OFFICE OF THE MAYOR
CITY OF CHICAGO
LORI E. LIGHTFOOT
MAYOR
July 21, 2021
TO THE HONORABLE, THE CITY COUNCIL OF THE CITY OF CHICAGO
Ladies and Gentlemen:
At the request ofthe Commissioner of Transportation, 1 transmit herewith an ordinance amending Chapter 10-21 ofthe Municipal Code regarding underground facilities damage prevention.
Your favorable consideration of this ordinance will be appreciated.
Very truly yours,
ORDINANCE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:
SECTION 1. Chapter 10-21 ofthe Municipal Code of Chicago is hereby amended by adding the language underscored, and by deleting the language struck through, as follows:
10-21-020 Definitions.
As used in this chapter:
"48 hours" means two business days, beginning at 8:00 a.m. and ending at 4:00 p.m., exclusive of Saturdays, Sundays, and the following holidays, as recognized by DIGGER 811 Chicago: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, the day after Thanksgiving, and Christmas. Any locate request received after 4:00 p.m. on a business day will be processed as though it were received at 8:00 a.m. the next business day.
"811 Chicago" means the 24-hour service network system established by the City of Chicago that provides a free, one-call service to persons engaged in excavation and demolition, and notifies persons who own and operate underground facilities of impending excavations and demolitions within the City's corporate limits.
(Omitted text is unaffected by this ordinance)
"Commissioner" means the Commissioner of CDOT or the Commissioner's designee.
(Omitted text is unaffected by this ordinance)
"DIGGER" moans tho 24 hour service network systom established by tho City of Chicago that provides a froo, one call sorviGO to persons ongagod in excavation and demolition, and notifios persons who own and oporato underground facilities of impending excavations and demolitions within the City's corporate limits.
(Omitted text is unaffected by this ordinance)
"Excavation" means any operation in which earth, rock, or other material located in or on the ground is moved, removed, or otherwise displaced by means of any tools, power equipment or explosives. Excavation includes, but is not limited to, grading, trenching, digging, ditching, drilling, augering, boring, tunneling, scraping, cable or pipe plowing, saw cutting, and driving. Excavation does not include digging with hand tools to a depth below the surface of up to six inches; farm tillage operations; railroad right-of-way maintenance or operations; roadway surface milling; any coal mining operations regulated underthe Federal Surface Mining Control and Reclamation Act of 1977 or any state law or rules or regulations adopted under the federal statute; or land surveying operations as defined in the Illinois Professional Land Surveyor Act of 1989 when not using power equipment; to expose or identify underground facilities in furtherance of the completion of a locate request that does not involve the use of power equipment.
"Locate request" means a notice initiated by a person engaged in an excavation or demolition, and made through DIGGER 811 Chicago, asking the persons who own and operate underground facilities to mark their facilities at the planned excavation or demolition site.
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"Mismark" means a facility mark outside the maximum parameters of the approximate
location ofthe underground facility.
(Omitted text is unaffected by this ordinance)
10-21-040 Membership in DIGGER 811 Chicago.
Every person that owns or operates an underground facility located in the City of Chicago must become a member of DIGGER 811 Chicago by January 1, 2017. On or boforo that date, the The person shall register with DIGGER 811 Chicago on-line, providing such information as the Commissioner may require, which will include at least the person's name, and the name, title, address, telephone number, and email of the person's representative designated to receive the notice of intent to engage in excavation or demolition required by Section 10-21-050. Additional system requirements may be imposed by the Commissioner for proper interface with the DIGGER 811 Chicago system. The person shall also provide a map of tho underground facility in tho olectronic format required by CDOT rules.
If an underground facility becomes subject to this chapter on a date after January 1, 2017, or, if a person acquires an underground facility after January 1, 2017, the person who owns or operates that facility shall become a member of DIGGER 811 Chicago and provide the information required under subsection 10-21-040(a) within 30 days after that date.
A person owning or operating an underground facility subject to this chapter shall: report to DIGGER any changes in tho information required undor subsootion 10-21 040(a) within 30 days aftor the change.
provide a map of the underground facility in the electronic format required by CDOT. Any changes shall be reported to 811 Chicago within 30 days after the change; and,
after receiving a notice of an unmarked, mismarked, or an incompletely marked facility, review and update any and all facility maps to ensure that the maps are complete and accurate.
Property owners who own underground facilities solely by virtue of owning the property where the facilities are located are exempt from membership in DIGGER 811 Chicago.
10-21-045 Industry standards to be followed.
In addition to federal, state, and City reguirements, every person who engages in excavation or demolition shall adhere to rules issued by the Commissioner as well as to any practices adopted in those rules.
10-21-050 Excavation and demolition requirements.
(a) Every person who engages in non-emergency excavation or demolition shall:
Take reasonable steps to learn the location of any underground facilities in and near the area where the excavation or demolition will be conducted.
Plan the excavation or demolition in a manner designed to avoid or minimize interference with underground facilities by utilizing precautions including, but not limited to, hand or vacuum excavation methods, and visual inspection of the excavation while in progress until clear of the existing marked facility.
If needed, physically outline Outline the dig site.
Contact 811 Chicago to reguest a dig ticket Provide notice through DIGGER to the persons who own and operate the underground facilities in and near tho oxcavation or demolition area, not less than 48 hours, but no more than 14 calendar days, in
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advance of the start of the excavation or demolition. At a minimum, this notice request shall provide:
the name, address, and phone number ofthe person engaging in excavation or demolition, and, if available, that person's e-mail address;
the start date and time of the planned excavation or demolition;
a description of the dig site, including the address and any other descriptive features of the site at which the excavation or demolition will take place; and
the type and extent of the work involved.
Upon providing this notico After making the request, the person undertaking the excavation or demolition will receive from DIGGER 811 Chicago a valid dig ticket and dig number to be associated with any required permits. Each separate entity involved in an excavation or demolition shall acquire its own dig numbers; a dig number acquired by a primary contractor shall not cover work performed by a subcontractor. It shall be a violation of this subsection (a) for the person undertaking the excavation or demolition to reguest markings at the same location without having begun excavation or demolition within the 14-day period after initial marking as indicated in the original notice through 811 Chicago.
Limit the excavation or demolition to the specif ic locations, dates, and times contained in the valid dig ticket received from 811 Chicago provided to DIGGER, and not begin until after
a dig reguest has been submitted;
the submitter has received from 811 Chicago a dig number, a valid dig ticket, and the date(s) and times when the excavation may take place; and
the approximate location of underground facilities has been marked or within 48 hours of receipt of the items listed in subsection (a)(5)(B), or by the reguested date and time indicated on the notice, whichever is later.
If, after proper notification through 811 Chicago and arrival at the site of the proposed excavation or demolition, the person engaged in the excavation or demolition observes clear evidence of the presence of an unmarked, mismarked, or incompletely marked underground facility in the area of the proposed excavation or demolition, the person engaged in the excavation or demolition shall cease the excavation or demolition until either the underground facility has been marked or two hours after an additional call is made to 811 Chicago, whichever is sooner. A person who calls 811 Chicago under this subsection shall specify which underground facilities are marked, mismarked, or unmarked.
Exercise due care at all times to avoid damaging underground facilities.
and provide, during During and following the excavation or demolition, provide such support for existing underground facilities in and near the excavation or demolition area as necessary for the protection of such facilities, unless otherwise approved by the persons who own or operate the underground facilities.
(&)(9) Backfill all excavations in such manner and with such materials as specified by the CDOT rules for the protection of existing underground facilities in and near the excavation or demolition area.
f7-)(10) Between 20 and 26 days after a reguest for either a dig ticket or a dig ticket extension, reguest an extension when the excavation or demolition project will continue beyond the time limited by the dig ticket or its most recent extension Provide a follow-up notico through DIGGER to tho persons who own oroporato tho underground facilities in and near tho excavation or demolition area informing thorn that additional time to comploto tho excavation or demolition project is required if tho excavation or demolition project will extend past 28 calendar days from the dato of the original notice provided under subsection 10 21 050(a)(4), or, where applicable, upon expiration ofthe applicable public way permit, whichever is sooner. Extensions may only be reguested at locations where excavation or demolition work has begun and activity is ongoing. Upon providing this notico and extending any required permits, tho
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person engaged in tho excavation or demolition will rocoivo from DIGGER a new dig number allowing an additional 28 calendar days to complete tho project.
{&) Exorcise duo care at all timos to protect underground facilities. If, aftor
proper notification through DIGGER and arrival at tho site of the proposed excavation or demolition, the person engaged in the oxcavation or demolition observes clear evidence of the prosonoo of an unmarked or incompletely marked underground facility in the area ofthe proposed oxcavation or demolition, the person engaged in tho excavation or demolition shall cease tho excavation or demolition until either the underground facility has been marked or two hours after an additional call is made to DIGGER, whichever is sooner. Tho person who owns or operates the underground facility shall respond within two hours aftor tho person engaged in the oxcavation or demolition calls DIGGER.
(0) (1D Provide an additional notice through DIGGER 811 Chicago requesting re-
marking of the areas where excavation or demolition is to continue when confounding factors,
including, but not limited to, weather, construction activity, and vandalism at the excavation or
demolition site, cause underground facility markings to become faded or indistinguishable.
Persons who own or oporato affected underground facilities shall respond to a notico to ro mark
within tho time provided by and otherwise according to this section.
(b) Notice and response for emergency excavation or emergency demolition.
Every person who engages in emergency excavation or emergency demolition shall take all reasonable precautions to avoid or minimize interference between the work and existing underground facilities in and near the excavation or demolition area, and shall notify through DIGGER 811 Chicago, as far in advance as possible, the persons who own or operate such underground facilities. The emergency locate request required under this section shall include the information set out in subsection 10-21-050(a)(4). Upon After providing this notice, the person undertaking the excavation or demolition will receive from DIGGER 811 Chicago an emergency dig number.
Any person who owns or operates an underground facility in or near an emergency excavation or emergency demolition area shall either:
advise the person performing the excavation or demolition that the underground facility is not affected; or
mark the approximate location of the underground facility within 2 two hours or the time specified by DIGGER 811 Chicago, whichever is longer.
The advisement reguired under subsection 10-21-050(b)(2)(A) may be provided in person, by phone, phone message, or email. The person who owns or operates the underground facility shall be deemed to have discharged this notice obligation if the person attempts to provide notice by telephone, but is unable to do so because the person engaged in the emergency excavation or emergency demolition does not answer, and does not have an answering machine or answering service to receive the telephone call. Ifthe person who owns or operates the underground facility attempts to provide notice by telephone but receives a busy signal, that attempt shall not discharge this notice obligation.
The reinstallation of traffic control devices shall constitute an emergency for purposes of this section. Emergency excavation or emergency demolition shall not begin until afterthe approximate location of underground facilities has been marked or more than two hours have gone by since notifying 811 Chicago ofthe emergency. Ifthe conditions at the site dictate an earlier start than the reguired wait time, the person engaging in the excavation or demolition will have the burden of establishing that site conditions warranted the earlier start time.
An open cut underground facility locato shall constitute an omorgency for For purposes of this section, the following shall constitute an emergency:
(A) the reinstallation of traffic control devices and
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(B) an open cut underground facility locate, meaning that excavation needs to occur to find the facility.
In no event may an emergency excavation or emergency demolition project continue for more than five days. Ifthe person undertaking the project is aware from the outset that the project will take more than five days, he or she then the person shall proceed under subsection 10-21-050(a). If, for unforeseen reasons, a project proceeding under this subsection 10-21-050(b) is not completed within five days, the person engaged in the excavation or demolition must cease work and acquire a non-emergency dig number through the process provided in subsection 10-21-050(a), as well as all necessary permits. To avoid the requirement to cease work, the person engaged in the excavation or demolition may acquire a non-emergency dig number at any time before the expiration of the five-day emergency project period.
It shall be a violation of this section to make an emergency locate request in the absence of an emergency.
(c) Nothing in this section prohibits the use of any method of excavation if conducted in a manner that would avoid interference with underground facilities.
10-21-060 Facility marking requirements.
Once DIGGER 811 Chicago notifies an owner or operator of an underground facility of a planned excavation or demolition, the persons who own or operate underground facilities in or near the excavation or demolition area, or any underground location service retained for the task, shall retain a written or digital record ofthe notice, and shall mark, within 48 hours of receipt ofthe notice, or by the requested date and time indicated on the notice, whichever is later, the approximate location of such underground facility. A mismarked facility shall be a violation of this requirement.
Persons who own and operate underground sewer facilities, or underground location services retained by such persons, shall respond and mark the approximate location of those underground sewer facilities when the person engaged in the excavation or demolition indicates in the notice required in subsection 10-21-050(a)(4) or 10-21-050(b)(1) that the excavation or demolition project will exceed a depth of seven feet. Persons who own and operate underground sewer facilities shall be required at all times to mark the approximate location of those sewer facilities when directional boring is the indicated type of excavation work being performed within the notice, orthe excavation indicated will occur in the immediate proximity of known underground sewer facilities that are less than seven feet deep. A person who owns and operates underground sewer facilities shall not hold a person engaged in the excavation or demolition liable for damages that occur to sewer facilities that were not required to be marked under this section, provided that the person responsible for the excavation or demolition operations that damage the sewer facility makes prompt notice ofthe damage to DIGGER 811 Chicago and to the persons owing or operating the utility, as required in Section 10-21-080. The requirements of this subsection 10-21-060(b) shall not require property owners who own underground facilities solely by virtue of owning the property where the facilities are located to mark privately owned underground facilities on their property.
If a person who owns or operates an underground facility receives a notice under this section but does not own or operate any underground facilities within the proposed excavation or demolition area described in the notice, that person, within 48 hours after receipt ofthe notice or by the requested date and time indicated on the notice, whichever is later, shall so notify 811 Chicago. Notice to 811 Chicago from a facility owner that it does not own facilities at the site ofthe proposed excavation or demolition shall count as a marked facility, tho person who initiated the notice, unless that person expressly waives the right to be notified that no
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facilities are located within tho oxcavation or demolition area. Waiver of notico is only permissible for non - omorgoncy locate requests. Tho waivormust bo mado at tho timo ofthe notico to DIGGER. A waivor mode underthis subsection is not admissible as evidence in any criminal or civil action that may arise out of, or is in any way related to, the excavation or demolition that is the subject of the waiver. The notice required under this subsection may be provided in person, by phono or phono message, or by e-mail. Tho person who owns or operates an underground facility discharges the obligation to provide notico under this subsection if such person attempts to provide notice by telephone but is unable to do so because tho person ongagod in tho oxcavation or demolition does not answer his telephone and doos not havo an answering machine or answering service to receive tho tolephono call. Ifthe person who owns or operates an underground facility attempts to provide notico by telephone but receives a busy signal, or attempts to provide notico by e-mail but the e-mail is returned as undolivorablo, that attempt shall not discharge tho obligation to provide notico underthis subsection.
If a person who has complied with Section 10-21-050(a) arrives at the site ofthe proposed excavation or demolition and observes clear evidence of the presence of an unmarked, mismarked, or an incompletely marked underground facility in the area ofthe proposed excavation or demolition, and has to make an additional call to 811 Chicago for the marking of the underground facility, then the person who owns or operates the underground facility shall respond within two hours after 811 Chicago contacts the owner or operator that the person engaged in the excavation or demolition had to make the additional call to 811 Chicago.
Persons who own and operate underground facilities shall provide 811 Chicago with maps which accurately reflect the location of those facilities.
Persons who own or operate affected underground facilities shall respond to a notice to re-mark within the time provided by and otherwise according to this section.
For the purposes of this chapter, underground facility operators and underground location services may utilize a combination of flags, stakes, and paint when dig site and seasonal conditions warrant. Ifthe approximate location of an underground facility is marked with flags, stakes, paint or other physical means, the following color coding shall be employed:
(Omitted text is unaffected by this ordinance)
10-21-080 Damage to underground facilities.
(a) In the event of damage to any underground facilities in connection with any excavation or demolition, the person responsible for the damage oxcavation or demolition oporations shall immediately notify the affected underground facility owner or operator and DIGGER 811 Chicago, and cease oxcavation or demolition the activity which caused in tho aroa ef- the damage if the damaged facility is a threat to life or property, or if otherwise required by law. The person responsible for the excavation or demolition damage shall not attempt to repair, clamp, or constrict the damaged underground facility unless under the supervision of the person who owns or operates the underground facility. The underground facility owner or operator may not require the person responsible for the excavation or demolition damage to attempt to repair, clamp, or constrict a damaged underground facility. In the event that damage to an underground facility results in the escape of any flammable, toxic, or corrosive gas or liquid, the person responsible for the excavation or demolition shall call 9-1-1 and notify authorities of the damage. The person who owns and operates underground facilities that are damaged and the person engaged in the excavation or demolition involved damaging activity shall work in a cooperative and expeditious manner to repair the affected underground facility.
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(b) An underground facility owner or operator shall immediately report known damage of an underground facility to 811 Chicago, regardless of the source of the information of the damage.
10-21-090 Liability or financial responsibility.
Nothing in this chapter shall be deemed to create liability or financial responsibility of CDOT or its officers and employees concerning any underground facility located on the public way by issuance of any permit or license required under this Code. It is not the intent of this chapter to change any remedies in law regarding the duty of providing lateral support.
Neither DIGGER 811 Chicago nor any of its officers, agents, or employees shall be liable for damages for injuries or death to persons or damage to property caused by acts or omissions in the receipt, recording, or transmission of locate requests or other information in the performance of its duties, unless the actor omission was the result of willful and wanton misconduct.
Any residential property owner who fails to comply with any provision of this chapter and damages underground facilities while engaging in excavation or demolition on such residential property shall not be subject to a penalty underthis chapter, but shall be liable for the damage caused to the owner or operator of the damaged underground facilities.
10-21-100 Limitation on liability.
Under any membership agreement rules, the City's liability for the indemnification of the entity that is in charge of or managing DIGGER 811 Chicago, or any officer, agent, or employee of that entity, or for a member of DIGGER 811 Chicago or any officer, agent, or employee of a member of DIGGER 811 Chicago, shall be limited to claims arising as a result of any negligent acts or omissions ofthe City or its officers, agents, or employees, or arising out of any negligent operation ofthe City's underground facilities.
Subsection 10-21-100(a) shall not be construed to create any additional liability for the City in relation to any member of DIGGER 811 Chicago with which the City may have entered into a franchise agreement. Ifthe City's liability for indemnification under a franchise agreement is narrower than under this section, the franchise agreement controls.
10-21-110 Penalties.
(a) Except for the City of Chicago, its departments, and its employees acting in their capacities as such, persons who violate this chapter shall be subject to the following penalties:
A person who violates Section 10-21-040 shall be subject to a penalty of $100. Each day that a person is required, but fails, to maintain membership in DIGGER 811 Chicago constitutes a separate violation of that section.
A person who violates Section 10-21-045, 10-21-050, or 10-21-080 shaH be subject to a penalty of not loss than may be fined up to $1,000 nor more than $5,000 for each separate offense, and in addition shall be sanctioned according to the following scheduler Any person who commits three or morosuch violations within any 12-month period shall bo required to satisfy training requirements established by tho Commissioner.
For the first incident, the City shall order the responsible person to satisfy training reguirements established by CDOT.
For the second incident, the City shall fine the responsible person
$1,500.
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For the third incident, the City shall fine the responsible person
$3,000.
For the fourth and each subsequent incident, the City shall fine the responsible person $3,500 for the fourth incident, and increase the fine in increments of $500 for each additional incident, up to a maximum of $10,000.
A person who owns or operates an underground facility or an underground location service who violates Section 10-21-060 or who maintains an incorrect facility map in violation of Section 10-21-060 and 10-21-040 shall be subject to a penalty of $1,000 for each separate offense. No such person shall be subject to a penalty where a delay in marking or a failure to mark or properly mark the location of an underground facility is caused by conditions beyond the reasonable control of such owner or operator. Any person who commits three or moro such violations within any 12 month period shall be required to satisfy training requirements established by tho Commissionor.
A person who violates Section 10-21-070 shall be subject to a penalty of not less than $1,000 nor more than $5,000 for each separate offense.
{&) A porson who violates Section 10-21-080 shall bo subject to a penalty of
$1,000 foroach separate offense, and may be further sanctioned according to the following schedule:
For tho first incident, tho City may issuo a formal warning to tho
responsible person.
For tho second incident, the City may ordor tho rosponsiblo
porson to satisfy training roquiromonts ostablishod by CDOT.
For the third incident, tho City may fine the responsible person up
to $1,500.
(D4 For tho fourth incident, tho City may fine tho responsible person
up to $3,000.
(E-) For tho fifth and each subsequent incident, the City may fino tho
rosponsiblo porson up to $3,500 for tho fifth incident, and to incroaso tho fino in incromonts of $500 por additional incident, up to a maximum of $10,000.
(b) Any training requirements ordered shall be completed within 60 days of the order. Failure to satisfy the training requirements within the required time period is a violation of this subsection and will result in a fine of $50 per day for each day the violation continues. Proof of said training must be transmitted to the Commissioner within 30 days of the completion of the training. In the event that an individual fails to get the ordered training, the Commissioner may institute an administrative enforcement action against the individual.
10-21-130 Chicago Underground Facilities Damage Prevention Fund.
There is hereby created in the City budget a special fund to be known as the Chicago Underground Facilities Damage Prevention Fund. All fines collected as a result of a violation of pursuant to Section 10 21 110(a)(5) 10-21-050 and 10-21-080 shall be deposited into this fund, and distributed as a grant to DIGGER 811 Chicago, for use in safety and informational programs designed to reduce the number of incidents of damage to underground facilities in Chicago. The Commissioner shall have the authority to administer this fund, and shall provide an accounting to the Evaluation Panel on a biannual basis.
10-21-220 Powers and duties of the Commissioner.
The Commissioner of Transportation shall act ex officio as the Director of the One-Call Adjudicatory Process, and in his discretion may appoint a designee to carry out those powers and duties. The powers and duties of the Director shall include:
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directing the management and structure of the One-Call Adjudicatory Process;
appointing and removing Administrative Law Officers, as necessary;
promulgating rules for the conduct of administrative adjudication procoodings proper administration and enforcement of within the One-Call Adjudicatory Process;
monitoring and supervising the work of the Evaluation Panel;
issuing determinations as to liability after receipt and review of reports and recommendations from the Evaluation Panel; and
issuing discipline to CDOT employees found liable for violations of this chapter and issuing recommendations of discipline to the relevant department head whose employees are found liable for violations of this chapter; and
{ยง) establishing rules for tho proper administration and onforcomont of tho One Call
Adjudicatory Process.
10-21-230 Evaluation panel.
The Director shall establish an Evaluation Panel comprising the following eight members, appointed by the Director: one member, who shall be the chairman, representing DIGGER 811 Chicago; one member representing CDOT; one member representing the City of Chicago Department of Water Management; one member representing a non-governmental pipeline owner and operator; two members representing other non-governmental underground facility owners and operators; and two members representing the Greater Chicago Damage Prevention Council. In the initial group of appointees, four shall serve three-year terms and four shall serve two-year terms. Each subsequent appointee shall be chosen by the Director with the advice of the Panel members, and shall serve a two-year term, unless dismissed by the Director for cause. The Director shall have the authority to fill any vacancy on the Panel for the unexpired portion of the vacating member's term. The City shall provide staff support and meeting space to the Evaluation Panel.
The Evaluation Panel shall consider all Administrative Notices of Violation issued under this chapter and brought before it, as well as any reports, position statements, and evidence transmitted with the Administrative Notice of Violation. For each Administrative Notice of Violation, the Evaluation Panel shall issue a recommendation with stated reasons advising whether the Director should find violations of this chapter and impose penalties and sanctions on any of the relevant persons.
The members ofthe Evaluation Panel shall be immune, individually and jointly, from civil liability for any act or omission done or made in performance of their duties while serving as members of the Panel, unless the actor omission was the result of willful and wanton misconduct.
10-21-240 Administrative law officers.
Each Administrative Law Officer appointed by the Director shall be an attorney admitted to the practice of law in the State of Illinois for at least three years.
Prior to conducting any administrative adjudication proceeding, an Administrative Law Officer shall have successfully completed a formal training program, approved by the Director, which includes the following:
instruction on the rules of procedure ofthe administrative hearings which he will conduct;
orientation to each subject area of the code violations which he will
adjudicate;
observation of administrative hearings; and
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(4) participation in hypothetical cases, including ruling on evidence and issuing final orders.
(c) An Administrative Law Officer shall hear all motions to review final decisions determinations of the Commissioner Director. The Administrative Law Officer shall conduct a review hearing ofthe Administrative Notice of Violation. The Administrative Law Officer shall have all powers necessary to conduct fair and impartial hearings including, but not limited to, the power to:
hold conferences for the settlement or sim plif ication of the issues;
administer oaths and affirmations;
hear testimony;
rule upon motions, objections, and the admissibility of evidence;
subject to the restrictions contained in Section 10-21-300, at the request of any party or on the Administrative Law Officer's own motion, subpoena the attendance of relevant witnesses and the production of relevant books, records, or other information;
preserve and authenticate the record of the hearing and all exhibits and evidence introduced at the hearing;
regulate the course ofthe hearing in accordance with this chapter, the rules adopted by One-Call Adjudicatory Process for the conduct of administrative hearings, or other applicable law;
issue a final order which includes findings of fact and conclusions of law;
and
impose penalties and fines and issue orders that are consistent with applicable code provisions and assess costs upon finding a party liable for the charged violation; provided, however, that in no event shall the Administrative Law Officer have the authority to impose a fine in excess of $50,000 exclusive of costs of enforcement or costs imposed to secure compliance with this Code.
10-21-270 Inspection; Administrative notico Notice of violation Violation; Pre-payment.
The Commissioner shall empower one or more inspectors of CDOT to investigate work sites and claims of violations of this chapter. At an inspector's request, all parties shall cooperate and turn over to the inspector requested information such as, but not limited to, work sheets, photos, permits, reports, and make available relevant personnel to help in his investigation. All facts that parties wish to be considered by the Evaluation Panel shall be turned over to the inspector during his investigation.
When a potential violation of this chapter is revealed by inspection or investigation, the Commissionor or inspector CDOT may issue an Administrative Notice of Violation to parties who may be in violation of this chapter.
No action may be brought unless commenced within the 24-month period following the date of alleged violation.
The Administrative Notice of Violation shall be issued in compliance with the notice provision of Section 10-21-280(o)(c] and (e).
Copies of all evidence tho Commissionor CDOT plans on providing to the Evaluation Panel in support ofthe existence of violation shall be mailed provided with the Administrative Notice of Violation.
A person to whom an Administrative Notice of Violation has issued may, within 21 days of issuance, pay the indicated fine, if available. Ifthe fine is not paid within that period, or if advance payment is not available, the Administrative Notice of Violation will go to the Evaluation Panel for review.
Within 30 days after an Administrative Notice of Violation has issued, the respondent may file a defense in the form of a position statement with the inspector for
10
transmission to the Evaluation Panel. The position statement may include as exhibits all relevant briefs, affidavits, permits, photos, reports^ and worksheets.
10-21-280 Notice.
Before any administrative adjudication proceeding may be conducted under this article, the parties shall be afforded notice in compliance with this section.
A CDOT inspector shall notify potential respondents that he has begun an investigation, the subject matter of his investigation, and their responsibilities to preserve and produce evidence in relation to that investigation.
The issuer of an Administrative Notice of Violation shall specify on the notice his name and badge number; where known, the name and address of the person charged with the violation; the date and place of the violation; and the section of the Code or rule which was allegedly violated; and shall certify the correctness of the specified information by signing his name to the notice. The notice shall indicate whether the matter may be prepaid. The notice shall inform the respondent of what may be submitted to CDOT prior to the review of the Administrative Notice of Violation by the Evaluation Panel.
A respondent of the category delineated in Subsection 10-21-290(b)(2)(B) who timely requests a review of a Director's Commissioner's decision determination shall be provided with a Notice of Hearing prior to the hearing before the Administrative Law Officer. A Notice of Hearing shall include the date, time, and location of the hearing and the penalties for failure to appear at the hearing before the Administrative Law Officer. A Notice of Hearing shall be served upon the alleged violator no less than seven calendar days prior to the date of the hearing^
Service of an Administrative Notice of Hearing or a Notice of Hearing shall be:
by first class or express mail or by overnight carrier at the address on record with DIGGER 811 Chicago; or
ifthe location ofthe alleged violation is within the scope of a permit, then the address on the permit issued for work at that location; or
to the alleged violator's residence address or, if the alleged violator is a business entity, at any address identified for its registered agent or at its place of business; or
by personal service, including personal service upon an employee or agent of the alleged violator at a place of business of the alleged violator or otherwise if such service is reasonably calculated to give the alleged violator actual notice, or
by electronic mail to the address provided for that purpose to 811 Chicago by the respondent.
(ef) In all non-emergency situations, if requested by the respondent, the respondent shall have at least 15 days afterthe date of mailing or other service of a Notice of Hearing to prepare for a hearing. For purposes of this section, "non-emergency situation" means any situation that does not reasonably constitute a threat to the public interest, safety or welfare.
10-21-290 Recommendation, decision determination, and request for review.
(a) The Evaluation Panel shall consider all Administrative Notices of Violation brought before it. It shall also consider any evidence in support of the Administrative Notice of Violation provided by the inspector including, but not limited to, reports, permits, photos, work sheets, affidavits, and statements in support of positions. When at-aW possible, all Administrative Notices of Violation which regard a worksite shall be considered together to avoid piecemeal adjudication. Any panel member whose company or department is cited shall remove himself from consideration of that citation. After consideration ofthe evidence, the Evaluation Panel
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shall decide whether liability should be assessed, and, if so, determine an appropriate sanction, all of which it shall recommend to the Director.
(b) Within 30 days of receipt of the Evaluation Panel's recommendation, the Director shall review the Evaluation Panel's recommendation and the record and determine whether to issue a finding of liability and, in the case of a finding of liability, what sanctions to impose. The Director shall issue a final decision determination accepting, rejecting, or otherwise modifying the Evaluation Panel's findings and recommendations. The Director shall provide the respondent notice ofthe decision determination, as well as notice of the right to request review of the decision determination by filing with the Director a written request for review within 30 days of issuance of the notice.
(1) If no request for review is made within this time, any fine, other sanction
or costs imposed by the Commissionor's Director's order that remain unpaid shall be a debt due
and owing the etty City for purposes of Section 1-20-090 and, as such, may be collected in
accordance with applicable law. Unless stayed by a court of competent jurisdiction, the findings,
decision determination, and order of the Director Commissionor may be enforced in the same
manner as a judgment entered by a court of competent jurisdiction.
(2) If the person respondent files a timely request for review, and
the porson respondent is not the City, one of its departments, or an employee ofthe City, then the Commissionor Director shall convene a review hearing.
the person respondent is the City, one of its departments, or an employee ofthe City, then the Director Commissionor shall transmit to the head of the relevant City department a copy of the Administrative Notice of Violation and the determination of liability, and request disciplinary action. The appropriate commissioner Commissioner shall provide a response describing any such action taken. This response shall be provided to the Commissionor Director within 30 days after receipt ofthe disciplinary recommendation. The Commissionor Director shall retain on file a copy of each notice transmitted pursuant to this subsection, as well as each corresponding response. Any appeal from a finding of liability to an employee shall in accordance with any applicable collective bargaining agreement. Review by the Administrative Law Officer is not available for represented employees.
10-21-300 Subpoenas, [for reference]
The Administrative Law Officer may issue a subpoena only if it determines that the testimony of the witnesses or the documents or items sought by the subpoena are necessary to present evidence that is:
relevant to the case; and
relates to a contested issue in the case.
A subpoena issued under this chapter shall identify:
the person to whom it is directed;
the documents or other items sought by the subpoena, if any;
the date for the appearance of the witnesses and the production of the documents or other items described in the subpoena;
the time for the appearance of the witnesses and the production of the documents or other items described in the subpoena; and
the place for the appearance of the witnesses and the production of the documents or other items described in the subpoena.
In no event shall the date identified for the appearance of the witnesses or the production of the documents or other items be less than seven days after service of the subpoena.
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10-21-310 Review hearings.
When a respondent timely requests a review of a decision determination by the Director Commissionor, it shall receive a hearing consistent with this chapter.
An attorney who appears on behalf of any person shall file with the Administrative Law Off icer a written appearance on a form provided by the One-Call Adjudicatory Process for such purpose.
The Administrative Law Officer may grant continuances only upon a finding of good cause.
All testimony shall be given under oath or affirmation.
No new documents may be introduced before the Administrative Law Officer which were available to the parties prior to review of the Evaluation Panel.
The Administrative Law Officer may issue subpoenas to secure the attendance and testimony of relevant witnesses and the production of relevant documents. Issuance of subpoenas shall be subject to Section 10-21-300.
Subject to subsection (i) of this section, the Administrative Law Officer may permit witnesses to submit their testimony by affidavit or by telephone.
The formal and technical rules of evidence shall not apply in the conduct of the hearing. Evidence, including hearsay, may be admitted only if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.
(i) The Administrative Law Officer shall give deference to the Evaluation Panel's
findings of fact and the Commissioner's Director's docision determination. The Administrative
Law Officer shall takede novo consideration as to the weight ofthe testimony and credibility of
the witnesses. The party who seeks review of the Commissioner's Director's decision
determination has the burden to establish that the decision was clear error, meaning that tho
panel must bo firmly convinced that and thus must firmly convince the Administrative Law
Officer that a mistake was made in the Director's Commissioner's docision determination.
(j) Upon the timely request of any party to the proceeding, any person, who the Administrative Law Off icer determines may reasonably be expected to provide testimony which is material and which does not constitute a needless presentation of cumulative evidence, shall be made available for cross-examination prior to a final determination of liability decision.
(k) Upon the conclusion of a hearing, the Administrative Law Officer shall issue a final dotormination decision affirming or reversing, in whole or in part, the Director's Commissioner's decision determination. Upon issuing a final dotormination of liability decision the Administrative Law Officer may modify the Director's Commissioner's decision determination accordingly, provided that the Administrative Law Officer's decision is consistent with this Chapter 10-21. It may also assess costs reasonably related to instituting the administrative adjudication proceeding; provided, however, that in no event shall the Administrative Law Officer have the authority to impose a fine in excess of $50,000.00 exclusive of costs of enforcement or costs imposed to secure compliance with this Code.
(I) The record of all hearings before the Administrative Law Officer shall include:
a record ofthe testimony presented at the hearing, which may be made by tape recording or other appropriate means;
all documents presented at the hearing;
a copy of the administrative notice of violation;
a copy of the Evaluation Panel's findings of fact and recommendation;
a copy of the Director's Commissioner's decision determination;
a copy of the notice of hearing; and
a copy of the findings and decision of the Administrative Law Officer.
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10-21-320 Default.
If at the time set for a hearing the respondent or his attorney of record fails to appear, the Administrative Law Officer may shall find the respondent in default, terminate the proceedings, and revert to the docision determination ofthe Director Commissioner, unless either (1) prior to the hearing, a respondent and the City have agreed to continue the matter and that continuance is met with the approval ofthe Administrative Law Officer, or (2) the Administrative Law Officer finds that the respondent was not provided with proper notice ofthe hearing. A copy of the order of default shall be served in any manner permitted by Section 10-21-280(c).
A respondent who is found to be in default may petition the Administrative Law Officer to set aside the order of default and set a new hearing date in accordance with Section 10-21-330.
10-21-330 Petition to vacate default order, [for reference]
The Administrative Law Officer may vacate any order entered by default and set a new hearing date upon a petition filed within 21 days after the issuance of the order of default if the Administrative Law Officer determines that the petitioner's failure to appear at the hearing was for good cause or, at any time if the petitioner establishes that the petitioner was not provided with proper service of process. If the petition is granted, the order shall be vacated and the Administrative Law Officer shall proceed with a new hearing on the underlying matter as soon as practical.
10-21-340 Violations of orders.
A person violates this section if he:
is provided with notice and an opportunity to be heard under this Code;
and
knowingly fails to comply with an order issued by the Director Commissionor or the Administrative Law Officer underthis chapter, including any requirement of a subpoena.
Each day that the violation occurs shall be considered a separate and distinct offense.
It is not a defense to this section that a person:
came into compliance or attempted to come into compliance with the order after the date upon which the order, by its terms, required compliance; or
sought judicial review of the order but failed to obtain a stay of the order prior to the date upon which the order, by its terms, required compliance.
Sentence. A person convicted under this section shall be punished by:
a fine of not less than $200.00 and not more than $500.00 for each
offense;
incarceration for not more than 180 days for each offense; and/or
an order to perform community service for a period not to exceed 200 hours for each offense.
The corporation counsel shall institute actions under this section in a court of competent jurisdiction.
10-21-350 Review under the Administrative Review Law.
Any final decision by the Administrative Law Officer that a code violation does or does not exist shall constitute a final determination decision for purposes of judicial review and shall be subject to review under the Illinois Administrative Review Law.
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10-21-360 Enforcement, [for reference]
Any fine, other sanction or costs imposed by order of the One-Call Adjudicatory Process that remains unpaid afterthe exhaustion of, or the failure to exhaust, judicial review procedures shall be a debt due and owing the City and, as such, may be collected in accordance with applicable law.
After the expiration of the period in which judicial review may be sought, unless stayed by a court of competent jurisdiction, the findings, decision^ and order of the One-Call Adjudicatory Process may be enforced in the same manner as a judgment entered by a court of competent jurisdiction.
In any case in which a respondent fails to comply with an order of the One-Call Adjudicatory Process imposing a fine or other sanction as a result of a code violation, any expenses incurred by the City to enforce the order ofthe One-Call Adjudicatory Process, including but not limited to, attorney's fees, court costs, and costs, after they are fixed by a court of competent jurisdiction or an Administrative Law Officer shall be a debt due and owing the city. The matter may be enforced in the Department of Administrative Hearings under Section 2-14-103.
Nothing in this section shall prevent the City from enforcing or seeking to enforce any order ofthe One-Call Adjudicatory Process in any manner which is in accordance with applicable law.
10-21-370 Interest, [for reference]
Except as otherwise provided by law, interest on any debt due and owing shall accrue at the rate set for interest upon judgments.
10-21-380 Fines payable to the Department of Finance, [for reference]
All fines and other monies paid to the City in accordance with this chapter shall be remitted to the Department of Finance.
SECTION 2. Section 10-20-100 ofthe Municipal Code of Chicago is hereby amended by adding the language underscored as follows:
10-20-100 License.
(Omitted text is unaffected by this ordinance)
(b) The public way work license specified in this section shall not be required for the placement, planting, cultivation, maintenance or removal of any tree, shrub, flower, sod or other plant material in the public way, as long as the surface disturbance requires a hole of less than six inches deep.
(Omitted text is unaffected by this ordinance)
SECTION 3. Section 10-20-150 ofthe Municipal Code of Chicago is hereby amended by adding the language underscored as follows:
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10-20-150 Permit - Fees - Issuance.
(Omitted text is unaffected by this ordinance)
(g) The permit specified in this section shall not be required for:
(1) the placement, planting, cultivation, maintenance or removal of any tree, shrub, flower, sod or other plant material in the public way, as long as the surface disturbance requires a hole of less than six inches deep;
(Omitted text is unaffected by this ordinance)
SECTION 4. Section 10-32-060 ofthe Municipal Code of Chicago is hereby amended by adding the language underscored, and by deleting the language struck through, as follows:
10-32-060 Permit required.
No person other than the deputy Deputy commissionor Commissioner shall plant, remove, trim, spray or chemically inject or treat, or in any way affect the general health or structure of a parkway tree or shrub without first having obtained a permit to do so in accordance with the provisions of this chapter; provided, however, that no permit shall be necessary for the activities described in Section 10-32 050 routine maintenance and replacement of vegetation where soil disturbance of six inches or less is reguired. All permit requirements of this chapter shall be applicable to governmental agencies and to public utilities governed by an Act concerning Public Utilities, approved June 29, 1921, as amended.
SECTION 5. Section 10-20-150 ofthe Municipal Code of Chicago is hereby amended by adding the language underscored, and by deleting the language struck through, as follows:
10-32-080 Issuance of permit.
No permit shall issue for any work on a parkway unless:
The application therefor is complete;
The applicant or permittee shall indemnify, defend and hold harmless the City of Chicago, its officers, agents, attorneys and employees from any and all liability or claims arising from or relating to the granting of a permit and/or the performance of the work for which the permit is sought; and
The person who is to perform the work presents to the commissioner Commissioner:
proof of commercial general liability insurance, with limits of not less than $1,000,000.00 per occurrence for bodily injury, personal injury and property damage, naming the City of Chicago as additional insured on a primary, noncontributory basis for any liability arising directly or indirectly from the permittee's operations; and
proof of a valid public way work license as required by Chapter 10-20.
SECTION 7. This ordinance shall be in full force and effect ten days following due passage and publication.
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