(A) Mandatory denial of permit. Except in the case of an emergency, as determined by the Service Director or his or her designee, no permit will be granted:
(1) To any person who has not yet made an application or who is occupying any right-of-way without a valid certificate of registration;
(2) To any person who has outstanding debt owed to the city unless payment in full has been placed in an escrow account approved by the city’s Director of Finance and the Law Director;
(3) To any person as to whom there exists grounds for the revocation of a permit; or
(4) If, in the discretion of the Service Director, the issuance of a permit for the particular date and/or time would cause a conflict or interfere with an exhibition, celebration, festival or any other event. The Service Director, in exercising this discretion, shall be guided by the safety and convenience of ordinary travel of the public over the rights-of-way, and by considerations relating to the public health, safety and welfare and/or the city’s investment in the right-of-way.
(B) Permissive denial of permit. The Service Director may deny a permit in order to protect the public health, safety and welfare, and/or protect the city’s investment in the right-of-way to prevent interference with the safety and convenience of ordinary travel over the rights-of-way, or when necessary to protect the rights-of- way and its users.
(1) The Service Director, in his or her discretion, may consider one or more of the following factors:
(a) The extent to which rights-of-way space where the permit is sought is available;
(b) The competing demands for the particular space in the rights-of-way;
(c) The availability of other locations in the rights-of-way or in other rights-of-way for the proposed facilities;
(d) The applicability of this chapter or other regulations of the rights-of-way that affect location of facilities in the rights-of-way;
(e) The degree of compliance of the provider with the terms and conditions of its certificate of registration, this chapter and other applicable ordinances and regulations;
(f) The degree of disruption to surrounding communities and businesses that will result from the use of that part of the rights-of-way;
(g) The condition and age of the rights-of-way, and whether and when it is scheduled for total or partial re-construction;
(h) The balancing of the costs of disruption to the public and damage to the rights-of-way, against the benefits to that part of the public served by the expansion into additional parts of the rights-of-way; and/or
(i) Whether such applicant or its agent has failed within the past three years to comply, or is presently not in full compliance with, the requirements of this chapter or, if applicable, any other law.
(2) Under no circumstances will open cutting take place on any street, except where:
(a) An emergency situation constitutes that an open cut is necessary;
(b) Vital services to resident(s) or business(es) are needed or have been cut off and there is no reasonable alternative (such as jacking or boring) in supplying or restoring such services; and/or
(c) The Service Director determines it is in the best interests of the city that such an open cut take place.
(C) Discretionary issuance of permit.
(1) Notwithstanding the provisions of divisions (A)(1) and (A)(2) above, the Service Director may issue a permit in any case in which the permit is necessary:
(a) To prevent substantial economic hardship to a customer of the permit applicant, if established by credible evidence satisfactory to the city;
(b) To allow such customer to improve its service; or
(c) To allow a new economic development project to be granted a permit under this section.
(2) To be granted a permit under this section, the permit applicant must not have had knowledge of the hardship, the plans for improvement of service or the development project when it was required to submit its list of next year projects.
(D) Work done without a permit in emergency situations.
(1) Each provider shall, as soon as is practicable, immediately notify the Service Director of any event regarding its facilities which it considers to be an emergency. The provider may proceed to take whatever actions are necessary in order to respond to the emergency. Within five business days, unless otherwise extended by the Service Director, after the occurrence or discovery of the emergency (whichever is later), the provider shall apply for the necessary permits, pay the fees associated therewith or have those fees attributed to its quarterly invoice balance in accordance with § 1074.17(D) of this chapter and fulfill the rest of the requirements necessary to bring itself into compliance with this chapter for any and all actions taken in response to the emergency. In the event that the city becomes aware of an emergency regarding a provider’s facilities, the city may use best efforts to contact the provider or the system representative of each provider affected, or potentially affected, by the emergency. In any event, the city may take whatever action it deems necessary in order to respond to the emergency, the cost of which shall be borne by the provider whose facilities caused the emergency.
(2) Except in the case of an emergency, any provider who constructs in, on, above, within, over, below or through a rights-of-way without a valid permit must subsequently obtain a permit, pay double the calculated fee for said permit, pay double all the other fees required by the code, deposit with the city the fees necessary to correct any damage to the rights-of-way and comply with all of the requirements of this chapter.
(E) Revocation of permits.
(1) Permittees hold permits issued pursuant to this chapter as a privilege and not as a right. The city reserves its right, as provided herein, to revoke any permit, without refunding any fees, in the event of a failure of the permittee to comply with the terms and conditions of any law, ordinance, rule or regulation, design guidelines or any provision or condition of the permit, including, but not limited to, the following:
(a) The violation of any provision or condition of the permit;
(b) An evasion or attempt to evade any provision or condition of the permit or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens;
(c) Any misrepresentation of fact in the application for a permit;
(d) The failure to maintain the required construction or removal bonds and/or insurance;
(e) The failure to obtain and/or maintain, when required, a certificate of registration;
(f) The failure to complete the construction in a timely manner; or
(g) The failure to correct a condition of an order issued.
(2) If the Service Director determines that the permittee has not complied with a term or condition of any law, ordinance, rule or regulation, or any condition of the permit, the Service Director shall serve a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. The Service Director may also, in his or her discretion, place additional or revised conditions on the permit.
(3) By the close of the next business day following receipt of notification of the violation, the permittee shall contact the Service Director with a plan, acceptable to the Service Director, for its correction. The permittee’s failure to submit an acceptable plan, or the permittee’s failure to reasonably implement the approved plan, shall be cause for immediate revocation of the permit.
(4) If a permittee commits a second substantial default as outlined above, permittee’s permit will automatically be revoked and the permittee will not be allowed further permits for up to and including one full year from the date that the permit was revoked, except for emergency repairs.
(5) If a permit is revoked, the permittee shall also reimburse the city for the city’s reasonable costs, including restoration costs and the costs of collection and reasonable attorneys’ fees incurred in connection with such revocation.
(Prior Code, § 1074.20) (Ord. 76-2018, passed 9-24-2018)