Senate Bill sb0472c1
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Florida Senate - 2003 CS for SB 472
By the Committee on Banking and Insurance; and Senators Smith,
Pruitt, Geller and Diaz de la Portilla
311-1883-03
1 A bill to be entitled
2 An act relating to mining activities; amending
3 s. 552.30, F.S.; redefining the term
4 "construction materials mining activities";
5 creating ss. 552.32-552.44, F.S.; providing a
6 short title; providing legislative findings and
7 public purpose; providing that the Division of
8 Administrative Hearings has exclusive
9 jurisdiction over certain claims for damages
10 relating to the use of explosives in connection
11 with construction materials mining activities;
12 providing for filing fees except in cases of
13 indigence; designating a trust fund for deposit
14 of filing fees; requiring a person who uses
15 explosives in connection with such activities
16 to post security in a specified amount for a
17 specified period; providing for rulemaking by
18 the State Fire Marshal; providing for an
19 administrative remedy; providing procedures for
20 mediation and for formal hearings; allowing
21 recovery of certain costs and attorney's fees,
22 with exceptions; providing for appeals;
23 providing applicability; providing an effective
24 date.
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26 Be It Enacted by the Legislature of the State of Florida:
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28 Section 1. Subsection (1) of section 552.30, Florida
29 Statutes, is amended to read:
30 552.30 Construction materials mining activities.--
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1 (1) Notwithstanding the provisions of s. 552.25, the
2 State Fire Marshal shall have the sole and exclusive authority
3 to promulgate standards, limits, and regulations regarding the
4 use of explosives in conjunction with construction materials
5 mining activities. Such authority to regulate use shall
6 include, directly or indirectly, the operation, handling,
7 licensure, or permitting of explosives and setting standards
8 or limits, including, but not limited to, ground vibration,
9 frequency, intensity, blast pattern, air blast and time, date,
10 occurrence, and notice restrictions. As used in this section,
11 "construction materials mining activities" means the
12 extraction of limestone and sand suitable for production of
13 construction aggregates, sand, cement, and road base materials
14 for shipment offsite by any person or company primarily
15 engaged in the commercial mining of any such natural
16 resources.
17 Section 2. Section 552.32, Florida Statutes, is
18 created to read:
19 552.32 Short title.--Sections 552.32-552.44 may be
20 cited as the "Florida Construction Materials Mining Activities
21 Administrative Recovery Act."
22 Section 3. Section 552.34, Florida Statutes, is
23 created to read:
24 552.34 Legislative findings; public purpose.--The
25 Legislature finds and declares that:
26 (1) Construction materials mining activities require
27 the use of explosives to fracture the material prior to
28 excavation.
29 (2) The use of explosives results in physical ground
30 vibrations and air blasts that may affect other property
31 owners in the vicinity of the mining site.
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Florida Senate - 2003 CS for SB 472
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1 (3) It is in the best interests of the public to
2 provide a specific administrative remedy for complaints
3 related to the use of explosives in construction materials
4 mining activities.
5 Section 4. Section 552.36, Florida Statutes, is
6 created to read:
7 552.36 Exclusive jurisdiction; Division of
8 Administrative Hearings.--
9 (1) The Division of Administrative Hearings has
10 exclusive jurisdiction over all claims for damages to real or
11 personal property caused by the use of explosives in
12 connection with construction materials mining activities. This
13 chapter does not affect any claim seeking recovery for
14 personal injury, emotional distress, or punitive damages. Any
15 cause of action that involves both a claim for damage to real
16 or personal property and another claim that is not addressed
17 by this chapter must be bifurcated so that any claim seeking
18 recovery for damage to real or personal property is
19 adjudicated by the Division of Administrative Hearings.
20 (2) Notwithstanding s. 552.25, the review procedures
21 set forth in this chapter preempt any claims, recovery, or
22 similar procedure of any municipality, agency, board, or
23 county or any other subdivision, entity, or special district
24 of the state which would otherwise address a claim for damage
25 caused by the use of explosives in connection with
26 construction materials mining activities.
27 Section 5. Section 552.38, Florida Statutes, is
28 created to read:
29 552.38 Security requirement.--
30 (1) As a prerequisite to obtaining or renewing a valid
31 user license as required by s. 552.091(5)(a), a person who
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1 uses explosives in connection with construction materials
2 mining activities must post and maintain a bond or letter of
3 credit as security during the period required under subsection
4 (2). Evidence that the bond has been posted and maintained in
5 compliance with this section must be maintained by any user of
6 explosives in connection with construction materials mining
7 activities as part of the mandatory record maintenance
8 requirements of s. 552.112. The person must maintain, in a
9 format approved by the Division of State Fire Marshal of the
10 Department of Financial Services, a completed form that shows
11 the amount and location of the bond or identifies the bond
12 surety and the current bond value.
13 (2) The bond or letter of credit required under
14 subsection (1) must be in an amount not less than $100,000,
15 notwithstanding an award made by an administrative law judge
16 under s. 552.40(7). If the user of explosives has not been
17 identified as a respondent in any pending claim for damages
18 under this chapter, and if renewal of the user license is not
19 sought, the bond required under this section may be released
20 upon the expiration of the user license pursuant to s.
21 552.091(6) or 181 days after the final use of explosives under
22 the license, whichever occurs later.
23 (3) The State Fire Marshal may adopt rules for the
24 administration of this section.
25 Section 6. Section 552.40, Florida Statutes, is
26 created to read:
27 552.40 Administrative remedy for alleged damage due to
28 the use of explosives in connection with construction
29 materials mining activities.--
30 (1) A person may initiate an administrative proceeding
31 to recover damages resulting from the use of explosives in
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1 connection with construction materials mining activities by
2 filing a petition with the Division of Administrative Hearings
3 on a form provided by the division and accompanied by a filing
4 fee of $100 within 180 days after the occurrence of the
5 alleged damage. If the petitioner submits an affidavit stating
6 that the petitioner's annual income is less than 150 percent
7 of the applicable federal poverty guideline published in the
8 Federal Register by the United States Department of Health and
9 Human Services, the $100 filing fee must be waived.
10 (2) The petition must include:
11 (a) The name and address of the petitioner;
12 (b) The name and address of the respondent;
13 (c) The approximate time, date, and place of the use
14 of explosives which is alleged to have resulted in damage to
15 the petitioner; and
16 (d) A description of the damage caused and the amount
17 sought for recovery.
18 (3) Within 5 business days after the Division of
19 Administrative Hearings receives a petition, the division
20 shall issue and serve on the petitioner and the respondent an
21 initial order that assigns the case to a specific
22 administrative law judge and provides general information
23 regarding the practice and procedure before the division. The
24 initial order must advise that a summary hearing is available
25 upon the agreement of the parties under subsection (6) and
26 must briefly describe the expedited time sequences, limited
27 discovery, and final order provisions of the summary
28 procedure. The initial order must also contain a statement
29 advising the petitioner and the respondent that a mandatory,
30 nonbinding mediation is required before a summary
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1 administrative hearing or a formal administrative hearing may
2 be held.
3 (4) The administrative judge shall issue an order
4 directing mediation under Rule 1700 et seq., Florida Rules of
5 Civil Procedure. The parties shall jointly select a mediator
6 and the location of mediation. If the parties fail to do so
7 within 30 days after the order for mediation is issued, the
8 administrative law judge shall designate the mediator and the
9 location of mediation. Petitioner and respondent shall each
10 pay one-half of the cost of mediation. If the petitioner's
11 annual income is less than 150 percent of the applicable
12 federal poverty guideline published in the Federal Register by
13 the United States Department of Health and Human Services, the
14 respondent shall bear the full cost of mediation. The
15 mediation must be concluded within 60 days after the date of
16 designation of the mediator unless the parties agree upon a
17 different date.
18 (5) If the parties have not reached a settlement
19 within 30 days after the conclusion of the mediation, the
20 administrative law judge shall set the matter for formal
21 administrative hearing as soon thereafter as possible at a
22 location in the county where the alleged damage occurred.
23 However, a formal administrative hearing may not be scheduled
24 sooner than 30 days after the conclusion of the mediation.
25 (6) In lieu of proceeding directly to a formal
26 administrative hearing scheduled in accordance with subsection
27 (5), upon agreement of the parties, the parties may, within 15
28 days after the conclusion of unsuccessful mediation, file a
29 motion for summary hearing. The summary hearing must be held
30 at a location in the county where the alleged damage occurred,
31 and all procedural requirements related to the hearing must be
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1 governed by s. 120.574 and any rules implementing that
2 section.
3 (7) If the administrative law judge finds that the
4 preponderance of the evidence presented demonstrates that the
5 petitioner's damages were caused by the respondent's use of
6 explosives, the administrative law judge shall set forth in a
7 final order precise findings as to the damages attributable to
8 the respondent and shall direct the respondent to pay damages
9 in an amount supported by the preponderance of the evidence
10 presented within 30 days after the final order is issued,
11 unless the matter is appealed in accordance with s. 552.42. If
12 the respondent fails to pay the damages within 30 days after
13 the final order is issued or within 30 days after the entry of
14 an appellate mandate affirming a final order awarding damages,
15 the petitioner may request and the administrative law judge
16 may order that the petitioner be paid from the security posted
17 by the respondent under s. 552.38 the amount of the damages
18 awarded. To the extent the security does not satisfy the full
19 amount of the damages awarded, the administrative law judge
20 may enter a judgment directly against the respondent for the
21 amount of the difference.
22 (8) If the administrative law judge finds that the
23 preponderance of the evidence presented demonstrates that the
24 petitioner's alleged damages were not caused by the
25 respondent's use of explosives, the administrative law judge
26 shall set forth in a final order precise findings as to the
27 lack of responsibility of the respondent.
28 (9) The prevailing party is entitled to recovery of
29 reasonable taxable costs for the administrative proceedings,
30 including expert witness fees and reasonable attorney's fees,
31 not to exceed $15,000 in the aggregate. This $15,000 cap on
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1 the combined amount of awardable costs and fees does not apply
2 if the administrative law judge determines that the claim or
3 defense of the nonprevailing party:
4 (a) Was not supported by the material facts necessary
5 to establish the claim or defense;
6 (b) Would not be supported by the application of
7 then-existing law to those material facts; or
8 (c) Was brought or advanced primarily to harass or
9 cause unnecessary delay, for frivolous purposes, or to
10 needlessly increase the cost incurred by the opposition.
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12 The losing party has up to 120 days to pay the total amount of
13 attorney's fees and taxable costs assessed. This subsection
14 does not apply to a petitioner who is the nonprevailing party
15 if the petitioner's annual income is less than 150 percent of
16 the applicable federal poverty guideline published in the
17 Federal Register by the United States Department of Health and
18 Human Services.
19 (10) Except as otherwise provided in this chapter, the
20 procedure for the administrative proceedings provided by this
21 act must be governed by the uniform rules of procedure for
22 decisions determining substantial interests which are
23 authorized by s. 120.54(5), notwithstanding the fact that
24 those rules implement provisions of chapter 120 which are
25 applicable to proposed or final agency action.
26 (11) The filing fees paid pursuant to subsection (1)
27 shall be deposited into the Administrative Trust Fund of the
28 Division of Administrative Hearings to defray the expenses and
29 costs associated with the administration of ss. 552.32-552.44.
30 Section 7. Section 552.42, Florida Statutes, is
31 created to read:
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1 552.42 Appeal.--The petitioner or the respondent may
2 appeal the final order of the administrative law judge to the
3 district court of appeal with jurisdiction over the county
4 where the hearing was held by filing a notice, accompanied by
5 the required filing fee, as provided by the Florida Rules of
6 Appellate Procedure. The payment of any award shall be stayed
7 during the pendency of an appeal.
8 Section 8. Section 552.44, Florida Statutes, is
9 created to read:
10 552.44 Prior claims.--This act does not affect any
11 claim filed in any tribunal before the effective date of this
12 act.
13 Section 9. This act shall take effect upon becoming a
14 law.
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16 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
17 Senate Bill 472
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19 The bill designates the Administrative Trust Fund of the
Division of Administrative Hearings as the repository of
20 filing fees for purposes of defraying the cost and expense of
the administrative hearing process for specific claims.
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