(A) Authority.
(1) The Director is authorized to administer and enforce the provisions of this chapter, and to promulgate regulations including, but not limited to, engineering, technical, and other special criteria and standards.
(2) The Director is authorized to enter a construction site for which a permit is granted under this chapter for purposes of inspection to determine compliance with the permit and this chapter.
(3) The Director is authorized to request from the public service provider plans of record that show all of its facilities existing in the public right-of-way that may impact existing or proposed city facilities, including infrastructure, or another service provider's existing or proposed facilities. The public service provider shall provide to the Director plans of record within 90 days of the request, or in accordance with an alternate schedule as agreed to by both parties, to the extent such records are available. Public release of such records shall be in accordance with the Public Information Act, Tex. Government Code, Chapter 552.
(4) If the release of the location of any utility, including water and sewer, or of plans of record submitted under this section would jeopardize public safety, the information shall be considered confidential. In addition, if plans of record submitted under this section include information expressly designated by the public service provider as a trade secret or other confidential information protected from disclosure by state law, the Director may not disclose that information to the public without the consent of the public service provider, unless otherwise compelled by an opinion of the attorney general pursuant to the Texas Public Information Act, as amended, or by a court having jurisdiction of the matter pursuant to applicable law. This section may not be construed to authorize a public service provider to designate all matters in its plans of record as confidential or as trade secrets.
(B) Enforcement and offenses.
(1) A person commits an offense if the person:
(a) Performs, authorizes, directs, or supervises construction without a valid permit issued under this chapter;
(b) Fails to comply with restrictions or requirements of a permit issued under this chapter;
(c) Fails to comply with a lawful order or regulation of the Director issued pursuant to this chapter; or
(d) Violates any other provision of this chapter.
(2) A person commits an offense if, in connection with the performance of construction in the public right-of-way, the person:
(a) Damages the public right-of-way beyond what is incidental or necessary to the performance of the construction;
(b) Damages public or private facilities within the public right-of-way;
(c) Fails to clear debris associated with the construction in a timely manner from a public right-of-way after construction is completed;
(d) Fails to immediately clear debris which results from construction and which creates a safety hazard in a public right-of-way; or
(e) Fails to stabilize any disturbed area from erosion within 14 days after construction is completed, unless an alternative time frame is approved by the Director.
(3) It is a defense to prosecution for a violation of this chapter that the person or public service provider has a franchise, license, interlocal or other agreement with the city which provides the provisions of this chapter shall not apply to the public service provider.
(4) A culpable mental state is not required to prove an offense under this chapter. A person who violates any provision of this chapter is guilty of a separate offense for each day or portion of a day during which the violation is committed, continued, authorized or directed. An offense under division (B)(2)(c) or (d) above is punishable by a fine of not less than $500 or more than $2,000. Any other offense under this chapter is punishable by a fine of $500.
(5) This chapter may be enforced by a civil court action in accordance with state or federal law, in addition to any other remedies, civil or criminal, the city has for a violation of this chapter.
(6) Prior to initiation of civil enforcement litigation, the permittee, or any other person who has violated a provision of this chapter, shall be given the opportunity to correct the violation within a time frame specified by the Director. This division does not prohibit the Director or the city from taking enforcement action as to past or present violations of this chapter, notwithstanding their correction.
(7) If a permittee is a contractor of the public service provider and has been convicted of an offense under this chapter, no additional permits will be granted to the contractor until the offense has been corrected and any direct or indirect costs incurred by the city have been reimbursed. No additional permits shall be granted to the contractor for a period of one year from the date of the conviction.
(8) If a public service provider utilizes its own employees to perform permitted work, and the provider's employee is convicted of an offense under this chapter, no additional permits shall be issued to the service provider until the offense has been corrected and any costs incurred by the city have been reimbursed. This provision shall not prohibit a public service provider from performing work in an emergency situation.
(9) In the event the person or public service provider believes it should not be held responsible for costs assessed pursuant to divisions (7) or (8) above, the person or provider may file a request for a refund within 60 days of payment of the costs. The request shall be submitted to the Director and shall include documentation and evidence to support the request for a refund. The Director shall conduct a hearing at which the applicant may present evidence. The Director shall render a decision as to whether the refund should be granted, based upon the preponderance of evidence presented. The public service provider shall have the right to appeal the decision of the Development Services Director to District Court within 60 days of the decision of the Development Services Director.
(Ord. 06-2006-46, passed 6-13-06; Am. Ord. 11-2007-61, passed 11-13-07)