HB 789

1	A bill to be entitled
2	An act relating to damage prevention and safety of
3	underground facilities; amending s. 556.101, F.S.;
4	providing legislative intent that Sunshine State One-Call
5	of Florida, Inc., is not required or permitted to locate
6	or mark underground facilities; amending s. 556.102, F.S.;
7	redefining the term "member operator" to remove an
8	exception for a small municipality that elects not to
9	participate in the notification system; amending ss.
10	556.103 and 556.104, F.S.; deleting provisions exempting a
11	small city from membership in the Sunshine State One-Call
12	of Florida, Inc.; amending s. 556.105, F.S.; requiring
13	that specified information be placed in the excavation
14	notification system; providing an exception for underwater
15	excavations; providing that the information is valid for
16	30 calendar days; requiring that a notification number
17	assigned to an excavator be provided to a law enforcement
18	officer, government code inspector, or code enforcement
19	officer upon request; requiring that a member operator
20	respond to the system within a specified time indicating
21	the status of its facility protection operations;
22	requiring the corporation to establish a communication
23	system between member operators and excavators; requiring
24	an excavator to verify the system's positive responses
25	before beginning excavation; requiring operators to use a
26	specified color-code manual; amending s. 556.106, F.S.;
27	providing that the notification system has no duty to and
28	may not mark or locate underground facilities; providing
29	that a person has no right of recovery against the
30	notification system for failing to mark or locate
31	underground facilities; providing that the system is not
32	liable for the failure of a member operator to comply with
33	the requirements of the act; amending s. 556.107, F.S.;
34	correcting cross-references; providing for the
35	distribution of civil penalties; authorizing the
36	corporation to retain legal counsel to represent the
37	corporation in certain legal proceedings; amending s.
38	556.108, F.S.; providing that certain excavations are
39	exempt from mandatory location notification if mechanized
40	equipment is not used; providing an effective date.
41
42	Be It Enacted by the Legislature of the State of Florida:
43
44	Section 1.  Section 556.101, Florida Statutes, is amended
45	to read:
46	556.101  Short title; legislative intent.--
47	(1)  This act may be cited as the "Underground Facility
48	Damage Prevention and Safety Act."
49	(2)  It is the intent of the Legislature to provide access
50	for excavating contractors and the public to provide
51	notification to the system of their intent to engage in
52	excavation or demolition. This notification system shall provide
53	the member operators an opportunity to identify and locate their
54	underground facilities. Under this notification system, Sunshine
55	State One-Call of Florida, Inc., is not required or permitted to
56	locate or mark underground facilities.
57	(3)  It is the purpose of this act to:
58	(a)  Aid the public by preventing injury to persons or
59	property and the interruption of services resulting from damage
60	to an underground facility caused by excavation or demolition
61	operations.
62	(b)  Create a not-for-profit corporation comprised of
63	operators of underground facilities in this state to administer
64	the provisions of this act.
65	(c)  Fund the cost of administration through contributions
66	from the member operators for services provided to the member
67	operators and from charges made to others for services requested
68	and provided, such as record searches, education or training,
69	and damage prevention activities.
70	(d)  Reserve to the state the power to regulate any subject
71	matter specifically addressed in this act.
72	(e)  Permit any local law enforcement officer, local
73	government code inspector, or code enforcement officer or
74	permitting agency inspector to enforce this act without the need
75	to incorporate the provisions of this act into any local code or
76	ordinance.
77	(4)  It is not the purpose of this act to amend or void any
78	permit issued by a state agency for placement or maintenance of
79	facilities in its right-of-way.
80	Section 2.  Subsection (8) of section 556.102, Florida
81	Statutes, is amended to read:
82	556.102  Definitions.--As used in this act:
83	(8)  "Member operator" means any person who furnishes or
84	transports materials or services by means of an underground
85	facility except a small municipality that has elected not to
86	participate in the one-call notification system in the manner
87	set forth in s. 556.103(1).
88	Section 3.  Subsection (1) of section 556.103, Florida
89	Statutes, is amended to read:
90	556.103  Creation of the corporation; establishment of the
91	board of directors; authority of the board; annual report.--
92	(1)  The "Sunshine State One-Call of Florida, Inc." is
93	hereby created as a not-for-profit corporation. Each operator of
94	an underground facility in this state shall be a member of the
95	corporation and shall use and participate in the system, except
96	that a small city as defined in s. 120.52 may elect by January
97	1, 1998, not to participate in the system until January 1, 2003,
98	through a written notification identifying any reasons for
99	declining membership. The corporation shall be formed by June 1,
100	1993. The corporation shall administer the provisions of this
101	act. The corporation shall exercise its powers through a board
102	of directors established pursuant to this section.
103	Section 4.  Section 556.104, Florida Statutes, is amended
104	to read:
105	556.104  Free-access notification system.--The corporation
106	shall maintain a free-access notification system. Any person who
107	furnishes or transports materials or services by means of an
108	underground facility in this state shall participate as a member
109	operator of the system except that a small city as defined in s.
110	120.52 may elect not to participate in the system in the manner
111	set forth in s. 556.103(1). The purpose of the system is to
112	receive notification of planned excavation or demolition
113	activities and to notify member operators of the such planned
114	excavation or demolition activities. The system shall provide a
115	single toll-free telephone number within this state which
116	excavators can use to notify member operators of planned
117	excavation or demolition activities, and the system may also
118	provide additional modes of access at no cost to the user.
119	Section 5.  Section 556.105, Florida Statutes, is amended
120	to read:
121	556.105  Procedures.--
122	(1)(a)  Not less than 2 nor more than 5 full business days
123	before beginning any excavation or demolition, except an
124	excavation beneath the waters of the state, an excavator shall
125	provide the following information through the system:
126	1.  The name of the individual who provided notification
127	and the name, address, including the street address, city,
128	state, zip code, and telephone number of her or his employer.
129	2.  The name and telephone number of the representative for
130	the excavator and a valid electronic address to facilitate a
131	positive response by the system should be provided, if
132	available.
133	3.  The county, the city or closest city, and the street
134	address or the closest street, road, or intersection to the
135	location where the excavation or demolition is to be performed,
136	and the construction limits of the excavation or demolition.
137	4.  The commencement date and anticipated duration of the
138	excavation or demolition.
139	5.  Whether machinery will be used for the excavation or
140	demolition.
141	6.  The person or entity for whom the work is to be done.
142	7.  The type of work to be done.
143	8.  The approximate depth of the excavation.
144	(b)  The excavator shall provide the such information by
145	notifying the system through its free-access notification system
146	during business hours, as determined by the corporation, or by
147	such other method as authorized by the corporation. Any
148	notification received by the system at any time other than
149	during business hours shall be considered to be received at the
150	beginning of the next business day.
151	(c)  Information provided by an excavator is shall be
152	considered valid for 30 a period of 20 calendar days after the
153	each date such information is provided to the system. In
154	computing the period for which information furnished is
155	considered valid, the date the notice is provided is shall not
156	be counted, but the last day of the such period shall be counted
157	unless it is a Saturday, Sunday, or a legal holiday, in which
158	event, the period runs shall run until the end of the next day
159	that which is not a Saturday, Sunday, or a legal holiday.
160	(2)  Each notification by means of the system shall be
161	recorded to document compliance with this act. Such record may
162	be made by means of electronic, mechanical, or any other method
163	of all incoming and outgoing wire and oral communications
164	concerning location requests in compliance with chapter 934. The
165	Such records shall be kept for a period of 5 years and, upon
166	written request, shall be available to the excavator making the
167	request, the member operator intended to receive the request,
168	and their agents. However, custody of the records may shall not
169	be transferred from the system except under subpoena.
170	(3)  The system shall provide the person who provided
171	notification with the names of the member operators who shall
172	will be advised of the notification and a notification number
173	that which specifies the date and time of the notification.
174	(4)  The notification number provided to the excavator
175	under this section shall be provided to any law enforcement
176	officer, government code inspector, or code enforcement officer
177	upon request.
178	(5)(4)  All member operators within the defined area of a
179	proposed excavation or demolition shall be promptly notified
180	through the system, except that member operators with state-
181	owned underground facilities located within the right-of-way of
182	a state highway need not be notified of excavation or demolition
183	activities and are under no obligation to mark or locate the
184	such facilities.
185	(a)  When an excavation site cannot be described in
186	information provided under subparagraph (1)(a)3. with sufficient
187	particularity to enable the member operator to ascertain the
188	excavation site, and if the excavator and member operator have
189	not mutually agreed otherwise, the excavator shall premark the
190	proposed area of the excavation before a member operator is
191	required to identify the horizontal route of its underground
192	facilities in the proximity of any excavation. However,
193	premarking is not required for any excavation that is over 500
194	feet in length and is not required where the premarking could
195	reasonably interfere with traffic or pedestrian control.
196	(b)  If a member operator determines that a proposed
197	excavation or demolition is in proximity to or in conflict with
198	an underground facility of the member operator, except a
199	facility beneath the waters of the state, which is governed by
200	paragraph (c), the member operator shall identify the horizontal
201	route by marking to within 24 inches from the outer edge of
202	either side of the underground facility by the use of stakes,
203	paint, flags, or other suitable means within 2 full business
204	days after the time the notification is received under
205	subsection (1). If the member operator is unable to respond
206	within such time, the member operator shall communicate with the
207	person making the request and negotiate a new schedule and time
208	that is agreeable to, and should not unreasonably delay, the
209	excavator.
210	(c)  If a member operator determines that a proposed
211	excavation is in proximity to or in conflict with an underground
212	facility of the member operator beneath the waters of the state,
213	the member operator shall identify the estimated horizontal
214	route of the underground facility, within 10 business days,
215	using marking buoys or other suitable devices, unless directed
216	otherwise by an agency having jurisdiction over the waters of
217	the state under which the member operator's underground facility
218	is located.
219	(d)  When excavation is to take place within a tolerance
220	zone, an excavator shall use increased caution to protect
221	underground facilities. The protection requires hand digging,
222	pot holing, soft digging, vacuum excavation methods, or other
223	similar procedures to identify underground facilities. Any use
224	of mechanized equipment within the tolerance zone must be
225	supervised by the excavator.
226	(6)(a)(5)(a)  An excavator shall avoid excavation in the
227	area described in the notice given under pursuant to subsection
228	(1) until each member operator underground facility has been
229	marked and located or until the excavator has been notified that
230	no member operator has underground facilities in the area
231	described in the notice, or for the time allowed for markings
232	set forth in paragraphs (5)(b) (4)(b) and (c), whichever occurs
233	first. If a member operator has not located and marked its
234	underground facilities within the time allowed for marking set
235	forth in paragraphs (5)(b) (4)(b) and (c), the excavator may
236	proceed with the excavation, if provided the excavator does so
237	with reasonable care, and if provided, further, that detection
238	equipment or other acceptable means to locate underground
239	facilities are used.
240	(b)  An excavator may shall not demolish in the area
241	described in the notice given under pursuant to subsection (1)
242	until all member operator underground facilities have been
243	marked and located, or removed.
244	(7)(a)(6)(a)  A member operator that states that it does
245	not have accurate information concerning the exact location of
246	its underground facilities is exempt from the requirements of
247	paragraphs (5)(b) (4)(b) and (c), but shall provide the best
248	available information to the excavator in order to comply with
249	the requirements of this section. An excavator is not liable for
250	any damage to an underground facility under the exemption in
251	this subsection if the excavation or demolition is performed
252	with reasonable care and detection equipment or other acceptable
253	means to locate underground facilities are used.
254	(b)  A member operator may not exercise the exemption
255	provided by this subsection if the member operator has
256	underground facilities that have not been taken out of service
257	and that are locatable using available designating technologies
258	to locate underground facilities.
259	(8)(a)(7)(a)  If extraordinary circumstances exist, a
260	member operator shall notify the system of the member operator's
261	inability to comply with this section. For the purposes of this
262	section, the term "extraordinary circumstances" means
263	circumstances other than normal operating conditions that which
264	exist and make it impractical for a member operator to comply
265	with the provisions of this act. After the system has received
266	notification of a member operator's inability to comply, the
267	system shall make that information known to excavators who
268	subsequently notify the system of an intent to excavate. The
269	member operator is relieved of responsibility for compliance
270	under the law during the period that the extraordinary
271	circumstances exist and shall promptly notify the system when
272	the extraordinary circumstances cease to exist.
273	(b)  During the period when extraordinary circumstances
274	exist, the system shall remain available during business hours
275	to provide information to governmental agencies, member
276	operators affected by the extraordinary circumstances, and
277	member operators who can provide relief to the affected parties,
278	unless the system itself has been adversely affected by
279	extraordinary circumstances.
280	(9)(a)  After receiving notification from the system, a
281	member operator shall provide a positive response to the system
282	within 2 full business days, or 10 such days for an underwater
283	excavation, indicating the status of operations to protect the
284	facility.
285	(8)(a)  If a member operator determines that the excavation
286	or demolition is not near an existing underground facility of
287	the member operator, the member operator shall notify the
288	excavator within 2 full business days after the time of the
289	notification to the system that no conflict exists and that the
290	excavation or demolition area is clear. An excavator who has
291	knowledge of the existence of an underground facility of a
292	member operator in the area is responsible for contacting the
293	member operator if a facility is not marked.
294	(b)  The system shall establish and maintain a process to
295	facilitate a positive-response communication between member
296	operators and excavators. The system is exempt from any
297	requirement to initiate a positive response to an excavator when
298	an excavator does not provide a valid electronic address to
299	facilitate a positive response by the system.
300	(c)  An excavator shall verify the system's positive
301	responses before beginning excavation. If an excavator knows
302	that an existing underground facility of a member operator is in
303	the area, the excavator must contact the member operator if the
304	facility is not marked and a positive response has not been
305	received by the system. The system shall implement procedures
306	for positive response by January 1, 2004.
307	(10)(9)  A member operator shall use the recommended
308	guidelines for uniform temporary marking of underground
309	facilities as approved by the Utility Location and Coordinating
310	Council "Uniform Color Code for Utilities" of the American
311	Public Works Association when marking the horizontal route of
312	any underground facility of the operator.
313	(11)(10)  Before Prior to or during excavation or
314	demolition, if the marking of the horizontal route of any
315	facility is removed or is no longer visible, the excavator shall
316	stop excavation or demolition activities in the vicinity of the
317	facility and shall notify the system to have the route remarked.
318	(12)(11)  If any contact with or damage to any pipe, cable,
319	or its protective covering, or any other underground facility
320	occurs, the excavator causing the contact or damage shall
321	immediately notify the member operator. Upon receiving notice,
322	the member operator shall send personnel to the location as soon
323	as possible to effect temporary or permanent repair of the
324	contact or damage. Until such time as the contact or damage has
325	been repaired, the excavator shall cease excavation or
326	demolition activities that may cause further damage to such
327	underground facility.
328	Section 6.  Subsection (2) of section 556.106, Florida
329	Statutes, is amended, present subsection (6) is redesignated as
330	subsection (7) and amended, and a new subsection (6) is added to
331	that section, to read:
332	556.106  Liability of the member operator, excavator, and
333	system.--
334	(2)(a)  If a In the event any person violates s. 556.105(1)
335	or (6) (5), and subsequently, whether by himself or herself or
336	through the person's employees, contractors, subcontractors, or
337	agents, performs an excavation or demolition that which damages
338	an underground facility of a member operator, it is shall be
339	rebuttably presumed that the such person was negligent. The Such
340	person, if found liable, is shall be liable for the total sum of
341	the losses to all member operators involved as those costs are
342	normally computed. Any damage for loss of revenue and loss of
343	use may shall not exceed $500,000 per affected underground
344	facility, except that revenues lost by a governmental member
345	operator whose, which revenues are used to support payments on
346	principal and interest on bonds may, shall not be limited. Any
347	liability of the state and its agencies and its subdivisions
348	which arises out of this chapter is shall be subject to the
349	provisions of s. 768.28.
350	(b)  If any excavator fails to discharge a duty imposed by
351	the provisions of this act, the such excavator, if found liable,
352	is shall be liable for the total sum of the losses to all
353	parties involved as those costs are normally computed. Any
354	damage for loss of revenue and loss of use may shall not exceed
355	$500,000 per affected underground facility, except that revenues
356	lost by a governmental member operator whose, which revenues are
357	used to support payments on principal and interest on bonds may,
358	shall not be limited.
359	(c)  Any liability of the state, its agencies, or its
360	subdivisions which arises out of this act is shall be subject to
361	the provisions of s. 768.28.
362	(d)  Obtaining information as to the location of an
363	underground facility from the member operator as required by
364	this act does not excuse any excavator from performing an
365	excavation or demolition in a careful and prudent manner, based
366	on accepted engineering and construction practices, and it nor
367	does not it excuse the such excavator from liability for any
368	damage or injury resulting from any excavation or demolition.
369	(e)  When an excavator knows or should know of the presence
370	of an underground facility of a nonmember small city as defined
371	in s. 120.52, he or she shall make reasonable efforts to contact
372	the small city that owns or operates that facility prior to
373	commencing an excavation or demolition.
374	(6)  The system does not have a duty to mark or locate
375	underground facilities and may not do so, and a right of
376	recovery does not exist against the system for failing to mark
377	or locate underground facilities. The system is not liable for
378	the failure of a member operator to comply with the requirements
379	of this act.
380	(7)(6)  An excavator who performs any excavation with hand
381	tools under pursuant to s. 556.108(5) is liable for any damage
382	to any operator's underground facilities damaged during such
383	excavation.
384	Section 7.  Section 556.107, Florida Statutes, is amended
385	to read:
386	556.107  Violations.--
387	(1)  NONCRIMINAL INFRACTIONS.--
388	(a)  Violations of the following provisions are noncriminal
389	infractions:
390	1.  Section 556.105(1), relating to providing required
391	information.
392	2.  Section 556.105(6) 556.105(5), relating to the
393	avoidance of excavation.
394	3.  Section 556.105(11) 556.105(10), relating to the need
395	to stop excavation or demolition.
396	4.  Section 556.105(12) 556.105(11), relating to the need
397	to cease excavation or demolition activities.
398	5.  Section 556.105(5)(b) 556.105(4)(b) and (c) relating to
399	identification of underground facilities, if a member operator
400	does not mark an underground facility, but not if a member
401	operator marks an underground facility incorrectly.
402	(b)  Any excavator or member operator who commits a
403	noncriminal infraction under paragraph (a) may be issued a
404	citation by any local or state law enforcement officer,
405	government code inspector, or code enforcement officer
406	permitting agency inspector, and the issuer of a citation may
407	require an any excavator to cease work on any excavation or not
408	start a proposed excavation until there has been compliance with
409	the provisions of this act. Citations may be issued to any
410	employee of the excavator or member operator who is directly
411	involved in the noncriminal infraction.
412	(c)  Any excavator or member operator who commits a
413	noncriminal infraction under paragraph (a) may be required to
414	appear before the county court. The civil penalty for any such
415	infraction is $250, plus fees and court costs except as
416	otherwise provided in this section. If a citation is issued by a
417	local law enforcement officer, a local government code
418	inspector, or a code enforcement officer, 80 percent of the
419	civil penalty collected by the clerk of the court shall be
420	distributed to the local governmental entity whose employee
421	issued the citation and 20 percent of the penalty shall be
422	retained by the clerk to cover administrative costs, in addition
423	to other fees or court costs. If a citation is issued by a state
424	law enforcement officer, the civil penalty collected by the
425	clerk shall be retained by the clerk for distribution to the
426	county in which the citation was issued. Any person who fails to
427	appear or otherwise properly respond to a citation issued
428	pursuant to paragraph (d) shall, in addition to the citation, be
429	charged with the offense of failing to respond to such citation
430	and, upon conviction, commits be guilty of a misdemeanor of the
431	second degree, punishable as provided in s. 775.082 or s.
432	775.083. A written warning to this effect shall be provided at
433	the time any citation is issued pursuant to paragraph (b).
434	(d)  Any person cited for an infraction under paragraph
435	(a), unless required to appear before the county court, may:
436	1.  Post a bond, which shall be equal in amount to the
437	applicable civil penalty, plus fees or court costs; or
438	2.  Sign and accept a citation indicating a promise to
439	appear before the county court.
440
441	The person issuing the citation officer may indicate on the
442	citation the time and location of the scheduled hearing and
443	shall indicate the applicable civil penalty.
444	(e)  Any person charged with a noncriminal infraction under
445	paragraph (a), unless required to appear before the county
446	court, may:
447	1.  Pay the civil penalty plus fees and court costs, in
448	lieu of appearance, either by mail or in person, within 10 days
449	after the date of receiving the citation; or
450	2.  Forfeit bond, if a bond has been posted, by not
451	appearing at the designated time and location.
452
453	If the person cited follows either of the above procedures, she
454	or he is shall be deemed to have admitted to committing the
455	infraction and to have waived the right to a hearing on the
456	issue of commission of the infraction. The Such admission may be
457	used as evidence in any other proceeding under this act.
458	(f)  Any person electing to appear before the county court
459	or who is required to appear shall be deemed to have waived the
460	limitations on the civil penalty specified in paragraph (c). The
461	court, after a hearing, shall make a determination as to whether
462	an infraction has been committed. If the commission of an
463	infraction has been proven, the court may impose a civil penalty
464	not to exceed $5,000, plus court costs. In determining the
465	amount of the civil penalty, the court may consider previous
466	noncriminal infractions committed.
467	(g)  At a hearing under this chapter, the commission of a
468	charged infraction must be proven by a preponderance of the
469	evidence.
470	(h)  If a person is found by the hearing official to have
471	committed an infraction, the such person may appeal that finding
472	to the circuit court.
473	(i)  Sunshine State One-Call of Florida, Inc., may, at its
474	own cost, retain an attorney to assist in the presentation of
475	relevant facts and law in the county court proceeding pertaining
476	to the citation issued under this section. The corporation may
477	also appear in any case appealed to the circuit court if a
478	county court finds that an infraction of the chapter was
479	committed. An appellant in the circuit court proceeding shall
480	timely notify the corporation of any appeal under this section.
481	(2)  MISDEMEANORS.--Any person who knowingly and willfully
482	removes or otherwise destroys the valid stakes or other valid
483	physical markings described in s. 556.105(5)(b) s. 556.105(4)(b)
484	and (c) used to mark the horizontal route of an underground
485	facility commits a misdemeanor of the second degree, punishable
486	as provided in s. 775.082 or s. 775.083. For purposes of this
487	subsection, stakes or other nonpermanent physical markings are
488	considered valid for 30 20 calendar days after information is
489	provided to the system under s. 556.105(1)(c).
490	Section 8.  Subsection (4) of section 556.108, Florida
491	Statutes, is amended to read:
492	556.108  Exemptions.--The notification requirements
493	provided in s. 556.105(1) do not apply to:
494	(4)  Any excavation of 18 inches or less for:
495	(a)  Surveying public or private property by surveyors or
496	mappers as defined in chapter 472, excluding marked rights-of-
497	way, marked easements, or permitted uses where marked, if
498	provided mechanized equipment is not used in the process of such
499	surveying and the surveying is performed in accordance with the
500	practice rules established under s. 472.027; or
501	(b)  Maintenance activities performed by a state agency and
502	its employees when such activities are within the right-of-way
503	of a public road; however, provided, if a member operator has
504	permanently marked facilities on such right-of-way, no
505	mechanized equipment may not be used without first providing
506	notification; or
507	(c)  Locating, repairing, connecting, adjusting, or routine
508	maintenance of a private or public utility facility by an
509	excavator, if mechanized equipment is not used.
510	Section 9.  This act shall take effect October 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.