(A) Whenever the Mayor determines or has reasonable cause to believe that an applicant or an agent of such applicant has violated the terms and requirements of such permit or the provisions of §§ 6-5-2-1 et seq. or other applicable law or regulation or rule, he shall notify the applicant of such violation, whereupon the applicant shall immediately cease such acts, errors, or omissions which are in violation of permit, ordinance or other regulations, rules or laws. Failure of the Mayor to provide notice to the applicant shall not in any way relieve the applicant from any consequences resulting from the failure to comply with §§ 6-5-2-1 et seq., the permit and all applicable regulations, rules and laws.
(B) Citation to Metropolitan Court. The Mayor may cite the applicant operating pursuant to any permit for any violation of any provision of §§ 6-5-2-1 et seq. A violation of any terms or conditions of any permit shall be deemed and shall constitute a violation of §§ 6-5-2-1 et seq. Such citations may also be issued to those excavating or barricading within the public right-of-way without a valid permit issued pursuant to §§ 6-5-2-1 et seq. Excavating or barricading within the public right-of- way after the expiration date of any such permit shall be deemed a violation of §§ 6-5-2-1 et seq.
(C) Injunctive and other relief. As an additional means of enforcement, the City Attorney's Department, in the name of the city, may file in the State District Court of Bernalillo County or such other courts as may have jurisdiction, a suit seeking the issuance of an injunction, and/or damages, or other appropriate relief to enforce the provisions of §§6-5-2-1 et seq. or other applicable regulation, rule or law. Suit may be brought to recover any and all damages suffered by the city as a result of any action or inaction of any applicant who causes or suffers damage to occur to the public right- of-way or for any other expense, loss or damage of any kind or nature suffered by the city, including, but not limited to cost of such suit and attorney's fees of the City Attorney's Department incurred in pursuing such action. In addition to the award of damages, injunctive relief and other appropriate relief, the City Attorney's Office may petition the District Court or such other courts as may have jurisdiction to find the violator guilty of a misdemeanor and subject to the penalty provisions set forth in § 1-1-99.
(D) Immediate termination of violations and emergencies. Applicants notified of their violation of §§ 6-5-2-1 et seq., pursuant to § 6-5-2-3(A), shall cease all such violations no later than the same day the notice is given, provided, however, that in the event said violation or violations present an eminent and substantial endangerment to the health, safety or welfare of persons or property, the Mayor shall give the applicant notice of the violation and that eminent and substantial endangerment exists. In such event, the applicant shall cease at the time the notice is given all acts, errors, or omissions resulting in such violation. The Mayor shall issue a citation or take action pursuant to division (C) above in the event that the applicant fails to cease those errors, acts or omissions resulting in such violation.
(E) Any applicant who violates any provision of this ordinance shall be subject to suspension of the privilege of acquiring excavation permits pursuant to this article as follows:
2 violations: up to 7 day suspension
3 violations: up to 60 day suspension
4 violations: up to 365 day suspension
The suspensions shall be consecutive for violations separated by less than three calendar years. Any such suspension shall be held in abeyance pending the outcome of an appeal.
(F) In addition to the suspensions listed in § 6-5-2-28(E), the applicant will be assessed a $500 fee for failure to:
(1) Work in public right-of-way without an approved permit;
(2) Work outside the requirements of an approved permit;
(a) Work before the permit begins;
(b) Work after a permit expires;
(c) Work without prior notification to city, or approval by city, for permit extension;
(d) Performing work outside the limits of the approved barricade set-up (lane closures) without prior approval by the city;
(e) Work at a location other than within the limits of an approved permit;
(3) Obey a direct order from a city official regarding a safety issue or a permit restriction;
(4) Reimburse city for expenses incurred in completing prior work by applicant, whether permit was lawfully obtained or not. Such fee is in addition to the required costs of reimbursement.
(5) Reimburse city for expenses incurred in repairing damages caused by applicant. Such fee is in addition to the required costs of reimbursement.
(G) All penalty fees shall be paid in full prior to applicant being issued any subsequent permits.
(Ord. 13-2005)