§ 25-310. Permit obligations.

(a)

Denial of permit application.

(1)

Mandatory denial. Except in the case of an emergency, no construction permit application will be approved:

a.

To any person who is presently not in full compliance with, the requirements of this article or, if applicable, any other requirement of the Code or State law;

b.

To any person who has an outstanding debt owed to the City which is delinquent 60 or more days;

c.

To any person as to whom there exists grounds for the revocation of a construction permit;

d.

For a date or time and location if issuance of a construction permit for the particular date or time and location would conflict or interfere with an exhibition, celebration, festival, or any other event, at such location, and the conflict or interference would materially impair the safety and convenience of ordinary travel of the public over the right-of-way; or

e.

For any cutting or other disturbance of the paved or unpaved portion of any right-of-way if the work will commence, or if commenced will not be completed and the surface restored, 45 days or less prior to any special event which will use the right-of-way, where the right-of-way has been paved or otherwise improved to a standard required for the special event.

(2)

Discretionary denial. In circumstances which are not grounds for mandatory denial of an application as described in subsection (1) of this section, the POD may nevertheless deny an application for a construction permit when denial is deemed reasonably necessary to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the rights-of-way, or to protect the rights-of-way and its users. The POD shall consider each of the following factors in deciding whether to deny an application for a construction permit:

a.

The extent to which space in the right-of-way where the construction permit is sought is available;

b.

The competing demands for the particular space in the right-of-way;

c.

The availability of other locations in the rights-of-way elsewhere in the City for the facilities of the applicant, considering the technical and economical feasibility of such other locations;

d.

The applicability of the requirements of this article or other regulations that affect location of facilities in the right-of-way;

e.

The degree of compliance of the provider with the terms and conditions of its previously issued construction permit;

f.

The degree of disruption to surrounding communities and businesses that are likely to result from the use of the right-of-way;

g.

The condition and age of improvements to the right-of-way, and whether and when the improvements are scheduled for total or partial re-construction; and

h.

Any other applicable ordinances and regulations.

(3)

Appeals. Denials of construction permit applications may be appealed to the City Council.

(b)

Issuance of permits. The POD may issue a construction permit to a provider for work which conforms with the requirements of this article.

(c)

Work done without a permit.

(1)

Emergency situations. Each provider shall immediately notify the POD of any event regarding its facilities which constitutes an emergency. The provider may proceed to take whatever actions are reasonably necessary in order to respond to the emergency. Within five business days after notice tot eh POD of the emergency, the provider shall apply for and obtain the necessary permits, and fulfill the rest of the requirements necessary to bring itself into compliance with the requirements of this article for the actions it took in response to the emergency. If the POD becomes aware of an emergency regarding a provider's facilities, the POD may attempt to contact the system representative of each provider affected, or potentially affected, by the emergency. In any event, the POD may take whatever action the POD deems reasonably necessary under the circumstances in order to respond to the emergency, the cost of which shall be borne by the provider whose facilities occasioned the emergency. The provisions of this subsection constitute an authorization, not a duty, and a failure by the POD to contact the system representative or to take action that may be reasonably necessary under the circumstances shall not give rise to liability on the part of the POD or the City for damages to a provider's facilities caused by an emergency.

(2)

Nonemergency situations. Except in the case of an emergency, any provider who constructs in, on, above, within, below or under a right-of-way without a permit shall subsequently submit a complete and acceptable application for a permit within five days of receipt of notice of noncompliance with the permit requirements of this article for such construction. A provider who fails to submit a complete and acceptable application for a permit within such time shall be subject to the general penalty provisions of section 1-7, beginning on the sixth day following receipt of such notice, until such application is filed and a permit is issued for such construction. In addition, the provider shall deposit with the City an amount of money equal to the estimated costs necessary to correct any damage to the rights-of-way, and shall otherwise comply with all applicable requirements of this article.

(d)

Revocation of permits.

(1)

Right versus privilege. A provider holds a construction permit issued pursuant to this article as a privilege and not as a right. The City reserves its right, as provided herein, to revoke any construction permit in the event of a substantial breach of the terms and conditions of this article, any provision of the Code, any law, or any condition of the construction permit.

(2)

Substantial breach. A substantial breach by a provider shall include, but shall not be limited to, the following:

a.

The violation of any material provision of the construction permit;

b.

An evasion or attempt to evade any material provision of the construction permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;

c.

Any material misrepresentation of fact in the application for a construction permit;

d.

The failure to maintain the required construction or removal bonds and/or insurance;

e.

The failure to complete the construction in a timely manner; or

f.

The failure to correct a condition affecting the health and safety of the general public.

(3)

Remedies. If the POD determines that the provider has committed a substantial breach of a term or condition of any law or any condition of the construction permit, the POD shall make a written demand upon the provider to remedy such breach. The demand shall state that continued violations may be cause for revocation of the construction permit and the application of other penalties. A substantial breach shall authorize the POD, at his discretion, to place additional or revised conditions on the permit.

(4)

Remedy plan requirements. Before the close of the fifth business day following the date of receipt of notification of the substantial breach, the provider shall provide the POD with a plan, acceptable to the POD, for correction of the breach. The provider's failure to provide an acceptable plan to the POD, or the provider's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the construction permit, the application of penalties set forth in section 25-316, and to place the provider on probation for one year.

(5)

Construction permit conditions. The POD may establish a list of conditions as part of the construction permit. The conditions may include, but shall not be limited to, a specified time period for working in a specified portion of the right-of-way. Upon request, the provider may be allowed to work during another time period or in another portion of the right-of-way if prior approval is obtained from the POD. A breach of any condition will be grounds to place the provider on probation or to revoke the permit, and may subject the permittee to the penalties as defined in section 25-316.

(6)

Violation while on probation. If a provider, while on probation, commits a breach as outlined in this section, such breach shall be grounds for revocation of the provider's permit and, if revoked, the provider shall not be allowed further permits for one year, except for emergency repairs.

(7)

Costs. If a permit is revoked, the provider shall also reimburse the City for the City's reasonable costs, including reasonable restoration costs, if any, the costs of collection, and reasonable attorneys' fees incurred in connection with such revocation.

(e)

Business tax requirement. All providers, contractors, and subcontractors shall produce evidence of having obtained all required business tax receipts before a construction permit will be issued. Providers performing work in the rights-of-way using unlicensed contractors or subcontractors shall be subject to having their work stopped and shall be subject to the penalties of section 25-316, and the construction permits may, at the POD's option, be revoked. Cable and video service providers are subject to the City's business tax to the extent permitted by F.S. § 202.24(2)(c)3. Contractors and subcontractors performing work for a cable or video service provider are also subject to the City's business tax.

(f)

Exemptions from fees. Communications service providers paying the communications service tax pursuant to State law are not required to pay construction permit fees that otherwise would apply.

(Code 1992, § 25-414; Ord. No. 507-G, § 1, 11-29-2001; Ord. No. 1001-G, § 15, 11-4-2010)