| 1 | The Health Care Regulation Committee recommends the following: |
| 2 |
|
| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to the regulation of portable restroom |
| 7 | contracting; creating s. 381.0069, F.S.; providing |
| 8 | definitions; requiring a portable restroom contractor to |
| 9 | apply for registration with the Department of Health; |
| 10 | providing requirements for registration, including an |
| 11 | examination; providing for administration; providing |
| 12 | rulemaking authority; providing for renewal of |
| 13 | registration, including continuing education; providing |
| 14 | for authorization of business entities providing portable |
| 15 | restroom contracting services under a fictitious name; |
| 16 | providing grounds for suspension or revocation of |
| 17 | registration or authorization; providing fees; providing |
| 18 | penalties and prohibitions; amending s. 381.0061, F.S.; |
| 19 | authorizing imposition of an administrative fine for |
| 20 | violating portable restroom contracting requirements; |
| 21 | amending s. 381.0065, F.S.; specifying the department's |
| 22 | powers and duties with respect to regulating portable |
| 23 | restroom facilities and the individuals or businesses that |
| 24 | provide and service such facilities; authorizing the |
| 25 | department to enter the business premises of any portable |
| 26 | restroom contractor; authorizing issuance of citations; |
| 27 | providing an effective date. |
| 28 |
|
| 29 | Be It Enacted by the Legislature of the State of Florida: |
| 30 |
|
| 31 | Section 1. Section 381.0069, Florida Statutes, is created |
| 32 | to read: |
| 33 | 381.0069 Portable restroom contracting.-- |
| 34 | (1) DEFINITIONS.--As used in this section, the term: |
| 35 | (a) "Department" means the Department of Health. |
| 36 | (b) "Portable restroom" means any portable toilet, mobile |
| 37 | restroom trailer, mobile shower trailer, or portable restroom |
| 38 | facility intended for use on a permanent or nonpermanent basis, |
| 39 | including any holding tanks associated with any such facility. |
| 40 | The term includes, but is not limited to, any such facility or |
| 41 | holding tank placed at a construction site when workers are |
| 42 | present. |
| 43 | (c) "Portable restroom contractor" means a portable |
| 44 | restroom contractor who has knowledge of state law and the |
| 45 | experience, knowledge, and skills necessary to safely handle the |
| 46 | pickup, transportation, installation, and maintenance of |
| 47 | portable restrooms and portable sinks, including, but not |
| 48 | limited to, the safe management and disposal of associated |
| 49 | wastewater. |
| 50 | (2) REGISTRATION REQUIRED.--A person may not hold himself |
| 51 | or herself out as a portable restroom contractor in this state |
| 52 | unless he or she is registered by the department in accordance |
| 53 | with this section. However, this section does not prohibit a |
| 54 | licensed plumbing contractor as defined in s. 489.105(3)(m) or a |
| 55 | person licensed under part III of chapter 489 from engaging in |
| 56 | the profession for which he or she is licensed. This section |
| 57 | does not apply to a private company as defined in s. |
| 58 | 403.70605(4)(b). |
| 59 | (3) ADMINISTRATION OF SECTION; REGISTRATION |
| 60 | QUALIFICATIONS; EXAMINATION.-- |
| 61 | (a) Each person desiring to be registered under this |
| 62 | section must apply to the department in writing upon forms |
| 63 | prepared and furnished by the department. |
| 64 | (b) The department shall administer, coordinate, and |
| 65 | enforce this section; approve and administer the examination for |
| 66 | applicants; and grant certificates of registration to qualified |
| 67 | persons and certificates of authorization to qualified business |
| 68 | entities. |
| 69 | (c) The department shall adopt rules under ss. 120.536(1) |
| 70 | and 120.54 to administer this section. The rules shall establish |
| 71 | ethical standards of practice, requirements for registering as a |
| 72 | contractor, requirements for obtaining an initial or renewal |
| 73 | certificate of registration, disciplinary guidelines, and |
| 74 | requirements for the certification of business entities. The |
| 75 | department may amend or repeal the rules in accordance with |
| 76 | chapter 120. |
| 77 | (d) To be eligible for registration by the department as a |
| 78 | portable restroom contractor, the applicant must: |
| 79 | 1. Be of good moral character. In considering good moral |
| 80 | character, the department may consider any matter that has a |
| 81 | substantial connection between the good moral character of the |
| 82 | applicant and the professional responsibilities of a registered |
| 83 | contractor. This includes, but is not limited to, the |
| 84 | applicant's being convicted or found guilty of, or entering a |
| 85 | plea of nolo contendere to, regardless of adjudication, a crime |
| 86 | in any jurisdiction which is directly related to the practice of |
| 87 | contracting or the ability to practice contracting, or any |
| 88 | previous disciplinary action against the applicant involving |
| 89 | portable restroom contracting for which all judicial reviews |
| 90 | have been completed. |
| 91 | 2. Pass an examination approved by the department which |
| 92 | tests knowledge of the fundamentals of state law relating to |
| 93 | portable restrooms and the safe handling of the pickup, |
| 94 | transportation, installation, and maintenance of portable |
| 95 | restrooms, including, but not limited to, the safe management |
| 96 | and disposal of associated wastewater. If an applicant from a |
| 97 | state having no certification program has passed the Portable |
| 98 | Sanitation Association International's written examination, the |
| 99 | applicant shall be required to take and pass only that portion |
| 100 | of this state's examination which tests knowledge of law that is |
| 101 | specific to Florida. |
| 102 | 3. Be at least 18 years of age. |
| 103 | 4. Have at least 3 years of active experience serving an |
| 104 | apprenticeship as a skilled worker under the supervision and |
| 105 | control of a portable restroom contractor who is registered |
| 106 | under this section. Related work experience or educational |
| 107 | experience may be substituted for no more than 2 years of active |
| 108 | contracting experience as follows: |
| 109 | a. Each 30 hours of coursework approved by the department |
| 110 | may be substituted for 6 months of work experience. |
| 111 | b. Out-of-state work experience may be substituted on a |
| 112 | year-for-year basis for any applicant who demonstrates that he |
| 113 | or she holds a current license issued by another state for |
| 114 | portable restroom contracting which was issued upon satisfactory |
| 115 | completion of an examination and continuing education courses |
| 116 | that are equivalent to those required in this state. An |
| 117 | examination is equivalent if it tests the applicant's knowledge |
| 118 | of state law relating to portable restrooms and the safe |
| 119 | handling of the pickup, transportation, installation, and |
| 120 | maintenance of portable restrooms, including, but not limited |
| 121 | to, the safe management and disposal of associated wastewater. |
| 122 | c. A person employed by and under the supervision of a |
| 123 | licensed portable restroom contractor shall be granted up to 2 |
| 124 | years of related work experience. |
| 125 | 5. Have not had a portable restroom contractor |
| 126 | registration revoked within 5 years before applying for |
| 127 | registration. |
| 128 | (e) The department shall provide to each applicant for |
| 129 | registration a copy of this section and any rules adopted under |
| 130 | this section. The department may also prepare and disseminate |
| 131 | other material and questionnaires it finds necessary to carry |
| 132 | out the registration provisions of this section. |
| 133 | (f) A person who, on October 1, 2005, has been employed at |
| 134 | least 1 year in this state by a portable restroom service |
| 135 | provider holding a permit issued by the department pursuant to |
| 136 | s. 381.0065(3)(m) has until October 1, 2006, to be registered by |
| 137 | the department in accordance with this section and may continue |
| 138 | to perform portable restroom contracting services without |
| 139 | registration until that time. Such persons are exempt until |
| 140 | October 1, 2006, from the requirement of subparagraph (d)4. for |
| 141 | 3 years of active work experience. |
| 142 | (4) REGISTRATION RENEWAL.-- |
| 143 | (a) The department shall prescribe by rule methods for |
| 144 | approving continuing education courses and course providers, for |
| 145 | renewing annual registration, for approving the reversion of a |
| 146 | registration to inactive status when the renewal application is |
| 147 | late filed, for allowing a contractor to hold a registration in |
| 148 | inactive status for a specified period, and for reactivating an |
| 149 | inactive registration. The department shall require at least 6 |
| 150 | classroom hours annually of continuing education courses for |
| 151 | annual registration renewal or to reactivate an inactive |
| 152 | registration. |
| 153 | (b) A certificate of registration becomes inactive when a |
| 154 | renewal application is not timely filed. A registration that has |
| 155 | become inactive may be reactivated by application to the |
| 156 | department. A registered contractor may apply to the department |
| 157 | for voluntary inactive status at any time during the period of |
| 158 | registration. |
| 159 | (5) AUTHORIZATION OF BUSINESS ENTITIES.-- |
| 160 | (a) A parent corporation, corporation, subsidiary of a |
| 161 | corporation, or a partnership, association, or person practicing |
| 162 | under a fictitious name may not offer or provide portable |
| 163 | restroom contracting services to the public without a valid |
| 164 | certificate of authorization issued by the department. A |
| 165 | contractor registered under this section may not offer or |
| 166 | provide portable restroom contracting services on behalf of such |
| 167 | a business entity unless that entity holds a valid certificate |
| 168 | of authorization. A certificate of authorization is not required |
| 169 | when a contractor registered under this section offers or |
| 170 | provides portable restroom contracting service in his or her own |
| 171 | given name. |
| 172 | (b) The department shall issue a certificate of |
| 173 | authorization upon demonstration by the applying business entity |
| 174 | that each person who is authorized to act on the applicant |
| 175 | entity's behalf as a portable restroom contractor is registered |
| 176 | under this section and also that, if a corporation, at least one |
| 177 | of its principal officers or, if a partnership, at least one |
| 178 | partner is registered under this section. The department may not |
| 179 | issue a certificate of authorization to a corporation whose |
| 180 | agent is a manager unless no officers of the corporation reside |
| 181 | in the state and the corporation provides a notarized letter to |
| 182 | the department authorizing one or more managers to act as the |
| 183 | corporate agent and registered contractor. The notarized letter |
| 184 | must list the names and addresses of each officer of the |
| 185 | corporation and state that the letter does not remove |
| 186 | responsibility from the corporation's officers. The department |
| 187 | may not issue a certificate whereby the same registered |
| 188 | contractor would become the sole qualifying contractor for more |
| 189 | than one business entity. This subsection may not be construed |
| 190 | to mean that a certificate of registration to practice portable |
| 191 | restroom contracting shall be held by a business entity. |
| 192 | Compliance with this subsection does not relieve a business |
| 193 | entity of responsibility for the conduct or acts of its agents, |
| 194 | employees, or officers. Employment by or a relationship with a |
| 195 | business entity does not relieve an individual who is engaged in |
| 196 | portable restroom contracting from responsibility for his or her |
| 197 | conduct. |
| 198 | (c) Unless renewed or revoked, each certification of |
| 199 | authorization is valid for 2 years. A business entity certified |
| 200 | under this subsection must notify the department within 1 month |
| 201 | after any change in the information contained in the application |
| 202 | upon which the certification is based. A business entity that |
| 203 | terminates affiliation with a qualifying registered contractor |
| 204 | has 60 days following the date of termination in which to obtain |
| 205 | another qualifying contractor. During the 60-day period, the |
| 206 | business entity may complete an existing contract or continuing |
| 207 | contract but may not undertake a new contract. The department |
| 208 | may extend the period for an additional 60 days upon a showing |
| 209 | of good cause. |
| 210 | (d) The department shall take disciplinary action against |
| 211 | a business entity in the same manner and on the same grounds as |
| 212 | against an individual portable restroom contractor. |
| 213 | (e) A person who is otherwise authorized by law to provide |
| 214 | portable restroom contracting services may not use the name, |
| 215 | telephone number, advertisement, logo, or other identifiers of a |
| 216 | business entity whose certificate of authorization has been |
| 217 | revoked or otherwise invalidated. |
| 218 | (6) SUSPENSION OR REVOCATION OF REGISTRATION.--A |
| 219 | certificate of registration may be suspended or revoked upon a |
| 220 | showing that the registrant has: |
| 221 | (a) Violated this section, s. 381.0065, or s. 386.041; |
| 222 | (b) Violated an order or a rule of the department; or |
| 223 | (c) Obtained a certificate of registration or other order, |
| 224 | ruling, or authorization by means of fraud, misrepresentation, |
| 225 | or concealment of material fact. |
| 226 | (7) FEES.-- |
| 227 | (a) The department shall, by rule, establish fees as |
| 228 | follows: |
| 229 | 1. For registration as a portable restroom contractor: |
| 230 | a. Application and examination fee: not less than $25 or |
| 231 | more than $75. |
| 232 | b. Initial registration fee: not less than $50 or more |
| 233 | than $100. |
| 234 | c. Renewal of registration fee: not less than $50 or more |
| 235 | than $100. |
| 236 | 2. For authorization of a business entity: not less than |
| 237 | $100 or more than $250. |
| 238 | (b) Fees established under paragraph (a) shall be based on |
| 239 | the actual costs incurred by the department in carrying out its |
| 240 | registration, authorization, and other related responsibilities |
| 241 | under this section. |
| 242 | (8) PENALTIES AND PROHIBITIONS.-- |
| 243 | (a) A person who violates any provision of this section |
| 244 | commits a misdemeanor of the first degree, punishable as |
| 245 | provided in s. 775.082 or s. 775.083. |
| 246 | (b) The department may deny a registration, authorization, |
| 247 | or renewal of a registration or authorization if an applicant |
| 248 | does not meet the requirements of this section or has violated |
| 249 | any provision of this section or if there is any outstanding |
| 250 | administrative penalty with the department in which the penalty |
| 251 | is final agency action and all judicial reviews are exhausted. |
| 252 | Any applicant aggrieved by such denial is entitled to a hearing, |
| 253 | after reasonable notice thereof, upon filing a written request |
| 254 | in accordance with chapter 120. |
| 255 | Section 2. Subsection (1) of section 381.0061, Florida |
| 256 | Statutes, is amended to read: |
| 257 | 381.0061 Administrative fines.-- |
| 258 | (1) In addition to any administrative action authorized by |
| 259 | chapter 120 or by other law, the department may impose a fine, |
| 260 | which shall not exceed $500 for each violation, for a violation |
| 261 | of s. 381.006(16), s. 381.0065, s. 381.0066, s. 381.0069, s. |
| 262 | 381.0072, or part III of chapter 489, for a violation of any |
| 263 | rule adopted under this chapter, or for a violation of any of |
| 264 | the provisions of chapter 386. Notice of intent to impose such |
| 265 | fine shall be given by the department to the alleged violator. |
| 266 | Each day that a violation continues may constitute a separate |
| 267 | violation. |
| 268 | Section 3. Paragraph (m) of subsection (3) and subsection |
| 269 | (5) of section 381.0065, Florida Statutes, are amended to read: |
| 270 | 381.0065 Onsite sewage treatment and disposal systems; |
| 271 | regulation.-- |
| 272 | (3) DUTIES AND POWERS OF THE DEPARTMENT OF HEALTH.--The |
| 273 | department shall: |
| 274 | (m) Regulate, permit, and inspect the use of portable |
| 275 | restrooms, mobile restrooms, mobile shower trailers, and |
| 276 | associated wastewater Permit and inspect portable or temporary |
| 277 | toilet services and holding tanks; regulate, permit, and inspect |
| 278 | an individual or business that provides or services such |
| 279 | facilities; and. The department shall review applications, |
| 280 | perform site evaluations, and issue permits for the temporary |
| 281 | use of stationary holding tanks, privies, portable toilet |
| 282 | services, or any other toilet facility that is intended for use |
| 283 | on a permanent or nonpermanent basis, including facilities |
| 284 | placed on construction sites when workers are present. The |
| 285 | department may specify standards for the construction, |
| 286 | maintenance, use, and operation of any such facility for |
| 287 | temporary use. |
| 288 | (5) ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.-- |
| 289 | (a) Department personnel who have reason to believe |
| 290 | noncompliance exists, may, at any reasonable time, enter the |
| 291 | premises permitted under ss. 381.0065-381.0066, or the business |
| 292 | premises of any septic tank contractor or master septic tank |
| 293 | contractor registered under part III of chapter 489, the |
| 294 | business premises of any portable restroom contractor registered |
| 295 | or certified under s. 381.0069, or any premises that the |
| 296 | department has reason to believe is being operated or maintained |
| 297 | not in compliance, to determine compliance with the provisions |
| 298 | of this section, part I of chapter 386, or part III of chapter |
| 299 | 489 or rules or standards adopted under ss. 381.0065-381.0067, |
| 300 | s. 381.0069, part I of chapter 386, or part III of chapter 489. |
| 301 | As used in this paragraph, the term "premises" does not include |
| 302 | a residence or private building. To gain entry to a residence or |
| 303 | private building, the department must obtain permission from the |
| 304 | owner or occupant or secure an inspection warrant from a court |
| 305 | of competent jurisdiction. |
| 306 | (b)1. The department may issue citations that may contain |
| 307 | an order of correction or an order to pay a fine, or both, for |
| 308 | violations of ss. 381.0065-381.0067, s. 381.0069, part I of |
| 309 | chapter 386, or part III of chapter 489 or the rules adopted by |
| 310 | the department, when a violation of these sections or rules is |
| 311 | enforceable by an administrative or civil remedy, or when a |
| 312 | violation of these sections or rules is a misdemeanor of the |
| 313 | second degree. A citation issued under ss. 381.0065-381.0067, s. |
| 314 | 381.0069, part I of chapter 386, or part III of chapter 489 |
| 315 | constitutes a notice of proposed agency action. |
| 316 | 2. A citation must be in writing and must describe the |
| 317 | particular nature of the violation, including specific reference |
| 318 | to the provisions of law or rule allegedly violated. |
| 319 | 3. The fines imposed by a citation issued by the |
| 320 | department may not exceed $500 for each violation. Each day the |
| 321 | violation exists constitutes a separate violation for which a |
| 322 | citation may be issued. |
| 323 | 4. The department shall inform the recipient, by written |
| 324 | notice pursuant to ss. 120.569 and 120.57, of the right to an |
| 325 | administrative hearing to contest the citation within 21 days |
| 326 | after the date the citation is received. The citation must |
| 327 | contain a conspicuous statement that if the recipient fails to |
| 328 | pay the fine within the time allowed, or fails to appear to |
| 329 | contest the citation after having requested a hearing, the |
| 330 | recipient has waived the recipient's right to contest the |
| 331 | citation and must pay an amount up to the maximum fine. |
| 332 | 5. The department may reduce or waive the fine imposed by |
| 333 | the citation. In determining whether to reduce or waive the |
| 334 | fine, the department must consider the gravity of the violation, |
| 335 | the person's attempts at correcting the violation, and the |
| 336 | person's history of previous violations including violations for |
| 337 | which enforcement actions were taken under ss. 381.0065- |
| 338 | 381.0067, s. 381.0069, part I of chapter 386, part III of |
| 339 | chapter 489, or other provisions of law or rule. |
| 340 | 6. Any person who willfully refuses to sign and accept a |
| 341 | citation issued by the department commits a misdemeanor of the |
| 342 | second degree, punishable as provided in s. 775.082 or s. |
| 343 | 775.083. |
| 344 | 7. The department, pursuant to ss. 381.0065-381.0067, s. |
| 345 | 381.0069, part I of chapter 386, or part III of chapter 489, |
| 346 | shall deposit any fines it collects in the county health |
| 347 | department trust fund for use in providing services specified in |
| 348 | those sections. |
| 349 | 8. This section provides an alternative means of enforcing |
| 350 | ss. 381.0065-381.0067, s. 381.0069, part I of chapter 386, and |
| 351 | part III of chapter 489. This section does not prohibit the |
| 352 | department from enforcing ss. 381.0065-381.0067, s. 381.0069, |
| 353 | part I of chapter 386, or part III of chapter 489, or its rules, |
| 354 | by any other means. However, the department must elect to use |
| 355 | only a single method of enforcement for each violation. |
| 356 | Section 4. This act shall take effect July 1, 2005. |