal Code pertaining to Special Events is hereby repealed and recreated to read as follows: During the City's review and oversight in this process, the City will address traffic and parking issues, health and safety issues related to the participants and the public, effects upon neighboring properties, fire potential, explosions, disorder and other dangers to persons or property, preservation of peace and order, sanitation, and the overall safeguarding of the public. The City will also consider the potential diversion of public safety, emergency, and other services from their regular and necessary duties, and the additional costs of providing public services necessary to protect the public health, safety, and welfare associated with special events. SECTION 10. That Section 5-18(IV)(A)(3) of the Oshkosh Municipal Code pertaining to contacts for Special Events is hereby repealed and recreated to read as follows: 3. The applicant shall identify a designated individual who can be contacted at any time by any person regarding the event, including City representatives such as the Police, Fire, Inspections Services, Parks, Public Works, Transportation, or Legal departments to provide information or answer questions, or to whom City representatives may refer questions and comments from the public or others. SECTION 11. That Section 5-18(IV)(A)(4) of the Oshkosh Municipal Code pertaining to City Departments to be provided with copies of Special Events applications is hereby repealed and recreated to read as follows: 4. The following City departments will be provided with copies of the Special Event permit application for their review and comment: City Manager, Police, Fire, Inspection Services, Public Works, Parks, Transportation, and Legal. Additional City officials may need to review the application as may be warranted by the specific circumstances of the event. In addition, a copy of the Special Event permit application will be provided to the Winnebago County Health Department for their review. City departments shall notify the City Manager that they recommend the approval or denial of the Special Event permit as requested, approval of the permit contingent upon changes or modifications of the original request, or take no position on the application. At the time each City department comments upon an application, they shall also provide the City Manager with their best estimate of the cost of extraordinary services which may be necessary for the event. SECTION 12. That Sections 6-1(A) (4)-(6)and (9)of the Oshkosh Municipal Code pertaining to the definitions of Commercial and Boarding Kennels, Grooming Salons, and Pet Shops are hereby repealed. SECTION 13. That Section 6-1(A)(8) of the Oshkosh Municipal Code pertaining to the definition of Officer for purposes of enforcement of the City's Animal Ordinances is hereby repealed and recreated to read as follows: (8) Officer shall mean a peace officer as defined under Section 939.22(22) Wis. Stats., a humane officer, or a community service officer. The "supervising officer" shall mean that officer designated by the Chief of Police or his/her designee to supervise the individual case. SECTION 14. That Section 6-5.6 (B) and (C) of the Oshkosh Municipal Code pertaining to Hearings and Hearing Officers for Abatement Orders related to the City's Animal Ordinances are hereby repealed and recreated to read as follows: (B) Hearing Officer. Any person named in an order issued under sub. (A) May, within the 10 day period following service of the order, request a hearing on the order. The City Manager shall appoint a Hearing Officer who shall conduct the hearing pursuant to the provisions of Section 173.11 of the Wisconsin Statutes. (C) Appeal. Appeal from the decision of the Hearing Officer or other official shall be as provided in Section 173.11 of the Wisconsin Statutes. SECTION 15. That the title to Article IV of Chapter 6 of the Oshkosh Municipal Code pertaining to the City's Animal Ordinances be amended to read as follows: ARTICLE IV. ANIMAL SHELTER I IMPOUNDMENT OF ANIMALS SECTION 16. That Section 6-13 of the Oshkosh Municipal Code pertaining to the adoption of state statutes related to impoundment is hereby repealed and recreated to read as follows: SECTION 6-13 STATE STATUTES ADOPTED The rules and regulations pertaining to impoundment, specifically Sections 173.13 and 173.23, Wisconsin Statutes, together with any future additions, deletions or supplements thereto, are herewith incorporated as part of this Chapter and shall be enforced with the same force and effect as though set forth in full herein. Providing, however, that where such rules and regulations are less stringent than other provisions found in this Code, the provisions of this Code shall apply. The rules and regulations pertaining to impoundment shall apply also to cats within the City of Oshkosh. SECTION 17. That Section 6-15(B)-(F)of the Oshkosh Municipal Code pertaining to the Rabies Control program are hereby repealed. SECTION 18. That Section 6-16 of the Oshkosh Municipal Code pertaining to Vicious Animals is hereby repealed and recreated to read as follows: SECTION 6-16 VICIOUS ANIMALS No person shall own, possess, harbor, keep or maintain a vicious animal contrary to the terms of this ordinance. (A) Vicious Animal License (1) Requirement. Any person who may own, possess, harbor, keep or maintain a vicious animal shall do so only after first having obtained a vicious animal license from the Oshkosh Police Department and only after complying with the terms of said vicious animal license. (2) Fee and Term. The License term shall be from January 1 through December 31. The License fee, which is not pro-ratable, shall be fifty dollars ($50.00) which fee shall cover the costs of City issued tags and signage. (3) Conditions for License Issuance. A license may be granted and issued subject to proof of the following: (a) Current vaccination for rabies. (b) Current license where the vicious animal is a dog or cat. (c) Neutering or spaying, where the vicious animal is a dog or cat. (4) Conditions for License Maintenance. A license granted and issued hereunder is conditioned upon the following: (a) Compliance with Subsection (3) above. (b) The posting of signs no smaller than eight and one-half (8 %) inches by eleven (11) inches, made of metal, plastic, or laminated cardstock, florescent yellow in color, bearing the wording "WARNING VICIOUS ANIMAL" in English print and also bearing the license number of each vicious animal, which signs shall be posted at each entrance to the building in which the vicious animal is kept and at each entrance through a fence and at such location to be viewable from the public sidewalk, if any, in the vicinity of any walk or drive approaching any entrance to the building in which the vicious animal is kept. (c) The vicious animal while off the premises where kept, shall be muzzled with a no-bite type muzzle, restrained as to movement by a choke-type collar or harness and leash secured by and under the direct control and supervision of a mentally competent adult person. (d) The vicious animal while on the premises where kept shall be placed within a secured building, or within a secured fence of sufficient height and construction to maintain the animal within, which fence shall be inspected and approved by the Police Department. (5) Impoundment and Destruction. A vicious animal which is owned, possessed, harbored, kept or maintained in violation of this ordinance may be impounded and destroyed by the City or its agents at the expense of the owner, following notice and an opportunity to be heard before a Hearing Officer who shall be appointed by the City Manager. Any person or party aggrieved by such decision of the Hearing Officer may appeal such decision to the Common Council by filing a written notice of appeal with the City Clerk within five (5) City business days of mailing of a written order from the Hearing Officer. The vicious animal shall be impounded, but not destroyed, until the time for appeal has expired and until any timely appeal has been heard. The City elects not to be bound by Chapter 68, Wisconsin Statutes, with respect to administrative procedure in this regard. (6) Sale or Transfer of Possession. (a) No person may sell or transfer possession of a vicious animal to another person without first notifying the person to whom the vicious animal is being sold or transferred, of the fact that such is a vicious animal and of any requirements imposed upon the owner of such animal by this ordinance. (b) No person may sell or transfer possession of a vicious animal to another person without first notifying the Oshkosh Police Department thereof, in writing to be received at least five (5) business days in advance of the sale or transfer of possession. (B) Destruction or Death of Vicious Animals. If a vicious animal is euthanized, the owner thereof shall provide to the Oshkosh Police Department within ten (10)days of the date of death of the animal a certificate or other written proof of euthanasia from a licensed veterinarian. If a vicious animal is killed, destroyed, or dies from any other cause or means, the owner shall within ten (10)days of the date of death of the animal provide in writing to the Oshkosh Police Department verification of the death of the animal. SECTION 19. That Section 6-19 of the Oshkosh Municipal Code pertaining to Licensing and Regulation of Pet Stores, Commercial Kennels, Boarding Kennels, and Grooming Salons is hereby repealed. SECTION 20. That Section 6-19 of the Oshkosh Municipal Code pertaining to Sale of Prohibited Animals is hereby created to read as follows: SALE OF PROHIBITED ANIMALS (1) No person or firm shall offer for sale or barter, sell or give away those animals, fowl, and insects not permitted within the City under Section 6-6 except in conformance with these provisions: (a) A sign prescribed by the Oshkosh Police Department informing persons of the provisions of Section 6-6 of this code shall be posted up and at all times displayed in a conspicuous place near the main entrance to the store/structure and near each area where animals, fowl, or insects prohibited under Section 6-6 are displayed, so that all persons visiting such place may readily see the same. (2) It shall be unlawful for any person to knowingly deface or destroy such sign or to remove it without the consent of the property owner and the Oshkosh Police Department. SECTION 21. That Section 6-20(B)and (E)and 6-21(E) of the Oshkosh Municipal Code pertaining to the penalties for violation of the City's Animal Ordinances are hereby repealed and the remaining subsections be relettered consecutively. SECTION 22. That Chapter 14 of the Oshkosh Municipal Code pertaining to Food and Food Establishments is hereby repealed. SECTION 23. That Chapter 15 of the Oshkosh Municipal Code pertaining to Health is hereby repealed. SECTION 24. That Section 17-33, 17-34 and 17-35 of the Oshkosh Municipal Code pertaining to public nuisances are hereby repealed and Section 17-33 pertaining to Public Nuisances is recreated to read as follows: SECTION 17-33 PUBLIC NUISANCES The following acts, omissions, places, conditions and things are hereby specifically declared to be public nuisances affecting the health, safety and welfare of persons within the City of Oshkosh, but shall not be construed to exclude other health nuisances coming within the definition of Section 17-32: (A) Dead Animals Carcasses of animals, birds or fowl not buried or otherwise disposed of in a sanitary manner within twenty-four (24) hours after death; (B) Decayed Matter Accumulations of decayed animals or vegetable matter, trash, rubbish, rotting lumber, bedding, packing material, scrap metal or any material whatsoever in which flies, mosquitoes, disease-carrying insects, rats or other vermin may breed; (C) Stagnant Water All stagnant water in which mosquitoes, flies, or other insects can multiply. (D) Uncovered Privies and Garbage Cans Privy vaults and garbage cans which are not fly-tight; (E) Noxious Weeds All noxious weeds and other rank growth or vegetation; (F) Noxious Fumes The escape of smoke, soot, cinders, noxious acids, fumes, gases, fly ash or industrial dust within the City limits or within one (1) mile therefrom in such quantities as to endanger the health of persons of ordinary sensibilities or to threaten or cause substantial injury to property; (G) Water Pollution The pollution of any public well or cistern, stream, lake, canal or body of water by sewage, creamery or industrial wastes or other substances; (H) Noxious Odors Any use of property, substances or things within the City or within four (4) miles thereof, emitting or causing any foul, offensive, noisome, nauseous, noxious, or disagreeable odors, effluvia or stenches extremely repulsive to the physical senses of ordinary persons which annoy, discomfort, injure, or inconvenience the health of any appreciable number of persons within the City; (I) Outdoor Solid Fuel Fired Furnaces, Stoves, and Boilers. (This prohibition shall be applied retroactively.) Outdoor Solid Fuel Fired Furnaces, Stoves, and Boilers shall be defined as an accessory structure or appliance designed (1) for a location ordinarily outside the principal structure and (2) to transfer or provide heat via liquid or other means, by burning wood or other solid fuels, for heating any principal or accessory structure on the premises. (J) Premises Where Habitual Violations of Laws Have Occurred Any place or premises within the City where City ordinance or State laws relating to public health, safety, peace, morals or welfare are openly, continuously, repeatedly and intentionally violated; (K) Accumulation of Snow and Ice on Sidewalks All ice not removed from public sidewalks and all snow not removed from public sidewalks as required by City ordinance. (L) Signs and Billboards Endangering Public Safety All signs and billboards, awnings and other similar structures over or near streets, sidewalks, public grounds of places frequented by the public, so situated or constructed as to endanger the public safety. (M) Unauthorized Devices Imitating Traffic Control Devices All unauthorized signs, signals, markings or devices which purport to be or may be mistaken as official traffic control devices placed or maintained upon or in view of any public highway or railway crossing; (N) Obstruction of Street Intersections All trees, hedges, billboards, or other obstructions which prevent persons driving vehicles on public streets, alleys or highway from obtaining a clear view of traffic when approaching an intersection or pedestrian crosswalk; (0) Limbs Proiectinq over Sidewalks All limbs of trees which project over a public sidewalk, less than eight (8) feet above the surface thereof or less than ten (10) feet above the surface of a public street. (P) Unsafe Structures All buildings or structures so old, dilapidated, or out of repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human use; (Q) Low Hanging Wires All wires over streets, alleys or public grounds which are strung less than fifteen (15) feet above the surface of street or ground; (R) Noisy Animals The keeping or harboring of any animal or fowl which by frequent or habitual howling, yelping, barking, crowing or making of other noises shall greatly annoy or disturb a neighborhood or any considerable number of persons within the City; (S) Unauthorized Street Obstructions or Excavations All obstructions of streets, alleys, sidewalks or crosswalks and all excavations in or under the same, except as permitted by the ordinances of the City or which, although made in accordance with such ordinances, are kept or maintained for an unreasonable length of time after the purpose thereof has been accomplished; (T) Unguarded Excavations, etc. All open and unguarded pits, wells, excavations, or unused basements freely accessible from any public street, alley, or sidewalk; (U) Use of Abutting Property Which Causes traffic Impediment Any unauthorized or unlawful use of property abutting on a public street, alley, or sidewalk or of a public street, alley, or sidewalk which causes large crowds of people to gather, obstructing traffic and free use of the streets or sidewalks; SECTION 25. That Section 17-38(A) of the Oshkosh Municipal Code pertaining to the inspection of premises for public nuisances is hereby repealed and recreated to read as follows: (A) Inspection of Premises Whenever complaint is made that a public nuisance exists within the City,the Chief of Police or Building Inspector shall inspect or cause to be inspected the premises and shall make a written report of findings to the City Manager or designee. SECTION 26. That Section 17-42 of the Oshkosh Municipal Code pertaining to Excessive Noise is hereby created to read as follows: SECTION 17-42 EXCESSIVE NOISE (1) Scope and Enforcement This section shall apply to the control of all noise originating within the limits of the City. It is the policy of the City of Oshkosh to comply with the noise limitations, as set forth in this section, in all of its own operations and the operations of its contractors and subcontractors. (2) Definitions. As used in this section: (a) "Ambient noise" means the all encompassing background noise associated with a given environment, being usually a composite of sounds from many sources near and far. (b) "A-weighted sound level" or "A-Scale level" mean the sound pressure level in decibels as measured on a sound level meter using the A- weighting network. The level so read is designated dB (A) or dBA. (c) "Commercial district" means any area of the city designated on the official Oshkosh Zoning Map, pursuant to Chapter 30 of this Code, as a Business District or Commercial District or as classified as C-1, C-2, C- 3, or C-4. (d) "Day" means the hours between 7:00 a.m. and 10:00 p.m. (e) "Decibel (dB)" means a standard unit of sound pressure level. (f) "Industrial district" means any area of the City designated on the official Oshkosh Zoning Map, pursuant to Chapter 30 of this Code, as a Light Industrial, or Heavy Industrial District, or classified as Ml, M-2, or M-3. (g) "Impulsive sound" means a single sound pressure peak or a series of single bursts of short duration, usually less than one second. (h) "Night" means the hours between 10:00 p.m. and 7:00 a.m. (i) "Person" means any individual, firm, partnership, or corporation. (j) "Pure tone" means a steady sound without overtones. (k) "Real property boundary" means an imaginary line along the ground surface, and its vertical extension, which separates the real property owned by one person from that owned by another person, but not including intra-building real property division. (I) "Residential district" means any area of the City designated on the official Oshkosh Zoning map, pursuant to Chapter 30 of this Code, as Single-Family, Two-Family, or Multiple Dwelling Districts, or R-1, R-2, R- 3, R-4, R-5 or Agricultural (Ag). (m) "Sound level meter" means an instrument which includes microphone, amplifier, RMS detector, integrator or time averager, output meter, and weighting networks used to measure sound pressure levels. (3) Noise Limitations The A-scale level from any noise source or combined noise sources on any parcel located in the City of Oshkosh shall not exceed the following levels at the Real Property Boundary: Maximum Sound Pressure Levels (dB) along District Boundaries: Residential Commercial/Industrial A-scale levels 55 dBA 62 dBA Maximum sound pressure levels shall be decreased by five dB if the subject noise consists primarily of a pure tone or if it is impulsive in character. Readings shall be taken in such a manner to minimize or eliminate the effects of ambient noise upon the readings taken. If a correction is made for ambient noise in the readings, such correction shall be noted. (4) Public Nuisance Excessive noise as defined in this section, is hereby deemed and declared to be a public nuisance and may be subject to summary abatement procedures, as provided in this Code. Such abatement shall be in addition to administrative proceedings,forfeitures, and penalties provided in this section. (5) Prohibited Acts No person shall make, produce, allow or cause to be produced any noise which exceeds the noise limitations as set forth in this section. (6) Noise Exemptions The noise limitations as set forth in sub-section (3)(a) shall not apply to the following: (a) Non-commercial public speaking and public assembly activities conducted on any public property. (b) Construction sites, public utilities, and public works operations during any day, from Monday through Saturday, inclusive; provided, however, that the sound level at or across a real property boundary shall not exceed 86 dBa. (c) Emergency short term operations which are necessary to protect the public health, safety and welfare of the citizens, including emergency utility and public works operations. (d) Any noise emitted from emergency warning devices and unregulated safety relief valves. (e) Loading or unloading operations or other handling of boxes, crates, containers, building materials, garbage cans, or similar objects during any day. (f) Stationary bells, chimes, sirens, whistles, or similar devices, intended primarily for emergency purposes, except industrial whistles; provided, however, that no such device shall be sounded more than five minutes in any hourly period, nor a total of 30 minutes in any twenty-four hour period. Church bells, chimes and carillons may be rung at any time. (g) Domestic power tools, including any mechanically powered sander, lawn or garden tool, snow thrower, or similar device used during any day. (h) Industrial whistles, provided that the sounding of any such whistle is to give notice of the time to begin or stop work or as a warning of fire, danger, or upon request of proper city authorities. (i) The sounding of any horn on a railroad train or locomotive on a main line railroad track, provided that any such sounding is required by state law or reasonably required to avoid an impending accident. (j) Parades duly permitted pursuant to Chapter 5 of this code. (k) Aircraft operations. (I) Noise created by human behavior and generally considered to be disorderly conduct which is regulated under Section 17-1 of this code. (m) Barking dogs, including kennels, shall be regulated under Chapter 6 of the Oshkosh Municipal Code. (7) Places of Public Entertainment No person shall operate, play, or permit the operation or playing of any radio, television, phonograph, drum, musical instrument, sound amplifier, or similar device or any combination thereof, which produces, reproduces, or amplifies sound in any place of public entertainment at a sound level greater than 100 dBa as read by the slow response on a sound level meter at any point that is normally occupied by a customer, unless a conspicuous and legible sign which is at least 225 square inches in area is placed outside such place, near each public entrance, stating: "WARNING: SOUND LEVELS WITHIN MAY CAUSE PERMANENT HEARING IMPAIRMENT." (8) Variances Temporary variances from the terms of this section may be requested by written request from the City Council. Variances exceeding two years may be granted only in exceptional cases, including those for which, control technology is unavailable or available only at a prohibitive cost. (a) Application. Application for a variance under this sub-section shall be made in writing and filed with the City Clerk who shall place the variance request upon the Common Council agenda for their next regular meeting if the request is received at least five (5) business days prior to such meeting. If the request is received less than five (5) business days prior to the next regular Council meeting, the request shall be placed on the second meeting following the submission of the request. The request shall specify the grounds upon which the variance is sought and the date by which the source of any excess noise or vibration for which the variance is sought shall be brought into compliance with this section. An application for a variance shall be considered timely made if filed within thirty (30) days following due notification that it is in violation of this section. The proper filing of an application within such time shall stay the enforcement of any such violation until a final decision has been issued by the Council. (b) Review. The Common Council may grant a temporary variance to the requirements set forth in this section, if the Council determines circumstances exist which would make immediate compliance with the noise or vibration limitations as set forth in this section result in unnecessary hardship to the applicant. In making the determination, the Council shall consider: (1) the hardship to the applicant, the community, and other persons of not granting the variance; (2) the adverse impact on health, safety, and welfare of persons owning, residing, or occupying property in the surrounding area and the public in general; (3) the adverse effect on surrounding property; (4) whether the circumstance, hardship, or situation to be addressed by the proposed variance is unique, and not applicable generally to other circumstances; (5) whether the person or entity seeking the variance is otherwise in compliance with all applicable ordinances, regulations and statutes; (6) and any other adverse impacts of granting the variance. The Common Council may require the applicant to submit additional information not contained in the application which may be necessary for making a determination under this subsection. (c) Decision upon Variance. The Council may approve, approve subject to conditions, or deny, in whole or in part, a variance under such conditions as are necessary to protect the public health, safety, and welfare, including a schedule for achieving compliance with noise limitations. (d) Non-compliance. Non-compliance with any conditions imposed on the variance shall terminate the variance and subject the person holding it to those provisions of this section for which the variance was granted. (e) Extension and Modification. Application for extension of time limits or modification of other conditions specified in the variance shall be treated like applications for an initial variance. (f) Legal Recourse. Any applicant aggrieved by the decision of Common Council or any person so aggrieved may seek such other legal relief as may be available. SECTION 27. That Section 20-4(E)of the Oshkosh Municipal Code pertaining to the inspection of premises for public nuisances is hereby repealed. SECTION 28. That Section 20-12.2 of the Oshkosh Municipal Code pertaining to Private Wells is hereby created to read as follows: SECTION 20-12.2 PRIVATE WELLS (A) Filling and Sealing Required. All private wells located on any premises, which is served by the public water system of the City shall be properly filled by July 1, 1993 or at the time of connection to the City's water supply system, whichever occurs later. Only those wells for which a well operation permit has been granted by the City Plumbing Inspector may be exempted from this requirement. The City Plumbing Inspector shall order filled any well in this City which tests unsafe for use, which is not in current use, or which is non- complying with Chapter NR 812,Wisconsin Administrative Code. The owner or occupant must demonstrate compliance with NR 812 through a signed statement from a State certified well driller or pump installer. The owner or occupant of the property upon which such well is located shall fill such well in accordance with Section NR 811.17 or Section 812.26, Wisconsin Administrative Code,within thirty(30)days after receipt of notice from the City Plumbing Inspector. (B) Well Operation Permit. A permit may be granted to a well owner to operate a well for a period not to exceed three (3) years if the following requirements are met. Application shall be upon forms provided by the City Plumbing Inspector. This permit may be renewed at its expiration for additional periods, each additional period not to exceed three (3) years, if all the following requirements continue to be met: (1) The well and pump installation meet or are upgraded to meet the requirements of NR 812, Wisconsin Administrative Code, and certification of the acceptability of the well has been granted by a state certified well driller or pump installer and a copy of this certification accompanies the application for issuing or reissuing of a permit. (2) The well has a history of producing safe water and presently produces bacteriologically and chemically safe water as evidenced from laboratory tests by a laboratory certified by the Wisconsin Department of Health and Social Services or the Wisconsin State Laboratory of Hygiene. Such evidence shall include bacteriological sampling, consisting of obtaining a minimum of 2 consecutive safe samples taken a minimum of 2 weeks apart prior to issuing or reissuing the permit and shall accompany the application. (3) The proposed use of the well can be justified as being necessary in addition to water provided by the public water system at the time of issuance or reissuance of the permit. (4) No physical connection shall exist between the piping of the public water system and the private well, which fact shall be certified by the City of Oshkosh plumbing inspector and shall accompany the application for issuance or reissuance of a permit. (5) The well and pump installation is in present use. (6) A well permit application fee of fifty dollars ($50.00) shall be paid at the time of application for the issuance or reissuance of the permit. (C) Report and Inspections. An abandonment report form, supplied by the Department of Natural Resources shall be submitted by the well owner to the City Plumbing Inspector, and the Department of Natural Resources within ten (10) days of the completion of the well abandonment. (D) State Department of Natural Resources Regulations Adopted. The rules and regulations pertaining to private wells as promulgated by the Wisconsin Department of Natural Resources, specifically Chapters NR 811 and NR 812, Wisconsin Administrative Code, together with any future renumberings, additions, deletions or supplements thereto, are herewith incorporated as part of this Chapter and shall be enforced with the same force and effect as though set forth in full herein. Providing, however, that where such rules and regulations are less stringent than other provisions found in this Code, the provisions of this Code shall apply. SECTION 29. That Section 30-35(L) of the Oshkosh Municipal Code pertaining to High Risk Sexual Conduct Establishments is hereby created to read as follows: SECTION 30-35(L) HIGH RISK SEXUAL CONDUCT ESTABLISHMENTS (A) Except as otherwise noted, the provisions of this Article shall apply to all commercial establishments, including existing ones, which offer entertainment including "Booths, stalls, partitioned portions of a room or individual rooms"which shall mean such enclosures as are specifically offered to the public or members of that establishment for hire or for a fee as part of a business operated on the premises which offers as part of its business the entertainment to be viewed within the enclosure; which shall include, without limitation, such enclosures wherein the entertainment is dispensed for a fee, but a fee is not charged for mere access to the enclosure. The phrase "booths, stalls, partitioned portions of a room, or individual rooms" does not mean enclosures which are private offices used by the owners, managers, or persons employed on the premises for attending to the tasks of their employment, and which are not held out to the public or members of the establishment for hire or for a fee or for the purposes of viewing entertainment for a fee, and which are not open or available to any persons other than owners, managers, or employees. (B) No person, partnership, corporation or other entity shall own operate, manage, rent, lease occupy, or exercise control of any commercial building, structure, premises, or portion or part thereof,which is subject to this Article, that is located closer than 500 feet from the nearest lot line, that is the legal boundaries of a parcel of property, of any Class "B"/"Class B" establishment, of any parcel of a similar establishment, any establishment governed by Section 17-2 of this Code, or any school (whether pre-school, elementary, middle, or high school), residentially-zoned property, library, church or chapel, park or playground, or licensed day-care facility. (C) It is the intent of this paragraph (3) that such establishments, whose operations on the effective date of this ordinance subject them to regulation of this Section, shall be subject to the provisions of Section 30-4 NON-CONFORMING USE REGULATIONS of this Code, except that such privilege of nonconforming use shall cease upon the discontinuance of the activities within such establishment for seven consecutive calendar days, including any days when the establishment is normally closed for business. SECTION 30. Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 20, 24, 25, 26, 27, and 28 of this ordinance shall be in full force and effect from and after its passage and publication and upon transfer of the City of Oshkosh employees to the Winnebago County Health Department on May 7, 2012. SECTION 31. Sections 2, 12, 19, 21, 22, 23, and 29 of this ordinance shall be in full force and effect from and after its passage and publication and upon full consolidation of the City of Oshkosh, City of Neenah, and Winnebago County Health Departments on July 1, 2012. SECTION 32. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #12-168 REPEAL AND AMEND MUNCIPAL ORDINANCES RELATED TO THE CITY OF OSHKOSH BOARD OF HEALTH AND HEALTH SERVICES DIVISION, on March 27, 2012. In anticipation of consolidation of the City's Health Department with Winnebago County and the City of Neenah, this ordinance repeals and amends various municipal ordinances related to the City of Oshkosh Board of Health and Health Services Division and authorizes the employees of the Winnebago County Health Department to act as agents for the City of Oshkosh during the consolidation period for ordinances pertaining to Commercial and Boarding Kennels, Grooming Salons and Pet Shops, Food and Food Establishments, and those portions of Chapter 15 pertaining to Health, except those sections pertaining to Excessive Noise and Private Wells. Sections pertaining to the duties and responsibilities of the Board of Health and structure and duties of the Health Services Division are repealed. This ordinance repeals those sections of the current ordinances which will come under the jurisdiction of the Winnebago County Health Department after the date of consolidation, including: Chapters 14 and 15 pertaining to the licensing of Food Establishments and General Health Ordinances including public health nuisances, regulation of swimming pools, regulation of high risk sexual conduct establishments, and lead poisoning prevention and control; portions of Chapter 6 of the City's Municipal Code pertaining to commercial and boarding kennels, grooming salons, pet shops, and Rabies Control. The ordinance recreates sections of the municipal code pertaining to private wells, excessive noise, animal nuisance abatement orders, animal impoundment, vicious animal orders and the location of high risk sexual conduct establishments to reassign the responsibilities for these sections to other departments and divisions within the existing city organization. The ordinance amends other sections the municipal code to remove references to the Health Services Division, change references to the Winnebago County Health Department and reflect assignment of responsibilities to other city departments/divisions as appropriate. The ordinance repeals portions of Chapter 5 of the City's Municipal Code pertaining to the licensing, investigation and regulation of Dance Halls. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City's website at www.ci.oshkosh.wi.us. Clerk's phone: 920/236-5011. CITY HALL 215 Church Avenue P.O.Box 1130 Oshkosh,Wisconsin 54903-1130 City of Oshkosh O.fHKO.fH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: March 22, 2012 RE: Proposed Ordinance to Repeal and Amend Various Ordinances relating to the City of Oshkosh Board of Health and Health Department BACKGROUND The City of Oshkosh, City of Neenah, and Winnebago County, after study and discussion, determined that it was in the public interest to consolidate the city and county health departments into a single county health department. The Common Council approved the Consolidation by resolution at its February 28, 2012 regular meeting. The transfer of jurisdiction for all public health related matters is anticipated to occur in two stages with employees transferring on May 7, 2012 and full consolidation to occur on July 1, 2012 to allow for a transition from City to County licensing. ANALYSIS In anticipation of the consolidation of the City's Health Division with the Health Departments of the City of Neenah and Winnebago County, the City must repeal and amend the current ordinances to allow Winnebago County to enforce public health related ordinances within the city and to amend certain ordinances to reflect the transfer of employees to Winnebago County. In addition, because the transfer of employees to Winnebago County is anticipated to occur prior to the new licensing year beginning on July 1, the proposed ordinance will authorize the employees of the consolidated Winnebago County Health Department to enforce certain city ordinances for the period between the date city employees have transferred to the County and the new license year. Staff reviewed all ordinances which referred directly to the Board of Health, Health Services Division or which are currently enforced by employees within the Health Services Division. Those ordinances that will become the responsibility of the new consolidated Winnebago County Health Department are proposed to be repealed. These ordinances include Section 2- 45 pertaining to the Board of Health; Sections 6-1(A)(4)-(6),(9) and 6-19 pertaining to commercial and boarding kennels, grooming salons and pet shops; a portion of Section 6-13 related to the rabies control program which will be assumed by the County Health Department; Section 6-15(B)-(F) pertaining to the Rabies Control Program; Chapter 14 pertaining to Food and Food Establishments; Portions of Chapter 15 relating to the Health Division and its duties, including general organizational provisions, public swimming pools and swimming places, the inspection of high risk sexual conduct establishments, and lead poisoning prevention and control. fa: Those ordinances that have an already existing County counterpart, such as for rabies enforcement and lead poisoning, will become effective immediately. Those ordinances which relate to annual licensing or for which Winnebago County has not yet adopted a counterpart, such as animal boarding and grooming salons, will become effective July 1, 2012 to allow the County time to adopt ordinances and to coincide with the license year. In addition to those sections being repealed because they will become the responsibility of the consolidated Winnebago County Health Department, a number of other provisions are proposed for repeal. Section 2-35(B)(3) is a provision pertaining to the duties of the Department of Community Development to operate a Health Services Division. This section is proposed to be repealed. Staff is proposing to repeal Sections 5-1 through 5-13 of the Municipal Code pertaining to the licensing, investigation, and regulation of Dance Halls within the City. This license is still issued to establishments that hold dances or have other live entertainment. However, in the review of the ordinances, staff determined that the inspections that are referred to in this particular section are typically done in connection with the renewals of restaurant and liquor licenses and that the regulations imposed are in some cases dated and most often covered within other sections of the municipal code or state statutes. In light of this, staff is proposing to repeal these sections of the ordinances. Approximately 80 licenses of this type were issued for the 2011-2012 license year for a total revenue to the City of$8,000. While the City would have reduced revenue in this amount, staff believes that this recommendation is consistent with the review and recommendations related to the fee study completed several years ago and recommends repeal of this ordinance. Staff is also proposing the repeal of Section 6-16 (A)(3)(a). This section would require that persons keeping a "vicious animal" as defined in the ordinances obtain a liability insurance policy with a provision giving notice to the Health Services Division if the policy were to be cancelled. This provision proved to be unworkable in practice as insurance companies indicated that they could/would not issue such policies. This section was proposed to be repealed in the proposed revisions of the Chapter 6 related to Animals but was put on hold when the Health Director retired and the project to revise Chapter 6 was delayed. Staff recommends repeal of this section at this time. In this same section, staff is proposing a modification to the required signage for vicious animals to comply with the current practice of issuing the owners an 8 1/2 x 11" laminated cardstock sign rather than requiring the owners to special order a sign in compliance with the ordinance requirements. Section 17-42 of the current municipal code pertaining to sound trucks and aircraft is also proposed to be repealed. Besides the practical issues of enforcing such an ordinance upon an aircraft, staff is not aware of any issues of concern related to this particular portion of the ordinance, therefore, staff is proposing that it be repealed. As this section relates to sound trucks, this particular issue is covered by Wisconsin State Statutes, which the current ordinance is not in compliance with. Since the City adopts the state statute by reference, staff proposes to repeal this section of the code. Similarly, staff is proposing to repeal the motor vehicle and motorcycle noise portions of the more general noise ordinance (the general ordinance is proposed to be recreated from Chapter 15 into a newly created 17-42). State statutes regulate mufflers and other issues related to motor vehicle noise and the current ordinance, which anticipates noise readings taken from passing vehicles, has not proved particularly efficient or workable and has not provided officers with an effective additional tool to address these issues. Therefore, staff proposes to repeal this subsection of the general noise ordinance. Staff also proposes the repeal of current Section 20-4(E) pertaining to the inspection of premises for public nuisances related to plumbing issues upon complaint of the Health Director. Typically these issues are addressed through the property maintenance and inspections services division and while the Winnebago County Health Department, or others, may refer issues to inspections, staff does not believe that this section is necessary for enforcement purposes and proposes that it be repealed. In addition to the various sections that are proposed for repeal, there are a number of sections that refer to the Health Director or Health Services Division that are proposed to be amended. Sections 1-5.3(3)(a) and 1-5.3(4) pertaining to those authorized to issue citations are proposed to be amended to remove references to the Health Division personnel issuing municipal citations. Section 4-4 and 4-10 pertain to the requirements for a health inspection and current health license for premises with a liquor license, these sections are proposed to be amended to allow those inspections and licensing activities to be completed by the County Health Department. Similarly, several subsections in the city's Special Events ordinance referred to the Health Services Division, these subsections are proposed to be amended slightly to reflect coordination with the Winnebago County Health Department. Several provisions in Chapter 6 which are not included in the provisions to be enforced by the county health department are also proposed to be amended to reflect that these particular responsibilities will be reassigned to other City departments. Section 6-1(A)(8) had included a reference to the Health Director in regard to responsibilities for enforcement under this chapter. This section will be amended to remove this reference. Section 6-5.6(B) and Section 6-16 designated the Health Director as the Hearing Officer for Abatement Orders and appeals related to the designation of vicious animals. These sections are proposed to be amended to assign those responsibilities to a Hearing Officer to be designated by the City Manager. While the Winnebago County Health Department will assume licensing and regulation of commercial and boarding kennels and pet stores, the City had previously adopted a signage requirement for places selling animals requiring them to post signage related to animals which are offered for sale but prohibited within the City. The proposed ordinance would recreate this section as a new Section 6-19 and allow the Police Department to enforce these signage requirements. Currently, several sections of the municipal code addressed various health, safety and other nuisances. The proposed ordinance combines these sections into a single section, new section 17-33, and eliminates repetition between the various sections and between this section and other ordinance provisions. Current Section 15-18 relating to Excessive Noise is proposed to be incorporated into a new Section 17-42. As noted above, staff proposed the removal of a subsection related to motor vehicle noise which is regulated by state statute. In addition to this change, responsibility for enforcement of the general noise ordinance will shift from the Health Services Division to the Oshkosh Police Department and Inspection Services Division. The Police Department and Inspections Services Division will cooperate with each other to deal with noise issues under the proposed new ordinance. In reviewing the ordinance, the language was simplified and updated to reflect that the current noise meters measure noise on the A-scale level and to reflect current practices when measuring noise. The ordinance was also simplified to make it clear that noise would be measured at the property line and shall not exceed the specified limits as it leaves the particular property. Finally, the ordinance had previously contained a variance exception that anticipated the granting of a variance by the Health Director with appeal to the Council. In practice, requests have generally gone directly to the Council who considered the exceptions directly. In light of this, this section of the ordinance was reworked to provide that variances could be requested from the Council who would review them under standards as set forth in the ordinance and could approve, approve with conditions, or deny the variances as the Council deemed appropriate. Current Section 15-17 relating to private wells is proposed to be moved to a new Section 20- 12.2. The new section removes references to the Health Director and transfers responsibility for this program from the Health Services Division to the Plumbing Inspector. Finally, various penalty provisions have been amended as necessary to remove references to ordinances which are proposed for repeal or amendment. FISCAL IMPACT It is difficult to determine a fiscal impact for this ordinance. The purpose of this ordinance is to amend the City's ordinances related to the recently approved consolidation with Winnebago County so where there was a direct fiscal impact identified that had not been considered in the consolidation process, it has been noted in the analysis section above. RECOMMENDATION Staff recommends passage of the ordinance as proposed. Respectfully Submitted, Approved: •1, 4:t( '�r� Ly . Lorenson ark A. Rohloff City Attorney City Manager