Senate Bill sb0626er

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  1                                 

  2         An act relating to environmental health;

  3         creating s. 381.0069, F.S.; providing for the

  4         regulation of portable restroom contracting;

  5         providing definitions; requiring a portable

  6         restroom contractor to apply for registration

  7         with the Department of Health; providing

  8         requirements for registration, including an

  9         examination; providing for administration;

10         providing rulemaking authority; providing for

11         renewal of registration, including continuing

12         education; providing for authorization of

13         business entities providing portable restroom

14         contracting services under a fictitious name;

15         providing grounds for suspension or revocation

16         of registration or authorization; providing

17         fees; providing penalties and prohibitions;

18         amending s. 381.0061, F.S.; authorizing

19         imposition of an administrative fine for

20         violating portable restroom contracting

21         requirements; amending s. 381.0065, F.S.;

22         specifying the department's powers and duties

23         with respect to regulating portable restroom

24         facilities and the individuals or businesses

25         that provide and service such facilities;

26         authorizing the department to enter the

27         business premises of any portable restroom

28         contractor to determine compliance and for the

29         purpose of enforcement; authorizing issuance of

30         a citation for a violation of portable restroom

31         contracting requirements which may contain an


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 1         order of correction or a fine; providing an

 2         effective date.

 3  

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

 5  

 6         Section 1.  Section 381.0069, Florida Statutes, is

 7  created to read:

 8         381.0069  Portable restroom contracting.--

 9         (1)  DEFINITIONS.--As used in this section, the term:

10         (a)  "Department" means the Department of Health.

11         (b)  "Portable restroom" means any portable toilet,

12  mobile restroom trailer, mobile shower trailer, or portable

13  restroom facility intended for use on a permanent or

14  nonpermanent basis, including any holding tanks associated

15  with any such facility. The term includes, but is not limited

16  to, any such facility or holding tank placed at a construction

17  site when workers are present.

18         (c)  "Portable restroom contractor" means a portable

19  restroom contractor who has knowledge of state law and the

20  experience, knowledge, and skills necessary to safely handle

21  the pick up, transportation, installation, and maintenance of

22  portable restrooms and portable sinks, including, but not

23  limited to, the safe management and disposal of associated

24  wastewater.

25         (2)  REGISTRATION REQUIRED.--A person may not hold

26  himself or herself out as a portable restroom contractor in

27  this state unless he or she is registered by the department in

28  accordance with this section. However, this section does not

29  prohibit a licensed plumbing contractor as defined in s.

30  489.105(3)(m) or a person licensed under part III of chapter

31  489 from engaging in the profession for which he or she is


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 1  licensed. This section does not apply to a private company as

 2  defined in s. 403.70605(4)(b).

 3         (3)  ADMINISTRATION OF SECTION; REGISTRATION

 4  QUALIFICATIONS; EXAMINATION.--

 5         (a)  Each person desiring to be registered under this

 6  section must apply to the department in writing upon forms

 7  prepared and furnished by the department.

 8         (b)  The department shall administer, coordinate, and

 9  enforce this section; approve and administer the examination

10  for applicants; and grant certificates of registration to

11  qualified persons and certificates of authorization to

12  qualified business entities.

13         (c)  The department shall adopt rules under ss.

14  120.536(1) and 120.54 to administer this section which

15  establish ethical standards of practice, requirements for

16  registering as a contractor, requirements for obtaining an

17  initial or renewal certificate of registration, disciplinary

18  guidelines, and requirements for the certification of business

19  entities. The department may amend or repeal the rules in

20  accordance with chapter 120.

21         (d)  To be eligible for registration by the department

22  as a portable restroom contractor, the applicant must:

23         1.  Be of good moral character. In considering good

24  moral character, the department may consider any matter that

25  has a substantial connection between the good moral character

26  of the applicant and the professional responsibilities of a

27  registered contractor. This includes, but is not limited to,

28  the applicant's being convicted or found guilty of, or

29  entering a plea of nolo contendere to, regardless of

30  adjudication, a crime in any jurisdiction which is directly

31  related to the practice of contracting or the ability to


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 1  practice contracting, or any previous disciplinary action

 2  against the applicant involving portable restroom contracting

 3  for which all judicial reviews have been completed.

 4         2.  Pass an examination approved by the department

 5  which tests knowledge of the fundamentals of state law

 6  relating to portable restrooms and the safe handling of the

 7  pick up, transportation, installation, and maintenance of

 8  portable restrooms, including, but not limited to, the safe

 9  management and disposal of associated wastewater.  If an

10  applicant from a state having no certification program has

11  passed the Portable Sanitation Association International's

12  written examination, the applicant shall be required to take

13  and pass only that portion of this state's examination which

14  tests knowledge of law that is specific to Florida.

15         3.  Be at least 18 years of age.

16         4.  Have at least 3 years of active experience serving

17  as a skilled worker under the supervision and control of a

18  portable restroom contractor who is registered under this

19  section. Related work experience or educational experience may

20  be substituted for no more than 2 years of active contracting

21  experience as follows:

22         a.  Each 30 hours of coursework approved by the

23  department may be substituted for 6 months of work experience.

24         b.  Out-of-state work experience may be substituted on

25  a year-for-year basis for any applicant who demonstrates that

26  he or she holds a current license issued by another state for

27  portable restroom contracting which was issued upon

28  satisfactory completion of an examination and continuing

29  education courses that are equivalent to those required in

30  this state. An examination is equivalent if it tests the

31  applicant's knowledge of state law relating to portable


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 1  restrooms and the safe handling of the pick up,

 2  transportation, installation, and maintenance of portable

 3  restrooms, including, but not limited to, the safe management

 4  and disposal of associated wastewater.

 5         c.  A person who is employed by and under the

 6  supervision of a licensed portable restroom contractor shall

 7  be granted up to 2 years of related work experience.

 8         5.  Have not had a registration revoked within 5 years

 9  before applying for registration.

10         (e)  The department shall provide to each applicant for

11  registration a copy of this section and any rules adopted

12  under this section. The department may also prepare and

13  disseminate other material and questionnaires it finds

14  necessary to carry out the registration provisions of this

15  section.

16         (f)  A person who, on October 1, 2005, has been

17  employed at least 1 year in this state by a portable restroom

18  service provider holding a permit issued by the department

19  pursuant to s. 381.0065(3)(m) has until October 1, 2006, to be

20  registered by the department in accordance with this section

21  and may continue to perform portable restroom contracting

22  services without registration until that time. Such persons

23  are exempt until October 1, 2006, from the requirement of

24  subparagraph (d)4. for 3 years of active work experience.

25         (4)  REGISTRATION RENEWAL.--

26         (a)  The department shall prescribe by rule methods for

27  approving continuing education courses and course providers,

28  for renewing annual registration, for approving the reversion

29  of a registration to inactive status when the renewal

30  application is late filed, for allowing a contractor to hold a

31  registration in inactive status for a specified period, and


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 1  for reactivating an inactive registration. The department

 2  shall require at least 6 classroom hours annually of

 3  continuing education courses for annual registration renewal

 4  or to reactivate an inactive registration.

 5         (b)  A certificate of registration becomes inactive

 6  when a renewal application is not timely filed. A registration

 7  that has become inactive may be reactivated by application to

 8  the department. A registered contractor may apply to the

 9  department for voluntary inactive status at any time during

10  the period of registration.

11         (5)  AUTHORIZATION OF BUSINESS ENTITIES.--

12         (a)  A parent corporation, corporation, subsidiary of a

13  corporation, or a partnership, association, or person

14  practicing under a fictitious name may not offer or provide

15  portable restroom contracting services to the public without a

16  valid certificate of authorization issued by the department.

17  A contractor registered under this section may not offer or

18  provide portable restroom contracting services on behalf of

19  such a business entity unless that entity holds a valid

20  certificate of authorization.  A certificate of authorization

21  is not required when a contractor registered under this

22  section offers or provides portable restroom contracting

23  service in his or her own given name.

24         (b)  The department shall issue a certificate of

25  authorization upon demonstration by the applying business

26  entity that each person who is authorized to act on the

27  applicant entity's behalf as a portable restroom contractor is

28  registered under this section and also that, if a corporation,

29  at least one of its principal officers, or if a partnership,

30  at least one partner, is registered under this section.  The

31  department may not issue a certificate of authorization to a


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 1  corporation whose agent is a manager unless no officers of the

 2  corporation reside in the state and the corporation provides a

 3  notarized letter to the department authorizing one or more

 4  managers to act as the corporate agent and registered

 5  contractor. The notarized letter must list the names and

 6  addresses of each officer of the corporation and state that

 7  the letter does not remove responsibility from the

 8  corporation's officers. The department may not issue a

 9  certificate whereby the same registered contractor would

10  become the sole qualifying contractor for more than one

11  business entity. This subsection does not mean that a

12  certificate of registration to practice portable restroom

13  contracting must be held by a business entity. Compliance with

14  this subsection does not relieve a business entity of

15  responsibility for the conduct or acts of its agents,

16  employees, or officers.  Employment by or a relationship with

17  a business entity does not relieve an individual who is

18  engaged in portable restroom contracting from responsibility

19  for his or her conduct.

20         (c)  Unless renewed or revoked, each certification of

21  authorization is valid for 2 years.  A business entity

22  certified under this subsection must notify the department

23  within 1 month after any change in the information contained

24  in the application upon which the certification is based.  A

25  business entity that terminates affiliation with a qualifying

26  registered contractor has 60 days following the date of

27  termination in which to obtain another qualifying contractor.

28  During the 60-day period, the business entity may complete an

29  existing contract or continuing contract but may not undertake

30  a new contract. The department may extend the period for an

31  additional 60 days upon a showing of good cause.


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 1         (d)  The department shall take disciplinary action

 2  against a business entity in the same manner and on the same

 3  grounds as against an individual portable restroom contractor.

 4         (e)  A person who is otherwise authorized by law to

 5  provide portable restroom contracting services may not use the

 6  name, telephone number, advertisement, logo, or other

 7  identifiers of a business entity whose certificate of

 8  authorization has been revoked or otherwise invalidated.

 9         (6)  SUSPENSION OR REVOCATION OF REGISTRATION.--A

10  certificate of registration may be suspended or revoked upon a

11  showing that the registrant has:

12         (a)  Violated this section, s. 381.0065, or s. 386.041;

13         (b)  Violated an order or rule of the department; or

14         (c)  Obtained a certificate of registration or other

15  order, ruling, or authorization by means of fraud,

16  misrepresentation, or concealment of material fact.

17         (7)  FEES.--

18         (a)  The department shall, by rule, establish fees as

19  follows:

20         1.  For registration as a portable restroom contractor:

21         a.  Application and examination fee: not less than $25

22  or more than $75.

23         b.  Initial registration fee: not less than $50 or more

24  than $100.

25         c.  Renewal of registration fee: not less than $50 or

26  more than $100.

27         2.  For authorization of a business entity: not less

28  than $100 or more than $250.

29         (b)  Fees established under paragraph (a) shall be

30  based on the actual costs incurred by the department in

31  


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 1  carrying out its registration, authorization, and other

 2  related responsibilities under this section.

 3         (8)  PENALTIES AND PROHIBITIONS.--

 4         (a)  A person who violates any provision of this

 5  section commits a misdemeanor of the first degree, punishable

 6  as provided in s. 775.082 or s. 775.083.

 7         (b)  The department may deny a registration,

 8  authorization, or renewal of a registration or authorization

 9  if an applicant does not meet the requirements of this section

10  or has violated any provision of this section or if there is

11  any outstanding administrative penalty with the department in

12  which the penalty is final agency action and all judicial

13  reviews are exhausted. Any applicant aggrieved by such denial

14  is entitled to a hearing, after reasonable notice thereof,

15  upon filing a written request in accordance with chapter 120.

16         Section 2.  Subsection (1) of section 381.0061, Florida

17  Statutes, is amended to read:

18         381.0061  Administrative fines.--

19         (1)  In addition to any administrative action

20  authorized by chapter 120 or by other law, the department may

21  impose a fine, which shall not exceed $500 for each violation,

22  for a violation of s. 381.006(16), s. 381.0065, s. 381.0066,

23  s. 381.0069, s. 381.0072, or part III of chapter 489, for a

24  violation of any rule adopted under this chapter, or for a

25  violation of any of the provisions of chapter 386.  Notice of

26  intent to impose such fine shall be given by the department to

27  the alleged violator.  Each day that a violation continues may

28  constitute a separate violation.

29         Section 3.  Paragraph (m) of subsection (3) and

30  subsection (5) of section 381.0065, Florida Statutes, are

31  amended to read:


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 1         381.0065  Onsite sewage treatment and disposal systems;

 2  regulation.--

 3         (3)  DUTIES AND POWERS OF THE DEPARTMENT OF

 4  HEALTH.--The department shall:

 5         (m)  Regulate, permit, and inspect the use of portable

 6  restrooms, mobile restrooms, mobile shower trailers, and

 7  associated wastewater Permit and inspect portable or temporary

 8  toilet services and holding tanks; regulate, permit, and

 9  inspect an individual or business that provides or services

10  such facilities; and. The department shall review

11  applications, perform site evaluations, and issue permits for

12  the temporary use of stationary holding tanks, privies,

13  portable toilet services, or any other toilet facility that is

14  intended for use on a permanent or nonpermanent basis,

15  including facilities placed on construction sites when workers

16  are present. The department may specify standards for the

17  construction, maintenance, use, and operation of any such

18  facility for temporary use.

19         (5)  ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.--

20         (a)  Department personnel who have reason to believe

21  noncompliance exists, may, at any reasonable time, enter the

22  premises permitted under ss. 381.0065-381.0066, or the

23  business premises of any septic tank contractor or master

24  septic tank contractor registered under part III of chapter

25  489, the business premises of any portable restroom contractor

26  registered or certified under s. 381.0069, or any premises

27  that the department has reason to believe is being operated or

28  maintained not in compliance, to determine compliance with the

29  provisions of this section, part I of chapter 386, or part III

30  of chapter 489 or rules or standards adopted under ss.

31  381.0065-381.0067, s. 381.0069, part I of chapter 386, or part


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 1  III of chapter 489.  As used in this paragraph, the term

 2  "premises" does not include a residence or private building.

 3  To gain entry to a residence or private building, the

 4  department must obtain permission from the owner or occupant

 5  or secure an inspection warrant from a court of competent

 6  jurisdiction.

 7         (b)1.  The department may issue citations that may

 8  contain an order of correction or an order to pay a fine, or

 9  both, for violations of ss. 381.0065-381.0067, s. 381.0069,

10  part I of chapter 386, or part III of chapter 489 or the rules

11  adopted by the department, when a violation of these sections

12  or rules is enforceable by an administrative or civil remedy,

13  or when a violation of these sections or rules is a

14  misdemeanor of the second degree.  A citation issued under ss.

15  381.0065-381.0067, s. 381.0069, part I of chapter 386, or part

16  III of chapter 489 constitutes a notice of proposed agency

17  action.

18         2.  A citation must be in writing and must describe the

19  particular nature of the violation, including specific

20  reference to the provisions of law or rule allegedly violated.

21         3.  The fines imposed by a citation issued by the

22  department may not exceed $500 for each violation.  Each day

23  the violation exists constitutes a separate violation for

24  which a citation may be issued.

25         4.  The department shall inform the recipient, by

26  written notice pursuant to ss. 120.569 and 120.57, of the

27  right to an administrative hearing to contest the citation

28  within 21 days after the date the citation is received.  The

29  citation must contain a conspicuous statement that if the

30  recipient fails to pay the fine within the time allowed, or

31  fails to appear to contest the citation after having requested


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 1  a hearing, the recipient has waived the recipient's right to

 2  contest the citation and must pay an amount up to the maximum

 3  fine.

 4         5.  The department may reduce or waive the fine imposed

 5  by the citation. In determining whether to reduce or waive the

 6  fine, the department must consider the gravity of the

 7  violation, the person's attempts at correcting the violation,

 8  and the person's history of previous violations including

 9  violations for which enforcement actions were taken under ss.

10  381.0065-381.0067, s. 381.0069, part I of chapter 386, part

11  III of chapter 489, or other provisions of law or rule.

12         6.  Any person who willfully refuses to sign and accept

13  a citation issued by the department commits a misdemeanor of

14  the second degree, punishable as provided in s. 775.082 or s.

15  775.083.

16         7.  The department, pursuant to ss. 381.0065-381.0067,

17  s. 381.0069, part I of chapter 386, or part III of chapter

18  489, shall deposit any fines it collects in the county health

19  department trust fund for use in providing services specified

20  in those sections.

21         8.  This section provides an alternative means of

22  enforcing ss. 381.0065-381.0067, s. 381.0069, part I of

23  chapter 386, and part III of chapter 489. This section does

24  not prohibit the department from enforcing ss.

25  381.0065-381.0067, s. 381.0069, part I of chapter 386, or part

26  III of chapter 489, or its rules, by any other means.

27  However, the department must elect to use only a single method

28  of enforcement for each violation.

29         Section 4.  This act shall take effect July 1, 2005.

30  

31  


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