Senate Bill sb1394
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Florida Senate - 2006 SB 1394
By Senator Miller
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1 A bill to be entitled
2 An act relating to damage prevention and safety
3 of underground facilities; amending s. 556.101,
4 F.S.; providing legislative intent that
5 Sunshine State One-Call of Florida, Inc., is
6 not required or permitted to locate or mark
7 underground facilities; amending s. 556.102,
8 F.S.; redefining the term "member operator" to
9 remove an exception for a small municipality
10 that elects not to participate in the
11 notification system; amending ss. 556.103 and
12 556.104, F.S.; deleting provisions exempting a
13 small city from membership in the Sunshine
14 State One-Call of Florida, Inc.; amending s.
15 556.105, F.S.; requiring that specified
16 information be placed in the excavation
17 notification system; providing an exception for
18 underwater excavations; providing that the
19 information is valid for 30 calendar days;
20 requiring that a notification number assigned
21 to an excavator be provided to a law
22 enforcement officer, government code inspector,
23 or code enforcement officer upon request;
24 requiring that a member operator respond to the
25 system within a specified time indicating the
26 status of its facility protection operations;
27 requiring the corporation to establish a
28 communication system between member operators
29 and excavators; requiring an excavator to
30 verify the system's positive responses before
31 beginning excavation; requiring operators to
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1 use a specified color-code manual; amending s.
2 556.106, F.S.; providing that the notification
3 system has no duty to and may not mark or
4 locate underground facilities; providing that a
5 person has no right of recovery against the
6 notification system for failing to mark or
7 locate underground facilities; providing that
8 the system is not liable for the failure of a
9 member operator to comply with the requirements
10 of the act; amending s. 556.107, F.S.;
11 correcting cross-references; providing for the
12 distribution of civil penalties; authorizing
13 the corporation to retain legal counsel to
14 represent the corporation in certain legal
15 proceedings; amending s. 556.108, F.S.;
16 providing that certain excavations are exempt
17 from mandatory location notification if
18 mechanized equipment is not used; providing an
19 effective date.
20
21 Be It Enacted by the Legislature of the State of Florida:
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23 Section 1. Section 556.101, Florida Statutes, is
24 amended to read:
25 556.101 Short title; legislative intent.--
26 (1) This act may be cited as the "Underground Facility
27 Damage Prevention and Safety Act."
28 (2) It is the intent of the Legislature to provide
29 access for excavating contractors and the public to provide
30 notification to the system of their intent to engage in
31 excavation or demolition. This notification system shall
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1 provide the member operators an opportunity to identify and
2 locate their underground facilities. Under this notification
3 system, Sunshine State One-Call of Florida, Inc., is not
4 required or permitted to locate or mark underground
5 facilities.
6 (3) It is the purpose of this act to:
7 (a) Aid the public by preventing injury to persons or
8 property and the interruption of services resulting from
9 damage to an underground facility caused by excavation or
10 demolition operations.
11 (b) Create a not-for-profit corporation comprised of
12 operators of underground facilities in this state to
13 administer the provisions of this act.
14 (c) Fund the cost of administration through
15 contributions from the member operators for services provided
16 to the member operators and from charges made to others for
17 services requested and provided, such as record searches,
18 education or training, and damage prevention activities.
19 (d) Reserve to the state the power to regulate any
20 subject matter specifically addressed in this act.
21 (e) Permit any local law enforcement officer, local
22 government code inspector, or code enforcement officer or
23 permitting agency inspector to enforce this act without the
24 need to incorporate the provisions of this act into any local
25 code or ordinance.
26 (4) It is not the purpose of this act to amend or void
27 any permit issued by a state agency for placement or
28 maintenance of facilities in its right-of-way.
29 Section 2. Subsection (8) of section 556.102, Florida
30 Statutes, is amended to read:
31 556.102 Definitions.--As used in this act:
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1 (8) "Member operator" means any person who furnishes
2 or transports materials or services by means of an underground
3 facility except a small municipality that has elected not to
4 participate in the one-call notification system in the manner
5 set forth in s. 556.103(1).
6 Section 3. Subsection (1) of section 556.103, Florida
7 Statutes, is amended to read:
8 556.103 Creation of the corporation; establishment of
9 the board of directors; authority of the board; annual
10 report.--
11 (1) The "Sunshine State One-Call of Florida, Inc." is
12 hereby created as a not-for-profit corporation. Each operator
13 of an underground facility in this state shall be a member of
14 the corporation and shall use and participate in the system,
15 except that a small city as defined in s. 120.52 may elect by
16 January 1, 1998, not to participate in the system until
17 January 1, 2003, through a written notification identifying
18 any reasons for declining membership. The corporation shall
19 be formed by June 1, 1993. The corporation shall administer
20 the provisions of this act. The corporation shall exercise
21 its powers through a board of directors established pursuant
22 to this section.
23 Section 4. Section 556.104, Florida Statutes, is
24 amended to read:
25 556.104 Free-access notification system.--The
26 corporation shall maintain a free-access notification system.
27 Any person who furnishes or transports materials or services
28 by means of an underground facility in this state shall
29 participate as a member operator of the system except that a
30 small city as defined in s. 120.52 may elect not to
31 participate in the system in the manner set forth in s.
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1 556.103(1). The purpose of the system is to receive
2 notification of planned excavation or demolition activities
3 and to notify member operators of the such planned excavation
4 or demolition activities. The system shall provide a single
5 toll-free telephone number within this state which excavators
6 can use to notify member operators of planned excavation or
7 demolition activities, and the system may also provide
8 additional modes of access at no cost to the user.
9 Section 5. Section 556.105, Florida Statutes, is
10 amended to read:
11 556.105 Procedures.--
12 (1)(a) Not less than 2 nor more than 5 full business
13 days before beginning any excavation or demolition, except an
14 excavation beneath the waters of the state, an excavator shall
15 provide the following information through the system:
16 1. The name of the individual who provided
17 notification and the name, address, including the street
18 address, city, state, zip code, and telephone number of her or
19 his employer.
20 2. The name and telephone number of the representative
21 for the excavator and a valid electronic address to facilitate
22 a positive response by the system should be provided, if
23 available.
24 3. The county, the city or closest city, and the
25 street address or the closest street, road, or intersection to
26 the location where the excavation or demolition is to be
27 performed, and the construction limits of the excavation or
28 demolition.
29 4. The commencement date and anticipated duration of
30 the excavation or demolition.
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1 5. Whether machinery will be used for the excavation
2 or demolition.
3 6. The person or entity for whom the work is to be
4 done.
5 7. The type of work to be done.
6 8. The approximate depth of the excavation.
7 (b) The excavator shall provide the such information
8 by notifying the system through its free-access notification
9 system during business hours, as determined by the
10 corporation, or by such other method as authorized by the
11 corporation. Any notification received by the system at any
12 time other than during business hours shall be considered to
13 be received at the beginning of the next business day.
14 (c) Information provided by an excavator is shall be
15 considered valid for 30 a period of 20 calendar days after the
16 each date such information is provided to the system. In
17 computing the period for which information furnished is
18 considered valid, the date the notice is provided is shall not
19 be counted, but the last day of the such period shall be
20 counted unless it is a Saturday, Sunday, or a legal holiday,
21 in which event, the period runs shall run until the end of the
22 next day that which is not a Saturday, Sunday, or a legal
23 holiday.
24 (2) Each notification by means of the system shall be
25 recorded to document compliance with this act. Such record
26 may be made by means of electronic, mechanical, or any other
27 method of all incoming and outgoing wire and oral
28 communications concerning location requests in compliance with
29 chapter 934. The Such records shall be kept for a period of 5
30 years and, upon written request, shall be available to the
31 excavator making the request, the member operator intended to
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1 receive the request, and their agents. However, custody of the
2 records may shall not be transferred from the system except
3 under subpoena.
4 (3) The system shall provide the person who provided
5 notification with the names of the member operators who shall
6 will be advised of the notification and a notification number
7 that which specifies the date and time of the notification.
8 (4) The notification number provided to the excavator
9 under this section shall be provided to any law enforcement
10 officer, government code inspector, or code enforcement
11 officer upon request.
12 (5)(4) All member operators within the defined area of
13 a proposed excavation or demolition shall be promptly notified
14 through the system, except that member operators with
15 state-owned underground facilities located within the
16 right-of-way of a state highway need not be notified of
17 excavation or demolition activities and are under no
18 obligation to mark or locate the such facilities.
19 (a) When an excavation site cannot be described in
20 information provided under subparagraph (1)(a)3. with
21 sufficient particularity to enable the member operator to
22 ascertain the excavation site, and if the excavator and member
23 operator have not mutually agreed otherwise, the excavator
24 shall premark the proposed area of the excavation before a
25 member operator is required to identify the horizontal route
26 of its underground facilities in the proximity of any
27 excavation. However, premarking is not required for any
28 excavation that is over 500 feet in length and is not required
29 where the premarking could reasonably interfere with traffic
30 or pedestrian control.
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1 (b) If a member operator determines that a proposed
2 excavation or demolition is in proximity to or in conflict
3 with an underground facility of the member operator, except a
4 facility beneath the waters of the state, which is governed by
5 paragraph (c), the member operator shall identify the
6 horizontal route by marking to within 24 inches from the outer
7 edge of either side of the underground facility by the use of
8 stakes, paint, flags, or other suitable means within 2 full
9 business days after the time the notification is received
10 under subsection (1). If the member operator is unable to
11 respond within such time, the member operator shall
12 communicate with the person making the request and negotiate a
13 new schedule and time that is agreeable to, and should not
14 unreasonably delay, the excavator.
15 (c) If a member operator determines that a proposed
16 excavation is in proximity to or in conflict with an
17 underground facility of the member operator beneath the waters
18 of the state, the member operator shall identify the estimated
19 horizontal route of the underground facility, within 10
20 business days, using marking buoys or other suitable devices,
21 unless directed otherwise by an agency having jurisdiction
22 over the waters of the state under which the member operator's
23 underground facility is located.
24 (d) When excavation is to take place within a
25 tolerance zone, an excavator shall use increased caution to
26 protect underground facilities. The protection requires hand
27 digging, pot holing, soft digging, vacuum excavation methods,
28 or other similar procedures to identify underground
29 facilities. Any use of mechanized equipment within the
30 tolerance zone must be supervised by the excavator.
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1 (6)(a)(5)(a) An excavator shall avoid excavation in
2 the area described in the notice given under pursuant to
3 subsection (1) until each member operator underground facility
4 has been marked and located or until the excavator has been
5 notified that no member operator has underground facilities in
6 the area described in the notice, or for the time allowed for
7 markings set forth in paragraphs (5)(b) (4)(b) and (c),
8 whichever occurs first. If a member operator has not located
9 and marked its underground facilities within the time allowed
10 for marking set forth in paragraphs (5)(b) (4)(b) and (c), the
11 excavator may proceed with the excavation, if provided the
12 excavator does so with reasonable care, and if provided,
13 further, that detection equipment or other acceptable means to
14 locate underground facilities are used.
15 (b) An excavator may shall not demolish in the area
16 described in the notice given under pursuant to subsection (1)
17 until all member operator underground facilities have been
18 marked and located, or removed.
19 (7)(a)(6)(a) A member operator that states that it
20 does not have accurate information concerning the exact
21 location of its underground facilities is exempt from the
22 requirements of paragraphs (5)(b) (4)(b) and (c), but shall
23 provide the best available information to the excavator in
24 order to comply with the requirements of this section. An
25 excavator is not liable for any damage to an underground
26 facility under the exemption in this subsection if the
27 excavation or demolition is performed with reasonable care and
28 detection equipment or other acceptable means to locate
29 underground facilities are used.
30 (b) A member operator may not exercise the exemption
31 provided by this subsection if the member operator has
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1 underground facilities that have not been taken out of service
2 and that are locatable using available designating
3 technologies to locate underground facilities.
4 (8)(a)(7)(a) If extraordinary circumstances exist, a
5 member operator shall notify the system of the member
6 operator's inability to comply with this section. For the
7 purposes of this section, the term "extraordinary
8 circumstances" means circumstances other than normal operating
9 conditions that which exist and make it impractical for a
10 member operator to comply with the provisions of this act.
11 After the system has received notification of a member
12 operator's inability to comply, the system shall make that
13 information known to excavators who subsequently notify the
14 system of an intent to excavate. The member operator is
15 relieved of responsibility for compliance under the law during
16 the period that the extraordinary circumstances exist and
17 shall promptly notify the system when the extraordinary
18 circumstances cease to exist.
19 (b) During the period when extraordinary circumstances
20 exist, the system shall remain available during business hours
21 to provide information to governmental agencies, member
22 operators affected by the extraordinary circumstances, and
23 member operators who can provide relief to the affected
24 parties, unless the system itself has been adversely affected
25 by extraordinary circumstances.
26 (9)(a) After receiving notification from the system, a
27 member operator shall provide a positive response to the
28 system within 2 full business days, or 10 such days for an
29 underwater excavation, indicating the status of operations to
30 protect the facility.
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1 (8)(a) If a member operator determines that the
2 excavation or demolition is not near an existing underground
3 facility of the member operator, the member operator shall
4 notify the excavator within 2 full business days after the
5 time of the notification to the system that no conflict exists
6 and that the excavation or demolition area is clear. An
7 excavator who has knowledge of the existence of an underground
8 facility of a member operator in the area is responsible for
9 contacting the member operator if a facility is not marked.
10 (b) The system shall establish and maintain a process
11 to facilitate a positive-response communication between member
12 operators and excavators. The system is exempt from any
13 requirement to initiate a positive response to an excavator
14 when an excavator does not provide a valid electronic address
15 to facilitate a positive response by the system.
16 (c) An excavator shall verify the system's positive
17 responses before beginning excavation. If an excavator knows
18 that an existing underground facility of a member operator is
19 in the area, the excavator must contact the member operator if
20 the facility is not marked and a positive response has not
21 been received by the system. The system shall implement
22 procedures for positive response by January 1, 2004.
23 (10)(9) A member operator shall use the recommended
24 guidelines for uniform temporary marking of underground
25 facilities as approved by the Utility Location and
26 Coordinating Council "Uniform Color Code for Utilities" of the
27 American Public Works Association when marking the horizontal
28 route of any underground facility of the operator.
29 (11)(10) Before Prior to or during excavation or
30 demolition, if the marking of the horizontal route of any
31 facility is removed or is no longer visible, the excavator
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1 shall stop excavation or demolition activities in the vicinity
2 of the facility and shall notify the system to have the route
3 remarked.
4 (12)(11) If any contact with or damage to any pipe,
5 cable, or its protective covering, or any other underground
6 facility occurs, the excavator causing the contact or damage
7 shall immediately notify the member operator. Upon receiving
8 notice, the member operator shall send personnel to the
9 location as soon as possible to effect temporary or permanent
10 repair of the contact or damage. Until such time as the
11 contact or damage has been repaired, the excavator shall cease
12 excavation or demolition activities that may cause further
13 damage to such underground facility.
14 Section 6. Subsection (2) of section 556.106, Florida
15 Statutes, is amended, present subsection (6) is redesignated
16 as subsection (7), and a new subsection (6) is added to that
17 section, to read:
18 556.106 Liability of the member operator, excavator,
19 and system.--
20 (2)(a) If a In the event any person violates s.
21 556.105(1) or (6) (5), and subsequently, whether by himself or
22 herself or through the person's employees, contractors,
23 subcontractors, or agents, performs an excavation or
24 demolition that which damages an underground facility of a
25 member operator, it is shall be rebuttably presumed that the
26 such person was negligent. The Such person, if found liable,
27 is shall be liable for the total sum of the losses to all
28 member operators involved as those costs are normally
29 computed. Any damage for loss of revenue and loss of use may
30 shall not exceed $500,000 per affected underground facility,
31 except that revenues lost by a governmental member operator
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1 whose, which revenues are used to support payments on
2 principal and interest on bonds may, shall not be limited. Any
3 liability of the state and its agencies and its subdivisions
4 which arises out of this chapter is shall be subject to the
5 provisions of s. 768.28.
6 (b) If any excavator fails to discharge a duty imposed
7 by the provisions of this act, the such excavator, if found
8 liable, is shall be liable for the total sum of the losses to
9 all parties involved as those costs are normally computed.
10 Any damage for loss of revenue and loss of use may shall not
11 exceed $500,000 per affected underground facility, except that
12 revenues lost by a governmental member operator whose, which
13 revenues are used to support payments on principal and
14 interest on bonds may, shall not be limited.
15 (c) Any liability of the state, its agencies, or its
16 subdivisions which arises out of this act is shall be subject
17 to the provisions of s. 768.28.
18 (d) Obtaining information as to the location of an
19 underground facility from the member operator as required by
20 this act does not excuse any excavator from performing an
21 excavation or demolition in a careful and prudent manner,
22 based on accepted engineering and construction practices, and
23 it nor does not it excuse the such excavator from liability
24 for any damage or injury resulting from any excavation or
25 demolition.
26 (e) When an excavator knows or should know of the
27 presence of an underground facility of a nonmember small city
28 as defined in s. 120.52, he or she shall make reasonable
29 efforts to contact the small city that owns or operates that
30 facility prior to commencing an excavation or demolition.
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1 (6) The system does not have a duty to mark or locate
2 underground facilities and may not do so, and a right of
3 recovery does not exist against the system for failing to mark
4 or locate underground facilities. The system is not liable for
5 the failure of a member operator to comply with the
6 requirements of this act.
7 (7)(6) An excavator who performs any excavation with
8 hand tools under pursuant to s. 556.108(5) is liable for any
9 damage to any operator's underground facilities damaged during
10 such excavation.
11 Section 7. Section 556.107, Florida Statutes, is
12 amended to read:
13 556.107 Violations.--
14 (1) NONCRIMINAL INFRACTIONS.--
15 (a) Violations of the following provisions are
16 noncriminal infractions:
17 1. Section 556.105(1), relating to providing required
18 information.
19 2. Section 556.105(6) 556.105(5), relating to the
20 avoidance of excavation.
21 3. Section 556.105(11) 556.105(10), relating to the
22 need to stop excavation or demolition.
23 4. Section 556.105(12) 556.105(11), relating to the
24 need to cease excavation or demolition activities.
25 5. Section 556.105(5)(b) 556.105(4)(b) and (c)
26 relating to identification of underground facilities, if a
27 member operator does not mark an underground facility, but not
28 if a member operator marks an underground facility
29 incorrectly.
30 (b) Any excavator or member operator who commits a
31 noncriminal infraction under paragraph (a) may be issued a
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1 citation by any local or state law enforcement officer,
2 government code inspector, or code enforcement officer
3 permitting agency inspector, and the issuer of a citation may
4 require an any excavator to cease work on any excavation or
5 not start a proposed excavation until there has been
6 compliance with the provisions of this act. Citations may be
7 issued to any employee of the excavator or member operator who
8 is directly involved in the noncriminal infraction.
9 (c) Any excavator or member operator who commits a
10 noncriminal infraction under paragraph (a) may be required to
11 appear before the county court. The civil penalty for any such
12 infraction is $250, plus fees and court costs except as
13 otherwise provided in this section. If a citation is issued by
14 a local law enforcement officer, a local government code
15 inspector, or a code enforcement officer, 80 percent of the
16 civil penalty collected by the clerk of the court shall be
17 distributed to the local governmental entity whose employee
18 issued the citation and 20 percent of the penalty shall be
19 retained by the clerk to cover administrative costs, in
20 addition to other fees or court costs. If a citation is issued
21 by a state law enforcement officer, the civil penalty
22 collected by the clerk shall be retained by the clerk for
23 distribution to the county in which the citation was issued.
24 Any person who fails to appear or otherwise properly respond
25 to a citation issued pursuant to paragraph (d) shall, in
26 addition to the citation, be charged with the offense of
27 failing to respond to such citation and, upon conviction,
28 commits be guilty of a misdemeanor of the second degree,
29 punishable as provided in s. 775.082 or s. 775.083. A written
30 warning to this effect shall be provided at the time any
31 citation is issued pursuant to paragraph (b).
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1 (d) Any person cited for an infraction under paragraph
2 (a), unless required to appear before the county court, may:
3 1. Post a bond, which shall be equal in amount to the
4 applicable civil penalty, plus fees or court costs; or
5 2. Sign and accept a citation indicating a promise to
6 appear before the county court.
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8 The person issuing the citation officer may indicate on the
9 citation the time and location of the scheduled hearing and
10 shall indicate the applicable civil penalty.
11 (e) Any person charged with a noncriminal infraction
12 under paragraph (a), unless required to appear before the
13 county court, may:
14 1. Pay the civil penalty plus fees and court costs, in
15 lieu of appearance, either by mail or in person, within 10
16 days after the date of receiving the citation; or
17 2. Forfeit bond, if a bond has been posted, by not
18 appearing at the designated time and location.
19
20 If the person cited follows either of the above procedures,
21 she or he is shall be deemed to have admitted to committing
22 the infraction and to have waived the right to a hearing on
23 the issue of commission of the infraction. The Such admission
24 may be used as evidence in any other proceeding under this
25 act.
26 (f) Any person electing to appear before the county
27 court or who is required to appear shall be deemed to have
28 waived the limitations on the civil penalty specified in
29 paragraph (c). The court, after a hearing, shall make a
30 determination as to whether an infraction has been committed.
31 If the commission of an infraction has been proven, the court
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1 may impose a civil penalty not to exceed $5,000, plus court
2 costs. In determining the amount of the civil penalty, the
3 court may consider previous noncriminal infractions committed.
4 (g) At a hearing under this chapter, the commission of
5 a charged infraction must be proven by a preponderance of the
6 evidence.
7 (h) If a person is found by the hearing official to
8 have committed an infraction, the such person may appeal that
9 finding to the circuit court.
10 (i) Sunshine State One-Call of Florida, Inc., may, at
11 its own cost, retain an attorney to assist in the presentation
12 of relevant facts and law in the county court proceeding
13 pertaining to the citation issued under this section. The
14 corporation may also appear in any case appealed to the
15 circuit court if a county court finds that an infraction of
16 the chapter was committed. An appellant in the circuit court
17 proceeding shall timely notify the corporation of any appeal
18 under this section.
19 (2) MISDEMEANORS.--Any person who knowingly and
20 willfully removes or otherwise destroys the valid stakes or
21 other valid physical markings described in s. 556.105(5)(b) s.
22 556.105(4)(b) and (c) used to mark the horizontal route of an
23 underground facility commits a misdemeanor of the second
24 degree, punishable as provided in s. 775.082 or s. 775.083.
25 For purposes of this subsection, stakes or other nonpermanent
26 physical markings are considered valid for 30 20 calendar days
27 after information is provided to the system under s.
28 556.105(1)(c).
29 Section 8. Subsection (4) of section 556.108, Florida
30 Statutes, is amended to read:
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1 556.108 Exemptions.--The notification requirements
2 provided in s. 556.105(1) do not apply to:
3 (4) Any excavation of 18 inches or less for:
4 (a) Surveying public or private property by surveyors
5 or mappers as defined in chapter 472, excluding marked
6 rights-of-way, marked easements, or permitted uses where
7 marked, if provided mechanized equipment is not used in the
8 process of such surveying and the surveying is performed in
9 accordance with the practice rules established under s.
10 472.027; or
11 (b) Maintenance activities performed by a state agency
12 and its employees when such activities are within the
13 right-of-way of a public road; however, provided, if a member
14 operator has permanently marked facilities on such
15 right-of-way, no mechanized equipment may not be used without
16 first providing notification; or
17 (c) Locating, repairing, connecting, adjusting, or
18 routine maintenance of a private or public utility facility by
19 an excavator, if mechanized equipment is not used.
20 Section 9. This act shall take effect October 1, 2006.
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1 *****************************************
2 SENATE SUMMARY
3 Requires that specified information be placed in the
excavation notification system. Provides an exception for
4 underwater excavations. Requires that a notification
number assigned to an excavator be provided to a law
5 enforcement officer, government code inspector, or code
enforcement officer upon request. Requires a member
6 operator to respond to the system within a specified time
period indicating the status of its facility protection
7 operations. Requires the Sunshine State One-Call of
Florida, Inc., corporation to establish a communication
8 system between member operators. Requires an excavator to
verify the system's positive responses before beginning
9 excavation. Requires an excavator who knows that an
existing underground facility of a member operator is in
10 the area to notify the member operator under certain
circumstances. Provides that the notification system has
11 no duty and is not permitted to mark or locate
underground facilities. Provides that a person has no
12 right of recovery against the notification system for
failing to mark or locate underground facilities.
13 Provides for the distribution of civil penalties.
Authorizes the corporation to retain legal counsel to
14 represent the corporation in certain specified legal
proceedings. Provides that certain excavations are exempt
15 from mandatory location notification if mechanized
equipment is not used. (See bill for details.)
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CODING: Words stricken are deletions; words underlined are additions.