The Florida Senate

337.015  Administration of public contracts.

337.02  Purchases by department subject to competitive bids; advertisement; emergency purchases; bid specifications.

337.023  Sale of building; acceptance of replacement building.

337.025  Innovative highway projects; department to establish program.

337.03  Authority of department to purchase surplus properties from the Federal Government.

337.105  Qualifications of professional consultants and other providers of contractual services; performance bonds; and audits of indirect costs.

337.106  Professional service providers; requirement for professional liability insurance.

337.107  Contracts for right-of-way services.

337.1075  Contracts for planning services.

337.108  Hazardous materials and pollutants; indemnification.

337.11  Contracting authority of department; bids; emergency repairs, supplemental agreements, and change orders; combined design and construction contracts; progress payments; records; requirements of vehicle registration.

337.125  Socially and economically disadvantaged business enterprises; notice requirements.

337.135  Socially and economically disadvantaged business enterprises; punishment for false representation.

337.137  Subcontracting by socially and economically disadvantaged business enterprises; decertification.

337.139  Efforts to encourage awarding contracts to disadvantaged business enterprises.

337.14  Application for qualification; certificate of qualification; restrictions; request for hearing.

337.141  Payment of construction or maintenance contracts.

337.145  Offsetting payments.

337.16  Disqualification of delinquent contractors from bidding; determination of contractor nonresponsibility; denial, suspension, and revocation of certificates of qualification; grounds; hearing.

337.162  Professional services.

337.164  Legislative intent with respect to integrity of public contracting process.

337.165  Contract crime; denial or revocation of a certificate of qualification.

337.166  Moneys recovered for violations of antitrust laws.

337.167  Administrative procedures; stays and injunctions.

337.168  Confidentiality of official estimates, identities of potential bidders, and bid analysis and monitoring system.

337.169  Effect of ch. 83-4 on existing remedies.

337.17  Bid guaranty.

337.175  Retainage.

337.18  Surety bonds; requirement with respect to contract award; defaults; damage assessments.

337.185  State Arbitration Board.

337.19  Suits by and against department; limitation of actions; forum.

337.221  Claims settlement process.

337.242  Acquisition of rail corridors.

337.243  Notification of land use changes in designated transportation corridors.

337.25  Acquisition, lease, and disposal of real and personal property.

337.2505  Donations for landscape projects.

337.251  Lease of property for joint public-private development and areas above or below department property.

337.26  Execution and effect of instruments of sale, lease, or conveyance executed by department.

337.27  Exercise of power of eminent domain by department; procedure; title; cost.

337.273  Transportation corridors.

337.2735  Recording of municipal maps of reservation for transportation corridors and transportation facilities; establishment of building setback lines; restrictions on issuance of development permits; hearings.

337.274  Authority of department agent or employee to enter lands, waters, and premises of another in the performance of duties.

337.276  Issuance of bonds for right-of-way land acquisition and state bridge construction.

337.29  Vesting of title to roads; liability for torts.

337.401  Use of right-of-way for utilities subject to regulation; permit; fees.

337.402  Damage to public road caused by utility.

337.403  Relocation of utility; expenses.

337.404  Removal or relocation of utility facilities; notice and order; court review.

337.405  Trees or other vegetation within rights-of-way of State Highway System or publicly owned rail corridors; removal or damage; penalty.

337.406  Unlawful use of state transportation facility right-of-way; penalties.

337.4061  Definitions; unlawful use of state-maintained road right-of-way by nonfranchised cable television services.

337.407  Regulation of signs and lights within rights-of-way.

337.408  Regulation of benches, transit shelters, and waste disposal receptacles within rights-of-way.

337.409  Willfully or maliciously removing, damaging, destroying, altering, or appropriating benches, transit shelters, waste receptacles, or advertising displayed thereon; penalty.

337.015  Administration of public contracts.--Recognizing that the inefficient and ineffective administration of public contracts inconveniences the traveling public, increases costs to taxpayers, and interferes with commerce, the Legislature hereby determines and declares that:

(1)  Time is an essential element of the contract, and to assure satisfactory work progress and timely contract completion, the department shall minimize the allowance of additional contract time.

(2)  In order to increase competition and maximize the utilization of personnel, the department shall minimize the variances between contract lettings.

(3)  To protect the public interest, the department shall vigorously pursue claims against contractors and consultants for time overruns and substandard work products.

(4)  The department shall stabilize the work program, ensuring the timely and systematic completion of projects.

(5)  To encourage increased competition and timely completion of construction projects, the department may allow flexible start and finish time limits when the commencement of work is not essential to the public health, safety, or welfare. When using flexible start and finish time limits, the department may withhold up to 10 percent retainage on completed work when the contractor either fails to timely commence work or falls behind in work progress at any point prior to completion of the contract.

(6)  The department shall make payments for road and bridge construction and maintenance work throughout the month so that the cash balance fluctuates as little as practicable.

History.--s. 3, ch. 87-100; s. 11, ch. 89-301; s. 126, ch. 92-152; s. 12, ch. 94-237; s. 83, ch. 99-385.

337.02  Purchases by department subject to competitive bids; advertisement; emergency purchases; bid specifications.--

(1)  Except as provided herein, purchase by the Department of Transportation of commodities, including the advertising and awarding of competitive bids, shall be governed by chapters 283 and 287 and rules adopted by the Department of Management Services pursuant thereto. However, the provisions of s. 287.057 notwithstanding, the department may purchase parts and repairs valued at up to the threshold amount provided in s. 287.017 for CATEGORY TWO for the repair of mobile road maintenance equipment, marine vessels, permanent vehicle scales, and mechanical and electrical equipment for movable bridges, toll facilities including the Florida Turnpike, and up to the threshold amount provided in s. 287.017 for CATEGORY THREE for treatment plants and lift stations for water and sewage, and major heating and cooling systems without receiving competitive bids.

(2)  If the department determines that an emergency exists in regard to the purchase of materials, machinery, tools, equipment, or supplies, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, the provisions for competitive bidding do not apply; and the department may authorize or purchase such materials, machinery, tools, equipment, or supplies without giving opportunity for competitive bidding thereon. The department shall, within 10 days after such determination and purchase, file with the head of the Department of Management Services a written statement of the materials, machinery, tools, equipment, or supplies purchased and a certificate as to the conditions and circumstances constituting such emergency.

(3)  When the department advertises for bids on a contract for supplies, materials, equipment, or other items needed by the department, specifications shall be drafted in such manner as will afford adequate protection to the state as to quality and performance, but specifications shall not be drafted in any manner which will preclude competition in bidding.

History.--s. 81, ch. 29965, 1955; s. 5, ch. 67-461; ss. 23, 35, ch. 69-106; s. 112, ch. 71-377; s. 134, ch. 84-309; s. 18, ch. 85-180; s. 29, ch. 90-268; s. 281, ch. 92-279; s. 55, ch. 92-326; s. 33, ch. 96-323.

337.023  Sale of building; acceptance of replacement building.--Notwithstanding the provisions of s. 216.292(4)(b), if the department sells a building, the department may accept the construction of a replacement building, in response to a request for proposals, totally or partially in lieu of cash, and may do so without a specific legislative appropriation. Such action is subject to the approval of the Executive Office of the Governor, and is subject to the notice, review, and objection procedures under s. 216.177. The replacement building shall be consistent with the current and projected needs of the department as agreed upon by the department and the Department of Management Services.

History.--s. 51, ch. 97-278; s. 121, ch. 99-13; s. 55, ch. 2000-371.

337.025  Innovative highway projects; department to establish program.--The department is authorized to establish a program for highway projects demonstrating innovative techniques of highway construction, maintenance, and finance which have the intended effect of controlling time and cost increases on construction projects. Such techniques may include, but are not limited to, state-of-the-art technology for pavement, safety, and other aspects of highway construction and maintenance; innovative bidding and financing techniques; accelerated construction procedures; and those techniques that have the potential to reduce project life cycle costs. To the maximum extent practical, the department must use the existing process to award and administer construction and maintenance contracts. When specific innovative techniques are to be used, the department is not required to adhere to those provisions of law that would prevent, preclude, or in any way prohibit the department from using the innovative technique. However, prior to using an innovative technique that is inconsistent with another provision of law, the department must document in writing the need for the exception and identify what benefits the traveling public and the affected community are anticipated to receive. The department may enter into no more than $120 million in contracts annually for the purposes authorized by this section.

History.--s. 34, ch. 96-323; s. 45, ch. 99-385; s. 10, ch. 2000-266.

337.03  Authority of department to purchase surplus properties from the Federal Government.--

(1)  The department is authorized to purchase from the Federal Government any supplies, material, equipment, appliances, or other property at such price and upon such terms as may in the judgment of the department be proper, without first advertising for bids, regardless of the value of, or the price paid for, such property; provided the price paid for such supplies, materials, equipment, appliances, or other property does not exceed the price for which such property may be purchased upon the open market.

(2)  Payment of the cost of all supplies, material, equipment, appliances, or other property purchased pursuant to the authority given in subsection (1) shall be made upon vouchers issued and certified to by the department.

History.--s. 82, ch. 29965, 1955; s. 5, ch. 67-461; ss. 23, 35, ch. 69-106; s. 113, ch. 71-377; s. 100, ch. 77-104; s. 135, ch. 84-309.

337.105  Qualifications of professional consultants and other providers of contractual services; performance bonds; and audits of indirect costs.--

(1)  Before the employment of a professional consultant or other provider of service, the department shall make a finding that the person to be employed is fully qualified to render the desired service. Among the factors to be considered in making this finding are the professional reputation, past performance record, and experience of the candidate and the adequacy of the personnel making up his or her organization. The department may, for good cause, deny or suspend for a specified period of time a person or firm from consideration for award of a professional service contract for a particular type of work. The department shall adopt rules to administer this section. As used in this subsection, the term "good cause" includes, but is not limited to, circumstances in which a consultant or other provider of service or its official representative:

(a)  Makes or submits false, deceptive, or fraudulent statements in any bid or proposal to the department, in any application for certification of qualification, or in any administrative or judicial proceeding;

(b)  Becomes insolvent or is the subject of a bankruptcy petition;

(c)  Has been qualified by the department based on a license or registration issued by the state which has subsequently been revoked or suspended or has been denied;

(d)  Has been qualified by the department based on the employment of personnel no longer employed by the consultant or other provider of service;

(e)  Fails to maintain adequate professional liability insurance for the certified areas of work;

(f)  Fails to satisfactorily perform contract requirements;

(g)  Wrongfully employs or otherwise provides compensation to any employee or officer of the department, or willfully offers an employee or officer of the department any pecuniary or other benefit, with the intent to influence the employee's or officer's official action or judgment;

(h)  Is affiliated with a consultant or other provider of service whose qualification to render professional services has been denied or suspended by the department and is dependent upon such consultant or other provider of service for personnel, equipment, or finances; or

(i)  Has been barred or suspended from consideration for work with any other governmental entity.

(2)  For any contractual service, except a contractual service provided to the department under s. 287.055, the department may require a performance bond equal to the full contract value if such requirement is deemed to be in the best interest of the state.

(3)  The department may require providers of professional services acquired under s. 287.055 to submit annual audits of their indirect costs performed in accordance with department guidelines. The department may establish limits on the indirect cost rates it will accept.

History.--s. 1, ch. 70-64; s. 171, ch. 84-309; s. 4, ch. 87-100; s. 1, ch. 89-21; s. 494, ch. 95-148; s. 35, ch. 96-323; s. 2, ch. 98-105.

Note.--Former s. 337.33.

337.106  Professional service providers; requirement for professional liability insurance.--Except for any person or firm providing professional services of a research or training nature, any person or firm rendering legal, architectural, engineering, or other professional services to the department shall have and maintain during the period the services are rendered a professional liability insurance policy or policies with a company or companies authorized to do business in the state affording professional liability coverage for the professional services rendered, in an amount deemed sufficient by the department. The requirement for professional liability insurance set forth in this section may be waived by the department, if the person or firm providing professional services obtains and maintains an unexpired, irrevocable letter of credit, established pursuant to chapter 675, in an amount not less than the minimum insurance coverage required by the contract with the department. The letter of credit shall be solely for the benefit of the department and must remain valid until 3 years after final acceptance of the project of which the professional services were a part. The letter of credit shall be approved by the department comptroller and be payable to the department as beneficiary upon presentment of a final judgment indicating liability and awarding damages to be paid to the department by the professional service provider or upon presentment of a settlement agreement signed by all parties. The letter of credit shall be nonassignable and nontransferable. The letter of credit shall be issued by any bank or savings association organized and existing under the laws of this state or any bank or savings association organized under the laws of the United States that has its principal place of business in this state or has a branch office which is authorized under the laws of this state or of the United States to receive deposits in this state.

History.--s. 3, ch. 70-168; s. 138, ch. 84-309; s. 1, ch. 88-299; s. 51, ch. 90-136; s. 119, ch. 92-152; s. 2, ch. 92-318.

337.107  Contracts for right-of-way services.--The department may enter into contracts pursuant to s. 287.055 for right-of-way services on transportation corridors and transportation facilities. Right-of-way services include negotiation and acquisition services, appraisal services, demolition and removal of improvements, and asbestos-abatement services.

History.--s. 111, ch. 92-152; s. 25, ch. 95-257.

337.1075  Contracts for planning services.--The department may enter into contracts pursuant to s. 287.055 for professional transportation-related planning services to be provided by planners certified by the American Institute of Certified Planners.

History.--s. 14, ch. 93-164.

337.108  Hazardous materials and pollutants; indemnification.--

(1)  For purposes of this section:

(a)  The term "hazardous materials" shall have the same meaning as provided in s. 768.128(1)(a).

(b)  The term "pollutants" shall have the same meaning as provided in s. 376.031.

(c)  The term "contractor" means any person or firm having a contract for rendering services to the department relating to the construction or maintenance of a transportation facility; the term does not include persons or firms performing hazardous material or pollutant response, containment, disposal, or cleanup services.

(2)  The department may agree to hold harmless and indemnify a contractor for damages when the contractor discovers or encounters hazardous materials or pollutants during the performance of services for the department when the presence of such materials or pollutants was unknown or not reasonably discoverable. Such indemnification agreements shall only be effective if the contractor immediately stops work and notifies the department of the hazardous material or pollutant problem.

(3)  Such an indemnification agreement may not indemnify the contractor for damages resulting from any willful, wanton, or intentional conduct of the contractor.

History.--s. 125, ch. 92-152; s. 164, ch. 94-356.

337.11  Contracting authority of department; bids; emergency repairs, supplemental agreements, and change orders; combined design and construction contracts; progress payments; records; requirements of vehicle registration.--

(1)  The department shall have authority to enter into contracts for the construction and maintenance of all roads designated as part of the State Highway System or the State Park Road System or of any roads placed under its supervision by law. The department shall also have authority to enter into contracts for the construction and maintenance of rest areas, weigh stations, and other structures, including roads, parking areas, supporting facilities and associated buildings used in connection with such facilities. However, no such contract shall create any third-party beneficiary rights in any person not a party to the contract.

(2)  The department shall ensure that all project descriptions, including design plans, are complete, accurate, and up to date prior to the advertisement for bids on such projects.

(3)(a)  On all construction contracts of $250,000 or less, the department shall advertise for bids in a newspaper having general circulation in the county where the proposed work is located. Publication shall be at least once a week for no less than 2 consecutive weeks, and the first publication shall be no less than 14 days prior to the date on which bids are to be received.

(b)  On all construction contracts greater than $250,000, the department shall provide a bid solicitation notice to all prequalified contractors at least 2 weeks before the date bids are scheduled to be received.

(c)  No advertisement for bids shall be published and no bid solicitation notice shall be provided until title to all necessary rights-of-way and easements for the construction of the project covered by such advertisement or notice has vested in the state or a local governmental entity, and all railroad crossing and utility agreements have been executed. Title to all necessary rights-of-way shall be deemed to have been vested in the State of Florida when such title has been dedicated to the public or acquired by prescription.

(4)  The department may award the proposed construction and maintenance work to the lowest responsible bidder, or in the instance of a time-plus-money contract, the lowest evaluated responsible bidder, or it may reject all bids and proceed to rebid the work in accordance with subsection (2) or otherwise perform the work.

(5)(a)  Any person who files an action protesting a bid solicitation, a bid rejection, or an award pursuant to this section shall post with the department, at the time of filing a notice of protest, a bond payable to the department in the following amounts:

1.  For an action protesting a bid solicitation that requires qualification of bidders, the bond shall be $5,000.

2.  For an action protesting a bid rejection or contract award that requires qualification of bidders, the bond shall be equal to 1 percent of the lowest bid submitted or $5,000, whichever is greater.

3.  For an action protesting a bid solicitation, bid rejection, or contract award that does not require qualification of bidders, the bond shall be $2,500.

(b)  The bond required by this subsection shall be conditioned upon the payment of all costs which may be adjudged against the person filing the protest in the administrative hearing in which the action is brought and any subsequent appellate court proceeding. If, after completion of the administrative hearing process and any appellate court proceedings, the department prevails, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. Upon payment of such costs and charges by the person filing the protest, the bond shall be returned to him or her. If the person filing the protest prevails, he or she shall recover from the department all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. The entire amount of the bond shall be forfeited if the administrative law judge determines that a protest was filed for a frivolous or improper purpose, including, but not limited to, the purpose of harassing, causing unnecessary delay, or causing needless cost for the department or parties.

(c)  As an alternative to any provision in s. 120.57(3)(c), the department may proceed with the bid solicitation or contract award process when the head of the department sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process in order to avoid a substantial loss of funding to the state.

(d)  A person may not file a protest on any project for which he or she is not certified to bid pursuant to s. 337.14.

(6)(a)  If the secretary determines that an emergency in regard to the restoration or repair of any state transportation facility exists such that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, the provisions for competitive bidding do not apply; and the department may enter into contracts for restoration or repair without giving opportunity for competitive bidding on such contracts. Within 30 days after such determination and contract execution, the head of the department shall file with the Executive Office of the Governor a written statement of the conditions and circumstances constituting such emergency.

(b)  If the secretary determines that delays on a contract for maintenance exist due to administrative challenges, bid protests, defaults or terminations and the further delay would reduce safety on the transportation facility or seriously hinder the department's ability to preserve the state's investment in that facility, competitive bidding provisions may be waived and the department may enter into a contract for maintenance on the facility. However, contracts for maintenance executed under the provisions of this paragraph shall be interim in nature and shall be limited in duration to a period of time not to exceed the length of the delay necessary to complete the competitive bidding process and have the contract in place.

(c)  When the department determines that it is in the best interest of the public for reasons of public concern, economy, improved operations or safety, and only when circumstances dictate rapid completion of the work, the department may, up to the threshold amount provided in s. 287.017 for CATEGORY FOUR, enter into contracts for construction and maintenance without advertising and receiving competitive bids. However, if legislation is enacted by the Legislature which changes the category thresholds, the threshold amount shall remain at $60,000. The department may enter into such contracts only upon a determination that the work is necessary for one of the following reasons:

1.  To ensure timely completion of projects or avoidance of undue delay for other projects;

2.  To accomplish minor repairs or construction and maintenance activities for which time is of the essence and for which significant cost savings would occur; or

3.  To accomplish nonemergency work necessary to ensure avoidance of adverse conditions that affect the safe and efficient flow of traffic.

The department shall make a good faith effort to obtain two or more quotes, if available, from qualified contractors before entering into any contract. The department shall give consideration to disadvantaged business enterprise participation. However, when the work exists within the limits of an existing contract, the department shall make a good faith effort to negotiate and enter into a contract with the prime contractor on the existing contract.

(7)(a)  If the head of the department determines that it is in the best interests of the public, the department may combine the design and construction phases of a building, a major bridge, or a rail corridor project into a single contract. Such contract is referred to as a design-build contract.

(b)  The department shall adopt by rule procedures for administering design-build contracts. Such procedures shall include, but not be limited to:

1.  Prequalification requirements.

2.  Public announcement procedures.

3.  Scope of service requirements.

4.  Letters of interest requirements.

5.  Short-listing criteria and procedures.

6.  Bid proposal requirements.

7.  Technical review committee.

8.  Selection and award processes.

(c)  The department must receive at least three letters of interest in order to proceed with a request for proposals. The department shall request proposals from no fewer than three of the design-build firms submitting letters of interest. If a design-build firm withdraws from consideration after the department requests proposals, the department may continue if at least two proposals are received.

(8)(a)  The department shall permit the use of written supplemental agreements and written change orders to any contract entered into by the department. Any supplemental agreement shall be reduced to written contract form, approved by the contractor's surety, and executed by the contractor and the department. Any supplemental agreement modifying any item in the original contract must be approved by the head of the department, or his or her designee, and executed by the appropriate person designated by him or her.

(b)  Supplemental agreements shall be used to clarify the plans and specifications of a contract; to provide for major quantity differences which result in the contractor's work effort exceeding the original contract amount by more than 5 percent; to provide for unforeseen work, grade changes, or alterations in plans which could not reasonably have been contemplated or foreseen in the original plans and specifications; to change the limits of construction to meet field conditions; to provide a safe and functional connection to an existing pavement; to settle contract claims; and to make the project functionally operational in accordance with the intent of the original contract. Supplemental agreements may be used to expand the physical limits of a project only to the extent necessary to make the project functionally operational in accordance with the intent of the original contract. The cost of any such agreement extending the physical limits of a project shall not exceed $100,000 or 10 percent of the original contract price, whichever is greater.

(c)  Written change orders may be issued by the department and accepted by the contractor covering minor changes in the plans, specifications, or quantities of work within the scope of a contract, when prices for the items of work affected are previously established in the contract, but in no event may such change orders extend the physical limits of the work.

(d)  For the purpose of this section, the term "physical limits" means the length or width of any project and specifically includes drainage facilities not running parallel to the project. The length and width of temporary connections affected by such supplemental agreements shall be established in accordance with current engineering practice.

(e)  Upon completion and final inspection of the contract work, the department may accept the improvement if it is in substantial compliance with the plans, specifications, special provisions, proposals, and contract and if a proper adjustment in the contract price is made.

(f)  Any supplemental agreement or change order in violation of this section is null and void and unenforceable for payment.

(9)  The department shall preserve all records which reflect the quantities of materials used in the construction of any road project supervised by the department for a period of 3 years after final acceptance. This requirement is equally binding when materials are purchased by prime contractors or subcontractors.

(10)(a)  Every contract let by the department for the performance of work shall contain a provision requiring the prime contractor, before receipt of any progress payment under the provisions of such contract, to certify that the prime contractor has disbursed to all subcontractors and suppliers having an interest in the contract their pro rata shares of the payment out of previous progress payments received by the prime contractor for all work completed and materials furnished in the previous period, less any retainage withheld by the prime contractor pursuant to an agreement with a subcontractor, as approved by the department for payment. The department shall not make any such progress payment before receipt of such certification, unless the contractor demonstrates good cause for not making any such required payment and furnishes written notification of any such good cause to both the department and the affected subcontractors and suppliers.

(b)  Every contract let by the department for the performance of work shall contain a provision requiring the prime contractor, within 30 days of receipt of the final progress payment or any other payments received thereafter except the final payment, to pay all subcontractors and suppliers having an interest in the contract their pro rata shares of the payment for all work completed and materials furnished, unless the contractor demonstrates good cause for not making any such required payment and furnishes written notification of any such good cause to both the department and the affected subcontractors or suppliers within such 30-day period.

(c)  The department shall document and monitor claims of nonpayment of prime contractors, subcontractors, and suppliers. The claims shall be submitted to the department in writing, and the department shall maintain, in a central file, a record of each claim, specifying the claimant and the nature and the resolution of the claim.

(11)  Notwithstanding any other provision of law to the contrary, the department has unilateral authority to pay the contractor the sums the department determines to be due to the contractor for work performed on a project. This unilateral authority to pay by the department does not preclude or limit the rights of the department and the contractor to negotiate and agree to the amounts to be paid to the contractor. By acceptance of any such unilateral payment, the contractor does not waive any rights the contractor may have against the department for payment of any additional sums the contractor claims are due for the work.

(12)  Each contract let by the department for the performance of road or bridge construction or maintenance work shall contain a provision requiring the contractor to provide proof to the department, in the form of a notarized affidavit from the contractor, that all motor vehicles that he or she operates or causes to be operated in this state are registered in compliance with chapter 320.

(13)  Each contract let by the department for performance of road or bridge construction or maintenance work must contain a traffic maintenance plan which shows the appropriate regulatory speed signs and traffic control devices for the work zone area as defined in s. 316.003.

(14)  When the department determines that it is in the best interest of the public, the department may enter into a contract with an electric utility as defined in s. 366.02(2) for the construction or maintenance of lighting on poles owned by the electric utility and located within a road right-of-way without competitive bidding. In any contract entered into without competition, the individuals taking part in the evaluation or award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.

(15)  The department shall have the authority to develop procedures for the administration of maintenance contracts. In addition to the other contract administration matters, the procedures shall address advertising and bid solicitation for maintenance contracts and each bid solicitation notice shall contain specific requirements, if any are deemed necessary by the department for maintenance contractor eligibility.

History.--s. 90, ch. 29965, 1955; s. 1, ch. 61-432; s. 1, ch. 61-443; s. 1, ch. 61-222; s. 1, ch. 65-4; s. 5, ch. 67-461; s. 1, ch. 69-315; s. 1, ch. 69-392; ss. 23, 35, ch. 69-106; s. 1, ch. 70-325; s. 114, ch. 71-377; s. 1, ch. 72-88; s. 1, ch. 75-6; s. 3, ch. 76-85; s. 1, ch. 84-277; s. 139, ch. 84-309; s. 32, ch. 86-243; s. 1, ch. 87-93; s. 5, ch. 87-100; s. 1, ch. 87-104; s. 1, ch. 87-162; s. 6, ch. 88-91; s. 5, ch. 88-93; s. 14, ch. 88-168; s. 1, ch. 89-160; s. 12, ch. 89-301; s. 46, ch. 90-136; s. 120, ch. 92-152; s. 27, ch. 93-164; s. 14, ch. 94-237; s. 963, ch. 95-148; s. 35, ch. 95-196; s. 26, ch. 95-257; s. 36, ch. 96-323; s. 70, ch. 96-410; s. 1, ch. 99-345; s. 18, ch. 99-385.

337.125  Socially and economically disadvantaged business enterprises; notice requirements.--

(1)  In order to document that a subcontract is with a certified socially and economically disadvantaged business enterprise, the prime contractor must either submit a disadvantaged business enterprise utilization form which has been signed by the socially and economically disadvantaged business enterprise and the prime contractor, or submit the written or oral quotation of the socially and economically disadvantaged business enterprise, and information contained in the quotation must be confirmed as determined by the department by rule.

(2)  The department shall provide reasonable advance notice of the date of the preconstruction conference to each socially and economically disadvantaged business enterprise utilized by the prime contractor in meeting the socially and economically disadvantaged business enterprise contract goals.

(3)  The department shall provide a socially and economically disadvantaged business enterprise with reasonable advance notice prior to removing such enterprise from any area of specialization of certified socially and economically disadvantaged business enterprises.

(4)  The department shall promulgate rules for implementing the directives contained in this section.

History.--s. 2, ch. 87-93; s. 15, ch. 90-227.

337.135  Socially and economically disadvantaged business enterprises; punishment for false representation.--

(1)  It is unlawful for any individual to fraudulently represent an entity as a socially and economically disadvantaged business enterprise for purposes of qualifying for certification as such an enterprise under a program of the department designed to assist socially and economically disadvantaged business enterprises in the receipt of contracts with the department for the provision of goods or services. Any person who violates this section is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  An individual found in violation of subsection (1) shall not create a new corporate structure for the purpose of circumventing this section.

History.--s. 3, ch. 87-93.

337.137  Subcontracting by socially and economically disadvantaged business enterprises; decertification.--

(1)  A socially and economically disadvantaged business enterprise performing subcontract work pursuant to s. 339.0805 shall not subordinate more than 49 percent of the amount of the subcontract work, unless prior approval is secured from the department.

(2)  The department shall revoke, for a period of 12 months, the certification of any socially and economically disadvantaged business enterprise found to be in violation of subsection (1).

(3)  The department shall establish rules for the enforcement of this section.

History.--s. 4, ch. 87-93.

337.139  Efforts to encourage awarding contracts to disadvantaged business enterprises.--In implementing chapter 90-136, Laws of Florida, the Department of Transportation shall institute procedures to encourage the awarding of contracts for professional services and construction to disadvantaged business enterprises. For the purposes of this section, the term "disadvantaged business enterprise" means a small business concern certified by the Department of Transportation to be owned and controlled by socially and economically disadvantaged individuals as defined by the Surface Transportation and Uniform Relocation Act of 1987. The Department of Transportation shall develop and implement activities to encourage the participation of disadvantaged business enterprises in the contracting process. Such efforts may include:

(1)  Presolicitation or prebid meetings for the purpose of informing disadvantaged business enterprises of contracting opportunities.

(2)  Written notice to disadvantaged business enterprises of contract opportunities for commodities or contractual and construction services which the disadvantaged business provides.

(3)  Provision of adequate information to disadvantaged business enterprises about the plans, specifications, and requirements of contracts or the availability of jobs.

(4)  Breaking large contracts into several single-purpose contracts of a size which may be obtained by certified disadvantaged business enterprises.

History.--s. 45, ch. 90-136; s. 84, ch. 99-385.

337.14  Application for qualification; certificate of qualification; restrictions; request for hearing.--

(1)  Any person desiring to bid for the performance of any construction contract in excess of $250,000 which the department proposes to let must first be certified by the department as qualified pursuant to this section and rules of the department. The rules of the department shall address the qualification of persons to bid on construction contracts in excess of $250,000 and shall include requirements with respect to the equipment, past record, experience, financial resources, and organizational personnel of the applicant necessary to perform the specific class of work for which the person seeks certification. The department is authorized to limit the dollar amount of any contract upon which a person is qualified to bid or the aggregate total dollar volume of contracts such person is allowed to have under contract at any one time. Each applicant seeking qualification to bid on construction contracts in excess of $250,000 shall furnish the department a statement under oath, on such forms as the department may prescribe, setting forth detailed information as required on the application. Each application for certification shall be accompanied by the latest annual financial statement of the applicant completed within the last 12 months. If the annual financial statement shows the financial condition of the applicant more than 4 months prior to the date on which the application is received by the department, then an interim financial statement must also be submitted. The interim financial statement must cover the period from the end date of the annual statement and must show the financial condition of the applicant no more than 4 months prior to the date on which the application is received by the department. Each required annual or interim financial statement must be audited and accompanied by the opinion of a certified public accountant or a public accountant approved by the department. The information required by this subsection is confidential and exempt from the provisions of s. 119.07(1). The department shall act upon the application for qualification within 30 days after it is presented.

(2)  Certification shall be necessary in order to bid on a road, bridge, or public transportation construction contract of more than $250,000. However, the successful bidder on any construction contract must furnish a contract bond prior to the award of the contract. The department may waive the requirement for all or a portion of a contract bond for contracts of $150,000 or less under s. 337.18(1).

(3)  Upon the receipt of an application for certification, the department shall examine it, verify its statements when necessary, and determine whether the applicant is competent, is responsible, and possesses the necessary financial resources to perform the desired work.

(4)  If the applicant is found to possess the prescribed qualifications, the department shall issue to him or her a certificate of qualification which, unless thereafter revoked by the department for good cause, will be valid for a period of 16 months from the date of the applicant's financial statement or such shorter period as the department may prescribe. In the event the department finds that an application is incomplete or contains inadequate information or information which cannot be verified, the department may request in writing that the applicant provide the necessary information to complete the application or provide the source from which any information in the application may be verified. If the applicant fails to comply with the initial written request within a reasonable period of time as specified therein, the department shall request the information a second time. If the applicant fails to comply with the second request within a reasonable period of time as specified therein, the application shall be denied.

(5)  The certificate of qualification shall contain a statement fixing the actual amount of work, in terms of estimated cost, which the applicant will be permitted to have on contract with the department and not completed at any one time, and the certificate may contain a statement by the department limiting such bidder to the submission of bids upon a certain class of work. Subject to such restrictions, the certificate of qualification shall authorize the holder to bid on all work on which bids are taken by the department during the period of time specified in the certificate.

(6)  Any applicant for a certificate of qualification who is aggrieved by the action of the department may, within 10 days after receiving notification of such action, request a hearing pursuant to chapter 120.

(7)  No "contractor" as defined in s. 337.165(1)(d) or his or her "affiliate" as defined in s. 337.165(1)(a) qualified with the department under this section may also qualify under s. 287.055 or s. 337.105 to provide construction, engineering, and inspection services to the department. This limitation shall not apply to any design-build prequalification under s. 337.11(7).

(8)  This section does not apply to maintenance contracts.

History.--s. 93, ch. 29965, 1955; s. 14, ch. 57-318; s. 1, ch. 61-501; s. 1, ch. 69-314; ss. 23, 35, ch. 69-106; s. 1, ch. 76-85; s. 1, ch. 78-316; s. 10, ch. 80-374; s. 1, ch. 83-18; s. 146, ch. 84-309; s. 33, ch. 86-243; s. 6, ch. 87-100; s. 2, ch. 89-21; s. 495, ch. 95-148; s. 37, ch. 95-257; s. 37, ch. 96-323; s. 161, ch. 96-406; s. 43, ch. 97-96.

337.141  Payment of construction or maintenance contracts.--

(1)  As used in this section, the terms "dispute" or "pending claim" refer to a dispute or pending claim between the prime contractor and the department.

(2)  Each contract for construction or maintenance entered into pursuant to this chapter shall provide for final payment within 75 days of final field acceptance, provided all documents which are required by the contract from the contractor, with the exception of the acceptance letter and a consent by the contractor's surety for release of payment of the retained percentage and final estimate to the contractor, are received within 30 days of final field acceptance. If the contractor fails to provide the documents within 30 days after final field acceptance, payment shall be made within 45 days of receipt by the department of such documents. The department shall notify the contractor within 20 days of receipt of the documents which are required for payment if such documents are incomplete and shall specifically list for the contractor which documents have not been submitted. Should the department fail to notify the contractor within 20 days, regardless of completeness of the documents, the time required for payment shall begin. The period of time from the offer of final payment to the receipt by the department of the acceptance letter and surety's consent shall not count as part of the 75-day or 45-day time periods. Final payment shall not be so made as to any amount which is in dispute or the subject of a pending claim, but shall be so made as to that portion of a contract or those amounts which are not in dispute or the subject of a pending claim. However, such partial payment shall not constitute any bar, admission, or estoppel or have any other effect as to those payments that are in dispute or the subject of a pending claim. No payment may be made to a construction or maintenance contractor until the department has on file proof, in the form of a notarized affidavit from the contractor, that all motor vehicles that he or she operates in this state are registered in compliance with chapter 320.

(3)  For each day after 75 days, or 30 days after settlement of a claim, the department shall pay to the contractor interest at the rate set forth in s. 55.03.

(4)  If a contractor fails to submit all documents required for final payment within 2 years after final acceptance of the work or within 1 year after the offer by the department of final payment, whichever occurs later, any amount owed as final payment shall be considered to be forfeited. The forfeiture will not apply to documents that are the subject of existing claims or pending legal proceedings. Written notice shall be given by the department at least 60 days prior to forfeiture.

History.--ss. 1, 2, ch. 70-168; s. 1, ch. 77-79; s. 147, ch. 84-309; s. 2, ch. 87-104; s. 1, ch. 88-281; s. 11, ch. 94-239; s. 964, ch. 95-148.

337.145  Offsetting payments.--

(1)  After settlement, arbitration, or final adjudication of any claim of the department for work done pursuant to a construction contract with any party, the department may offset such amount from payments due for work done on any construction contract, excluding amounts owed to subcontractors, suppliers, and laborers, which it has with the party owing such amount if, upon demand, payment of the amount is not made within 60 days to the department.

(2)  Offsetting any amounts pursuant to subsection (1) shall not be considered a breach of contract by the department.

History.--s. 7, ch. 87-100; s. 39, ch. 91-221.

337.16  Disqualification of delinquent contractors from bidding; determination of contractor nonresponsibility; denial, suspension, and revocation of certificates of qualification; grounds; hearing.--

(1)  A contractor shall not be qualified to bid when an investigation by the department discloses that such contractor is delinquent on a previously awarded contract, and in such case the contractor's certificate of qualification shall be suspended or revoked. Any contractor whose certificate of qualification is suspended or revoked for delinquency shall also be disapproved as a subcontractor during the period of suspension or revocation, except when a prime contractor's bid has used prices of a subcontractor who becomes disqualified after the bid and before the request for authorization to sublet is presented.

(a)  A contractor is delinquent when the allowed contract time has expired and the contract work is not complete.

(b)  The department shall inform the contractor in writing of its intent to deny, suspend, or revoke his or her certificate of qualification to bid on work let by the department for delinquency and inform the contractor of his or her right to a hearing, the procedure which must be followed, and the applicable time limits. If a hearing is requested within 10 days after the receipt of the notice of intent, the hearing shall be held within 30 days after receipt by the administrative law judge of the request for the hearing. The recommended order shall be issued within 15 days after the hearing. The contractor's application for a certificate of qualification shall be denied or the contractor's current certificate of qualification shall be suspended for the number of days that it is administratively determined that the contractor was delinquent even if the delinquency is cured during the pendency of the hearing proceedings.

(c)  In addition to the period of suspension required in paragraph (b), the department shall deny or suspend the certificate of qualification of such contractor in accordance with the following schedule: If a contractor has been suspended twice within an 18-month period, the period of suspension shall be 3 months; if such contractor has been suspended twice within a 24-month period, the period of suspension shall be 2 months; and, if such contractor has been suspended 3 times within a 30-month period, the period of suspension shall be 4 months. The department shall inform the contractor in writing of its intent to deny or suspend his or her certificate of qualification to bid on work let by the department and inform the contractor of his or her right to a hearing, the procedure which must be followed, and the applicable time limits. If a hearing is requested within 10 days after the receipt of the notice of intent, the hearing shall be held within 30 days after receipt of the request for the hearing. Upon a determination that the contractor's certificate of qualification had been suspended for delinquency, it shall deny or suspend the certificate of the contractor as provided in this paragraph.

(d)  Such suspension or revocation shall not affect the contractor's obligations under any preexisting contract.

(2)  For reasons other than delinquency in progress, the department, for good cause, may determine any contractor not having a certificate of qualification nonresponsible for a specified period of time or may deny, suspend, or revoke any certificate of qualification. Good cause includes, but is not limited to, circumstances in which a contractor or the contractor's official representative:

(a)  Makes or submits to the department false, deceptive, or fraudulent statements or materials in any bid proposal to the department, any application for a certificate of qualification, any certification of payment pursuant to s. 337.11(10), or any administrative or judicial proceeding;

(b)  Becomes insolvent or is the subject of a bankruptcy petition;

(c)  Fails to comply with contract requirements, in terms of payment or performance record, or to timely furnish contract documents as required by the contract or by any state or federal statute or regulation;

(d)  Wrongfully employs or otherwise provides compensation to any employee or officer of the department, or willfully offers an employee or officer of the department any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment;

(e)  Is an affiliate of a contractor who has been determined nonresponsible or whose certificate of qualification has been suspended or revoked and the affiliate is dependent upon such contractor for personnel, equipment, bonding capacity, or finances; or

(f)  Fails to register, pursuant to chapter 320, motor vehicles that he or she operates in this state.

History.--s. 95, ch. 29965, 1955; ss. 23, 35, ch. 69-106; s. 56, ch. 78-95; s. 150, ch. 84-309; s. 27, ch. 85-180; s. 5, ch. 87-93; s. 8, ch. 87-100; s. 3, ch. 87-104; s. 47, ch. 90-136; s. 15, ch. 94-237; s. 965, ch. 95-148; s. 71, ch. 96-410; s. 19, ch. 99-385.

337.162  Professional services.--Professional services provided to the department that fall below acceptable professional standards may result in transportation project delays, overruns, and reduced facility life. To minimize these effects and ensure that quality services are received, the Legislature hereby declares that licensed professionals shall be held accountable for the quality of the services they provide to the department.

(1)  If the department has knowledge or reason to believe that any person has violated the provisions of state professional licensing laws or rules, it shall submit a complaint about the violations to the Department of Business and Professional Regulation. The complaint submitted to the Department of Business and Professional Regulation and maintained by the department is confidential and exempt from s. 119.07(1).

(2)  Any person who is employed by the department and who is licensed by the Department of Business and Professional Regulation and who, through the course of his or her employment, has knowledge or reason to believe that any person has violated the provisions of state professional licensing laws or rules shall submit a complaint about the violations to the Department of Business and Professional Regulation. Failure to submit a complaint about the violations may be grounds for disciplinary action pursuant to chapter 455 and the state licensing law applicable to that licensee. However, licensees under part II of chapter 475 are exempt from the provisions of s. 455.227(1)(i). The complaint submitted to the Department of Business and Professional Regulation and maintained by the department is confidential and exempt from s. 119.07(1).

(3)  Any complaints submitted to the Department of Business and Professional Regulation pursuant to subsections (1) and (2) are confidential and exempt from s. 119.07(1) pursuant to chapter 455 and applicable state law.

(4)  In order to inform licensed professionals of the requirements of this section, the department shall include the requirements of this section in contracts with persons licensed by the Department of Business and Professional Regulation.

History.--s. 42, ch. 90-136; s. 35, ch. 94-218; s. 966, ch. 95-148; s. 1, ch. 95-255; s. 162, ch. 96-406; s. 18, ch. 98-166; s. 20, ch. 99-385; s. 8, ch. 2000-160.

337.164  Legislative intent with respect to integrity of public contracting process.--Recognizing that the preservation of the integrity of the public contracting process of the department is vital to the development of a balanced and efficient transportation system and is a matter of interest to all the people of the state, the Legislature determines and declares that:

(1)  The procedures of the department for bidding and qualification of bidders on department contracts exist to secure the public benefits of free and open competition and to secure the quality of public works.

(2)  The opportunity to bid on department contracts or to supply goods or services to the department is a privilege, not a right.

(3)  The privilege of transacting business with the department should be denied to persons or firms involved in contract crime in order to preserve the integrity of the public contracting process.

(4)  Persons or firms involved in contract crime should be denied both the privilege of transacting business with the department and the opportunity of obtaining economic benefit through the transaction of business by their affiliates with the department.

To this end, it is the intent of the Legislature to provide sufficiently broad authority to the department to ensure the integrity of its public contracting process.

History.--s. 1, ch. 83-4; s. 151, ch. 84-309.

337.165  Contract crime; denial or revocation of a certificate of qualification.--

(1)  The following words and phrases, when used in this section, have the following meanings:

(a)  The term "affiliate" means a predecessor or successor of a contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term "affiliate" includes the officers, directors, executives, shareholders active in management, employees, and agents of the affiliate. The ownership by one business entity of a controlling interest in another business entity or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another.

(b)  The term "certificate" means the certificate of qualification required and granted pursuant to s. 337.14 or other form of authorization issued pursuant to s. 337.105.

(c)  The term "contract crime" means any violation of state or federal antitrust laws with respect to a public contract or any violation of any state or federal law involving fraud, bribery, collusion, conspiracy, or material misrepresentation with respect to a public contract.

(d)  The term "contractor" means any person who bids or applies to bid on work let by the department or any counterpart agency of any other state or of the Federal Government or who provides professional services to the department or other such agency. The term "contractor" includes the officers, directors, executives, shareholders active in management, employees, and agents of the contractor.

(e)  The term "convicted" or "conviction" means a finding of guilt or a conviction of a contract crime, with or without an adjudication of guilt, in any federal or state trial court of record as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere.

(f)  The term "pooling" means a combination of persons or corporations engaged in the same business, or for the purpose of engaging in a particular business or commercial or speculative venture, in which all contribute to a common fund or place their holdings of a given stock or other security in the hands and control of a managing member or committee.

(2)(a)  No contractor or his or her affiliate shall be qualified to bid on work let by the department when it is determined that he or she has, subsequent to January 1, 1978, been convicted of a contract crime within the jurisdiction of any state or federal court.

(b)1.  Any provision of chapter 120 to the contrary notwithstanding, when the department receives notice that a contractor has been convicted of a contract crime, the department shall inform the contractor or the contractor's affiliate in writing of its intent to deny or revoke the certificate of the contractor or affiliate to bid on work let by the department and of the contractor's right to a hearing, the procedure which must be followed, and the applicable time limits. If a hearing is requested within 10 days of receipt of the notice of intent, the department shall notify the contractor or affiliate of the time, date, and place of the hearing, which hearing shall be held within 30 days of receipt of the request for the hearing. If the department determines that the contractor has been convicted of a contract crime, it shall deny or revoke the certificate of the contractor or affiliate for a period of 36 months.

2.  Any person who is notified by the department of its intent to deny or revoke his or her certificate to bid on work let by the department because of his or her status as an affiliate of a contractor convicted of a contract crime may, at the hearing requested under subparagraph 1., offer proof that he or she is not an affiliate as defined by paragraph (1)(a). The submission of an affidavit alone shall not constitute competent substantial evidence that the person is not an affiliate. If the department finds that such person is not an affiliate, the person's certificate may not be denied or revoked.

(c)  A contractor or affiliate whose certificate has been denied or revoked because of a conviction of a contract crime and who is subsequently convicted of a contract crime committed within 10 years of such denial or revocation may not be considered for eligibility pursuant to paragraph (d) until 24 months after the date of the denial or revocation based upon such subsequent conviction.

(d)  A contractor or affiliate whose certificate has been denied or revoked may, at any time after denial or revocation, petition for and be granted a hearing to determine his or her eligibility for reapplication or reinstatement upon such terms and conditions as may be prescribed upon finding that reapplication or reinstatement is in the public interest. The petition shall be filed with the department. Any hearing conducted by the department shall be conducted within 30 days after receipt of the petition, unless otherwise stipulated by the parties. If the contractor or affiliate requests in his or her petition that the hearing be conducted by the Division of Administrative Hearings of the Department of Management Services, the department shall, within 5 days after receipt of the petition, notify the division of the request. The director of the Division of Administrative Hearings shall, within 5 days after the notice by the department, assign an administrative law judge, who shall conduct the hearing within 30 days thereafter, unless otherwise stipulated by the parties. The department shall be a party in interest in any hearing conducted by the Division of Administrative Hearings. In determining whether reapplication or reinstatement would be in the public interest, the department or division administrative law judge shall give consideration to any relevant mitigating circumstances, which may include, but are not limited to, the following:

1.  The degree of culpability;

2.  Prompt and voluntary payment of damages to the state as a result of the contractor's violation of state or federal antitrust laws;

3.  Cooperation with any state or federal prosecution or investigation of a contract crime;

4.  Disassociation with those involved in a contract crime;

5.  Reinstatement in other state or federal jurisdictions; and

6.  The needs of the department in completing its programs in a timely, cost-effective manner.

The department or division administrative law judge shall also consider the failure of the contractor or affiliate to comply with the notification provisions of subsection (5). Any hearing requested under this paragraph shall be conducted and concluded without undue delay. The administrative law judge shall, within 30 days after the hearing, complete and submit a final order to the department, which order may not be altered or amended by the department. If eligibility for reapplication or reinstatement is denied, the contractor or affiliate may not petition for a subsequent hearing for a period of 9 months following the date of the order of denial or revocation. However, a hearing prior to the expiration of such period may be authorized by the department if, in its discretion, it determines that a hearing is in the public interest.

(3)  A contractor or affiliate whose certificate is denied or revoked pursuant to this section may not act as a prime contractor, a material supplier, a subcontractor, or a consultant on any department contract or project during the period of such denial or revocation.

(4)  The denial or revocation of a contractor's or affiliate's certificate shall not affect the contractor's or affiliate's obligations under any preexisting contract.

(5)  A contractor or the contractor's affiliate who is currently qualified or seeking to be qualified by the department shall notify the department within 30 days after conviction of a contract crime applicable to him or her or to any of his or her affiliates, or to any of the contractor's or the contractor's affiliate's officers, directors, executives, shareholders active in management, employees, or agents.

(6)  Whenever the department has reason to believe that a contractor or the contractor's affiliate who is currently qualified or seeking to be qualified by the department has been convicted of a contract crime, or may be affiliated with a person so convicted, the department may issue a written demand upon the contractor or affiliate, concerning any such conviction or affiliation, to appear and be examined under oath, to answer written interrogatories under oath, and to produce documents or other tangible evidence for inspection and copying.

History.--s. 2, ch. 83-4; s. 152, ch. 84-309; s. 120, ch. 92-279; s. 55, ch. 92-326; s. 496, ch. 95-148; s. 72, ch. 96-410.

337.166  Moneys recovered for violations of antitrust laws.--In accordance with the provisions of s. 16.53, 30 percent of all moneys recovered from a contractor or its affiliate on behalf of the state by reason of any decree or settlement in any state or federal antitrust claim prosecuted by the Attorney General shall be deposited in the Legal Affairs Revolving Trust Fund. The remainder of the moneys recovered shall be deposited in the State Transportation Trust Fund instead of the General Revenue Fund as generally provided under s. 16.53.

History.--s. 3, ch. 83-4; s. 15, ch. 94-316.

337.167  Administrative procedures; stays and injunctions.--

(1)  A certificate to bid on a department contract, or to supply services to the department, is intended to assist the department in determining in advance the performance capabilities of entities seeking to supply goods and services to the department and is not a "license" as defined in s. 120.52. The denial or revocation of a certificate is not subject to the provisions of s. 120.60 or s. 120.68(3). The provisions of ss. 120.569 and 120.57 are applicable to the denial or revocation of such certificate.

(2)  For the purpose of promulgating emergency rules, the continuation of the bidding, contracting, or supplying privileges of a convicted contractor or its affiliate represents an immediate danger to the public health, safety, and welfare.

(3)  The denial or revocation of a certificate for reasons of contract crime may not be stayed by the department or by the Division of Administrative Hearings during the pendency of any judicial review proceedings concerning a final order of denial or revocation.

(4)  A court may grant a stay or injunction in an action relating to the denial or revocation of a certificate only upon the posting of a bond by the petitioner seeking a stay or injunction, and provided the court granting the stay or injunction finds that:

(a)  The petitioner has a substantial likelihood of success on the merits;

(b)  The threatened harm or injury to the petitioner clearly outweighs any possible injury to the state occasioned by granting the stay or injunction; and

(c)  It is in the public interest to grant the stay or injunction.

History.--s. 4, ch. 83-4; s. 40, ch. 91-221; s. 73, ch. 96-410.

337.168  Confidentiality of official estimates, identities of potential bidders, and bid analysis and monitoring system.--

(1)  A document or electronic file revealing the official cost estimate of the department of a project is confidential and exempt from the provisions of s. 119.07(1) until the contract for the project has been executed or until the project is no longer under active consideration.

(2)  A document revealing the identity of persons who have requested or obtained bid packages, plans, or specifications pertaining to any project to be let by the department is confidential and exempt from the provisions of s. 119.07(1) for the period which begins 2 working days prior to the deadline for obtaining bid packages, plans, or specifications and ends with the letting of the bid.

(3)  The bid analysis and monitoring system of the department is confidential and exempt from the provisions of s. 119.07(1). This exemption applies to all system documentation, input, computer processes and programs, electronic data files, and output, but does not apply to the actual source documents, unless otherwise exempted under other provisions of law.

History.--s. 5, ch. 83-4; s. 3, ch. 89-21; s. 108, ch. 90-360; s. 163, ch. 96-406.

337.169  Effect of ch. 83-4 on existing remedies.--The provisions of chapter 83-4, Laws of Florida, are not in derogation of existing remedies available to the department, and such remedies remain in full force and effect.

History.--s. 7, ch. 83-4.

337.17  Bid guaranty.--The department shall only require guaranty with each bid for a construction contract in excess of $150,000 in an amount to be specified by the department which shall not exceed 10 percent of the preliminary estimate of the cost of the work. The guaranty may, in the discretion of the bidder, be in the form of a cashier's check, bank money order, bank draft of any national or state bank, certified check, or surety bond, payable to the department. The surety on any bid bond shall be a company recognized to execute bid bonds for contracts of the Federal Government.

History.--s. 96, ch. 29965, 1955; s. 16, ch. 57-318; ss. 23, 35, ch. 69-106; s. 1, ch. 77-174; s. 157, ch. 84-309; s. 16, ch. 91-162; s. 127, ch. 92-152.

337.175  Retainage.--The department may provide in its construction contracts for retaining a portion of the amount due a contractor for work that the contractor has completed, until completion and final acceptance of the project by the department. If the department allows, contractors may substitute securities as provided by s. 255.052, or substitute certificates of deposit or irrevocable letters of credit approved by the department comptroller in lieu of retainage.

History.--s. 9, ch. 87-100; s. 48, ch. 90-136; s. 122, ch. 92-152; s. 497, ch. 95-148; s. 13, ch. 2000-266.

337.18  Surety bonds; requirement with respect to contract award; defaults; damage assessments.--

(1)  A surety bond shall be required of the successful bidder in an amount equal to the awarded contract price. For a project for which the contract price is $150,000 or less, the department may waive the requirement for all or a portion of a surety bond if it determines the project is of a noncritical nature and nonperformance will not endanger public health, safety, or property. The department may require alternate means of security if a surety bond is waived. The surety on such bond shall be a surety company authorized to do business in the state. All bonds shall be payable to the department and conditioned for the prompt, faithful, and efficient performance of the contract according to plans and specifications and within the time period specified, and for the prompt payment of all persons furnishing labor, material, equipment, and supplies therefor; however, whenever an improvement, demolition, or removal contract price is $25,000 or less, the security may, in the discretion of the bidder, be in the form of a cashier's check, bank money order of any state or national bank, certified check, or postal money order. The department shall adopt rules to implement this subsection. Such rules shall include provisions under which the department shall refuse to accept bonds on contracts when a surety wrongfully fails or refuses to settle or provide a defense for claims or actions arising under a contract for which the surety previously furnished a bond.

(2)  The department shall provide in its contracts for the determination of default on the part of any contractor for cause attributable to such contractor. The department shall have no liability for anticipated profits for unfinished work on a contract which has been determined to be in default. Every contract let by the department for the performance of work shall contain a provision for payment to the department by the contractor of liquidated damages due to failure of the contractor to complete the contract work within the time stipulated in the contract or within such additional time as may have been granted by the department. The contractual provision shall include a reasonable estimate of the damages that would be incurred by the department as a result of such failure. The department shall establish a schedule of daily liquidated damage charges, based on original contract amounts, for construction contracts entered into by the department, which schedule shall be incorporated by reference into the contract. The department shall update the schedule of liquidated damages at least once every 2 years, but no more often than once a year. The schedule shall, at a minimum, be based on the average construction, engineering, and inspection costs experienced by the department on contracts over the 2 preceding fiscal years. The schedule shall also include anticipated costs of project-related delays and inconveniences to the department and traveling public. Anticipated costs may include, but are not limited to, road user costs, a portion of the projected revenues that will be lost due to failure to timely open a project to revenue-producing traffic, costs resulting from retaining detours for an extended time, and other similar costs. Any such liquidated damages paid to the department shall be deposited to the credit of the fund from which payment for the work contracted was authorized.

(3)  In addition to the provision for payment to the department by the contractor of liquidated damages due to the failure of the contractor to complete the project within the time stipulated in the contract or within such additional time as may have been granted by the department, the department may also recover from the contractor amounts paid by the department for damages suffered by third parties as a result of the contractor's failure to complete the project within the time stipulated in the contract or within such additional time as may have been granted by the department, unless the failure to timely complete the project was caused by the department's act or omission. However, nothing herein shall create a cause of action against the department, or against a contractor by an abutting property owner or business entity, where none has previously existed.

(4)(a)  If the department determines and adequately documents that the timely completion of any project will provide a substantial benefit to the public health, safety, or welfare; will limit the disruptive effect of construction on the community; or is cost beneficial on a revenue-producing project, the contract for such project may provide for an incentive payment payable to the contractor for early completion of the project or critical phases of the work and for additional damages to be assessed against the contractor for the completion of the project or critical phases of the work in excess of the time specified. All contracts containing such provisions shall be approved by the head of the department or his or her designee. The amount of such incentive payment or such additional damages shall be established in the contract but shall not exceed $10,000 per calendar day, except that for revenue-producing projects the amounts and periods of the incentive may be greater if an analysis indicates that additional revenues projected to be received upon completion of the project will exceed the cost of the incentive payments. Any liquidated damages provided for under subsection (2) and any additional damages provided for under this subsection shall be payable to the department because of the contractor's failure to complete the contract work within the time stipulated in the contract or within such additional time as may have been granted by the department.

(b)  The department shall adopt rules to implement this subsection. Such rules shall include procedures and criteria for the selection of projects on which incentive payments and additional damages may be provided for by contract.

(5)  Such bonds shall be subject to the additional obligation that the principal and surety executing the same shall be liable to the state in a civil action instituted by the department or any officer of the state authorized in such cases, for double any amount in money or property the state may lose or be overcharged or otherwise defrauded of, by reason of any wrongful or criminal act, if any, of the contractor, the contractor's agent, or employees.

History.--s. 97, ch. 29965, 1955; s. 1, ch. 65-40; ss. 23, 35, ch. 69-106; s. 1, ch. 71-40; s. 2, ch. 78-316; s. 1, ch. 82-41; s. 23, ch. 83-218; s. 158, ch. 84-309; s. 29, ch. 85-180; s. 10, ch. 87-100; s. 2, ch. 88-281; s. 49, ch. 90-136; s. 121, ch. 92-152; s. 13, ch. 94-237; s. 967, ch. 95-148; s. 50, ch. 96-323; s. 3, ch. 98-105; s. 21, ch. 99-385; s. 14, ch. 2000-266.

337.185  State Arbitration Board.--

(1)  To facilitate the prompt settlement of claims for additional compensation arising out of construction contracts between the department and the various contractors with whom it transacts business, the Legislature does hereby establish the State Arbitration Board, referred to in this section as the "board." For the purpose of this section, "claim" shall mean the aggregate of all outstanding claims by a party arising out of a construction contract. Every contractual claim in an amount up to $250,000 per contract or, at the claimant's option, up to $500,000 per contract or, upon agreement of the parties, up to $1 million per contract that cannot be resolved by negotiation between the department and the contractor shall be arbitrated by the board after acceptance of the project by the department. As an exception, either party to the dispute may request that the claim be submitted to binding private arbitration. A court of law may not consider the settlement of such a claim until the process established by this section has been exhausted.

(2)  The board shall be composed of three members. One member shall be appointed by the head of the department, and one member shall be elected by those construction companies who are under contract with the department. The third member shall be chosen by agreement of the other two members. Whenever the third member has a conflict of interest regarding affiliation with one of the parties, the other two members shall select an alternate member for that hearing. The head of the department may select an alternative or substitute to serve as the department member for any hearing or term. Each member shall serve a 2-year term. The board shall elect a chair, each term, who shall be the administrator of the board and custodian of its records.

(3)  A hearing may be requested by the department or by a contractor who has a dispute with the department which, under the rules of the board, may be the subject of arbitration. The board shall conduct the hearing within 45 days of the request. The party requesting the board's consideration shall give notice of the hearing to each member. If the board finds that a third party is necessary to resolve the dispute, the board may vote to dismiss the claim, which may thereafter be pursued in accordance with the laws of the State of Florida.

(4)  All members shall be necessary to conduct a meeting. Upon being called into session, the board shall promptly proceed to a determination of the issue or issues in dispute.

(5)  When a valid contract is in effect defining the rights, duties, and liabilities of the parties with respect to any matter in dispute, the board shall have power only to determine the proper interpretation and application of the contract provisions which are involved. Any investigation made by less than the whole membership of the board shall be by authority of a written directive by the chair, and such investigation shall be summarized in writing and considered by the board as part of the record of its proceedings.

(6)  The board shall hand down its order within 60 days after it is called into session. If all three members of the board do not agree, the order of the majority will constitute the order of the board.

(7)  The members of the board may receive compensation for the performance of their duties hereunder, from administrative fees received by the board, except that no employee of the department may receive compensation from the board. The compensation amount shall be determined by the board, but shall not exceed $125 per hour, up to a maximum of $1,000 per day for each member authorized to receive compensation. Nothing in this section shall prevent the member elected by construction companies from being an employee of an association affiliated with the industry, even if the sole responsibility of that member is service on the board. Travel expenses for the industry member may be paid by an industry association, if necessary. The board may allocate funds annually for clerical and other administrative services.

(8)  The party requesting arbitration shall pay a fee to the board in accordance with a schedule established by it, not to exceed $500 per claim which is $25,000 or less, not to exceed $1,000 per claim which is in excess of $25,000 but not exceeding $50,000, not to exceed $1,500 per claim which is in excess of $50,000 but not exceeding $100,000, not to exceed $2,000 per claim which is in excess of $100,000 but not exceeding $200,000, not to exceed $3,000 per claim which is in excess of $200,000 but not exceeding $300,000, not to exceed $4,000 per claim which is in excess of $300,000 but not exceeding $400,000, and not to exceed $5,000 per claim which is in excess of $400,000, to cover the cost of administration and compensation of the board.

(9)  The board in its order may apportion the fee set out in subsection (8), and the cost of recording and preparing a transcript of the hearing, among the parties in accordance with the board's finding of liability.

History.--s. 1, ch. 69-351; ss. 23, 35, ch. 69-106; s. 1, ch. 70-186; s. 56, ch. 78-95; s. 3, ch. 80-346; s. 170, ch. 84-309; s. 19, ch. 85-180; s. 11, ch. 87-100; s. 14, ch. 90-502; s. 123, ch. 92-152; s. 49, ch. 93-164; s. 498, ch. 95-148; s. 2, ch. 99-345; s. 22, ch. 99-385.

Note.--Former s. 337.32.

337.19  Suits by and against department; limitation of actions; forum.--

(1)  Suits at law and in equity may be brought and maintained by and against the department on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the department pursuant to the written agreement. In any such suit, the department and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive. Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies. Notwithstanding anything to the contrary contained in this section, no employee or agent of the department may be held personally liable to an extent greater than that pursuant to s. 768.28 provided that no suit sounding in tort shall be maintained against the department.

(2)  Suits by and against the department under this section shall be commenced within 820 days of the final acceptance of the work. This section shall apply to all contracts entered into after June 30, 1993.

(3)  Any action or suit brought against the department shall be brought in the county or counties where the cause of action accrued, or in the county of the department's district headquarters responsible for the work, or in Leon County.

History.--s. 98, ch. 29965, 1955; ss. 1, 2, ch. 69-391; s. 1, ch. 84-206; s. 159, ch. 84-309; s. 28, ch. 93-164; s. 158, ch. 96-320; s. 66, ch. 96-323; s. 3, ch. 99-345.

337.221  Claims settlement process.--It is the intent of the Legislature that a process be created to resolve contractual claims between the department and providers of goods and services and that the department pursue the recovery of additional costs resulting from substandard goods and services provided to the department.

(1)  To implement this policy, the department shall establish a process to resolve claims for additional monetary compensation, time, or other adjustments to the contract.

(2)  The department shall document its final decision on all claims, including reasonable support for its decision.

(3)  On all claims resolutions resulting in increases of the contract by more than $500,000, a responsible department director, after reasonable inquiry, shall:

(a)  Certify that no known facts or circumstances relating to the resolution of the claim indicate any improper intervention or influence, or attempts at any such intervention or influence, on behalf of the consultant or contractor; or

(b)  Report to the secretary of the department that facts or circumstances exist that indicate improper intervention or influence, or attempts at such improper intervention or influence, on behalf of the consultant or contractor.

Any such certification or report shall be verified in accordance with s. 92.525.

(4)  The recovery for a claim not resolved through the department's claim settlement process shall only be pursued through state arbitration board or circuit court proceedings, as provided by law.

(5)  The department shall annually file a summary report on claim settlements to the transportation committees of the Legislature by October 1 each year. The report shall provide sufficient information to determine whether further inquiry into the claims settlement process is warranted.

History.--s. 13, ch. 87-100; s. 41, ch. 90-136; s. 124, ch. 92-152; s. 71, ch. 94-237; s. 38, ch. 95-257.

337.242  Acquisition of rail corridors.--

(1)  The Department of Transportation shall contact each railroad company operating in this state and express the department's interest in acquiring rail corridors and shall request notification as specified in 49 C.F.R. s. 1152.22(a)(6).

(2)  The department shall maintain a map of the rail system in this state.

(3)  The department shall control or prohibit ingress to and egress from or through all rail transportation corridors under the department's jurisdiction.

(4)  The department shall, as part of the rail planning responsibilities under s. 341.302(3), identify and evaluate the potential for transportation uses for both operating rail corridors and corridors in which service has been discontinued. If the corridors evaluated have a transportation use potential, the department may purchase, manage, and maintain the corridor subject to appropriation by the Legislature. The movement of people and goods to and from Florida seaports and airports shall be considered a transportation use. All rail transportation corridors in which service has been discontinued or in which service is scheduled for discontinuance shall be reported by the department to the Department of Environmental Protection as specified in s. 260.0161.

History.--s. 24, ch. 88-168; s. 77, ch. 90-136; s. 85, ch. 91-221; s. 165, ch. 94-356.

337.243  Notification of land use changes in designated transportation corridors.--

(1)  If a local government designates a transportation corridor that includes a facility on the State Highway System in its local government comprehensive plan and has adopted a transportation corridor management ordinance, the local governmental entity shall give reasonable notice by certified mail to the department prior to approving any substantial zoning change or subdivision plat changes or granting of a building permit or development permit, as defined in s. 380.031(4), for land use or the erection, alteration, or moving of a building for property within the designated transportation corridor which would substantially impair the viability of the corridor for future transportation uses. This notification requirement shall not apply to any routine maintenance or emergency repairs to existing structures. Upon notification, the department shall determine whether to purchase the property affected or to initiate eminent domain proceedings. The department's determination shall not affect the granting or denial of the permit by the local government. The local government shall not be liable to the department for failure to make notification to the department pursuant to this section.

(2)  Any right-of-way located within a designated transportation corridor may be acquired at any time by the department when the acquisition is determined by the department to be in the public interest to protect the designated transportation corridor from development or when the transportation corridor designation creates an undue hardship on the affected property owner.

History.--s. 17, ch. 90-227; s. 40, ch. 95-143; s. 36, ch. 95-257.

337.25  Acquisition, lease, and disposal of real and personal property.--

(1)(a)  The department may purchase, lease, exchange, or otherwise acquire any land, property interests, or buildings or other improvements, including personal property within such buildings or on such lands, necessary to secure or utilize transportation rights-of-way for existing, proposed, or anticipated transportation facilities on the State Highway System, on the State Park Road System, in a rail corridor, or in a transportation corridor designated by the department. Such property shall be held in the name of the state.

(b)  The department may accept donations of any land or buildings or other improvements, including personal property within such buildings or on such lands with or without such conditions, reservations, or reverter provisions as are acceptable to the department. Such donations may be used as transportation rights-of-way or to secure or utilize transportation rights-of-way for existing, proposed, or anticipated transportation facilities on the State Highway System, on the State Park Road System, or in a transportation corridor designated by the department.

(c)  When lands, buildings, or other improvements are needed for transportation purposes, but are held by a federal, state, or local governmental entity and utilized for public purposes other than transportation, the department may compensate the entity for such properties by providing functionally equivalent replacement facilities. The providing of replacement facilities under this subsection may only be undertaken with the agreement of the governmental entity affected.

(2)  A complete inventory shall be made of all real or personal property immediately upon possession or acquisition. Such inventory shall include an itemized listing of all appliances, fixtures, and other severable items; a statement of the location or site of each piece of realty, structure, or severable item; and the serial number assigned to each. Copies of each inventory shall be filed in the district office in which the property is located. Such inventory shall be carried forward to show the final disposition of each item of property, both real and personal.

(3)  The inventory of real property which was acquired by the state after December 31, 1988, which has been owned by the state for 10 or more years, and which is not within a transportation corridor or within the right-of-way of a transportation facility shall be evaluated to determine the necessity for retaining the property. If the property is not needed for the construction, operation, and maintenance of a transportation facility, or is not located within a transportation corridor, the department may dispose of the property pursuant to subsection (4).

(4)  The department may sell, in the name of the state, any land, building, or other property, real or personal, which was acquired under the provisions of subsection (1) and which the department has determined is not needed for the construction, operation, and maintenance of a transportation facility. With the exception of any parcel governed by paragraph (c), paragraph (d), paragraph (f), paragraph (g), or paragraph (i), the department shall afford first right of refusal to the local government in the jurisdiction of which the parcel is situated. When such a determination has been made, property may be disposed of in the following manner:

(a)  If the value of the property is $10,000 or less as determined by department estimate, the department may negotiate the sale.

(b)  If the value of the property exceeds $10,000 as determined by department estimate, such property may be sold to the highest bidder through receipt of sealed competitive bids, after due advertisement, or by public auction held at the site of the improvement which is being sold.

(c)  If, in the discretion of the department, public sale would be inequitable, properties may be sold by negotiation to the owner holding title to the property abutting the property to be sold, provided such sale is at a negotiated price not less than fair market value as determined by an independent appraisal, the cost of which shall be paid by the owner of the abutting land. If negotiations do not result in the sale of the property to the owner of the abutting land and the property is sold to someone else, the cost of the independent appraisal shall be borne by the purchaser; and the owner of the abutting land shall have the cost of the appraisal refunded to him or her. If, however, no purchase takes place, the owner of the abutting land shall forfeit the sum paid by him or her for the independent appraisal. If, due to action of the department, the property is removed from eligibility for sale, the cost of any appraisal prepared shall be refunded to the owner of the abutting land.

(d)  If property acquired for use as a borrow pit is no longer needed, the department may sell such property to the owner of the parcel of abutting land from which the borrow pit was originally acquired, provided the sale is at a negotiated price not less than fair market value as determined by an independent appraisal, the cost of which shall be paid by the owner of such abutting land.

(e)  If the department begins the process for disposing of the property on its own initiative, either by negotiation under the provisions of paragraph (a), paragraph (c), paragraph (d), or paragraph (i), or by receipt of sealed competitive bids or public auction under the provisions of paragraph (b) or paragraph (i), a department staff appraiser may determine the fair market value of the property by an appraisal.

(f)  Any property which was acquired by a county or by the department using constitutional gas tax funds for the purpose of a right-of-way or borrow pit for a road on the State Highway System, State Park Road System, or county road system and which is no longer used or needed by the department may be conveyed without consideration to that county. The county may then sell such surplus property upon receipt of competitive bids in the same manner prescribed in this section.

(g)  If a property has been donated to the state for transportation purposes and the facility has not been constructed for a period of at least 5 years and no plans have been prepared for the construction of such facility and the property is not located in a transportation corridor, the governmental entity may authorize reconveyance of the donated property for no consideration to the original donor or the donor's heirs, successors, assigns, or representatives.

(h)  If property is to be used for a public purpose, the property may be conveyed without consideration to a governmental entity.

(i)  If property was originally acquired specifically to provide replacement housing for persons displaced by transportation projects, the department may negotiate for the sale of such property as replacement housing. As compensation, the state shall receive no less than its investment in such properties or fair market value, whichever is lower. It is expressly intended that this benefit be extended only to those persons actually displaced by such project. Dispositions to any other persons must be for fair market value.

(j)  If the department determines that the property will require significant costs to be incurred or that continued ownership of the property exposes the department to significant liability risks, the department may use the projected maintenance costs over the next 5 years to offset the market value in establishing a value for disposal of the property, even if that value is zero.

(5)  The department may convey a leasehold interest for commercial or other purposes, in the name of the state, to any land, building, or other property, real or personal, which was acquired under the provisions of subsection (1).

(a)  The department may negotiate such a lease at the prevailing market value with the owner from whom the property was acquired; with the holders of leasehold estates existing at the time of the department's acquisition; or, if public bidding would be inequitable, with the owner holding title to privately owned abutting property, if reasonable notice is provided to all other owners of abutting property. The department may allow an outdoor advertising sign to remain on the property acquired, or be relocated on department property, and such sign shall not be considered a nonconforming sign pursuant to chapter 479.

(b)  All other leases shall be by competitive bid.

(c)  No lease signed pursuant to paragraph (a) or paragraph (b) shall be for a period of more than 5 years; however, the department may renegotiate such a lease for an additional term of 5 years without rebidding.

(d)  Each lease shall provide that any improvements made to the property during the term of the lease shall be removed at the lessee's expense.

(e)  If property is to be used for a public purpose, including a fair, art show, or other educational, cultural, or fundraising activity, the property may be leased without consideration to a governmental entity or school board.

(f)  Paragraphs (c) and (d) do not apply to leases entered into pursuant to s. 260.0161(3), except as provided in such a lease.

(g)  No lease executed under this subsection may be utilized by the lessee to establish the 4 years' standing required by s. 73.071(3)(b) if the business had not been established for 4 years on the date title passed to the department.

(h)  The department may enter into a long-term lease without compensation with a public port listed in s. 403.021(9)(b) for rail corridors used for the operation of a short-line railroad to the port.

(6)  Nothing in this chapter prevents the joint use of right-of-way for alternative modes of transportation; provided that the joint use does not impair the integrity and safety of the transportation facility.

(7)  The appraisal required by paragraphs (4)(c) and (d) shall be prepared in accordance with department guidelines and rules by an independent appraiser who has been certified by the department. If federal funds were used in the acquisition of the property, the appraisal shall also be subject to the approval of the Federal Highway Administration.

(8)  A "due advertisement" under this section is an advertisement in a newspaper of general circulation in the area of the improvements of not less than 14 calendar days prior to the date of the receipt of bids or the date on which a public auction is to be held.

(9)  The department, with the approval of the State Comptroller, is authorized to disburse state funds for real estate closings in a manner consistent with good business practices and in a manner minimizing costs and risks to the state.

(10)  The department is authorized to purchase title insurance in those instances where it is determined that such insurance is necessary to protect the public's investment in property being acquired for transportation purposes. The department shall adopt procedures to be followed in making the determination to purchase title insurance for a particular parcel or group of parcels which, at a minimum, shall set forth criteria which the parcels must meet.

History.--s. 104, ch. 29965, 1955; s. 1, ch. 61-430; s. 1, ch. 65-48; s. 1, ch. 65-33; ss. 23, 35, ch. 69-106; s. 2, ch. 77-44; s. 1, ch. 77-244; s. 1, ch. 78-282; s. 141, ch. 79-400; s. 2, ch. 82-36; s. 163, ch. 84-309; s. 16, ch. 88-168; s. 5, ch. 89-232; s. 78, ch. 90-136; s. 112, ch. 92-152; ss. 39, 40, ch. 93-164; s. 24, ch. 94-237; s. 968, ch. 95-148; s. 51, ch. 96-323; s. 15, ch. 97-280; s. 23, ch. 99-385; s. 54, ch. 2000-152.

337.2505  Donations for landscape projects.--The Department of Transportation is authorized to accept donations of plans, materials, installation, and maintenance for landscape projects on the State Highway System.

(1)  The department shall adopt rules for review and permitting of landscape donations. The rules must include, but are not limited to, an examination of the donation's aesthetic value, feasibility of installation and maintenance, compliance with state and federal regulations, and requirements for a maintenance plan.

(2)  The department may place signs at the site of donated landscaping where the donation encompasses materials and their installation and maintenance. Department rules shall provide for the type and size of such signs.

History.--s. 6, ch. 92-152.

337.251  Lease of property for joint public-private development and areas above or below department property.--

(1)  The department may lease to public agencies or private entities, for a term not to exceed 99 years, the use of department property, including rights-of-way, for joint public-private transportation purposes to further economic development in this state and generate revenue for transportation. The department may also lease the use of areas above or below state highways or other transportation facilities for commercial purposes. Leases under this section are subject to any reservations, restrictions, or conditions necessary to ensure adequate protection for the safe and efficient operation and maintenance of all transportation and utility facilities, the adequacy of traffic flow, and the full use of existing and future state transportation facilities. Such joint public-private use or commercial use of property may not interfere with the primary state transportation needs or present or future utility needs for that property nor be contrary to the best interests of the public. The department may not lease any such property if the proposed use conflicts with zoning or land development codes of any affected local government. The department shall, prior to entering into such lease, determine that the property subject to the lease has a permanent transportation use related to the responsibilities of the department, has the potential for such future transportation uses, or constitutes airspace or subsurface rights attached to property having such uses, and is therefore not available for sale as surplus property.

(2)  The department may request proposals for the lease of such property or, if the department receives a proposal to negotiate a lease, it shall publish a notice in a newspaper of general circulation at least once a week for 2 weeks, stating that it has received the proposal and will accept, for 60 days after the date of publication, other proposals for use of the space. A copy of the notice must be mailed to each local government in the affected area.

(3)  A proposal must be selected by the department based on competitive bidding, except that the department may consider other relevant factors specified in the request for proposals. The department may consider such factors as the value of property exchanges, the cost of construction, and other recurring costs for the benefit of the department by the lessee in lieu of direct revenue to the department if such other factors are of equal value including innovative proposals to involve minority businesses. The department may name a board of advisers which may be composed of accountants, real estate appraisers, design engineers, or other experts experienced in the type of development proposed. The board of advisers shall review the feasibility of the proposals, recommend acceptance or rejection of each proposal, and rank each feasible proposal in the order of technical feasibility and benefit provided to the department. The board of advisers shall be reasonably compensated for the services provided and all department costs for evaluating the proposals shall be reimbursed from a proposal application fee to be set by the department and paid by the applicants. The board of advisers shall not be subject to selection under the provisions of chapter 287.

(4)  The requirements of this section apply to complex lease transactions involving extensive capital improvements by the lessee or provisions for exchange of goods or services by the lessee in lieu of cash and do not affect the requirements for other types of leases set forth in s. 337.25(5).

(5)  The department may utilize leaseback or other joint public-private uses of property in lieu of full or partial compensation to a property owner for property acquired by eminent domain or to a landowner who donates property to the department, without competitive proposals and selection, if such use is acceptable to the property owner in lieu of other compensation and such use does not interfere with the public transportation purpose for which the property was acquired.

(6)  This section does not require right-of-way lease arrangements for facilities of utilities which provide water, sewer, gas, telecommunication, or electric services for which utilities may obtain permits from the department.

(7)  The department shall be indemnified by a lessee for liability which arises from construction on or the use of department property by the lessee. Mortgages or other liens or encumbrances may not attach to department property as a result of the financing, construction, or use of the property by the lessee. Improvements constructed on the property by the lessee shall revert to the department upon expiration of the lease.

(8)  Revenue derived from a joint public-private use shall be deposited in the State Transportation Trust Fund.

(9)  Notwithstanding s. 341.327, a fixed-guideway transportation system authorized by the department to be wholly or partially within the department's right-of-way pursuant to a lease granted under this section may operate at any safe speed.

History.--s. 7, ch. 90-227; s. 27, ch. 95-257; s. 38, ch. 96-323; s. 24, ch. 99-385.

337.26  Execution and effect of instruments of sale, lease, or conveyance executed by department.--

(1)  An instrument of sale, lease, or conveyance executed in the name of the department, and signed by the department's chief administrative officer of the district in which the property is located, or, if the property is located on the turnpike system, by the chief administrative officer of the Office of Florida Turnpike, when such authority has been delegated by the head of the department, with the corporate seal of the department affixed thereto, is effective to pass the title or interest of the state in the property conveyed.

(2)  No instrument of conveyance by the department shall warrant the title to any property sold, leased, or conveyed.

History.--s. 105, ch. 29965, 1955; s. 17, ch. 57-318; ss. 23, 35, ch. 69-106; s. 164, ch. 84-309; s. 17, ch. 88-168; s. 131, ch. 92-152.

337.27  Exercise of power of eminent domain by department; procedure; title; cost.--

(1)  The power of eminent domain is vested in the department to condemn all necessary lands and property, including rights of access, air, view, and light, whether public or private, for the purpose of securing and utilizing transportation rights-of-way, including, but not limited to, any lands reasonably necessary for securing applicable permits, areas necessary for management of access, borrow pits, drainage ditches, water retention areas, rest areas, replacement access for landowners whose access is impaired due to the construction of a facility, and replacement rights-of-way for relocated rail and utility facilities; for existing, proposed, or anticipated transportation facilities on the State Highway System or State Park Road System; or in a transportation corridor designated by the department; or for the purposes of screening, relocation, removal, or disposal of junkyards and scrap metal processing facilities. The department shall also have the power to condemn any material and property necessary for such purposes. The secretary of the Department of Transportation may delegate the authority to execute eminent domain resolutions to the department's chief administrative officer of the district in which the property is located, or to the chief administrative officer of the Office of Florida Turnpike if the property is to be acquired for a turnpike system project.

(2)  Title to any land acquired in the name of the department vests in the state.

(3)  The department is authorized to pay the judgment or compensation, including deposits required, awarded in any such proceedings out of any funds available to the department for the maintenance or construction of any transportation facility on the State Highway System, on the State Park Road System, or in a transportation corridor designated by the department.

(4)  When the department acquires property for a transportation facility or in a transportation corridor through the exercise of eminent domain authority, or by purchase or donation, it is not subject to any liability imposed by chapter 376 or chapter 403 for preexisting soil or groundwater contamination due solely to its ownership. This section does not affect the rights or liabilities of any past or future owners of the acquired property nor does it affect the liability of any governmental entity for the results of its actions which create or exacerbate a pollution source. The department and the Department of Environmental Protection may enter into interagency agreements for the performance, funding, and reimbursement of the investigative and remedial acts necessary for property acquired by the department.

History.--s. 106, ch. 29965, 1955; s. 18, ch. 57-318; ss. 23, 35, ch. 69-106; s. 1, ch. 80-312; s. 165, ch. 84-309; s. 2, ch. 84-319; s. 3, ch. 87-164; s. 1, ch. 87-242; s. 18, ch. 88-168; s. 6, ch. 89-232; s. 132, ch. 92-152; s. 166, ch. 94-356; s. 64, ch. 99-385.

337.273  Transportation corridors.--

(1)  It is hereby found and declared that:

(a)  Immediate and decisive action must be taken to plan, designate, and develop transportation corridors within this state in order that the public health, safety, and welfare may be protected, preserved, and improved by planning for future growth, coordinating land use and transportation planning, and complying with the concurrency requirements of chapter 163.

(b)  Traffic congestion and facility overcrowding on the State Highway System constitutes a serious and growing problem; impedes the development of an effective transportation system; results in increased incidents of traffic accidents, personal injury, and property damage or loss; causes environmental degradation; impedes sound economic growth; impairs effective growth management, including the ability to meet concurrency requirements and coordinate land use decisions and transportation planning; discourages tourism; aggravates social discord; increases maintenance costs; shortens the effective life of the transportation facility; delays public evacuation for natural storms and emergencies; impairs national defense and disaster response readiness; delays response time for emergency vehicles; significantly increases public infrastructure needs and associated public costs, such as police, fire, accident, medical, and hospital costs; and otherwise is injurious to the public health, safety, and welfare.

(c)  The designation and management of transportation corridors and the planning and development of transportation facilities within transportation corridors will substantially assist in allowing government to alleviate traffic congestion and transportation facility overcrowding, aid in the development of an effective transportation system that is coordinated with land use planning, assist in planning for future growth, enable compliance with concurrency requirements, and alleviate the heretofore described health, safety, and welfare liabilities to the public.

(d)  The designation and management of transportation corridors can best be achieved through the inclusion of transportation corridors in the local government comprehensive plans that are developed, reviewed, and adopted pursuant to chapter 163, in order to ensure comprehensive planning for future development and growth, improved coordination between land use and transportation planning, and compliance with concurrency requirements.

(2)  It is further found and declared that:

(a)  Investments in transportation corridors cannot be adequately coordinated with land use decisions without timely preservation, management, or acquisition of property necessary to accommodate existing and planned transportation facilities within the corridor.

(b)  The inability to timely protect or acquire property necessary to accommodate a transportation facility in a transportation corridor constitutes an economic, health, safety, and welfare liability that imposes increasingly onerous burdens on public revenues, seriously impedes the ability to plan for future growth, substantially impairs or arrests sound growth, impedes the provision of transportation infrastructure concurrent with the impact of development, retards the provision of an adequate transportation system for the people in the state, aggravates traffic problems, and substantially hampers the elimination of traffic hazards and the improvement of traffic facilities.

(c)  When development, building, or other intensification of land uses occur within the area of right-of-way needed for transportation facilities, the subsequent public acquisition of property results in disruption of neighborhoods, residences, and businesses; relocation of people and property; interference with utility facilities; and substantial additional costs to property owners, business owners, and public agencies for services, planning, permitting, and zoning.

(d)  The prevention and elimination of traffic congestion on the State Highway System and the protection, management, and early acquisition of property to accommodate future transportation facilities is a matter of state policy and state concern in order that the state, counties, and municipalities shall not continue to consume an excessive proportion of limited resources on the extra services required for police, fire, accident, hospitalization, and other forms of public protection services and facilities as a result of inadequate transportation facilities.

(3)  It is the intent of the Legislature that governmental police powers be utilized to the greatest extent possible by each governmental entity, and by two or more entities through corridor management agreements, to manage land uses necessary for transportation corridors; that property acquisition by donation, purchase, or eminent domain occur as far in advance of construction need as possible; and that property, needed to manage transportation corridors, be acquired and retained for future use to avoid the public liabilities for health, safety, and welfare heretofore outlined.

(4)  It is recognized by the Legislature that advance acquisition of property to manage land uses in transportation corridors for future use will, of necessity, require acquisition without design plans and profiles, project development, and construction information; and it is intended by the Legislature that such advance acquisition, including acquisition utilizing the power of eminent domain, must nevertheless occur to avoid the social, economic, health, safety, and welfare liabilities heretofore declared.

(5)  When lands and property in a transportation corridor are acquired pursuant to the eminent domain powers granted by s. 337.27(1), public purpose and necessity may be demonstrated through the use of typical design, construction plans or profiles, and one or more of the following: anticipated trends in such areas as demographic and other growth patterns, land use and development patterns, traffic projections, expected utility needs, or future anticipated mass-transit requirements. Immediate availability of construction funds and applicable permits shall not be required to support such showing of public purpose and necessity.

(6)  A local government may designate a transportation corridor by including the corridor in the entity's comprehensive plan traffic circulation or transportation element. A transportation management ordinance may be adopted for designated transportation corridors. The transportation corridor management ordinance should contain the criteria to manage the land uses within and adjacent to the transportation corridor, the types of restrictions on nonresidential and residential construction within the designated corridor, identification of permitted land uses within the designated corridor, a public notification process, a variance and appeal process, and an intergovernmental coordination process that provides for the coordinated management of transportation corridors that cross jurisdictional boundaries with the plans of adjacent jurisdictions. Local governments may adopt such additional ordinances and regulations as necessary to manage designated transportation corridors.

History.--s. 20, ch. 88-168; s. 110, ch. 92-152; s. 41, ch. 95-257.

337.2735  Recording of municipal maps of reservation for transportation corridors and transportation facilities; establishment of building setback lines; restrictions on issuance of development permits; hearings.--

(1)  The governing body of a municipality may approve maps of reservation for any transportation facility or transportation corridor within the municipality's jurisdiction. Any such maps shall delineate the limits of the transportation corridor or of the proposed rights-of-way for the eventual widening of an existing or proposed transportation facility. Before recording such map, the municipality shall advertise and hold a public hearing and shall notify all property owners of record within the limits of the transportation corridor or rights-of-way of the transportation facility shown on the proposed map, as recorded in the property appraiser's office, by mail at least 20 days prior to the date set for the hearing. After the public hearing, the municipality shall send the map to the clerk of the court of the county, who shall forthwith record the map in accordance with chapter 177 in the public land records of the county. Minor amendments to such maps are not subject to the notice and public hearing provisions of this section, except that property owners directly affected by changes in a minor amendment must be notified by mail. Minor amendments are defined as those changes which affect less than 5 percent of the total area within the map.

(2)  Upon recording, such map shall establish a building setback line from the centerline of any transportation facility and an area of proposed right-of-way and shall cite the ordinance which defines building restrictions for such maps.

(3)  Prior to filing any map pursuant to this section, a municipality shall have adopted an ordinance defining the types of restrictions on nonresidential and residential construction within the proposed rights-of-way and building setback lines. In no case, however, shall said ordinance restrict the renovation of an existing residential structure when the renovation does not exceed 20 percent of the appraised value of the structure.

(4)  Upon petition by any property owner of record within the limits of the map alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a substantial portion of the beneficial use of such property, the municipality shall hold a hearing. When such a hearing results in a finding in favor of the petitioning property owner, the municipality shall have 180 days from the date of such finding to acquire such property, to amend the map, to withdraw the map, to issue the permit, or to file appropriate proceedings. Either party may seek appellate review.

(5)  This section shall be regarded as supplemental and additional to the powers conferred upon municipalities by s. 2, Art. VIII of the State Constitution and by law and shall not be regarded as in derogation of any powers now existing.

History.--s. 6, ch. 88-168.

337.274  Authority of department agent or employee to enter lands, waters, and premises of another in the performance of duties.--The department and its authorized agents and employees are authorized to enter upon any lands, waters, and premises, upon giving reasonable notice to the landowner, for the purpose of making surveys, soundings, drillings, appraisals, environmental assessments, archaeological assessments, and examinations necessary to perform its duties and functions; and any such entry shall not be deemed a trespass or an entry that would constitute a taking in an eminent domain proceeding. The department shall make reimbursement for any actual damages to such lands, water, and premises as a result of such activities.

History.--s. 2, ch. 84-319; s. 7, ch. 89-232; s. 113, ch. 92-152.

337.276  Issuance of bonds for right-of-way land acquisition and state bridge construction.--

(1)  The Division of Bond Finance of the State Board of Administration is authorized, in accordance with s. 215.605, to issue state bonds on behalf of the department to finance right-of-way land acquisition and to finance state bridge construction. The total amount of bonds to be issued under this section shall be limited by the debt service requirements of the bonds issued, and such requirements shall not exceed 90 percent of the pledged revenue authorized to be transferred pursuant to s. 206.46(2).

(2)  If right-of-way purchased from the proceeds of such bonds is used for a revenue-producing facility, the owner of that facility may reimburse the Right-of-Way Acquisition and Bridge Construction Trust Fund in an amount equal to the cost of acquiring that right-of-way.

History.--s. 34, ch. 90-136; s. 114, ch. 92-152; s. 282, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 93-164; s. 1, ch. 94-237; s. 42, ch. 95-257; s. 138, ch. 96-320; s. 26, ch. 96-323.

337.29  Vesting of title to roads; liability for torts.--

(1)  Title to all roads designated in the State Highway System or State Park Road System shall be in the state, unless otherwise provided herein.

(2)  Upon the vesting of title to any lands for highway purposes in the state, local governmental entities shall forthwith issue a deed or right-of-way map to the state covering such lands, which shall be duly recorded. Recordation of deeds or right-of-way maps shall also be effected upon acquisition of any lands by the department.

(3)  Title to all roads transferred in accordance with the provisions of s. 335.0415 shall be in the governmental entity to which such roads have been transferred, upon the recording of a right-of-way map by the appropriate governmental entity in the public land records of the county or counties in which such rights-of-way are located. To the extent that sovereign immunity has been waived, liability for torts shall be in the governmental entity having operation and maintenance responsibility as provided in s. 335.0415. Except as otherwise provided by law, a municipality shall have the same governmental, corporate, and proprietary powers with relation to any public road or right-of-way within the municipality which has been transferred to another governmental entity pursuant to s. 335.0415 that the municipality has with relation to other public roads and rights-of-way within the municipality.

History.--s. 108, ch. 29965, 1955; ss. 23, 35, ch. 69-106; s. 16, ch. 77-165; s. 5, ch. 77-416; s. 2, ch. 78-285; s. 169, ch. 84-309; s. 85, ch. 99-385.

¹337.401  Use of right-of-way for utilities subject to regulation; permit; fees.--

(1)  The department and local governmental entities, referred to in ss. 337.401-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining along, across, or on any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, telephone, or telegraph lines; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures hereinafter referred to as the "utility."

(2)  The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. The permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto.

(3)(a)  Because federal and state law require the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of telecommunications services, it is the intent of the Legislature that municipalities and counties treat telecommunications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to telecommunications companies placing or maintaining telecommunications facilities in its roads or rights-of-way must be generally applicable to all telecommunications companies and, notwithstanding any other law, may not require a telecommunications company to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining telecommunications facilities in its roads or rights-of-way. In addition to other reasonable rules or regulations that a municipality or county may adopt relating to the placement or maintenance of telecommunications facilities in its roads or rights-of-way under this subsection, a municipality or county may require a telecommunications company that places or seeks to place facilities in its roads or rights-of-way to register with the municipality or county and to provide the name of the registrant; the name, address, and telephone number of a contact person for the registrant; the number of the registrant's current certificate of authorization issued by the Florida Public Service Commission or the Federal Communications Commission; and proof of insurance or self-insuring status adequate to defend and cover claims.

(b)  Each municipality and county retains the authority to regulate and manage municipal and county roads or rights-of-way in exercising its police power. Any rules or regulations adopted by a municipality or county which govern the occupation of its roads or rights-of-way by telecommunications companies must be related to the placement or maintenance of facilities in such roads or rights-of-way, must be reasonable and nondiscriminatory, and may include only those matters necessary to manage the roads or rights-of-way of the municipality or county.

(c)1.  It is the intention of the state to treat all providers of communications services that use or occupy municipal or charter county roads or rights-of-way for the provision of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees. Certain providers of communications services have been granted by general law the authority to offset permit fees against franchise or other fees while other providers of communications services have not been granted this authority. In order to treat all providers of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees, each municipality and charter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and must inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.(I)  The municipality or charter county may require and collect permit fees from any providers of communications services that use or occupy municipal or county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a municipality or charter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

(II)  To ensure competitive neutrality among providers of communications services, for any municipality or charter county that elects to exercise its authority to require and collect permit fees under this sub-subparagraph, the rate of the local communications services tax imposed by such jurisdiction, as computed under s. 202.20(1) and (2), shall automatically be reduced by a rate of 0.12 percent.

b.  Alternatively, the municipality or charter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies municipal or charter county roads or rights-of-way for the provision of communications services; however, each municipality or charter county that elects to operate under this sub-subparagraph retains all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a municipality or charter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that municipality or charter county may be increased by ordinance by an amount not to exceed a rate of 0.12 percent.

c.  A municipality or charter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

2.  Each noncharter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and shall inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.  The noncharter county may elect to require and collect permit fees from any providers of communications services that use or occupy noncharter county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a noncharter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

b.  Alternatively, the noncharter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies noncharter county roads or rights-of-way for the provision of communications services; however, each noncharter county that elects to operate under this sub-subparagraph shall retain all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a noncharter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that noncharter county may be increased by ordinance by an amount not to exceed a rate of 0.24 percent, to replace the revenue the noncharter county would otherwise have received from permit fees for providers of communications services.

c.  A noncharter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

3.  Except as provided in this paragraph, municipalities and counties retain all existing authority to require and collect permit fees from users or occupants of municipal or county roads or rights-of-way and to set appropriate permit fee amounts.

(d)  After January 1, 2001, in addition to any other notice requirements, a municipality must provide to the Secretary of State, at least 10 days prior to consideration on first reading, notice of a proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or rights-of-way. After January 1, 2001, in addition to any other notice requirements, a county must provide to the Secretary of State, at least 15 days prior to consideration at a public hearing, notice of a proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or rights-of-way. The notice required by this paragraph must be published by the Secretary of State on a designated Internet website. The failure of a municipality or county to provide such notice does not render the ordinance invalid.

(e)  If any municipality requires any telecommunications company to pay a fee or other consideration as a condition for granting permission to occupy municipal streets and rights-of-way for poles, wires, and other fixtures, such fee or consideration may not exceed 1 percent of the gross receipts on recurring local service revenues for services provided within the corporate limits of the municipality by such telecommunications company. Included within such 1-percent maximum fee or consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to paragraph (g), and other impositions except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings, and similar improvements, and occupational license taxes levied or imposed by a municipality upon the telecommunications company. This paragraph shall not impair any franchise in existence on July 1, 1985.

(f)  A municipality may require any person providing telecommunication services defined in s. 203.012(7) as a condition for granting permission to occupy or use any city street, alley, viaduct, elevated roadway, bridge, or other public way to pay a fee or other consideration payable annually based on actual linear feet of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. In no event shall the fee or other consideration imposed pursuant to this paragraph be less than $500 per linear mile of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. Any fee or other consideration imposed by this paragraph in excess of $500 shall be applied in a nondiscriminatory manner and shall not exceed the sum of:

1.  Costs directly related to the inconvenience or impairment solely caused by the disturbance of the municipal right-of-way;

2.  The reasonable cost of the regulatory activity of the municipality; and

3.  The proportionate share of cost of land for such street, alley, or other public way attributable to utilization of the right-of-way by a telecommunication service provider.

Furthermore, no telecommunication service provider shall be required to pay more than one such fee or other consideration annually for the construction, maintenance, operation, repair, rebuilding, or replacement of a parallel telecommunications route owned by it, or by a subsidiary under its direct control, which makes use of the right-of-way of any municipality enacting an ordinance pursuant to this paragraph. The fee or other consideration imposed pursuant to this paragraph shall not apply in any manner to any telecommunication service provider who provides telecommunication services as defined in s. 203.012(3) for any services provided by such service provider. Any agreement entered into pursuant to the authority of this paragraph prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect until such agreement expires. Any ordinance enacted pursuant to this paragraph prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect unless the ordinance is repealed by the municipality. Notwithstanding the language contained herein a municipality may reenact any ordinance which has an automatic expiration date provided the ordinance does not increase the fees in effect in said ordinance in violation of this section.

(g)  Except as expressly allowed or authorized by general law and except for the rights-of-way permit fees subject to paragraph (e), a municipality may not levy on a telecommunications company a tax, fee, or other charge for operating as a telecommunications company within the jurisdiction of the municipality or which is in any way related to using its roads or rights-of-way. A municipality may not allow a telecommunications company to pay a fee or provide compensation in excess of the limits prescribed in this section. A municipality may not require or solicit in-kind compensation in lieu of any fees imposed pursuant to this section. Nothing in this paragraph shall impair any ordinance or agreement in effect on May 22, 1998, which provides for or allows in-kind compensation by a telecommunications company.

(h)  A local governmental entity may not use its authority over the placement of facilities in its roads and rights-of-way as a basis for asserting or exercising regulatory control over a telecommunications company regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a telecommunications company.

(i)  A telecommunications company that has obtained permission to occupy the roads and rights-of-way of an incorporated municipality pursuant to s. 362.01 or that is otherwise lawfully occupying the roads or rights-of-way of a municipality on the effective date of this act shall not be required to obtain consent to continue such lawful occupation of those roads or rights-of-way; however, nothing in this paragraph shall be interpreted to limit the power of a municipality to impose a fee or adopt or enforce reasonable rules or regulations as provided in this section.

(j)  Except as expressly provided in this section, this section does not modify the authority of local governmental entities to levy the tax authorized in s. 166.231 or the duties of telecommunications companies under ss. 337.402-337.404. This section does not apply to building permits, pole attachments, or private roads, private easements, and private rights-of-way. Except as expressly provided in this section, this section does not limit or expand whatever powers counties may have relating to roads and rights-of-way. Nothing in this section shall limit or expand whatever authority a local government may have to impose any fee pursuant to 47 U.S.C. ss. 542 and 573.

(k)  As used in this section, "telecommunications company" has the same meaning as defined in s. 364.02.

(4)  This section, except subsections (1) and (2) and paragraph (3)(h), does not apply to the provision of pay telephone service on public or municipal roads or rights-of-way.

History.--s. 127, ch. 29965, 1955; s. 1, ch. 63-279; s. 1, ch. 65-52; ss. 23, 35, ch. 69-106; s. 141, ch. 84-309; s. 8, ch. 85-174; s. 8, ch. 86-155; ss. 2, 21, ch. 88-168; s. 8, ch. 89-232; s. 41, ch. 91-221; s. 26, ch. 94-237; s. 1, ch. 98-147; s. 2, ch. 99-354; ss. 50, 51, 58, 59, ch. 2000-260.

¹Note.--

A.  Section 59, ch. 2000-260, amended s. 337.401, effective June 30, 2001, to read:

337.401  Use of right-of-way for utilities subject to regulation; permit; fees.--

(1)  The department and local governmental entities, referred to in ss. 337.401-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining along, across, or on any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, telephone, or telegraph lines; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures hereinafter referred to as the "utility."

(2)  The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. The permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto.

(3)  If any municipality requires any telecommunications company to pay a fee or other consideration as a condition for granting permission to occupy municipal streets and rights-of-way for poles, wires, and other fixtures, such fee or consideration may not exceed 1 percent of the gross receipts on recurring local service revenues for services provided within the corporate limits of the municipality by such telecommunications company. Included within such 1-percent maximum fee or consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to subsection (5), and other impositions except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings, and similar improvements, and occupational license taxes levied or imposed by a municipality upon the telecommunications company. This subsection shall not impair any franchise in existence on July 1, 1985.

(4)  A municipality may by ordinance enter into an agreement with any person providing telecommunication services defined in s. 203.012(7) as a condition for granting permission to occupy or use any city street, alley, viaduct, elevated roadway, bridge, or other public way. The agreement shall permit the telecommunication service provider to construct, operate, maintain, repair, rebuild, or replace a telecommunications route within a municipal right-of-way. The agreement shall provide for a fee or other consideration payable annually based on actual linear feet of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. In no event shall the fee or other consideration imposed pursuant to this subsection be less than $500 per linear mile of any cable, fiber optic, or other pathway that makes physical use of the municipal right-of-way. Any fee or other consideration imposed by this subsection in excess of $500 shall be applied in a nondiscriminatory manner and shall not exceed the sum of:

(a)  Costs directly related to the inconvenience or impairment solely caused by the disturbance of the municipal right-of-way; and

(b)  The reasonable cost of the regulatory activity of the municipality.

(c)  The proportionate share of cost of land for such street, alley, or other public way attributable to utilization of the right-of-way by a telecommunication service provider.


Furthermore, no telecommunication service provider shall be required to pay more than one such fee or other consideration annually for the construction, maintenance, operation, repair, rebuilding, or replacement of a parallel telecommunications route owned by it, or by a subsidiary under its direct control, which makes use of the right-of-way of any municipality enacting an ordinance pursuant to this subsection. The fee or other consideration imposed pursuant to this subsection shall not apply in any manner to any telecommunication service provider who provides telecommunication services as defined in s. 203.012(3) for any services provided by such service provider. Any agreement entered into pursuant to the authority of this subsection prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect until such agreement expires. Any ordinance enacted pursuant to this subsection prior to June 3, 1988, and the fees or fee schedule in effect on that date shall remain in full force and effect unless the ordinance is repealed by the municipality. Notwithstanding the language contained herein a municipality may reenact any ordinance which has an automatic expiration date provided the ordinance does not increase the fees in effect in said ordinance in violation of this section.

(5)  Except as expressly allowed or authorized by general law and except for the rights-of-way permit fees subject to subsection (3), a municipality may not levy on a telecommunications company a tax, fee, or other charge for operating as a telecommunications company within the jurisdiction of the municipality or which is in any way related to using roads or rights-of-way. A municipality may not allow a telecommunications company to pay a fee or provide compensation in excess of the limits prescribed in this section. A municipality may not require or solicit in-kind compensation in lieu of any fees imposed pursuant to this section. Nothing in this subsection shall impair any ordinance or agreement in effect on the effective date of this act which provides for or allows in-kind compensation by a telecommunications company.

(6)  A local governmental entity may not use its authority over the placement of facilities in its roads and rights-of-way as a basis for asserting or exercising regulatory control over a telecommunications company regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a telecommunications company.

(7)  A telecommunications company that has obtained permission to occupy the roads and rights-of-way of an incorporated city or town or that is otherwise lawfully occupying the roads or rights-of-way of a municipality on the effective date of this act shall not be required to obtain additional consent to continue such lawful occupation of those roads or rights-of-way; however, nothing in this subsection shall be interpreted to limit the power of a municipality to impose a fee or adopt or enforce reasonable rules or regulations as provided in this section.

(8)  Except as expressly provided in this section, this section does not modify the authority of local governmental entities to levy the tax authorized in s. 166.231 or the duties of telecommunications companies under ss. 337.402-337.404. This section does not apply to building permits, pole attachments, or private roads, private easements, and private rights-of-way. Except as expressly provided in this section, this section does not limit or expand whatever powers counties may have relating to roads and rights-of-way. Nothing in this section shall limit or expand whatever authority a local government may have to impose any fee pursuant to 47 U.S.C. ss. 542 and 573.

(9)  As used in this section, "telecommunications company" has the same meaning as defined in s. 364.02.

(10)  This section, except subsections (1), (2), and (6), does not apply to the provision of pay telephone service on public or municipal roads or rights-of-way.

B.  Effective October 1, 2001, s. 51, ch. 2000-260, amends s. 337.401, "as amended by [ch. 2000-260]." The amendment by s. 51, ch. 2000-260, does not incorporate the changes to s. 337.401 by s. 59, ch. 2000-260, effective June 30, 2001. The amendment by s. 51, ch. 2000-260, although effective October 1, 2001, is repealed by s. 58, ch. 2000-260, effective June 30, 2001. If the amendment to s. 337.401 by s. 51, ch. 2000-260, does take effect, it will read:

337.401  Use of right-of-way for utilities subject to regulation; permit; fees.--

(1)  The department and local governmental entities, referred to in ss. 337.401-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining along, across, or on any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, telephone, telegraph, or other communications services lines; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures hereinafter referred to as the "utility."

(2)  The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. The permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto.

(3)(a)  Because of the unique circumstances applicable to providers of communications services, including, but not limited to, the circumstances described in paragraph (e) and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services, except as otherwise provided in paragraph (f), to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way. In addition to other reasonable rules or regulations that a municipality or county may adopt relating to the placement or maintenance of communications facilities in its roads or rights-of-way under this subsection, a municipality or county may require a provider of communications services that places or seeks to place facilities in its roads or rights-of-way to register with the municipality or county and to provide the name of the registrant; the name, address, and telephone number of a contact person for the registrant; the number of the registrant's current certificate of authorization issued by the Florida Public Service Commission or the Federal Communications Commission; and proof of insurance or self-insuring status adequate to defend and cover claims.

(b)  Each municipality and county retains the authority to regulate and manage municipal and county roads or rights-of-way in exercising its police power. Any rules or regulations adopted by a municipality or county which govern the occupation of its roads or rights-of-way by providers of communications services must be related to the placement or maintenance of facilities in such roads or rights-of-way, must be reasonable and nondiscriminatory, and may include only those matters necessary to manage the roads or rights-of-way of the municipality or county.

(c)1.  It is the intention of the state to treat all providers of communications services that use or occupy municipal or charter county roads or rights-of-way for the provision of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees. Certain providers of communications services have been granted by general law the authority to offset permit fees against franchise or other fees while other providers of communications services have not been granted this authority. In order to treat all providers of communications services in a nondiscriminatory and competitively neutral manner with respect to the payment of permit fees, each municipality and charter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and must inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.(I)  The municipality or charter county may require and collect permit fees from any providers of communications services that use or occupy municipal or county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a municipality or charter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

(II)  To ensure competitive neutrality among providers of communications services, for any municipality or charter county that elects to exercise its authority to require and collect permit fees under this sub-subparagraph, the rate of the local communications services tax imposed by such jurisdiction, as computed under s. 202.20(1) and (2), shall automatically be reduced by a rate of 0.12 percent.

b.  Alternatively, the municipality or charter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies municipal or charter county roads or rights-of-way for the provision of communications services; however, each municipality or charter county that elects to operate under this sub-subparagraph retains all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a municipality or charter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that municipality or charter county may be increased by ordinance by an amount not to exceed a rate of 0.12 percent.

c.  A municipality or charter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

2.  Each noncharter county shall make an election under either sub-subparagraph a. or sub-subparagraph b. and shall inform the Department of Revenue of the election by certified mail by ²July 1, 2001. Such election shall take effect ³October 1, 2001.

a.  The noncharter county may elect to require and collect permit fees from any providers of communications services that use or occupy noncharter county roads or rights-of-way. All fees permitted under this sub-subparagraph must be reasonable and commensurate with the direct and actual cost of the regulatory activity, including issuing and processing permits, plan reviews, physical inspection, and direct administrative costs; must be demonstrable; and must be equitable among users of the roads or rights-of-way. A fee permitted under this sub-subparagraph may not: be offset against the tax imposed under chapter 202; include the costs of roads or rights-of-way acquisition or roads or rights-of-way rental; include any general administrative, management, or maintenance costs of the roads or rights-of-way; or be based on a percentage of the value or costs associated with the work to be performed on the roads or rights-of-way. In an action to recover amounts due for a fee not permitted under this sub-subparagraph, the prevailing party may recover court costs and attorney's fees at trial and on appeal. In addition to the limitations set forth in this section, a fee levied by a noncharter county under this sub-subparagraph may not exceed $100. However, permit fees may not be imposed with respect to permits that may be required for service drop lines not required to be noticed under s. 556.108(5)(b) or for any activity that does not require the physical disturbance of the roads or rights-of-way or does not impair access to or full use of the roads or rights-of-way.

b.  Alternatively, the noncharter county may elect not to require and collect permit fees from any provider of communications services that uses or occupies noncharter county roads or rights-of-way for the provision of communications services; however, each noncharter county that elects to operate under this sub-subparagraph shall retain all authority to establish rules and regulations for providers of communications services to use or occupy roads or rights-of-way as provided in this section. If a noncharter county elects to operate under this sub-subparagraph, the total rate for the local communications services tax as computed under s. 202.20(1) and (2) for that noncharter county may be increased by ordinance by an amount not to exceed a rate of 0.24 percent, to replace the revenue the noncharter county would otherwise have received from permit fees for providers of communications services.

c.  A noncharter county that does not make an election as provided for in this subparagraph shall be presumed to have elected to operate under the provisions of sub-subparagraph b.

3.  Except as provided in this paragraph, municipalities and counties retain all existing authority to require and collect permit fees from users or occupants of municipal or county roads or rights-of-way and to set appropriate permit fee amounts.

(d)  After January 1, 2001, in addition to any other notice requirements, a municipality must provide to the Secretary of State, at least 10 days prior to consideration on first reading, notice of a proposed ordinance governing a provider of communications services placing or maintaining communications facilities in its roads or rights-of-way. After January 1, 2001, in addition to any other notice requirements, a county must provide to the Secretary of State, at least 15 days prior to consideration at a public hearing, notice of a proposed ordinance governing a provider of communications services placing or maintaining communications facilities in its roads or rights-of-way. The notice required by this paragraph must be published by the Secretary of State on a designated Internet website. The failure of a municipality or county to provide such notice does not render the ordinance invalid.

(e)  The authority of municipalities and counties to require franchise fees from providers of communications services, with respect to the provision of communications services, is specifically preempted by the state, except as otherwise provided in paragraph (f), because of unique circumstances applicable to providers of communications services when compared to other utilities occupying municipal or county roads or rights-of-way. Providers of communications services may provide similar services in a manner that requires the placement of facilities in municipal or county roads or rights-of-way or in a manner that does not require the placement of facilities in such roads or rights-of-way. Although similar communications services may be provided by different means, the state desires to treat providers of communications services in a nondiscriminatory manner and to have the taxes, franchise fees, and other fees paid by providers of communications services be competitively neutral. Municipalities and counties retain all existing authority, if any, to collect franchise fees from users or occupants of municipal or county roads or rights-of-way other than providers of communications services, and the provisions of this subsection shall have no effect upon this authority. The provisions of this subsection do not restrict the authority, if any, of municipalities or counties or other governmental entities to receive reasonable rental fees based on fair market value for the use of public lands and buildings on property outside the public roads or rights-of-way for the placement of communications antennas and towers.

(f)  A municipality or county may request and negotiate for in-kind requirements, institutional networks, and contributions for, or in support of, the use or construction of public, educational, or governmental access facilities allowed under federal law from providers of cable service, and nothing in this section shall impair any ordinance or agreement in effect on July 1, 2000, which provides for or allows for such requirements, networks, or contributions, including the ability of providers of cable service to recover any such expenses pursuant to federal law. This subsection shall be reviewed by the Legislature during the 2001 legislative session in conjunction with the study required by this act.

(g)  Each municipality and county retains authority to negotiate all terms and conditions of a cable service franchise allowed by federal and state law except those terms and conditions related to franchise fees and the definition of gross revenues or other definitions or methodologies related to the payment or assessment of franchise fees on providers of cable services.

(h)  Except as expressly allowed or authorized by general law and except for the rights-of-way permit fees subject to paragraph (c), a municipality or county may not levy on a provider of communications services a tax, fee, or other charge or imposition for operating as a provider of communications services within the jurisdiction of the municipality or county which is in any way related to using its roads or rights-of-way. A municipality or county may not require or solicit in-kind compensation, except as otherwise provided in paragraph (f). Nothing in this paragraph shall impair any ordinance or agreement in effect on May 22, 1998, or any voluntary agreement entered into subsequent to that date, which provides for or allows in-kind compensation by a telecommunications company.

(i)  A municipality or county may not use its authority over the placement of facilities in its roads and rights-of-way as a basis for asserting or exercising regulatory control over a provider of communications services regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or the Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a provider of communications services.

(j)  A provider of communications services that has obtained permission to occupy the roads or rights-of-way of an incorporated municipality pursuant to s. 362.01 or that is otherwise lawfully occupying the roads or rights-of-way of a municipality shall not be required to obtain consent to continue such lawful occupation of those roads or rights-of-way; however, nothing in this paragraph shall be interpreted to limit the power of a municipality to adopt or enforce reasonable rules or regulations as provided in this section.

(k)  Except as expressly provided in this section, this section does not modify the authority of municipalities and counties to levy the tax authorized in chapter 202 or the duties of providers of communications services under ss. 337.402-337.404. This section does not apply to building permits, pole attachments, or private roads, private easements, and private rights-of-way.

(4)  As used in this section, "communications services" and "cable services" have the same meanings ascribed in chapter 202.

(5)  This section, except subsections (1) and (2) and paragraph (3)(i), does not apply to the provision of pay telephone service on public, municipal, or county roads or rights-of-way.

C.  Section 52, ch. 2000-260, provides that "[t]he Legislature finds that it may be necessary to adopt a state policy regarding in-kind requirements, institutional networks, and contributions for, or in support of, the use or construction of public, educational, or governmental access facilities allowed under federal law currently imposed only on providers of cable service, especially in light of the in-kind requirements for providers of telecommunications services under s. 337.401(5), Florida Statutes, 1999. Given the development of alternative choices in the delivery of multichannel video programming, including programming by providers of wireless, satellite, Internet, and other video delivery systems, and the potential competitive inequities which may be associated with such requirements, networks, and contributions, the appropriate committees of the Legislature shall study and evaluate, during the 2001 legislative session, an appropriate state policy regarding these issues, including the option of calculating the present and future value of such requirements, networks, and contributions available to local governments in excess of the limitations imposed on franchise fees under 47 U.S.C. s. 542(b) as a part of the computation of replacement revenues under s. 202.20, Florida Statutes, in setting the local communications services tax rate."

²Note.--Section 50, ch. 2000-260, effective January 1, 2001, requires specified counties to inform the Department of Revenue of the election by certified mail by July 1, 2001. Section 59, ch. 2000-260, effective June 30, 2001, deletes this language, but with a different referenced due date--October 1, 2001. Section 51, ch. 2000-260, set to take effect October 1, 2001, but subject to repeal effective June 30, 2001, by s. 58, ch. 2000-260, provides for substitution of the "July 1, 2001" date for the certified mailing for "October 1, 2001."

³Note.--Section 50, ch. 2000-260, effective January 1, 2001, specifies that the election shall take effect October 1, 2001. Section 59, ch. 2000-260, effective June 30, 2001, deletes this language, but with a different referenced date--January 1, 2002. Section 51, ch. 2000-260, set to take effect October 1, 2001, but subject to repeal effective June 30, 2001, by s. 58, ch. 2000-260, provides for substitution of the "October 1, 2001" date for the effect of election for "January 1, 2002."

Note.--Former s. 338.17.

337.402  Damage to public road caused by utility.--When any public road or publicly owned rail corridor is damaged or impaired in any way because of the installation, inspection, or repair of a utility located on such road or publicly owned rail corridor, the owner of the utility shall, at his or her own expense, restore the road or publicly owned rail corridor to its original condition before such damage. If the owner fails to make such restoration, the authority is authorized to do so and charge the cost thereof against the owner under the provisions of s. 337.404.

History.--s. 128, ch. 29965, 1955; s. 142, ch. 84-309; s. 27, ch. 94-237; s. 969, ch. 95-148.

Note.--Former s. 338.18.

337.403  Relocation of utility; expenses.--

(1)  Any utility heretofore or hereafter placed upon, under, over, or along any public road or publicly owned rail corridor that is found by the authority to be unreasonably interfering in any way with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion, of such public road or publicly owned rail corridor shall, upon 30 days' written notice to the utility or its agent by the authority, be removed or relocated by such utility at its own expense except as provided in paragraphs (a), (b), and (c).

(a)  If the relocation of utility facilities, as referred to in s. 111 of the Federal-Aid Highway Act of 1956, Pub. L. No. 627 of the 84th Congress, is necessitated by the construction of a project on the federal-aid interstate system, including extensions thereof within urban areas, and the cost of such project is eligible and approved for reimbursement by the Federal Government to the extent of 90 percent or more under the Federal Aid Highway Act, or any amendment thereof, then in that event the utility owning or operating such facilities shall relocate such facilities upon order of the department, and the state shall pay the entire expense properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.

(b)  When a joint agreement between the department and the utility is executed for utility improvement, relocation, or removal work to be accomplished as part of a contract for construction of a transportation facility, the department may participate in those utility improvement, relocation, or removal costs that exceed the department's official estimate of the cost of such work by more than 10 percent. The amount of such participation shall be limited to the difference between the official estimate of all the work in the joint agreement plus 10 percent and the amount awarded for this work in the construction contract for such work. The department may not participate in any utility improvement, relocation, or removal costs that occur as a result of changes or additions during the course of the contract.

(c)  When an agreement between the department and utility is executed for utility improvement, relocation, or removal work to be accomplished in advance of a contract for construction of a transportation facility, the department may participate in the cost of clearing and grubbing necessary to perform such work.

(2)  If such removal or relocation is incidental to work to be done on such road or publicly owned rail corridor, the notice shall be given at the same time the contract for the work is advertised for bids, or 30 days prior to the commencement of such work by the authority.

(3)  Whenever an order of the authority requires such removal or change in the location of any utility from the right-of-way of a public road or publicly owned rail corridor, and the owner thereof fails to remove or change the same at his or her own expense to conform to the order within the time stated in the notice, the authority shall proceed to cause the utility to be removed. The expense thereby incurred shall be paid out of any money available therefor, and such expense shall, except as provided in subsection (1), be charged against the owner and levied and collected and paid into the fund from which the expense of such relocation was paid.

History.--s. 129, ch. 29965, 1955; s. 1, ch. 57-135; s. 1, ch. 57-1978; ss. 23, 35, ch. 69-106; s. 143, ch. 84-309; s. 12, ch. 87-100; s. 28, ch. 94-237; s. 970, ch. 95-148; s. 25, ch. 99-385.

Note.--Former s. 338.19.

337.404  Removal or relocation of utility facilities; notice and order; court review.--

(1)  Whenever it shall become necessary for the authority to remove or relocate any utility as provided in the preceding section, the owner of the utility, or the owner's chief agent, shall be given notice of such removal or relocation and an order requiring the payment of the cost thereof, and shall be given reasonable time, which shall not be less than 20 nor more than 30 days, in which to appear before the authority to contest the reasonableness of the order. Should the owner or the owner's representative not appear, the determination of the cost to the owner shall be final. Authorities considered agencies for the purposes of chapter 120 shall adjudicate removal or relocation of utilities pursuant to chapter 120.

(2)  A final order of the authority shall constitute a lien on any property of the owner and may be enforced by filing an authenticated copy of the order in the office of the clerk of the circuit court of the county wherein the owner's property is located.

(3)  The owner may obtain judicial review of the final order of the authority within the time and in the manner provided by the Florida Rules of Appellate Procedure by filing in the circuit court of the county in which the utility was relocated a petition for a writ of certiorari in the manner prescribed by said rules or in the manner provided by chapter 120 when the respondent is an agency for purposes of chapter 120.

History.--s. 130, ch. 29965, 1955; s. 16, ch. 63-512; s. 1, ch. 69-267; ss. 23, 35, ch. 69-106; s. 56, ch. 78-95; s. 144, ch. 84-309; s. 500, ch. 95-148.

Note.--Former s. 338.20.

337.405  Trees or other vegetation within rights-of-way of State Highway System or publicly owned rail corridors; removal or damage; penalty.--

(1)  The removal, cutting, marring, defacing, or destruction of any trees or other vegetation, either by direct personal action or by causing any other person to take such action, within the rights-of-way of roads located on the State Highway System or within publicly owned rail corridors is prohibited unless prior written permission to remove or cut such trees or other vegetation has been granted by the department, except where normal tree trimming is required to ensure the safe operation of utility facilities and such tree trimming is performed in accordance with the provisions of its utility accommodations guide, and any subsequent amendments thereto. The department shall adopt rules for the implementation of this section to achieve protection of vegetation while at the same time assuring safe utility operations.

(2)  Any person who violates the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 156, ch. 29965, 1955; ss. 23, 35, ch. 69-106; s. 238, ch. 71-136; s. 46, ch. 84-309; s. 29, ch. 94-237.

Note.--Former s. 339.25.

337.406  Unlawful use of state transportation facility right-of-way; penalties.--

(1)  Except when leased as provided in s. 337.25(5) or otherwise authorized by the rules of the department, it is unlawful to make any use of the right-of-way of any state transportation facility, including appendages thereto, outside of an incorporated municipality in any manner that interferes with the safe and efficient movement of people and property from place to place on the transportation facility. Failure to prohibit the use of right-of-way in this manner will endanger the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement within travel lanes, sudden stoppage or slowdown of traffic, rapid lane changing and other dangerous traffic movement, increased vehicular accidents, and motorist injuries and fatalities. Such prohibited uses include, but are not limited to, the free distribution or sale, or display or solicitation for free distribution or sale, of any merchandise, goods, property or services; the solicitation for charitable purposes; the servicing or repairing of any vehicle, except the rendering of emergency service; the storage of vehicles being serviced or repaired on abutting property or elsewhere; and the display of advertising of any sort, except that any portion of a state transportation facility may be used for an art festival, parade, fair, or other special event if permitted by the appropriate local governmental entity. Within incorporated municipalities, the local governmental entity may issue permits of limited duration for the temporary use of the right-of-way of a state transportation facility for any of these prohibited uses if it is determined that the use will not interfere with the safe and efficient movement of traffic and the use will cause no danger to the public. Before a road on the State Highway System may be temporarily closed for a special event, the local governmental entity which permits the special event to take place must determine that the temporary closure of the road is necessary and must obtain the prior written approval for the temporary road closure from the department. Nothing in this subsection shall be construed to authorize such activities on the Interstate Highway System. Local governmental entities may, within their respective jurisdictions, initiate enforcement action by the appropriate code enforcement authority or law enforcement authority for a violation of this section.

(2)  Persons holding valid peddlers' licenses issued by appropriate governmental entities may make sales from vehicles standing on the right-of-way to occupants of abutting property only.

(3)  The Department of Highway Safety and Motor Vehicles and other law enforcement agencies are authorized and directed to enforce this statute.

(4)  The violation of any provision of this section or any rule promulgated by the department pursuant to this section constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and each day a violation continues to exist constitutes a separate offense.

History.--s. 1, ch. 73-188; s. 1, ch. 79-30; s. 206, ch. 81-259; s. 168, ch. 84-309; s. 3, ch. 86-37; s. 3, ch. 87-266; s. 25, ch. 88-168; s. 9, ch. 90-227; s. 43, ch. 95-257.

Note.--Former s. 339.301.

337.4061  Definitions; unlawful use of state-maintained road right-of-way by nonfranchised cable television services.--

(1)  As used in this section, the term:

(a)  "Cable service" means:

1.  The one-way transmission to subscribers of video programming or any other programming service; and

2.  Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

(b)  "Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1.  A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2.  A facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management, unless such facility or facilities use any public right-of-way;

3.  A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or

4.  Any facilities of any electric utility used solely for operating its electric utility systems.

(c)  "Franchise" means an initial authorization or renewal thereof issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.

(d)  "Franchising authority" means any governmental entity empowered by federal, state, or local law to grant a franchise.

(e)  "Person" means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity.

(f)  "Video programming" means programming provided by or generally considered comparable to programming provided by a television broadcast station or cable system.

(2)  It is unlawful to use the right-of-way of any state-maintained road, including appendages thereto, and also including, but not limited to, rest areas, wayside parks, boat-launching ramps, weigh stations, and scenic easements, for cable service purposes within a geographic area subject to a valid existing franchise for cable service, unless the cable system using such right-of-way holds a franchise from the municipality or county for the area in which the right-of-way is located.

(3)  A violation of this section shall be deemed a violation of s. 337.406.

History.--s. 2, ch. 87-266.

337.407  Regulation of signs and lights within rights-of-way.--

(1)  No person shall erect any sign, as defined in chapter 479, or light within the right-of-way limits of any road on the interstate highway system, the federal-aid primary highway system, the State Highway System, or the State Park Road System; however, the department is authorized to adopt rules concerning the placement of signs, canopies, and other overhanging encroachments along and over any state roads which are within municipalities, or which are of curb-and-gutter construction outside municipalities, provided no supports are located within the rights-of-way.

(2)  The department has the authority to direct removal of any sign erected in violation of subsection (1), in accordance with the provisions of chapter 479.

(3)  The department may not authorize the erection of signs where such signs are prohibited by the local governmental entity having jurisdiction.

History.--s. 37, ch. 29965, 1955; s. 1, ch. 63-501; s. 5, ch. 67-461; ss. 23, 35, ch. 69-106; s. 1, ch. 71-38; s. 1, ch. 74-79; s. 9, ch. 78-412; s. 1, ch. 80-246; s. 49, ch. 84-309; s. 20, ch. 85-180; s. 160, ch. 92-152; ss. 30, 62, ch. 94-237; s. 122, ch. 99-13; s. 87, ch. 99-385.

Note.--Former s. 335.13.

337.408  Regulation of benches, transit shelters, and waste disposal receptacles within rights-of-way.--

(1)  Benches or transit shelters, including advertising displayed on benches or transit shelters, may be installed within the right-of-way limits of any municipal, county, or state road, except a limited access highway; provided that such benches or transit shelters are for the comfort or convenience of the general public, or at designated stops on official bus routes; and, provided further, that written authorization has been given to a qualified private supplier of such service by the municipal government within whose incorporated limits such benches or transit shelters are installed, or by the county government within whose unincorporated limits such benches or transit shelters are installed. A municipality or county may authorize the installation, without public bid, of benches and transit shelters together with advertising displayed thereon, within the right-of-way limits of such roads. Any contract for the installation of benches or transit shelters or advertising on benches or transit shelters which was entered into before April 8, 1992, without public bidding, is ratified and affirmed. Such benches or transit shelters may not interfere with right-of-way preservation and maintenance. Any bench or transit shelter located on a sidewalk within the right-of-way limits of any road on the State Highway System or the county road system shall be located so as to leave at least 36 inches clearance for pedestrians and persons in wheelchairs. Such clearance shall be measured in a direction perpendicular to the centerline of the road.

(2)  Waste disposal receptacles of less than 110 gallons in capacity, including advertising displayed on such waste disposal receptacles, may be installed within the right-of-way limits of any municipal, county, or state road, except a limited access highway; provided that written authorization has been given to a qualified private supplier of such service by the appropriate municipal or county government. A municipality or county may authorize the installation, without public bid, of waste disposal receptacles together with advertising displayed thereon within the right-of-way limits of such roads. Such waste disposal receptacles may not interfere with right-of-way preservation and maintenance.

(3)  The department has the authority to direct the immediate relocation or removal of any bench, transit shelter, or waste disposal receptacle which endangers life or property, except that transit bus benches which have been placed in service prior to April 1, 1992, do not have to comply with bench size and advertising display size requirements which have been established by the department prior to March 1, 1992. Any transit bus bench that was in service prior to April 1, 1992, may be replaced with a bus bench of the same size or smaller, if the bench is damaged or destroyed or otherwise becomes unusable.

(4)  No bench, transit shelter, or waste disposal receptacle, or advertising thereon, shall be erected or so placed on the right-of-way of any road which conflicts with the requirements of federal law, regulations, or safety standards, thereby causing the state or any political subdivision the loss of federal funds. Competition among persons seeking to provide bench, transit shelter, or waste disposal receptacle services or advertising on such benches, shelters, or receptacles may be regulated, restricted, or denied by the appropriate local government entity consistent with the provisions of this section.

(5)  Wherever the provisions of this section are inconsistent with other provisions of this chapter or with the provisions of chapter 125, chapter 335, chapter 336, or chapter 479, the provisions of this section shall prevail.

History.--s. 21, ch. 85-180; s. 61, ch. 94-237; s. 30, ch. 95-257; s. 63, ch. 96-323.

337.409  Willfully or maliciously removing, damaging, destroying, altering, or appropriating benches, transit shelters, waste receptacles, or advertising displayed thereon; penalty.--Any person who willfully or maliciously removes, damages, destroys, tampers with or alters in any way a bench, transit shelter, or waste receptacle, or advertising displayed thereon, when such structure and display has been installed and maintained pursuant to the provisions of s. 337.408, or any person who in any manner appropriates to her or his own use or to the use of another by painting, printing, placing, or affixing any advertisement or similar material upon any such structure, or upon advertising displayed thereon, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--s. 31, ch. 95-257; s. 14, ch. 97-96.