Florida Senate - 2020               CS for CS for CS for SB 1464
       
       
        
       By the Committees on Rules; Banking and Insurance; and
       Infrastructure and Security; and Senator Flores
       
       
       
       
       595-04243-20                                          20201464c3
    1                        A bill to be entitled                      
    2         An act relating to underground facility damage
    3         prevention and safety; amending s. 556.102, F.S.;
    4         providing definitions; amending s. 556.107, F.S.;
    5         revising and providing noncriminal violations relating
    6         to the transportation of certain hazardous materials;
    7         authorizing the State Fire Marshal or his or her
    8         agents or the fire chief of the special district,
    9         municipality, or county to issue certain citations;
   10         providing enhanced civil penalties; providing
   11         disposition of the civil penalties; requiring a report
   12         to be submitted to an additional entity; providing
   13         requirements for the report; providing civil and
   14         criminal penalties; amending s. 556.116, F.S.;
   15         deleting definitions; requiring certain persons to
   16         transmit an incident report to the State Fire Marshal;
   17         providing that certain incident reports must be
   18         investigated by the State Fire Marshal or his or her
   19         agents; authorizing the State Fire Marshal or his or
   20         her agents to issue citations and impose civil
   21         penalties; providing for disposition of the civil
   22         penalty; requiring written warnings for certain
   23         noncriminal infractions; providing for an enhanced
   24         penalty upon conviction for a failure to respond;
   25         deleting provisions relating to hearings by the
   26         Division of Administrative Hearings of certain
   27         incidents; creating s. 556.117, F.S.; requiring
   28         Sunshine State One-Call of Florida, Inc., to review
   29         certain reports and complaints; requiring the
   30         corporation to identify areas in the state in need of
   31         additional education and to recommend solutions;
   32         requiring the corporation to submit an annual report
   33         to the Governor and the Legislature by a specified
   34         date; providing an effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Present subsections (8) and (9) through (14) of
   39  section 556.102, Florida Statutes, are redesignated as
   40  subsections (10) and (12) through (17), respectively, and new
   41  subsections (8), (9), and (11) are added to that section, to
   42  read:
   43         556.102 Definitions.—As used in this act:
   44         (8)“High-priority subsurface installation” means an
   45  underground gas transmission or gas distribution pipeline, or an
   46  underground pipeline used to transport gasoline, jet fuel, or
   47  any other refined petroleum product or hazardous or highly
   48  volatile liquid, such as anhydrous ammonia or carbon dioxide, if
   49  the pipeline is deemed to be critical by the operator of the
   50  pipeline and is identified as a high-priority subsurface
   51  installation to an excavator who has provided a notice of intent
   52  to excavate under s. 556.105(1), or would have been identified
   53  as a high-priority subsurface installation except for the
   54  excavator’s failure to give proper notice of intent to excavate.
   55         (9)“Incident” means an event that involves damage to a
   56  high-priority subsurface installation that has been identified
   57  as such by the operator according to the notification procedures
   58  set forth in s. 556.116(1) and that:
   59         (a)Results in death or serious bodily injury requiring
   60  inpatient hospitalization.
   61         (b)Results in property damage, including service
   62  restoration costs, in an amount in excess of $50,000 or an
   63  interruption of service to 2,500 or more customers.
   64         (11)“Permanent marker” means a clearly visible indication
   65  of the approximate location of an underground facility which is
   66  made of material that is durable in nature and which is
   67  reasonably expected to remain in position for the life of the
   68  underground facility.
   69         Section 2. Section 556.107, Florida Statutes, is amended to
   70  read:
   71         556.107 Violations.—
   72         (1) NONCRIMINAL INFRACTIONS.—
   73         (a)1. Violations of the following provisions are
   74  noncriminal infractions:
   75         a.1. Section 556.105(1), relating to providing required
   76  information.
   77         b.Section 556.105(5)(c), relating to excavation practices
   78  in tolerance zones.
   79         c.2. Section 556.105(6), relating to the avoidance of
   80  excavation.
   81         d.3. Section 556.105(11), relating to the need to stop
   82  excavation or demolition because marks are no longer visible,
   83  or, in the case of underwater facilities, are inadequately
   84  documented.
   85         e.4. Section 556.105(12), relating to the need to cease
   86  excavation or demolition activities because of contact or damage
   87  to an underground facility.
   88         f.5. Section 556.105(5)(a) and (b), relating to
   89  identification of underground facilities, if a member operator
   90  does not mark an underground facility, but not if a member
   91  operator marks an underground facility incorrectly.
   92         g.6. Section 556.109(2), relating to falsely notifying the
   93  system of an emergency situation or condition.
   94         h.7. Section 556.114(1), (2), (3), and (4), relating to a
   95  failure to follow low-impact marking practices, as defined
   96  therein.
   97         2.Violations of the following provisions involving an
   98  underground facility transporting hazardous materials that are
   99  regulated by the Pipeline and Hazardous Materials Safety
  100  Administration of the United States Department of Transportation
  101  are noncriminal infractions, subject to enhanced civil penalties
  102  under paragraph (c):
  103         a.Section 556.105(1), relating to providing required
  104  information.
  105         b.Section 556.105(5)(c), relating to excavation practices
  106  in tolerance zones.
  107         c.Section 556.105(6), relating to the avoidance of certain
  108  excavation.
  109         d.Section 556.105(11), relating to the need to stop
  110  excavation or demolition because certain marks are removed, no
  111  longer visible, or inadequately documented.
  112         e.Section 556.105(12), relating to the need to cease
  113  excavation or demolition activities because of contact or damage
  114  to an underground facility.
  115         (b) Any excavator or member operator who commits a
  116  noncriminal infraction under paragraph (a) may be issued a
  117  citation by the State Fire Marshal or his or her agents as
  118  provided in ss. 633.114 and 633.116; the fire chief of the
  119  special district, municipality, or county; or any local or state
  120  law enforcement officer, government code inspector, or code
  121  enforcement officer, and the issuer of a citation may require an
  122  excavator to cease work on any excavation or not start a
  123  proposed excavation until there has been compliance with the
  124  provisions of this chapter. Citations shall be hand delivered to
  125  any employee of the excavator or member operator who is involved
  126  in the noncriminal infraction. The citation shall be issued in
  127  the name of the excavator or member operator, whichever is
  128  applicable.
  129         (c)1. Any excavator or member operator who commits a
  130  noncriminal infraction under subparagraph (a)1. paragraph (a)
  131  may be required to pay a civil penalty of $500 plus court costs
  132  for each infraction, which is $500 plus court costs. If a
  133  citation is issued by a state law enforcement officer, a local
  134  law enforcement officer, a local government code inspector, or a
  135  code enforcement officer, 80 percent of the civil penalty
  136  collected by the clerk of the court must shall be distributed to
  137  the governmental entity whose employee issued the citation and
  138  20 percent of the penalty must shall be retained by the clerk to
  139  cover administrative costs, in addition to any other court
  140  costs. Any person who fails to properly respond to a citation
  141  issued pursuant to paragraph (b) shall, in addition to the
  142  citation, be charged with the offense of failing to respond to
  143  the citation and, upon conviction, commits a misdemeanor of the
  144  second degree, punishable as provided in s. 775.082 or s.
  145  775.083. A written warning to this effect must be provided at
  146  the time any citation is issued pursuant to paragraph (b).
  147         2.Any excavator or member operator who commits a
  148  noncriminal infraction under subparagraph (a)2. may be required
  149  to pay an enhanced civil penalty of $2,500 plus court costs for
  150  each infraction. If a citation is issued, 80 percent of the
  151  civil penalty collected by the clerk of the court must be
  152  distributed to the governmental entity whose employee issued the
  153  citation and 20 percent must be retained by the clerk in
  154  addition to any court costs.
  155         3.Any person who willfully fails to properly respond to a
  156  citation issued under paragraph (b) shall, in addition to the
  157  citation, be charged with the offense of failing to respond to
  158  the citation and, upon conviction, commits a misdemeanor of the
  159  second degree, punishable as provided in s. 775.082 or s.
  160  775.083. A written warning to this effect must be provided at
  161  the time a citation is issued under paragraph (b).
  162         (d) Any person cited for an infraction under paragraph (a)
  163  or s. 556.116(2)(c) may post a bond, which must shall be equal
  164  in amount to the applicable civil penalty plus any additional
  165  court costs.
  166         (e) A person charged with a noncriminal infraction under
  167  paragraph (a) or s. 556.116(2)(c) may pay the applicable civil
  168  penalty plus the additional court costs, by mail or in person,
  169  within 30 days after the date of receiving the citation. If the
  170  person cited pays the civil penalty, she or he is deemed to have
  171  admitted to committing the infraction and to have waived the
  172  right to a hearing on the issue of commission of the infraction.
  173  The admission may be used as evidence in any other proceeding
  174  under this chapter.
  175         (f) Any person may elect to have a hearing on the
  176  commission of the infraction appear before the county court. A
  177  person who elects to have a hearing waives and if so electing is
  178  deemed to have waived the limitations on the civil penalties
  179  penalty specified in paragraph (c). The court, after a hearing,
  180  shall make a determination as to whether an infraction has been
  181  committed. If the commission of an infraction has been proven,
  182  the court may impose a civil penalty not to exceed the
  183  applicable civil penalty $5,000 plus court costs for each
  184  infraction. In determining the amount of the civil penalty, the
  185  court may consider previous noncriminal infractions committed.
  186         (g) At a court hearing under this chapter, the commission
  187  of a charged infraction must be proven by a preponderance of the
  188  evidence.
  189         (h) If the court finds that a person is found by a judge or
  190  hearing official to have committed an infraction, the person may
  191  appeal that finding or the amount of the civil penalties imposed
  192  to the circuit court.
  193         (i) Sunshine State One-Call of Florida, Inc., may, at its
  194  own cost, retain an attorney to assist in the presentation of
  195  relevant facts and law in the county court proceeding pertaining
  196  to the citation issued under this section. The corporation may
  197  also appear in any case appealed to the circuit court if a
  198  county court judge finds that an infraction of the chapter was
  199  committed. An appellant in the circuit court proceeding shall
  200  timely notify the corporation of any appeal under this section.
  201         (2) REPORT OF INFRACTIONS.—By March 31 of each year, each
  202  clerk of court shall submit a report to the State Fire Marshal
  203  and Sunshine State One-Call of Florida, Inc., listing each
  204  citation issued for a violation notice written under paragraph
  205  (1)(a) and s. 556.116(2)(c) which has been filed in that county
  206  during the preceding calendar year. The report must state the
  207  name and address of the member or excavator who committed each
  208  infraction, the enforcement authority, the specific statutory
  209  infraction, and the type of underground facility related to the
  210  infraction and must indicate whether or not the civil penalty
  211  for the infraction was paid.
  212         (3) MISDEMEANORS.—
  213         (a) Any person who knowingly and willfully removes or
  214  otherwise destroys the valid stakes or other valid physical
  215  markings described in s. 556.105(5)(a) and (b) used to mark the
  216  horizontal route of an underground facility commits a
  217  misdemeanor of the second degree, punishable as provided in s.
  218  775.082 or s. 775.083. For purposes of this subsection, stakes
  219  or other nonpermanent physical markings are considered valid for
  220  30 calendar days after information is provided to the system
  221  under s. 556.105(1)(a).
  222         (b)Any person who knowingly and willfully removes or
  223  damages a permanent marker placed to identify the approximate
  224  location of an underground facility commits a misdemeanor of the
  225  second degree, punishable as provided in s. 775.082 or s.
  226  775.083.
  227         Section 3. Section 556.116, Florida Statutes, is amended to
  228  read:
  229         556.116 High-priority subsurface installations; special
  230  procedures.—
  231         (1)As used in this section, the term:
  232         (a)“Division” means the Division of Administrative
  233  Hearings.
  234         (b)“High-priority subsurface installation” means an
  235  underground gas transmission or gas distribution pipeline, an
  236  underground pipeline used to transport gasoline, jet fuel, or
  237  any other refined petroleum product or hazardous or highly
  238  volatile liquid, such as anhydrous ammonia or carbon dioxide, if
  239  the pipeline is deemed to be critical by the operator of the
  240  pipeline and is identified as a high-priority subsurface
  241  installation to an excavator who has provided a notice of intent
  242  to excavate pursuant to s. 556.105(1), or would have been
  243  identified as a high-priority subsurface installation except for
  244  the excavator’s failure to give proper notice of intent to
  245  excavate.
  246         (c)“Incident” means an event that involves damage to a
  247  high-priority subsurface installation that has been identified
  248  as such by the operator according to the notification procedures
  249  set forth in subsection (2) and that:
  250         1.Results in death or serious bodily injury requiring
  251  inpatient hospitalization.
  252         2.Results in property damage, including service
  253  restoration costs, in an amount in excess of $50,000 or
  254  interruption of service to 2,500 or more customers.
  255         (1)(2) When an excavator proposes to excavate or demolish
  256  within 15 feet of the horizontal route of an underground
  257  facility that has been identified as a high-priority subsurface
  258  installation by the operator of the facility, the operator
  259  shall, in addition to identifying the horizontal route of its
  260  facility as set forth in s. 556.105(5)(a) and (b), and within
  261  the time period set forth in s. 556.105(9)(a) for a positive
  262  response, notify the excavator that the facility is a high
  263  priority subsurface installation. If the member operator
  264  provides such timely notice of the existence of a high-priority
  265  subsurface installation, an excavator shall notify the operator
  266  of the planned excavation start date and time before beginning
  267  excavation. If the member operator does not provide timely
  268  notice, the excavator may proceed, after waiting the prescribed
  269  time period set forth in s. 556.105(9)(a), to excavate without
  270  notifying the member operator of the excavation start date and
  271  time. The exemptions stated in s. 556.108 apply to the
  272  notification requirements in this subsection.
  273         (2)(a)(3)(a) An alleged commission of an infraction listed
  274  in s. 556.107(1) which results in an incident must be reported
  275  to the system and the State Fire Marshal by a member operator or
  276  an excavator within 24 hours after learning of the alleged
  277  occurrence of an incident.
  278         (b) Upon receipt of an allegation that an incident has
  279  occurred, the member operator or excavator system shall transmit
  280  an incident report to the State Fire Marshal, who shall division
  281  and contract with the division so that the division may conduct
  282  an investigation a hearing to determine whether an incident has
  283  occurred, and, if so, whether a violation of s. 556.107(1)(a)
  284  was a proximate cause of the incident. The State Fire Marshal
  285  may authorize his or her agents as provided in ss. 633.114,
  286  633.116, and 633.118 to conduct investigations of incidents The
  287  contract for services to be performed by the division must
  288  include provisions for the system to reimburse the division for
  289  any costs incurred by the division for court reporters,
  290  transcript preparation, travel, facility rental, and other
  291  customary hearing costs, in the manner set forth in s.
  292  120.65(9).
  293         (c) The State Fire Marshal or his or her agents as provided
  294  in ss. 633.114, 633.116, and 633.118 division has jurisdiction
  295  in a proceeding under this section to determine the facts and
  296  law concerning an alleged incident. The division may issue a
  297  citation and impose a civil penalty fine against a violator in
  298  an amount not to exceed $50,000 if the person violated a
  299  provision of s. 556.107(1)(a) and that violation was a proximate
  300  cause of the incident. However, if a state agency or political
  301  subdivision caused the incident, the state agency or political
  302  subdivision may not be fined in an amount in excess of $10,000.
  303         (d) The civil penalty A fine imposed under this subsection
  304  by the division is in addition to any amount payable as a result
  305  of a citation relating to the incident under s. 556.107(1)(a).
  306         (e) If an additional civil penalty is imposed by the State
  307  Fire Marshal or his or her agents, 5 percent of the civil
  308  penalty must be retained by the clerk to cover administrative
  309  costs, and the remainder of the civil penalty must be
  310  distributed equally between the system and the State Fire
  311  Marshal. The portion of the civil penalty distributed to the
  312  system must be used exclusively to fund damage-prevention
  313  education. The portion of the civil penalty distributed to the
  314  State Fire Marshal must be used exclusively to fund programs
  315  created within the State Fire Marshal’s office that provide
  316  need-based financial assistance to help fire departments,
  317  including volunteer fire departments, procure equipment,
  318  supplies, and educational training designed to mitigate
  319  firefighter exposure to hazardous, cancer-causing chemicals A
  320  fine against an excavator or a member operator imposed under
  321  this subsection shall be paid to the system, which shall use the
  322  collected fines to satisfy the costs incurred by the system for
  323  any proceedings under this section. To the extent there are any
  324  funds remaining, the system may use the funds exclusively for
  325  damage-prevention education.
  326         (f) Any excavator or member operator who commits a
  327  noncriminal infraction under s. 556.116(2)(c) must be provided a
  328  written warning at the time a citation is issued stating that
  329  any person who willfully fails to properly respond to a citation
  330  will be charged, in addition to the citation, with the offense
  331  of failing to respond to the citation and, if convicted, commits
  332  a misdemeanor of the second degree, punishable as provided in s.
  333  775.082 or s. 775.083.
  334         (g) This section does not change the basis for civil
  335  liability. The findings and results of an investigation a
  336  hearing under this section may not be used as evidence of
  337  liability in any civil action.
  338         (4)(a)The division shall issue and serve on all original
  339  parties an initial order that assigns the case to a specific
  340  administrative law judge and requests information regarding
  341  scheduling the final hearing within 5 business days after the
  342  division receives a petition or request for hearing. The
  343  original parties in the proceeding include all excavators and
  344  member operators identified by the system as being involved in
  345  the alleged incident. The final hearing must be conducted within
  346  60 days after the date the petition or the request for a hearing
  347  is filed with the division.
  348         (b)Unless the parties otherwise agree, venue for the
  349  hearing shall be in the county in which the underground facility
  350  is located.
  351         (c)An intervenor in the proceeding must file a petition to
  352  intervene no later than 15 days before the final hearing. A
  353  person who has a substantial interest in the proceeding may
  354  intervene.
  355         (5)The following procedures apply:
  356         (a)Motions shall be limited to the following:
  357         1.A motion in opposition to the petition.
  358         2.A motion requesting discovery beyond the informal
  359  exchange of documents and witness lists described in paragraph
  360  (c). Upon a showing of necessity, additional discovery may be
  361  permitted in the discretion of the administrative law judge, but
  362  only if the discovery can be completed no later than 5 days
  363  before the final hearing.
  364         3.A motion for continuance of the final hearing date.
  365         (b)All parties shall attend a prehearing conference for
  366  the purpose of identifying the legal and factual issues to be
  367  considered at the final hearing, the names and addresses of
  368  witnesses who may be called to testify at the final hearing,
  369  documentary evidence that will be offered at the final hearing,
  370  the range of penalties that may be imposed, and any other matter
  371  that would expedite resolution of the proceeding. The prehearing
  372  conference may be held by telephone conference call.
  373         (c)Not later than 5 days before the final hearing, the
  374  parties shall furnish to each other copies of documentary
  375  evidence and lists of witnesses who may testify at the final
  376  hearing.
  377         (d)All parties shall have an opportunity to respond, to
  378  present evidence and argument on all issues involved, to conduct
  379  cross-examination and submit rebuttal evidence, and to be
  380  represented by counsel or other qualified representative.
  381         (e)The record shall consist only of:
  382         1.All notices, pleadings, motions, and intermediate
  383  rulings.
  384         2.Evidence received during the final hearing.
  385         3.A statement of matters officially recognized.
  386         4.Proffers of proof and objections and rulings thereon.
  387         5.Matters placed on the record after an ex parte
  388  communication.
  389         6.The written final order of the administrative law judge
  390  presiding at the final hearing.
  391         7.The official transcript of the final hearing.
  392         (f)The division shall accurately and completely preserve
  393  all testimony in the proceeding and, upon request by any party,
  394  shall make a full or partial transcript available at no more
  395  than actual cost.
  396         (g)The administrative law judge shall issue a final order
  397  within 30 days after the final hearing or the filing of the
  398  transcript thereof, whichever is later. The final order of the
  399  administrative law judge must include:
  400         1.Findings of fact based exclusively on the evidence of
  401  record and matters officially recognized.
  402         2.Conclusions of law. In determining whether a party has
  403  committed an infraction of s. 556.107(1)(a), and whether the
  404  infraction was a proximate cause of an incident, the commission
  405  of an infraction must be proven by a preponderance of the
  406  evidence.
  407         3.Imposition of a fine, if applicable.
  408         4.Any other information required by law or rule to be
  409  contained in a final order.
  410  
  411  The final order of the administrative law judge constitutes
  412  final agency action subject to judicial review pursuant to s.
  413  120.68.
  414         Section 4. Section 556.117, Florida Statutes, is created to
  415  read:
  416         556.117Underground facility damage prevention review.
  417  Sunshine State One-Call of Florida, Inc., shall review the
  418  reports submitted by the clerks of court to the State Fire
  419  Marshal and any complaints of an alleged violation under this
  420  chapter to identify issues or potential issues with damage
  421  prevention and enforcement. The corporation shall identify areas
  422  in the state where additional education related to damage
  423  prevention and enforcement is needed and shall recommend
  424  solutions to remedy issues related to damage prevention and
  425  enforcement. The corporation shall, by October 1 of each year,
  426  submit to the Governor, the President of the Senate, and the
  427  Speaker of the House of Representatives an analysis of its
  428  reviews and any recommendations for improving underground
  429  facility damage prevention and enforcement.
  430         Section 5. This act shall take effect July 1, 2020.