House Bill 1425e1

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                                       CS/HB 1425, First Engrossed



  1                      A bill to be entitled

  2         An act relating to governmental operations;

  3         providing requirements for local governments

  4         providing solid waste collection services in

  5         competition with private companies; providing

  6         remedies for such private companies; providing

  7         procedures and requirements; providing for

  8         award of damages, costs, and attorney fees;

  9         providing application; providing limitations

10         for local government solid waste collection

11         services outside the jurisdiction of the local

12         government; providing remedies for certain

13         injured parties; providing requirements and

14         procedures; prohibiting local governments from

15         displacing private waste collection companies

16         under certain circumstances; providing

17         requirements; providing procedures and

18         requirements for such displacement; providing

19         definitions; amending s. 171.062, F.S.;

20         providing for continuation of certain solid

21         waste services in certain annexed areas;

22         providing an exception; amending s. 165.061,

23         F.S.; providing for certain merger plans to

24         honor certain solid waste contracts; providing

25         limitations; amending s. 403.087, F.S.;

26         clarifying application of certain permit fees;

27         amending s. 403.706, F.S.; authorizing counties

28         and municipalities to grant certain solid waste

29         fee waivers under certain circumstances;

30         amending s. 403.722, F.S.; clarifying

31         requirements for obtaining certain hazardous


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                                       CS/HB 1425, First Engrossed



  1         waste facility permits; creating s. 171.093,

  2         F.S.; providing for the assumption of an

  3         independent special district's service

  4         responsibilities in an area that is within the

  5         district's boundaries and that is annexed by a

  6         municipality; providing that the municipality

  7         may elect to assume such responsibilities;

  8         providing for an interlocal agreement regarding

  9         the transfer of such responsibilities;

10         providing for the provision of services and

11         payment therefor during a specified period if

12         the municipality and district are unable to

13         enter into an interlocal agreement; specifying

14         effect of a municipality's election not to

15         assume such responsibilities; providing for

16         contraction of the district's boundaries if the

17         municipality elects to assume such

18         responsibilities; providing for levy of ad

19         valorem taxes and assessments, user charges,

20         and impact fees; providing exceptions;

21         repealing s. 403.7165(5), F.S., relating to the

22         Applications Demonstration Center for Resource

23         Recovery from Solid Organic Materials;

24         repealing s. 403.7199, F.S., relating to the

25         Florida Packaging Council; providing an

26         effective date.

27

28  Be It Enacted by the Legislature of the State of Florida:

29

30         Section 1.  (1)  SOLID WASTE COLLECTION SERVICES IN

31  COMPETITION WITH PRIVATE COMPANIES.--


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                                       CS/HB 1425, First Engrossed



  1         (a)  A local government that provides specific solid

  2  waste collection services in direct competition with a private

  3  company:

  4         1.  Shall comply with the provisions of local

  5  environmental, health, and safety standards that also are

  6  applicable to a private company providing such collection

  7  services in competition with the local government.

  8         2.  Shall not enact or enforce any license, permit,

  9  registration procedure, or associated fee that:

10         a.  Does not apply to the local government and for

11  which there is not a substantially similar requirement that

12  applies to the local government; and

13         b.  Provides the local government with a material

14  advantage in its ability to compete with a private company in

15  terms of cost or ability to promptly or efficiently provide

16  such collection services.  Nothing in this sub-subparagraph

17  shall apply to any zoning, land use, or comprehensive plan

18  requirement.

19         (b)1.  A private company with which a local government

20  is in competition may bring an action to enjoin a violation of

21  paragraph (a) against any local government.  No injunctive

22  relief shall be granted if the official action which forms the

23  basis for the suit bears a reasonable relationship to the

24  health, safety, or welfare of the citizens of the local

25  government unless the court finds that the actual or potential

26  anticompetitive effects outweigh the public benefits of the

27  challenged action.

28         2.  As a condition precedent to the institution of an

29  action pursuant to this paragraph, the complaining party shall

30  first file with the local government a notice referencing this

31  paragraph and setting forth the specific facts upon which the


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                                       CS/HB 1425, First Engrossed



  1  complaint is based and the manner in which the complaining

  2  party is affected.  The complaining party may provide evidence

  3  to substantiate the claims made in the complaint.  Within 30

  4  days after receipt of such a complaint, the local government

  5  shall respond in writing to the complaining party explaining

  6  the corrective action taken, if any.  If no response is

  7  received within 30 days or if appropriate corrective action is

  8  not taken within a reasonable time, the complaining party may

  9  institute the judicial proceedings authorized in this

10  paragraph.  However, failure to comply with this subparagraph

11  shall not bar an action for a temporary restraining order to

12  prevent immediate and irreparable harm from the conduct or

13  activity complained of.

14         3.  The court may, in its discretion, award to the

15  prevailing party or parties costs and reasonable attorneys'

16  fees.

17         (c)  This subsection does not apply when the local

18  government is exclusively providing the specific solid waste

19  collection services itself or pursuant to an exclusive

20  franchise.

21         (2)  SOLID WASTE COLLECTION SERVICES OUTSIDE

22  JURISDICTION.--

23         (a)  Notwithstanding s. 542.235, Florida Statutes, or

24  any other provision of law, a local government that provides

25  solid waste collection services outside its jurisdiction in

26  direct competition with private companies is subject to the

27  same prohibitions against predatory pricing applicable to

28  private companies under ss. 542.18 and 542.19.

29         (b)  Any person injured by reason of violation of this

30  subsection may sue therefor in the circuit courts of this

31  state and shall be entitled to injunctive relief and to


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                                       CS/HB 1425, First Engrossed



  1  recover the damages and the costs of suit.  The court may, in

  2  its discretion, award to the prevailing party or parties

  3  reasonable attorneys' fees.  An action for damages under this

  4  subsection must be commenced within 4 years.  No person may

  5  obtain injunctive relief or recover damages under this

  6  subsection for any injury that results from actions taken by a

  7  local government in direct response to a natural disaster or

  8  similar occurrence for which an emergency is declared by

  9  executive order or proclamation of the Governor pursuant to s.

10  252.36, Florida Statutes, or for which such a declaration

11  might be reasonably anticipated within the area covered by

12  such executive order or proclamation.

13         (c)  As a condition precedent to the institution of an

14  action pursuant to this subsection, the complaining party

15  shall first file with the local government a notice

16  referencing this subsection and setting forth the specific

17  facts upon which the complaint is based and the manner in

18  which the complaining party is affected.  Within 30 days after

19  receipt of such complaint, the local government shall respond

20  in writing to the complaining party explaining the corrective

21  action taken, if any.  If the local government denies that it

22  has engaged in conduct that is prohibited by this subsection,

23  its response shall include an explanation showing why the

24  conduct complained of does not constitute predatory pricing.

25         (d)  For the purposes of this subsection, the

26  jurisdiction of a county, special district, or solid waste

27  authority shall include all incorporated and unincorporated

28  areas within the county, special district, or solid waste

29  authority.

30         (3)  DISPLACEMENT OF PRIVATE WASTE COMPANIES.--

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                                       CS/HB 1425, First Engrossed



  1         (a)  As used in this subsection, the term

  2  "displacement" means a local government's provision of a

  3  collection service which prohibits a private company from

  4  continuing to provide the same service that it was providing

  5  when the decision to displace was made.  The term does not

  6  include:

  7         1.  Competition between the public sector and private

  8  companies for individual contracts;

  9         2.  Actions by which a local government, at the end of

10  a contract with a private company, refuses to renew the

11  contract and either awards the contract to another private

12  company or decides for any reason to provide the collection

13  service itself;

14         3.  Actions taken against a private company because the

15  company has acted in a manner threatening to the public health

16  or safety or resulting in a substantial public nuisance;

17         4.  Actions taken against a private company because the

18  company has materially breached its contract with the local

19  government;

20         5.  Refusal by a private company to continue operations

21  under the terms and conditions of its existing agreement

22  during the 3-year notice period;

23         6.  Entering into a contract with a private company to

24  provide garbage, trash, or refuse collection which contract is

25  not entered into under an ordinance that displaces or

26  authorizes the displacement of another private company

27  providing garbage, trash, or refuse collection;

28         7.  Situations in which a majority of the property

29  owners in the displacement area petition the governing body to

30  take over the collection service;

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                                       CS/HB 1425, First Engrossed



  1         8.  Situations in which the private companies are

  2  licensed or permitted to do business within the local

  3  government for a limited time and such license or permit

  4  expires and is not renewed by the local government.  This

  5  subparagraph does not apply to licensing or permitting

  6  processes enacted after May 1, 1999, or to occupational

  7  licenses; or

  8         9.  Annexations, to the extent that the provisions of

  9  s. 171.062(4), Florida Statutes, apply.

10         (b)  A local government or combination of local

11  governments may not displace a private company that provides

12  garbage, trash, or refuse collection service without first:

13         1.  Holding at least one public hearing seeking comment

14  on the advisability of the local government or combination of

15  local governments providing the service.

16         2.  Providing at least 45 days' written notice of the

17  hearing, delivered by first-class mail to all private

18  companies that provide the service within the jurisdiction.

19         3.  Providing public notice of the hearing.

20         (c)  Following the final public hearing held under

21  paragraph (b), but not later than 1 year after the hearing,

22  the local government may proceed to take those measures

23  necessary to provide the service.  A local government shall

24  provide 3 years' notice to a private company before it engages

25  in the actual provision of the service that displaces the

26  company.  As an alternative to delaying displacement 3 years,

27  a local government may pay a displaced company an amount equal

28  to the company's preceding 15 months' gross receipts for the

29  displaced service in the displacement area.  The 3-year notice

30  period shall lapse as to any private company being displaced

31  when the company ceases to provide service within the


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                                       CS/HB 1425, First Engrossed



  1  displacement area.  Nothing in this paragraph prohibits the

  2  local government and the company from voluntarily negotiating

  3  a different notice period or amount of compensation.

  4         (4)  DEFINITIONS.--As used in this section:

  5         (a)  "In competition" or "in direct competition" means

  6  the vying between a local government and a private company to

  7  provide substantially similar solid waste collection services

  8  to the same customer.

  9         (b)  "Private company" means any entity other than a

10  local government or other unit of government that provides

11  solid waste collection services.

12         Section 2.  Subsection (5) is added to section 171.062,

13  Florida Statutes, to read:

14         171.062  Effects of annexations or contractions.--

15         (5)  A party that has a contract that was in effect for

16  at least 6 months prior to the initiation of an annexation to

17  provide solid waste collection services in an unincorporated

18  area may continue to provide such services to an annexed area

19  for 5 years or the remainder of the contract term, whichever

20  is shorter.  Within a reasonable time following a written

21  request to do so, the party shall provide the annexing

22  municipality with a copy of the pertinent portion of the

23  contract or other written evidence showing the duration of the

24  contract, excluding any automatic renewals or so-called

25  "evergreen" provisions. This subsection does not apply to

26  contracts to provide solid waste collection services to

27  single-family residential properties in those enclaves

28  described in s. 171.046.

29         Section 3.  Paragraph (d) is added to subsection (2) of

30  section 165.061, Florida Statutes, to read:

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                                       CS/HB 1425, First Engrossed



  1         165.061  Standards for incorporation, merger, and

  2  dissolution.--

  3         (2)  The incorporation of a new municipality through

  4  merger of existing municipalities and associated

  5  unincorporated areas must meet the following conditions:

  6         (d)  In accordance with s. 10, Art. I of the State

  7  Constitution, the plan for merger or incorporation must honor

  8  existing solid waste contracts in the affected geographic area

  9  subject to merger or incorporation; however, the plan for

10  merger or incorporation may provide that existing contracts

11  for solid waste collection services shall be honored only for

12  5 years or the remainder of the contract term, whichever is

13  shorter, and may require that a copy of the pertinent portion

14  of the contract or other written evidence of the duration of

15  the contract, excluding any automatic renewals or so-called

16  "evergreen" provisions, be provided to the municipality within

17  a reasonable time following a written request to do so.

18         Section 4.  Paragraph (a) of subsection (6) of section

19  403.087, Florida Statutes, is amended to read:

20         403.087  Permits; general issuance; denial; revocation;

21  prohibition; penalty.--

22         (6)(a)  The department shall require a processing fee

23  in an amount sufficient, to the greatest extent possible, to

24  cover the costs of reviewing and acting upon any application

25  for a permit or request for site-specific alternative criteria

26  or for an exemption from water quality criteria and to cover

27  the costs of surveillance and other field services and related

28  support activities associated with any permit or plan approval

29  issued pursuant to this chapter. However, when an application

30  is received without the required fee, the department shall

31  acknowledge receipt of the application and shall immediately


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                                       CS/HB 1425, First Engrossed



  1  return the unprocessed application to the applicant and shall

  2  take no further action until the application is received with

  3  the appropriate fee.  The department shall adopt a schedule of

  4  fees by rule, subject to the following limitations:

  5         1.  The permit fee for any of the following permits may

  6  not exceed $32,500:

  7         a.  Hazardous waste, construction permit.

  8         b.  Hazardous waste, operation permit.

  9         c.  Hazardous waste, postclosure closure permit, or

10  clean closure plan approval.

11         2.  The permit fee for a Class I injection well

12  construction permit may not exceed $12,500.

13         3.  The permit fee for any of the following permits may

14  not exceed $10,000:

15         a.  Solid waste, construction permit.

16         b.  Solid waste, operation permit.

17         c.  Class I injection well, operation permit.

18         4.  The permit fee for any of the following permits may

19  not exceed $7,500:

20         a.  Air pollution, construction permit.

21         b.  Solid waste, closure permit.

22         c.  Drinking water, construction or operation permit.

23         d.  Domestic waste residuals, construction or operation

24  permit.

25         e.  Industrial waste, operation permit.

26         f.  Industrial waste, construction permit.

27         5.  The permit fee for any of the following permits may

28  not exceed $5,000:

29         a.  Domestic waste, operation permit.

30         b.  Domestic waste, construction permit.

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                                       CS/HB 1425, First Engrossed



  1         6.  The permit fee for any of the following permits may

  2  not exceed $4,000:

  3         a.  Wetlands resource management--(dredge and fill),

  4  standard form permit.

  5         b.  Hazardous waste, research and development permit.

  6         c.  Air pollution, operation permit, for sources not

  7  subject to s. 403.0872.

  8         d.  Class III injection well, construction, operation,

  9  or abandonment permits.

10         7.  The permit fee for Class V injection wells,

11  construction, operation, and abandonment permits may not

12  exceed $750.

13         8.  The permit fee for any of the following permits may

14  not exceed $500:

15         a.  Domestic waste, collection system permits.

16         b.  Wetlands resource management--(dredge and fill and

17  mangrove alterations), short permit form.

18         c.  Drinking water, distribution system permit.

19         9.  The permit fee for stormwater operation permits may

20  not exceed $100.

21         10.  The general permit fees for permits that require

22  certification by a registered professional engineer or

23  professional geologist may not exceed $500.  The general

24  permit fee for other permit types may not exceed $100.

25         11.  The fee for a permit issued pursuant to s. 403.816

26  is $5,000, and the fee for any modification of such permit

27  requested by the applicant is $1,000.

28         12.  The regulatory program and surveillance fees for

29  facilities permitted pursuant to s. 403.088 or s. 403.0885, or

30  for facilities permitted pursuant to s. 402 of the Clean Water

31  Act, as amended, 33 U.S.C. ss. 1251 et seq., and for which the


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                                       CS/HB 1425, First Engrossed



  1  department has been granted administrative authority, shall be

  2  limited as follows:

  3         a.  The fees for domestic wastewater facilities shall

  4  not exceed $7,500 annually.  The department shall establish a

  5  sliding scale of fees based on the permitted capacity and

  6  shall ensure smaller domestic waste dischargers do not bear an

  7  inordinate share of costs of the program.

  8         b.  The annual fees for industrial waste facilities

  9  shall not exceed $11,500. The department shall establish a

10  sliding scale of fees based upon the volume, concentration, or

11  nature of the industrial waste discharge and shall ensure

12  smaller industrial waste dischargers do not bear an inordinate

13  share of costs of the program.

14         c.  The department may establish a fee, not to exceed

15  the amounts in subparagraphs 4. and 5., to cover additional

16  costs of review required for permit modification or

17  construction engineering plans.

18         Section 5.  Paragraph (d) is added to subsection (17)

19  of section 403.706, Florida Statutes, to read:

20         403.706  Local government solid waste

21  responsibilities.--

22         (17)  To effect the purposes of this part, counties and

23  municipalities are authorized, in addition to other powers

24  granted pursuant to this part:

25         (d)  To grant a solid waste fee waiver to nonprofit

26  organizations that are engaged in the collection of donated

27  goods for charitable purposes and that have a recycling or

28  reuse rate of 50 percent or better.

29         Section 6.  Subsection (1) of section 403.722, Florida

30  Statutes, is amended to read:

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                                       CS/HB 1425, First Engrossed



  1         403.722  Permits; hazardous waste disposal, storage,

  2  and treatment facilities.--

  3         (1)  Each person who intends to construct, modify,

  4  operate, or close a hazardous waste disposal, storage, or

  5  treatment facility shall obtain a construction permit,

  6  operation permit, postclosure or closure permit, or clean

  7  closure plan approval from the department prior to

  8  constructing, modifying, operating, or closing the facility.

  9  By rule, the department may provide for the issuance of a

10  single permit instead of any two or more hazardous waste

11  facility permits.

12         Section 7.  Section 171.093, Florida Statutes, is

13  created to read:

14         171.093  Municipal annexation within independent

15  special districts.--

16         (1)  The purpose of this section is to provide an

17  orderly transition of special district service

18  responsibilities in an annexed area from an independent

19  special district which levies ad valorem taxes to a

20  municipality following the municipality's annexation of

21  property located within the jurisdictional boundaries of an

22  independent special district, if the municipality elects to

23  assume such responsibilities.

24         (2)  The municipality may make such an election by

25  adopting a resolution evidencing the election and forwarding

26  the resolution to the office of the special district and the

27  property appraiser and tax collector of the county in which

28  the annexed property is located. In addition, the municipality

29  may incorporate its election into the annexation ordinance.

30         (3)  Upon a municipality's election to assume the

31  district's responsibilities, the municipality and the district


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                                       CS/HB 1425, First Engrossed



  1  may enter into an interlocal agreement addressing the orderly

  2  transfer of service responsibilities, real assets, equipment,

  3  and personnel to the municipality. The agreement shall address

  4  allocation of responsibility for special district services,

  5  avoidance of double taxation of property owners for such

  6  services in the area of overlapping jurisdiction, prevention

  7  of loss of any district revenues which may be detrimental to

  8  the continued operations of the independent district,

  9  avoidance of impairment of existing district contracts,

10  disposition of property and equipment of the independent

11  district and any assumption of indebtedness for it, the status

12  and employee rights of any adversely affected employees of the

13  independent district, and any other matter reasonably related

14  to the transfer of responsibilities.

15         (4)(a)  If the municipality and the district are unable

16  to enter into an interlocal agreement pursuant to subsection

17  (3), the municipality shall so advise the district and the

18  property appraiser and tax collector of the county in which

19  the annexed property is located and, effective October 1 of

20  the calendar year immediately following the calendar year in

21  which the municipality declares its intent to assume service

22  responsibilities in the annexed area, the district shall

23  remain the service provider in the annexed area for a period

24  of 4 years. During the 4-year period, the municipality shall

25  pay the district an amount equal to the ad valorem taxes or

26  assessments that would have been collected had the property

27  remained in the district.

28         (b)  By the end of the 4-year period, or any extension

29  mutually agreed upon by the district the municipality, the

30  municipality and the district shall enter into an agreement

31  that identifies the existing district property located in the


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                                       CS/HB 1425, First Engrossed



  1  municipality or primarily serving the municipality that will

  2  be assumed by the municipality, the fair market value of such

  3  property, and the manner of transfer of such property and any

  4  associated indebtedness. If the municipality and district are

  5  unable to agree to an equitable distribution of the district's

  6  property and indebtedness, the matter shall proceed to circuit

  7  court. In equitably distributing the district's property and

  8  associated indebtedness, the taxes and other revenues paid the

  9  district by or on behalf of the residents of the annexed area

10  shall be taken into consideration.

11         (c)  During the 4-year period, or during any mutually

12  agreed upon extension, district service and capital

13  expenditures within the annexed area shall continue to be

14  rationally related to the annexed area's service needs.

15  Service and capital expenditures within the annexed area shall

16  also continue to be rationally related to the percentage of

17  district revenue received on behalf of the residents of the

18  annexed area when compared to the district's total revenue. A

19  capital expenditure greater than $25,000 shall not be made by

20  the district for use primarily within the annexed area without

21  the express consent of the municipality.

22         (5)  If the municipality elects not to assume the

23  district's responsibilities, the district shall remain the

24  service provider in the annexed area, the geographical

25  boundaries of the district shall continue to include the

26  annexed area, and the district may continue to levy ad valorem

27  taxes and assessments on the real property located within the

28  annexed area. If the municipality elects to assume the

29  district's responsibilities in accordance with subsection (3),

30  the district's boundaries shall contract to exclude the

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                                       CS/HB 1425, First Engrossed



  1  annexed area at the time and in the manner provided in the

  2  agreement.

  3         (6)  If the municipality elects to assume the

  4  district's responsibilities and the municipality and the

  5  district are unable to enter into an interlocal agreement, and

  6  the district continues to remain the service provider in the

  7  annexed area in accordance with subsection (4), the

  8  geographical boundaries of the district shall contract to

  9  exclude the annexed area on the effective date of the

10  beginning of the 4-year period provided for in subsection (4).

11  Nothing in this section precludes the contraction of the

12  boundary of any independent special district by special act of

13  the Legislature. The district shall not levy ad valorem taxes

14  or assessments on the annexed property in the calendar year in

15  which its boundaries contract and subsequent years, but it may

16  continue to collect and use all ad valorem taxes and

17  assessments levied in prior years. Nothing in this section

18  prohibits the district from assessing user charges and impact

19  fees within the annexed area while it remains the service

20  provider.

21         (7)  In addition to any other authority provided by

22  law, a municipality is authorized to levy assessments on

23  property located in an annexed area to offset all or a portion

24  of the costs incurred by the municipality in assuming district

25  responsibilities pursuant to this section. Such assessments

26  may be collected pursuant to and in accordance with applicable

27  law.

28         (8)  This section does not apply to districts created

29  pursuant to chapter 190 or chapter 373.

30         Section 8.  Subsection (5) of section 403.7165 and

31  section 403.7199, Florida Statutes, are repealed.


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                                       CS/HB 1425, First Engrossed



  1         Section 9.  This act shall take effect July 1, 2000.

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