Florida Senate - 2020 COMMITTEE AMENDMENT
Bill No. CS for CS for SB 1464
Ì191488SÎ191488
LEGISLATIVE ACTION
Senate . House
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The Committee on Rules (Flores) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Present subsections (8) and (9) through (14) of
6 section 556.102, Florida Statutes, are redesignated as
7 subsections (10) and (12) through (17), respectively, and new
8 subsections (8), (9), and (11) are added to that section, to
9 read:
10 556.102 Definitions.—As used in this act:
11 (8) “High-priority subsurface installation” means an
12 underground gas transmission or gas distribution pipeline, or an
13 underground pipeline used to transport gasoline, jet fuel, or
14 any other refined petroleum product or hazardous or highly
15 volatile liquid, such as anhydrous ammonia or carbon dioxide, if
16 the pipeline is deemed to be critical by the operator of the
17 pipeline and is identified as a high-priority subsurface
18 installation to an excavator who has provided a notice of intent
19 to excavate under s. 556.105(1), or would have been identified
20 as a high-priority subsurface installation except for the
21 excavator’s failure to give proper notice of intent to excavate.
22 (9) “Incident” means an event that involves damage to a
23 high-priority subsurface installation that has been identified
24 as such by the operator according to the notification procedures
25 set forth in s. 556.116(1) and that:
26 (a) Results in death or serious bodily injury requiring
27 inpatient hospitalization.
28 (b) Results in property damage, including service
29 restoration costs, in an amount in excess of $50,000 or an
30 interruption of service to 2,500 or more customers.
31 (11) “Permanent marker” means a clearly visible indication
32 of the approximate location of an underground facility which is
33 made of material that is durable in nature and which is
34 reasonably expected to remain in position for the life of the
35 underground facility.
36 Section 2. Section 556.107, Florida Statutes, is amended to
37 read:
38 556.107 Violations.—
39 (1) NONCRIMINAL INFRACTIONS.—
40 (a)1. Violations of the following provisions are
41 noncriminal infractions:
42 a.1. Section 556.105(1), relating to providing required
43 information.
44 b. Section 556.105(5)(c), relating to excavation practices
45 in tolerance zones.
46 c.2. Section 556.105(6), relating to the avoidance of
47 excavation.
48 d.3. Section 556.105(11), relating to the need to stop
49 excavation or demolition because marks are no longer visible,
50 or, in the case of underwater facilities, are inadequately
51 documented.
52 e.4. Section 556.105(12), relating to the need to cease
53 excavation or demolition activities because of contact or damage
54 to an underground facility.
55 f.5. Section 556.105(5)(a) and (b), relating to
56 identification of underground facilities, if a member operator
57 does not mark an underground facility, but not if a member
58 operator marks an underground facility incorrectly.
59 g.6. Section 556.109(2), relating to falsely notifying the
60 system of an emergency situation or condition.
61 h.7. Section 556.114(1), (2), (3), and (4), relating to a
62 failure to follow low-impact marking practices, as defined
63 therein.
64 2. Violations of the following provisions involving an
65 underground facility transporting hazardous materials that are
66 regulated by the Pipeline and Hazardous Materials Safety
67 Administration of the United States Department of Transportation
68 are noncriminal infractions, subject to enhanced civil penalties
69 under paragraph (c):
70 a. Section 556.105(1), relating to providing required
71 information.
72 b. Section 556.105(5)(c), relating to excavation practices
73 in tolerance zones.
74 c. Section 556.105(6), relating to the avoidance of certain
75 excavation.
76 d. Section 556.105(11), relating to the need to stop
77 excavation or demolition because certain marks are removed, no
78 longer visible, or inadequately documented.
79 e. Section 556.105(12), relating to the need to cease
80 excavation or demolition activities because of contact or damage
81 to an underground facility.
82 (b) Any excavator or member operator who commits a
83 noncriminal infraction under paragraph (a) may be issued a
84 citation by the State Fire Marshal or his or her agents as
85 provided in ss. 633.114 and 633.116; the fire chief of the
86 special district, municipality, or county; or any local or state
87 law enforcement officer, government code inspector, or code
88 enforcement officer, and the issuer of a citation may require an
89 excavator to cease work on any excavation or not start a
90 proposed excavation until there has been compliance with the
91 provisions of this chapter. Citations shall be hand delivered to
92 any employee of the excavator or member operator who is involved
93 in the noncriminal infraction. The citation shall be issued in
94 the name of the excavator or member operator, whichever is
95 applicable.
96 (c)1. Any excavator or member operator who commits a
97 noncriminal infraction under subparagraph (a)1. paragraph (a)
98 may be required to pay a civil penalty of $500 plus court costs
99 for each infraction, which is $500 plus court costs. If a
100 citation is issued by a state law enforcement officer, a local
101 law enforcement officer, a local government code inspector, or a
102 code enforcement officer, 80 percent of the civil penalty
103 collected by the clerk of the court must shall be distributed to
104 the governmental entity whose employee issued the citation and
105 20 percent of the penalty must shall be retained by the clerk to
106 cover administrative costs, in addition to any other court
107 costs. Any person who fails to properly respond to a citation
108 issued pursuant to paragraph (b) shall, in addition to the
109 citation, be charged with the offense of failing to respond to
110 the citation and, upon conviction, commits a misdemeanor of the
111 second degree, punishable as provided in s. 775.082 or s.
112 775.083. A written warning to this effect must be provided at
113 the time any citation is issued pursuant to paragraph (b).
114 2. Any excavator or member operator who commits a
115 noncriminal infraction under subparagraph (a)2. may be required
116 to pay an enhanced civil penalty of $2,500 plus court costs for
117 each infraction. If a citation is issued, 80 percent of the
118 civil penalty collected by the clerk of the court must be
119 distributed to the governmental entity whose employee issued the
120 citation and 20 percent must be retained by the clerk in
121 addition to any court costs.
122 3. Any person who willfully fails to properly respond to a
123 citation issued under paragraph (b) shall, in addition to the
124 citation, be charged with the offense of failing to respond to
125 the citation and, upon conviction, commits a misdemeanor of the
126 second degree, punishable as provided in s. 775.082 or s.
127 775.083. A written warning to this effect must be provided at
128 the time a citation is issued under paragraph (b).
129 (d) Any person cited for an infraction under paragraph (a)
130 or s. 556.116(2)(c) may post a bond, which must shall be equal
131 in amount to the applicable civil penalty plus any additional
132 court costs.
133 (e) A person charged with a noncriminal infraction under
134 paragraph (a) or s. 556.116(2)(c) may pay the applicable civil
135 penalty plus the additional court costs, by mail or in person,
136 within 30 days after the date of receiving the citation. If the
137 person cited pays the civil penalty, she or he is deemed to have
138 admitted to committing the infraction and to have waived the
139 right to a hearing on the issue of commission of the infraction.
140 The admission may be used as evidence in any other proceeding
141 under this chapter.
142 (f) Any person may elect to have a hearing on the
143 commission of the infraction appear before the county court. A
144 person who elects to have a hearing waives and if so electing is
145 deemed to have waived the limitations on the civil penalties
146 penalty specified in paragraph (c). The court, after a hearing,
147 shall make a determination as to whether an infraction has been
148 committed. If the commission of an infraction has been proven,
149 the court may impose a civil penalty not to exceed the
150 applicable civil penalty $5,000 plus court costs for each
151 infraction. In determining the amount of the civil penalty, the
152 court may consider previous noncriminal infractions committed.
153 (g) At a court hearing under this chapter, the commission
154 of a charged infraction must be proven by a preponderance of the
155 evidence.
156 (h) If the court finds that a person is found by a judge or
157 hearing official to have committed an infraction, the person may
158 appeal that finding or the amount of the civil penalties imposed
159 to the circuit court.
160 (i) Sunshine State One-Call of Florida, Inc., may, at its
161 own cost, retain an attorney to assist in the presentation of
162 relevant facts and law in the county court proceeding pertaining
163 to the citation issued under this section. The corporation may
164 also appear in any case appealed to the circuit court if a
165 county court judge finds that an infraction of the chapter was
166 committed. An appellant in the circuit court proceeding shall
167 timely notify the corporation of any appeal under this section.
168 (2) REPORT OF INFRACTIONS.—By March 31 of each year, each
169 clerk of court shall submit a report to the State Fire Marshal
170 and Sunshine State One-Call of Florida, Inc., listing each
171 citation issued for a violation notice written under paragraph
172 (1)(a) and s. 556.116(2)(c) which has been filed in that county
173 during the preceding calendar year. The report must state the
174 name and address of the member or excavator who committed each
175 infraction, the enforcement authority, the specific statutory
176 infraction, and the type of underground facility related to the
177 infraction and must indicate whether or not the civil penalty
178 for the infraction was paid.
179 (3) MISDEMEANORS.—
180 (a) Any person who knowingly and willfully removes or
181 otherwise destroys the valid stakes or other valid physical
182 markings described in s. 556.105(5)(a) and (b) used to mark the
183 horizontal route of an underground facility commits a
184 misdemeanor of the second degree, punishable as provided in s.
185 775.082 or s. 775.083. For purposes of this subsection, stakes
186 or other nonpermanent physical markings are considered valid for
187 30 calendar days after information is provided to the system
188 under s. 556.105(1)(a).
189 (b) Any person who knowingly and willfully removes or
190 damages a permanent marker placed to identify the approximate
191 location of an underground facility commits a misdemeanor of the
192 second degree, punishable as provided in s. 775.082 or s.
193 775.083.
194 Section 3. Section 556.116, Florida Statutes, is amended to
195 read:
196 556.116 High-priority subsurface installations; special
197 procedures.—
198 (1) As used in this section, the term:
199 (a) “Division” means the Division of Administrative
200 Hearings.
201 (b) “High-priority subsurface installation” means an
202 underground gas transmission or gas distribution pipeline, an
203 underground pipeline used to transport gasoline, jet fuel, or
204 any other refined petroleum product or hazardous or highly
205 volatile liquid, such as anhydrous ammonia or carbon dioxide, if
206 the pipeline is deemed to be critical by the operator of the
207 pipeline and is identified as a high-priority subsurface
208 installation to an excavator who has provided a notice of intent
209 to excavate pursuant to s. 556.105(1), or would have been
210 identified as a high-priority subsurface installation except for
211 the excavator’s failure to give proper notice of intent to
212 excavate.
213 (c) “Incident” means an event that involves damage to a
214 high-priority subsurface installation that has been identified
215 as such by the operator according to the notification procedures
216 set forth in subsection (2) and that:
217 1. Results in death or serious bodily injury requiring
218 inpatient hospitalization.
219 2. Results in property damage, including service
220 restoration costs, in an amount in excess of $50,000 or
221 interruption of service to 2,500 or more customers.
222 (1)(2) When an excavator proposes to excavate or demolish
223 within 15 feet of the horizontal route of an underground
224 facility that has been identified as a high-priority subsurface
225 installation by the operator of the facility, the operator
226 shall, in addition to identifying the horizontal route of its
227 facility as set forth in s. 556.105(5)(a) and (b), and within
228 the time period set forth in s. 556.105(9)(a) for a positive
229 response, notify the excavator that the facility is a high
230 priority subsurface installation. If the member operator
231 provides such timely notice of the existence of a high-priority
232 subsurface installation, an excavator shall notify the operator
233 of the planned excavation start date and time before beginning
234 excavation. If the member operator does not provide timely
235 notice, the excavator may proceed, after waiting the prescribed
236 time period set forth in s. 556.105(9)(a), to excavate without
237 notifying the member operator of the excavation start date and
238 time. The exemptions stated in s. 556.108 apply to the
239 notification requirements in this subsection.
240 (2)(a)(3)(a) An alleged commission of an infraction listed
241 in s. 556.107(1) which results in an incident must be reported
242 to the system and the State Fire Marshal by a member operator or
243 an excavator within 24 hours after learning of the alleged
244 occurrence of an incident.
245 (b) Upon receipt of an allegation that an incident has
246 occurred, the member operator or excavator system shall transmit
247 an incident report to the State Fire Marshal, who shall division
248 and contract with the division so that the division may conduct
249 an investigation a hearing to determine whether an incident has
250 occurred, and, if so, whether a violation of s. 556.107(1)(a)
251 was a proximate cause of the incident. The State Fire Marshal
252 may authorize his or her agents as provided in ss. 633.114,
253 633.116, and 633.118 to conduct investigations of incidents The
254 contract for services to be performed by the division must
255 include provisions for the system to reimburse the division for
256 any costs incurred by the division for court reporters,
257 transcript preparation, travel, facility rental, and other
258 customary hearing costs, in the manner set forth in s.
259 120.65(9).
260 (c) The State Fire Marshal or his or her agents as provided
261 in ss. 633.114, 633.116, and 633.118 division has jurisdiction
262 in a proceeding under this section to determine the facts and
263 law concerning an alleged incident. The division may issue a
264 citation and impose a civil penalty fine against a violator in
265 an amount not to exceed $50,000 if the person violated a
266 provision of s. 556.107(1)(a) and that violation was a proximate
267 cause of the incident. However, if a state agency or political
268 subdivision caused the incident, the state agency or political
269 subdivision may not be fined in an amount in excess of $10,000.
270 (d) The civil penalty A fine imposed under this subsection
271 by the division is in addition to any amount payable as a result
272 of a citation relating to the incident under s. 556.107(1)(a).
273 (e) If an additional civil penalty is imposed by the State
274 Fire Marshal or his or her agents, 5 percent of the civil
275 penalty must be retained by the clerk to cover administrative
276 costs, and the remainder of the civil penalty must be
277 distributed equally between the system and the State Fire
278 Marshal. The portion of the civil penalty distributed to the
279 system must be used exclusively to fund damage-prevention
280 education. The portion of the civil penalty distributed to the
281 State Fire Marshal must be used exclusively to fund programs
282 created within the State Fire Marshal’s office that provide
283 need-based financial assistance to help fire departments,
284 including volunteer fire departments, procure equipment,
285 supplies, and educational training designed to mitigate
286 firefighter exposure to hazardous, cancer-causing chemicals A
287 fine against an excavator or a member operator imposed under
288 this subsection shall be paid to the system, which shall use the
289 collected fines to satisfy the costs incurred by the system for
290 any proceedings under this section. To the extent there are any
291 funds remaining, the system may use the funds exclusively for
292 damage-prevention education.
293 (f) Any excavator or member operator who commits a
294 noncriminal infraction under s. 556.116(2)(c) must be provided a
295 written warning at the time a citation is issued stating that
296 any person who willfully fails to properly respond to a citation
297 will be charged, in addition to the citation, with the offense
298 of failing to respond to the citation and, if convicted, commits
299 a misdemeanor of the second degree, punishable as provided in s.
300 775.082 or s. 775.083.
301 (g) This section does not change the basis for civil
302 liability. The findings and results of an investigation a
303 hearing under this section may not be used as evidence of
304 liability in any civil action.
305 (4)(a) The division shall issue and serve on all original
306 parties an initial order that assigns the case to a specific
307 administrative law judge and requests information regarding
308 scheduling the final hearing within 5 business days after the
309 division receives a petition or request for hearing. The
310 original parties in the proceeding include all excavators and
311 member operators identified by the system as being involved in
312 the alleged incident. The final hearing must be conducted within
313 60 days after the date the petition or the request for a hearing
314 is filed with the division.
315 (b) Unless the parties otherwise agree, venue for the
316 hearing shall be in the county in which the underground facility
317 is located.
318 (c) An intervenor in the proceeding must file a petition to
319 intervene no later than 15 days before the final hearing. A
320 person who has a substantial interest in the proceeding may
321 intervene.
322 (5) The following procedures apply:
323 (a) Motions shall be limited to the following:
324 1. A motion in opposition to the petition.
325 2. A motion requesting discovery beyond the informal
326 exchange of documents and witness lists described in paragraph
327 (c). Upon a showing of necessity, additional discovery may be
328 permitted in the discretion of the administrative law judge, but
329 only if the discovery can be completed no later than 5 days
330 before the final hearing.
331 3. A motion for continuance of the final hearing date.
332 (b) All parties shall attend a prehearing conference for
333 the purpose of identifying the legal and factual issues to be
334 considered at the final hearing, the names and addresses of
335 witnesses who may be called to testify at the final hearing,
336 documentary evidence that will be offered at the final hearing,
337 the range of penalties that may be imposed, and any other matter
338 that would expedite resolution of the proceeding. The prehearing
339 conference may be held by telephone conference call.
340 (c) Not later than 5 days before the final hearing, the
341 parties shall furnish to each other copies of documentary
342 evidence and lists of witnesses who may testify at the final
343 hearing.
344 (d) All parties shall have an opportunity to respond, to
345 present evidence and argument on all issues involved, to conduct
346 cross-examination and submit rebuttal evidence, and to be
347 represented by counsel or other qualified representative.
348 (e) The record shall consist only of:
349 1. All notices, pleadings, motions, and intermediate
350 rulings.
351 2. Evidence received during the final hearing.
352 3. A statement of matters officially recognized.
353 4. Proffers of proof and objections and rulings thereon.
354 5. Matters placed on the record after an ex parte
355 communication.
356 6. The written final order of the administrative law judge
357 presiding at the final hearing.
358 7. The official transcript of the final hearing.
359 (f) The division shall accurately and completely preserve
360 all testimony in the proceeding and, upon request by any party,
361 shall make a full or partial transcript available at no more
362 than actual cost.
363 (g) The administrative law judge shall issue a final order
364 within 30 days after the final hearing or the filing of the
365 transcript thereof, whichever is later. The final order of the
366 administrative law judge must include:
367 1. Findings of fact based exclusively on the evidence of
368 record and matters officially recognized.
369 2. Conclusions of law. In determining whether a party has
370 committed an infraction of s. 556.107(1)(a), and whether the
371 infraction was a proximate cause of an incident, the commission
372 of an infraction must be proven by a preponderance of the
373 evidence.
374 3. Imposition of a fine, if applicable.
375 4. Any other information required by law or rule to be
376 contained in a final order.
377
378 The final order of the administrative law judge constitutes
379 final agency action subject to judicial review pursuant to s.
380 120.68.
381 Section 4. Section 556.117, Florida Statutes, is created to
382 read:
383 556.117 Underground facility damage prevention review.
384 Sunshine State One-Call of Florida, Inc., shall review the
385 reports submitted by the clerks of court to the State Fire
386 Marshal and any complaints of an alleged violation under this
387 chapter to identify issues or potential issues with damage
388 prevention and enforcement. The corporation shall identify areas
389 in the state where additional education related to damage
390 prevention and enforcement is needed and shall recommend
391 solutions to remedy issues related to damage prevention and
392 enforcement. The corporation shall, by October 1 of each year,
393 submit to the Governor, the President of the Senate, and the
394 Speaker of the House of Representatives an analysis of its
395 reviews and any recommendations for improving underground
396 facility damage prevention and enforcement.
397 Section 5. This act shall take effect July 1, 2020.
398
399 ================= T I T L E A M E N D M E N T ================
400 And the title is amended as follows:
401 Delete everything before the enacting clause
402 and insert:
403 A bill to be entitled
404 An act relating to underground facility damage
405 prevention and safety; amending s. 556.102, F.S.;
406 providing definitions; amending s. 556.107, F.S.;
407 revising and providing noncriminal violations relating
408 to the transportation of certain hazardous materials;
409 authorizing the State Fire Marshal or his or her
410 agents or the fire chief of the special district,
411 municipality, or county to issue certain citations;
412 providing enhanced civil penalties; providing
413 disposition of the civil penalties; requiring a report
414 to be submitted to an additional entity; providing
415 requirements for the report; providing civil and
416 criminal penalties; amending s. 556.116, F.S.;
417 deleting definitions; requiring certain persons to
418 transmit an incident report to the State Fire Marshal;
419 providing that certain incident reports must be
420 investigated by the State Fire Marshal or his or her
421 agents; authorizing the State Fire Marshal or his or
422 her agents to issue citations and impose civil
423 penalties; providing for disposition of the civil
424 penalty; requiring written warnings for certain
425 noncriminal infractions; providing for an enhanced
426 penalty upon conviction for a failure to respond;
427 deleting provisions relating to hearings by the
428 Division of Administrative Hearings of certain
429 incidents; creating s. 556.117, F.S.; requiring
430 Sunshine State One-Call of Florida, Inc., to review
431 certain reports and complaints; requiring the
432 corporation to identify areas in the state in need of
433 additional education and to recommend solutions;
434 requiring the corporation to submit an annual report
435 to the Governor and the Legislature by a specified
436 date; providing an effective date.