(a) Purpose. The purpose of this Section 723.5 is to establish a Pilot Permit program to regulate and temporarily authorize the physical operation, testing, and/or placement of certain Emerging Technologies Devices upon, above, or below City sidewalks, public right-of-ways, and property within the jurisdiction of Public Works. This Section 723.5 shall not govern the operation of Emerging Technology Devices on the portions of City streets and highways or public property subject to the sole jurisdiction of one or more Special Jurisdiction Agencies, unless such agencies authorize the application of this Section to said portions of streets, highways, or public property.
(b) Definitions.
“City Department Partners” has the same meaning as in Administrative Code Section 22G.2.
“Director” means the Public Works Director or the Public Works Director’s designee.
“Emerging Technology” is equivalent to the definition set forth in the OET Ordinance.
“Emerging Technology Device” means the physical device or enclosure that constitutes, implements, or utilizes an Emerging Technology, or the physical device or enclosure that is required for the Emerging Technology to operate or function.
“Notice of Application” means a written notice on a form provided or approved by Public Works that indicates an application for a Pilot Permit is being considered for approval by Public Works.
“Notice to Proceed” has the same meaning as in Administrative Code Section 22G.2.
“OET” has the same meaning as in Administrative Code Section 22G.2.
“OET Director” has the same meaning as in Administrative Code Section 22G.2.
“OET Ordinance” means Administrative Code Chapter 22G (Office of Emerging Technology), as may be amended from time to time.
“Pilot Permit” means a permit issued by the Director to perform a PW Pilot Project under this Section 723.5. A Pilot Permit is separate and distinct from a Notice to Proceed.
“Pilot Project” 1
“Pilot Term” means the term of days for which a PW Pilot Project is authorized by the Director under this Section 723.5.
“Public Works” means the Department of Public Works.
“PW Pilot Project” means the portion of the Pilot Project, as defined in the OET Ordinance, that takes place on public right-of-ways or real property within the jurisdiction of Public Works.
“Regulations” means orders, requirements, processes, or procedures that the Director may adopt as the Director deems necessary to maintain and further the public peace, safety, health, convenience, and welfare.
“Special Jurisdiction Agencies” has the same meaning as in Administrative Code Section 22G.2.
“Testing” means the operation and evaluation of an Emerging Technology or Emerging Technology Device for research and development for anticipated commercial uses and for the City’s evaluation of whether the operation of the Emerging Technology Device would warrant the creation of a permit program that would allow the Emerging Technology Device to operate beyond the Pilot Term in light of the effects of the Emerging Technology on public health, safety, welfare, and convenience.
(c) Permit Required. It shall be unlawful for any person, including but not limited to natural persons and businesses, to operate an Emerging Technology Device upon, above, or below any public right-of-way (as defined in Article 2.4 of the Public Works Code) or public property within Public Works’ jurisdiction without a Pilot Permit, unless otherwise authorized by federal or state law. Operation of an Emerging Technology Device upon, above, or below any public right-of-way or public property without all required permits shall be deemed a public nuisance. To be eligible to apply for a Pilot Permit under this Section 723.5
, the applicant must first obtain Approval, as defined in Administrative Code Section 22G.2, to perform a Pilot Project and pay all applicable fees.
(d) Public Works Director’s Administration of Permit. The Director shall administer all Pilot Permits in consultation with all applicable City Department Partners and pursuant to the requirements, rules, and regulations set forth in this Section 723.5
or other Regulations.
(e) Restrictions on Duration of Pilot Permits. The Director shall be authorized to determine the term of any Pilot Permit issued under this Section 723.5
provided that the duration shall not exceed 12 months and shall be subject to the Director’s authority to grant one extension of an additional 12 months. When a permittee requests an extension, the permittee shall provide Public Works with a report that provides all data collected during prior Testing and describes any public safety-related incidents that have occurred including all emergency calls for service.
(f) Application Process. Public Works shall receive and process each complete Pilot Permit application, and the content of applications shall comply with the Director’s Regulations. All applications shall be on forms prescribed therefor and shall contain or be accompanied by all information required to assure the presentation of pertinent facts for proper consideration of the application. At a minimum, the applicant shall provide the following information as part of the application submittal:
(1) Business entity name, name of natural person submitting application, office address, telephone number, and email address;
(2) Copy of business license;
(3) Tax identification number;
(4) Description, physical dimensions, and technical specifications of the Emerging Technology Device;
(5) Description and purpose of Testing;
(6) Proposed dates and times of Testing;
(7) Proposed paths of travel and identification of any portion of the paths of travel that are within or adjacent to the “High Injury Network” as designated by the City’s Vision Zero SF road safety initiative;
(8) Operations manuals and instructions for operation of the Emerging Technology Device, including manner of causing it to come to a full and complete stop;
(9) Privacy policy that addresses the manner in which applicant will use, store, and safeguard photographic, video, and other data obtained through the Testing; and
(10) Proposed public notice plan.
Public Works shall refer an application to any other appropriate City department for its review and consultation. After reviewing the Pilot Permit application and determining that the application is complete, Public Works shall inform the applicant that the applicant is authorized to proceed to post Notices of Application.
(g) Public Notice and Opportunity to Comment. Upon receiving authorization to proceed to post Notices of Application, the applicant shall post Notices of Application for a period of 20 calendar days at the Testing site(s) according to a public notice plan approved by Public Works, and the applicant shall also provide any Notice of Application to Stakeholders as defined in Administrative Code Section 22G.2 and other interested persons, as may be prescribed by the Director’s Regulations. The applicant shall submit to Public Works photographic evidence that the Notices of Application were posted in accordance with this subsection (g). The applicant shall remove all Notices of Application the day after the expiration of the 20-day notice period. Public Works shall accept public comments on the Notice of Application for 20 calendar days from the first day the Notice of Application was posted. Public Works shall also list pending applications and all approved Pilot Permits on the Public Works website.
(h) Public Hearings.
(1) Public Works Hearing. Upon receiving a request for a hearing from a member of the public during the notification period, the Director shall review the merit of the request and the Director shall schedule and hold a public hearing, at the Director’s sole discretion, regarding each application for a Pilot Permit. Unless otherwise stated in this Section 723.5
, the Notice of Public Hearing posting shall comply with Article 5.6 of the Public Works Code. The Public Works Director shall also notify the Board of Supervisors of any public hearing held under this subsection (h)(1), and of the Director’s written determination after such hearing.
(2) Appeal to Board of Appeals. The Director’s approval or denial of a Pilot Permit application, or the Director’s modification, suspension, or revocation of a Pilot Permit, may be appealed by filing a notice of appeal with the Board of Appeals.
(i) Conditions of Approval and Data Sharing.
(1) Conditions of Approval. The Director, in consultation with other City departments, as applicable, shall impose any conditions of approval that the Director deems necessary or appropriate to protect the public peace, safety, health, and welfare of pedestrians and other users of the sidewalks, public right-of-ways, and public property (“Conditions of Approval”). The Director shall have the authority to add Conditions of Approval to modify, or suspend the Pilot Permit to address public peace, safety, health, and welfare issues arising from the Testing, including but not limited to conditions intended to promote safe operations within the High Injury Network. Upon the Director’s determination that the permittee has failed to comply with the Conditions of Approval, the Director shall provide the permittee with written notification of the time and date of a public hearing to consider the grounds for revoking, modifying, or suspending the Pilot Permit. Following the public hearing, the Director shall issue an order revoking or modifying the Pilot Permit for good cause. If the failure to comply with the Conditions of Approval poses an imminent threat to public safety, health, or welfare, the Director shall immediately suspend the permit pending a final decision to revoke or modify the Pilot Permit. The Director’s modification, revocation, or suspension of the Pilot Permit may be appealed to the Board of Appeals under subsection (h)(2).
(2) Data Sharing. Each Pilot Permit permittee shall disclose the following information to Public Works and OET on a monthly basis in an aggregated form that preserves the privacy and the confidentiality of the identity of end users that are not employees, contractors, or subcontractors of the Pilot Permit permittee:
(A) all data collected during the Testing of an Emerging Technology Device, including any Global Positioning System (“GPS”) or photographic data;
(B) information regarding the San Francisco businesses that are incorporating the Testing of Emerging Technology Devices into their operations; and
(C) incidents arising from the Testing of each Emerging Technology Device, including but not limited to, violations of the operational requirements set forth in subsection (j), incidents impacting public safety, public complaints or emergency calls regarding such Testing, any malfunctions or public tampering with a permitted device, or any collisions with street furniture, vehicles, or persons in the public right-of-way.
(j) Operational Requirements. The Testing of Emerging Technology Devices shall comply with the following requirements, if applicable, and any additional requirements adopted by the Public Works Director as needed to protect the public health, safety, and welfare. To evaluate whether a permittee has complied with these requirements, Public Works shall seek the review and consultation of any other appropriate City department.
(1) Speed limit. Emerging Technology Devices shall not travel more than three miles per hour while on an open public right-of-way.
(2) Minimum Accessibility Requirements on Public Right-of-Ways. Emerging Technology Devices shall avoid obstructing the path of travel and shall avoid interfering with the following minimum right-of-way clearance requirements: (A) a six-foot clear path of travel in commercial corridors and four-foot clear path of travel in residential corridors; and (B) a minimum two-foot clearance is required along the curbside when operating adjacent to existing on-street parking. In addition, Emerging Technology Devices shall not block or obstruct an accessible route including, but not limited to, the pedestrian throughway zone (as defined in the San Francisco Better Streets Plan), and building facility entrances, public and private transit stops, passenger loading zones, and accessible on-street parking spaces. Emerging Technology Devices shall move out of an accessible route when a pedestrian is present and shall allow the unencumbered passage of pedestrians within the public right-of-way. Emerging Technology Devices shall not in any way impede or interfere with use of driveways or curb ramps, or access to or egress from buildings, driveways, fire escapes, Fire Department Connections (“FDC”), fire hydrants, street furniture, maintenance holes, public utility valves, or other at-grade access points in the street or sidewalk.
(3) Permissible Testing Areas. Permittees shall only be allowed to Test Emerging Technology Devices only on sidewalks or public right-of-ways not used by vehicles that can simultaneously accommodate the Testing of Emerging Technology Devices and paths of travel for persons with disabilities or have an effective sidewalk width of six feet and meet the minimum access requirements on the public-right-of way.
(4) Traffic Signals. Emerging Technology Devices shall obey all signs and signals governing vehicular and pedestrian traffic.
(5) Hazardous Materials. Emerging Technology Devices may not transport or carry waste or hazardous materials (including flammables or ammunition).
(6) Unique Identifier. Each permittee shall place a unique identifier on each Emerging Technology Device that also includes the permittee’s contact information.
(7) Insurance Requirements. Each permittee shall obtain and have readily accessible proof of sufficient general liability, automotive liability, and workers’ compensation insurance.
(8) Indemnification of City. Each permittee shall agree to indemnify, defend, protect, and hold harmless the City from and against any and all claims of any kind allegedly arising directly or indirectly out of permittee’s Testing of Emerging Technology Devices on City sidewalks and public right-of-ways.
(9) Storage or Parking. When any Emerging Technology Devices is not in use for Testing, each permittee shall store or park such Emerging Technology Devices on private property unless otherwise authorized by the Director for good cause.
(10) Site Visits. Each permittee shall allow Public Works and any other appropriate City department to attend and observe one or more Testing sessions during the Pilot Term.
(k) Public Works’ Report Regarding Pilot Permits. Prior to the expiration of the Pilot Term, Public Works shall provide a “Pilot Permit Performance Report” to the OET Director evaluating the performance of the PW Pilot Project, summarizing the data provided by permittees, and offering findings and recommendations regarding whether, based on the PW Pilot Project, the Emerging Technology Device may be operated safely and feasibly on City sidewalks or public right-of-ways beyond the Pilot Term.
(l) Fines and Penalties.
(1) Criminal Penalty. Any permittee that violates any of the provisions of this Section 723.5
shall be guilty of an infraction. Every violation determined to be an infraction is punishable by (A) a fine not exceeding $100 for the first violation within one year; (B) a fine not exceeding $200 for a second violation within one year from the date of the first violation; (C) a fine not exceeding $500 for the third and each additional violation within one year from the date of the first violation. No criminal penalty pursuant to this Section 723.5
may be imposed on the employee or staff of any company, corporation, or other business entity that is operating an Emerging Technology Device in violation of this Section 723.5
. A permittee that has been fined for a second or subsequent infraction herein may be authorized to submit a written request for a hardship waiver seeking to reduce the amount of the second or subsequent fine on the grounds that the permittee made a bona fide effort to comply after the first violation and that payment of the full amount of the fine would impose an undue financial burden on the permittee.
(2) Civil Penalty.
(A) The Public Works Director may request the City Attorney to maintain an action for injunction to restrain or summary abatement to cause the correction or abatement of a violation of this Section 723.5 and for assessment and recovery of a civil penalty and reasonable attorney’s fees for such violation.
(B) Any person who violates this Section 723.5 may be liable for a civil penalty, not to exceed $500 for each day such violation is committed or permitted to continue, which penalty shall be assessed and recovered in a civil action brought in the name of the people of the City by the City Attorney in any court of competent jurisdiction. In assessing the amount of the civil penalty, the court may consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth. The City Attorney may seek recovery of attorney’s fees and costs incurred in bringing a civil action pursuant to this subsection (l)(2).
(3) Administrative Fine. In addition to the criminal and civil penalties authorized by subsections (l)(1) and (l)(2), Public Works employees designated in Section 38 of the Police Code may issue administrative citations for such violations. The administrative penalty or fine shall not exceed $1,000 per day for each violation. Administrative penalties shall be assessed, enforced, and collected in accordance with Section 39-1 of the Police Code and administrative fines shall be assessed, enforced, and collected in accordance with Administrative Code Chapter 100, which is incorporated by reference herein.
(Amended by Ord. 291-19, File No. 191033, App. 12/19/2019, Eff. 1/19/2020)
CODIFICATION NOTE