Florida Senate - 2020 SB 1464
By Senator Flores
39-01376-20 20201464__
1 A bill to be entitled
2 An act relating to underground facility damage
3 prevention and safety; amending s. 556.107, F.S.;
4 providing noncriminal violations relating to the
5 transportation of certain hazardous materials;
6 authorizing the State Fire Marshal or local fire chief
7 to issue certain citations; providing enhanced civil
8 penalties; providing for disposition of the civil
9 penalty; requiring a report by additional entities;
10 amending s. 556.116, F.S.; providing that certain
11 incident reports must be transmitted to, and
12 investigated by, the State Fire Marshal, the local
13 fire chief, a local or state law enforcement officer,
14 a government code inspector, or a code enforcement
15 officer; authorizing the State Fire Marshal, the local
16 fire chief, a local or state law enforcement officer,
17 a government code inspector, or a code enforcement
18 officer to issue citations and civil penalties;
19 providing for disposition of the civil penalty;
20 removing provisions relating to hearings by the
21 Division of Administrative Hearings in connection with
22 certain incidents; creating s. 556.117, F.S.; creating
23 an underground facility damage prevention review
24 panel; providing duties and membership of the review
25 panel; specifying the term limits of the review panel;
26 requiring the State Fire Marshal to provide support to
27 the review panel; specifying how the review panel will
28 be funded; providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
32 Section 1. Section 556.107, Florida Statutes, is amended to
33 read:
34 556.107 Violations.—
35 (1) NONCRIMINAL INFRACTIONS.—
36 (a)1. Violations of the following provisions are
37 noncriminal infractions:
38 a.1. Section 556.105(1), relating to providing required
39 information.
40 b.2. Section 556.105(6), relating to the avoidance of
41 excavation.
42 c.3. Section 556.105(11), relating to the need to stop
43 excavation or demolition because marks are no longer visible,
44 or, in the case of underwater facilities, are inadequately
45 documented.
46 d.4. Section 556.105(12), relating to the need to cease
47 excavation or demolition activities because of contact or damage
48 to an underground facility.
49 e.5. Section 556.105(5)(a) and (b), relating to
50 identification of underground facilities, if a member operator
51 does not mark an underground facility, but not if a member
52 operator marks an underground facility incorrectly.
53 f.6. Section 556.109(2), relating to falsely notifying the
54 system of an emergency situation or condition.
55 g.7. Section 556.114(1), (2), (3), and (4), relating to a
56 failure to follow low-impact marking practices, as defined
57 therein.
58 2. Violations of the following provisions when related to
59 an underground pipe or other underground facility transporting
60 hazardous materials that are regulated by the Pipeline and
61 Hazardous Materials Safety Administration of the United States
62 Department of Transportation are noncriminal infractions,
63 subject to enhanced civil penalties under paragraph (c):
64 a. Section 556.105(1), relating to providing required
65 information.
66 b. Section 556.105(5)(c), relating to excavation practices
67 in tolerance zones.
68 c. Section 556.105(6), relating to the avoidance of certain
69 excavation.
70 d. Section 556.105(11), relating to the need to stop
71 excavation or demolition because certain marks are no longer
72 visible or are inadequately documented.
73 e. Section 556.105(12), relating to the need to cease
74 excavation or demolition activities because of contact or damage
75 to an underground facility.
76 (b) Any excavator or member operator who commits a
77 noncriminal infraction under paragraph (a) may be issued a
78 citation by the State Fire Marshal, the fire chief of the county
79 in which the infraction happened, any local or state law
80 enforcement officer, government code inspector, or code
81 enforcement officer, and the issuer of a citation may require an
82 excavator to cease work on any excavation or not start a
83 proposed excavation until there has been compliance with the
84 provisions of this chapter. Citations shall be hand delivered to
85 any employee of the excavator or member operator who is involved
86 in the noncriminal infraction. The citation shall be issued in
87 the name of the excavator or member operator, whichever is
88 applicable.
89 (c)1. Any excavator or member operator who commits a
90 noncriminal infraction under subparagraph (a)1. paragraph (a)
91 may be required to pay a civil penalty of $500 plus court costs
92 for each infraction, which is $500 plus court costs. If a
93 citation is issued by the State Fire Marshal, a fire chief, a
94 state law enforcement officer, a local law enforcement officer,
95 a local government code inspector, or a code enforcement
96 officer, 80 percent of the civil penalty collected by the clerk
97 of the court shall be distributed to the governmental entity
98 whose employee issued the citation and 20 percent of the penalty
99 shall be retained by the clerk to cover administrative costs, in
100 addition to other court costs. Any person who fails to properly
101 respond to a citation issued under pursuant to paragraph (b)
102 shall, in addition to the citation, be charged with the offense
103 of failing to respond to the citation and, upon conviction,
104 commits a misdemeanor of the second degree, punishable as
105 provided in s. 775.082 or s. 775.083. A written warning to this
106 effect must be provided at the time any citation is issued under
107 pursuant to paragraph (b).
108 2. Any excavator or member operator who commits a
109 noncriminal infraction under subparagraph (a)2. may be required
110 to pay an enhanced civil penalty of $2,500 plus 5 percent in
111 addition to any other court costs for each infraction. If a
112 citation is issued by the State Fire Marshal, a fire chief, a
113 state law enforcement officer, a local law enforcement officer,
114 a local government code inspector, or a code enforcement
115 officer, 100 percent of the civil penalty collected by the clerk
116 of the court shall be distributed to the governmental entity
117 whose employee issued the citation. The additional 5 percent,
118 plus any additional court costs, is to be retained by the clerk
119 to cover administrative costs. Any person who fails to properly
120 respond to a citation issued under paragraph (b) shall, in
121 addition to the citation, be charged with the offense of failing
122 to respond to the citation and, upon conviction, commits a
123 misdemeanor of the second degree, punishable as provided in s.
124 775.082 or s. 775.083. A written warning to this effect must be
125 provided at the time a citation is issued under paragraph (b).
126 (d) Any person cited for an infraction under paragraph (a)
127 may post a bond, which must shall be equal in amount to the
128 applicable civil penalty plus any additional court costs.
129 (e) A person charged with a noncriminal infraction under
130 paragraph (a) may pay the applicable civil penalty plus the
131 additional court costs, by mail or in person, within 30 days
132 after the date of receiving the citation. If the person cited
133 pays the civil penalty, she or he is deemed to have admitted to
134 committing the infraction and to have waived the right to a
135 hearing on the issue of commission of the infraction. The
136 admission may be used as evidence in any other proceeding under
137 this chapter.
138 (f) Any person may elect to have a hearing on the
139 commission of the infraction appear before the county court. A
140 person who elects to have a hearing waives and if so electing is
141 deemed to have waived the limitations on the civil penalties
142 penalty specified in paragraph (c). The court, after a hearing,
143 shall make a determination as to whether an infraction has been
144 committed. If the commission of an infraction has been proven,
145 the court may impose a civil penalty not to exceed $5,000 plus
146 court costs for each infraction. In determining the amount of
147 the civil penalty, the court may consider previous noncriminal
148 infractions committed.
149 (g) At a court hearing under this chapter, the commission
150 of a charged infraction must be proven by a preponderance of the
151 evidence.
152 (h) If the court finds that a person is found by a judge or
153 hearing official to have committed an infraction, the person may
154 appeal that finding or the amount of the civil penalties imposed
155 to the circuit court.
156 (i) Sunshine State One-Call of Florida, Inc., may, at its
157 own cost, retain an attorney to assist in the presentation of
158 relevant facts and law in the county court proceeding pertaining
159 to the citation issued under this section. The corporation may
160 also appear in any case appealed to the circuit court if a
161 county court judge finds that an infraction of the chapter was
162 committed. An appellant in the circuit court proceeding shall
163 timely notify the corporation of any appeal under this section.
164 (2) REPORT OF INFRACTIONS.—By March 31 of each year, each
165 clerk of court shall submit a report to the State Fire Marshal,
166 the Public Service Commission, and Sunshine State One-Call of
167 Florida, Inc., listing each violation notice written under
168 paragraph (1)(a) which has been filed in that county during the
169 preceding calendar year. The report must state the name and
170 address of the member or excavator who committed each infraction
171 and indicate whether or not the civil penalty for the infraction
172 was paid.
173 (3) MISDEMEANORS.—Any person who knowingly and willfully
174 removes or otherwise destroys the valid stakes or other valid
175 physical markings described in s. 556.105(5)(a) and (b) used to
176 mark the horizontal route of an underground facility commits a
177 misdemeanor of the second degree, punishable as provided in s.
178 775.082 or s. 775.083. For purposes of this subsection, stakes
179 or other nonpermanent physical markings are considered valid for
180 30 calendar days after information is provided to the system
181 under s. 556.105(1)(a).
182 Section 2. Section 556.116, Florida Statutes, is amended to
183 read:
184 556.116 High-priority subsurface installations; special
185 procedures.—
186 (1) As used in this section, the term:
187 (a) “Division” means the Division of Administrative
188 Hearings.
189 (a)(b) “High-priority subsurface installation” means an
190 underground gas transmission or gas distribution pipeline, an
191 underground pipeline used to transport gasoline, jet fuel, or
192 any other refined petroleum product or hazardous or highly
193 volatile liquid, such as anhydrous ammonia or carbon dioxide, if
194 the pipeline is deemed to be critical by the operator of the
195 pipeline and is identified as a high-priority subsurface
196 installation to an excavator who has provided a notice of intent
197 to excavate under pursuant to s. 556.105(1), or would have been
198 identified as a high-priority subsurface installation except for
199 the excavator’s failure to give proper notice of intent to
200 excavate.
201 (b)(c) “Incident” means an event that involves damage to a
202 high-priority subsurface installation that has been identified
203 as such by the operator according to the notification procedures
204 set forth in subsection (2) and that:
205 1. Results in death or serious bodily injury requiring
206 inpatient hospitalization.
207 2. Results in property damage, including service
208 restoration costs, in an amount in excess of $50,000 or
209 interruption of service to 2,500 or more customers.
210 (2) When an excavator proposes to excavate or demolish
211 within 15 feet of the horizontal route of an underground
212 facility that has been identified as a high-priority subsurface
213 installation by the operator of the facility, the operator
214 shall, in addition to identifying the horizontal route of its
215 facility as set forth in s. 556.105(5)(a) and (b), and within
216 the time period set forth in s. 556.105(9)(a) for a positive
217 response, notify the excavator that the facility is a high
218 priority subsurface installation. If the member operator
219 provides such timely notice of the existence of a high-priority
220 subsurface installation, an excavator shall notify the operator
221 of the planned excavation start date and time before beginning
222 excavation. If the member operator does not provide timely
223 notice, the excavator may proceed, after waiting the prescribed
224 time period set forth in s. 556.105(9)(a), to excavate without
225 notifying the member operator of the excavation start date and
226 time. The exemptions stated in s. 556.108 apply to the
227 notification requirements in this subsection.
228 (3)(a) An alleged commission of an infraction listed in s.
229 556.107(1) which results in an incident must be reported to the
230 system by a member operator or an excavator within 24 hours
231 after learning of the alleged occurrence of an incident.
232 (b) Upon receipt of an allegation that an incident has
233 occurred, the system shall transmit an incident report to the
234 State Fire Marshal, the fire chief of the county in which the
235 incident happened, a local or state law enforcement officer, a
236 government code inspector, or a code enforcement officer in
237 order to division and contract with the division so that the
238 division may conduct an investigation a hearing to determine
239 whether an incident has occurred, and, if so, whether a
240 violation of s. 556.107(1)(a) was a proximate cause of the
241 incident. The contract for services to be performed by the
242 division must include provisions for the system to reimburse the
243 division for any costs incurred by the division for court
244 reporters, transcript preparation, travel, facility rental, and
245 other customary hearing costs, in the manner set forth in s.
246 120.65(9).
247 (c) The State Fire Marshal, a local fire chief, a local or
248 state law enforcement officer, a government code inspector, or a
249 code enforcement officer division has jurisdiction in a
250 proceeding under this section to determine the facts and law
251 concerning an alleged incident. The division may issue a
252 citation and impose a civil penalty fine against a violator in
253 an amount not to exceed $50,000 if the person violated a
254 provision of s. 556.107(1)(a) and that violation was a proximate
255 cause of the incident. However, if a state agency or political
256 subdivision caused the incident, the state agency or political
257 subdivision may not be fined in an amount in excess of $10,000.
258 (d) The civil penalty A fine imposed under this subsection
259 by the division is in addition to any amount payable as a result
260 of a citation relating to the incident under s. 556.107(1)(a).
261 (e) If a civil penalty is imposed by the State Fire
262 Marshal, a local fire chief, a local or state law enforcement
263 officer, a government code inspector, or a code enforcement
264 officer under this subsection, 95 percent of the civil penalty
265 collected by the clerk of the court shall be distributed to the
266 governmental entity whose employee issued the citation and civil
267 penalty and 5 percent of the civil penalty shall be retained by
268 the clerk to cover administrative costs A fine against an
269 excavator or a member operator imposed under this subsection
270 shall be paid to the system, which shall use the collected fines
271 to satisfy the costs incurred by the system for any proceedings
272 under this section. To the extent there are any funds remaining,
273 the system may use the funds exclusively for damage-prevention
274 education.
275 (f) This section does not change the basis for civil
276 liability. The findings and results of an investigation a
277 hearing under this section may not be used as evidence of
278 liability in any civil action.
279 (4)(a) The division shall issue and serve on all original
280 parties an initial order that assigns the case to a specific
281 administrative law judge and requests information regarding
282 scheduling the final hearing within 5 business days after the
283 division receives a petition or request for hearing. The
284 original parties in the proceeding include all excavators and
285 member operators identified by the system as being involved in
286 the alleged incident. The final hearing must be conducted within
287 60 days after the date the petition or the request for a hearing
288 is filed with the division.
289 (b) Unless the parties otherwise agree, venue for the
290 hearing shall be in the county in which the underground facility
291 is located.
292 (c) An intervenor in the proceeding must file a petition to
293 intervene no later than 15 days before the final hearing. A
294 person who has a substantial interest in the proceeding may
295 intervene.
296 (5) The following procedures apply:
297 (a) Motions shall be limited to the following:
298 1. A motion in opposition to the petition.
299 2. A motion requesting discovery beyond the informal
300 exchange of documents and witness lists described in paragraph
301 (c). Upon a showing of necessity, additional discovery may be
302 permitted in the discretion of the administrative law judge, but
303 only if the discovery can be completed no later than 5 days
304 before the final hearing.
305 3. A motion for continuance of the final hearing date.
306 (b) All parties shall attend a prehearing conference for
307 the purpose of identifying the legal and factual issues to be
308 considered at the final hearing, the names and addresses of
309 witnesses who may be called to testify at the final hearing,
310 documentary evidence that will be offered at the final hearing,
311 the range of penalties that may be imposed, and any other matter
312 that would expedite resolution of the proceeding. The prehearing
313 conference may be held by telephone conference call.
314 (c) Not later than 5 days before the final hearing, the
315 parties shall furnish to each other copies of documentary
316 evidence and lists of witnesses who may testify at the final
317 hearing.
318 (d) All parties shall have an opportunity to respond, to
319 present evidence and argument on all issues involved, to conduct
320 cross-examination and submit rebuttal evidence, and to be
321 represented by counsel or other qualified representative.
322 (e) The record shall consist only of:
323 1. All notices, pleadings, motions, and intermediate
324 rulings.
325 2. Evidence received during the final hearing.
326 3. A statement of matters officially recognized.
327 4. Proffers of proof and objections and rulings thereon.
328 5. Matters placed on the record after an ex parte
329 communication.
330 6. The written final order of the administrative law judge
331 presiding at the final hearing.
332 7. The official transcript of the final hearing.
333 (f) The division shall accurately and completely preserve
334 all testimony in the proceeding and, upon request by any party,
335 shall make a full or partial transcript available at no more
336 than actual cost.
337 (g) The administrative law judge shall issue a final order
338 within 30 days after the final hearing or the filing of the
339 transcript thereof, whichever is later. The final order of the
340 administrative law judge must include:
341 1. Findings of fact based exclusively on the evidence of
342 record and matters officially recognized.
343 2. Conclusions of law. In determining whether a party has
344 committed an infraction of s. 556.107(1)(a), and whether the
345 infraction was a proximate cause of an incident, the commission
346 of an infraction must be proven by a preponderance of the
347 evidence.
348 3. Imposition of a fine, if applicable.
349 4. Any other information required by law or rule to be
350 contained in a final order.
351
352 The final order of the administrative law judge constitutes
353 final agency action subject to judicial review pursuant to s.
354 120.68.
355 Section 3. Section 556.117, Florida Statutes, is created to
356 read:
357 556.117 Underground facility damage prevention review
358 panel.—
359 (1) The underground facility damage prevention review panel
360 is established under the Division of State Fire Marshal within
361 the Department of Financial Services to review complaints of an
362 alleged violation under this chapter to identify issues or
363 potential issues with damage prevention and enforcement. The
364 review panel shall identify areas in the state where additional
365 education related to damage prevention and enforcement is needed
366 and shall create solutions to remedy issues related to damage
367 prevention and enforcement. The review panel shall also review
368 current practices for locating underground pipes or other
369 underground facilities that transport hazardous materials which
370 are regulated by the Pipeline and Hazardous Materials Safety
371 Administration of the United States Department of Transportation
372 in the state and determine if any statutory changes are needed
373 to make such pipelines or facilities more resilient and safer
374 for communities. Except as otherwise provided in this section,
375 the review panel shall operate in a manner consistent with s.
376 20.052.
377 (2) The review panel shall consist of nine members
378 appointed by the Sunshine State One-Call of Florida, Inc., board
379 of directors and shall include the following:
380 (a) One member representing the electrical utility
381 industry.
382 (b) One member representing the telecommunications
383 industry.
384 (c) One member licensed as an underground utility and
385 excavation contractor under chapter 489 and engaged in work
386 within road or highway rights-of-way.
387 (d) One member representing the natural gas industry.
388 (e) One member representing the utility locator industry.
389 (f) One member representing county or municipal water and
390 sewer service providers.
391 (g) One member representing excavators performing work
392 unrelated to construction within road or highway rights-of-way,
393 including landscaping, fencing, or plumbing contractors.
394 (h) One member licensed as an underground utility and
395 excavation contractor under chapter 489 and engaged in work for
396 public utilities.
397 (i) One member representing the public at large.
398 (3) The board of directors shall establish a process to
399 receive applications for the purpose of appointing members to
400 the review panel.
401 (4) Each member shall serve for a 2-year term. A member may
402 not serve more than two consecutive 2-year terms, except that
403 members listed in paragraphs (2)(a)-(e) shall initially serve a
404 1-year term and those members listed in paragraphs (2)(f)-(i)
405 shall serve a 2-year term. All subsequent appointments shall be
406 for 2-year terms. A vacancy for an unexpired term of a member
407 shall be filled in the same manner as the original appointment.
408 The review panel shall elect from among its members a chair and
409 vice chair and meet quarterly in conjunction with the meeting of
410 the board of directors or at the call of the chair.
411 (5) The Division of State Fire Marshal shall provide staff
412 support and meeting space to the review panel. To the extent
413 expenses to operate the review panel are not offset through
414 civil penalties recovered under s. 556.107, member operators
415 must equally share in the cost of the operation of the review
416 panel through monthly assessments, which are in addition to the
417 monthly assessments provided in s. 556.110.
418 Section 4. This act shall take effect July 1, 2020.