HB 0789

CS

CHAMBER ACTION

1	The Finance & Tax 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 damage prevention and safety for
7	underground facilities; amending s. 556.101, F.S.;
8	providing legislative intent that Sunshine State One-Call
9	of Florida, Inc., is not required or permitted to locate
10	or mark underground facilities; revising purposes of the
11	Underground Facility Damage Prevention and Safety Act;
12	amending s. 556.102, F.S.; correcting a reference;
13	redefining the term "member operator" to remove an
14	exception for a small municipality that elects not to
15	participate in the notification system; amending ss.
16	556.103 and 556.104, F.S.; deleting provisions exempting a
17	small city from membership in the Sunshine State One-Call
18	of Florida, Inc.; amending s. 556.105, F.S.; requiring
19	that specified information be placed in the excavation
20	notification system; providing an exception for underwater
21	excavations; providing that the information is valid for
22	30 calendar days; requiring that a notification number
23	assigned to an excavator be provided to a law enforcement
24	officer, government code inspector, or code enforcement
25	officer upon request; requiring that a member operator
26	respond to the system within a specified time indicating
27	the status of its facility protection operations;
28	requiring the corporation to establish a communication
29	system between member operators and excavators; requiring
30	an excavator to verify the system's positive responses
31	before beginning excavation; requiring operators to use a
32	specified color-code manual; amending s. 556.106, F.S.;
33	providing that the notification system has no duty to and
34	may not mark or locate underground facilities; providing
35	that a person has no right of recovery against the
36	notification system for failing to mark or locate
37	underground facilities; providing that the system is not
38	liable for the failure of a member operator to comply with
39	the requirements of the act; amending s. 556.107, F.S.;
40	correcting cross-references; providing for the
41	distribution of civil penalties; revising procedures for
42	disposition of citations; authorizing the corporation to
43	retain legal counsel to represent the corporation in
44	certain legal proceedings; amending s. 556.108, F.S.;
45	revising provisions that exempt excavation or demolition
46	by the owner of residential property from specified
47	notification requirements to exclude certain property that
48	is subdivided or to be subdivided; providing that certain
49	excavations are exempt from mandatory location
50	notification if mechanized equipment is not used;
51	exempting pest control services under certain
52	circumstances; amending s. 556.111, F.S.; providing that
53	specified applicability provisions do not exempt a local
54	governmental member operator from specified provisions
55	that apply to the member operator; amending s. 337.401,
56	F.S.; correcting a cross-reference; providing an effective
57	date.
58
59	Be It Enacted by the Legislature of the State of Florida:
60
61	Section 1.  Section 556.101, Florida Statutes, is amended
62	to read:
63	556.101  Short title; legislative intent.--
64	(1)  This chapter act may be cited as the "Underground
65	Facility Damage Prevention and Safety Act."
66	(2)  It is the intent of the Legislature to provide access
67	for excavating contractors and the public to provide
68	notification to the system of their intent to engage in
69	excavation or demolition. This notification system shall provide
70	the member operators an opportunity to identify and locate their
71	underground facilities. Under this notification system, Sunshine
72	State One-Call of Florida, Inc., is not required or permitted to
73	locate or mark underground facilities.
74	(3)  It is the purpose of this chapter act to:
75	(a)  Aid the public by preventing injury to persons or
76	property and the interruption of services resulting from damage
77	to an underground facility caused by excavation or demolition
78	operations.
79	(b)  Create a not-for-profit corporation comprised of
80	operators of underground facilities in this state to administer
81	the provisions of this chapter act.
82	(c)  Fund the cost of administration through contributions
83	from the member operators for services provided to the member
84	operators and from charges made to others for services requested
85	and provided, such as record searches, education or training,
86	and damage prevention activities.
87	(d)  Reserve to the state the power to regulate any subject
88	matter specifically addressed in this chapter act.
89	(e)  Permit any local law enforcement officer, local
90	government code inspector, or code enforcement officer or
91	permitting agency inspector to enforce this chapter act without
92	the need to incorporate the provisions of this chapter act into
93	any local code or ordinance.
94	(f)  Foster the awareness of federal laws and regulations
95	that promote safety with respect to underground facilities,
96	including, but not limited to, the Federal Pipeline Safety Act
97	of 1968, as amended, the Pipeline Safety Improvement Act of
98	2002, OSHA Standard 1926.651, and the National Electric Safety
99	Code, ANSI C-2, by requiring and facilitating the advance notice
100	of activities by those who engage in excavation or demolition
101	operations.
102	(4)  It is not the purpose of this chapter act to amend or
103	void any permit issued by a state agency for placement or
104	maintenance of facilities in its right-of-way.
105	Section 2.  Subsection (8) of section 556.102, Florida
106	Statutes, is amended to read:
107	556.102  Definitions.--As used in this act:
108	(8)  "Member operator" means any person who furnishes or
109	transports materials or services by means of an underground
110	facility except a small municipality that has elected not to
111	participate in the one-call notification system in the manner
112	set forth in s. 556.103(1).
113	Section 3.  Subsection (1) of section 556.103, Florida
114	Statutes, is amended to read:
115	556.103  Creation of the corporation; establishment of the
116	board of directors; authority of the board; annual report.--
117	(1)  The "Sunshine State One-Call of Florida, Inc." is
118	hereby created as a not-for-profit corporation. Each operator of
119	an underground facility in this state shall be a member of the
120	corporation and shall use and participate in the system, except
121	that a small city as defined in s. 120.52 may elect by January
122	1, 1998, not to participate in the system until January 1, 2003,
123	through a written notification identifying any reasons for
124	declining membership. The corporation shall be formed by June 1,
125	1993. The corporation shall administer the provisions of this
126	chapter act. The corporation shall exercise its powers through a
127	board of directors established pursuant to this section.
128	Section 4.  Section 556.104, Florida Statutes, is amended
129	to read:
130	556.104  Free-access notification system.--The corporation
131	shall maintain a free-access notification system. Any person who
132	furnishes or transports materials or services by means of an
133	underground facility in this state shall participate as a member
134	operator of the system except that a small city as defined in s.
135	120.52 may elect not to participate in the system in the manner
136	set forth in s. 556.103(1). The purpose of the system is to
137	receive notification of planned excavation or demolition
138	activities and to notify member operators of the such planned
139	excavation or demolition activities. The system shall provide a
140	single toll-free telephone number within this state which
141	excavators can use to notify member operators of planned
142	excavation or demolition activities, and the system may also
143	provide additional modes of access at no cost to the user.
144	Section 5.  Section 556.105, Florida Statutes, is amended
145	to read:
146	556.105  Procedures.--
147	(1)(a)  Not less than 2 nor more than 5 full business days
148	before beginning any excavation or demolition, except an
149	excavation beneath the waters of the state, an excavator shall
150	provide the following information through the system:
151	1.  The name of the individual who provided notification
152	and the name, address, including the street address, city,
153	state, zip code, and telephone number of her or his employer.
154	2.  The name and telephone number of the representative for
155	the excavator, and a valid electronic address to facilitate a
156	positive response by the system should be provided, if
157	available.
158	3.  The county, the city or closest city, and the street
159	address or the closest street, road, or intersection to the
160	location where the excavation or demolition is to be performed,
161	and the construction limits of the excavation or demolition.
162	4.  The commencement date and anticipated duration of the
163	excavation or demolition.
164	5.  Whether machinery will be used for the excavation or
165	demolition.
166	6.  The person or entity for whom the work is to be done.
167	7.  The type of work to be done.
168	8.  The approximate depth of the excavation.
169	(b)  The excavator shall provide the such information by
170	notifying the system through its free-access notification system
171	during business hours, as determined by the corporation, or by
172	such other method as authorized by the corporation. Any
173	notification received by the system at any time other than
174	during business hours shall be considered to be received at the
175	beginning of the next business day.
176	(c)  Information provided by an excavator is shall be
177	considered valid for 30 a period of 20 calendar days after the
178	each date such information is provided to the system. In
179	computing the period for which information furnished is
180	considered valid, the date the notice is provided is shall not
181	be counted, but the last day of the such period shall be counted
182	unless it is a Saturday, Sunday, or a legal holiday, in which
183	event, the period runs shall run until the end of the next day
184	that which is not a Saturday, Sunday, or a legal holiday.
185	(2)  Each notification by means of the system shall be
186	recorded to document compliance with this chapter act. Such
187	record may be made by means of electronic, mechanical, or any
188	other method of all incoming and outgoing wire and oral
189	communications concerning location requests in compliance with
190	chapter 934. The Such records shall be kept for a period of 5
191	years and, upon written request, shall be available to the
192	excavator making the request, the member operator intended to
193	receive the request, and their agents. However, custody of the
194	records may shall not be transferred from the system except
195	under subpoena.
196	(3)  The system shall provide the person who provided
197	notification with the names of the member operators who shall
198	will be advised of the notification and a notification number
199	that which specifies the date and time of the notification.
200	(4)  The notification number provided to the excavator
201	under this section shall be provided to any law enforcement
202	officer, government code inspector, or code enforcement officer
203	upon request.
204	(5)(4)  All member operators within the defined area of a
205	proposed excavation or demolition shall be promptly notified
206	through the system, except that member operators with state-
207	owned underground facilities located within the right-of-way of
208	a state highway need not be notified of excavation or demolition
209	activities and are under no obligation to mark or locate the
210	such facilities.
211	(a)  When an excavation site cannot be described in
212	information provided under subparagraph (1)(a)3. with sufficient
213	particularity to enable the member operator to ascertain the
214	excavation site, and if the excavator and member operator have
215	not mutually agreed otherwise, the excavator shall premark the
216	proposed area of the excavation before a member operator is
217	required to identify the horizontal route of its underground
218	facilities in the proximity of any excavation. However,
219	premarking is not required for any excavation that is over 500
220	feet in length and is not required where the premarking could
221	reasonably interfere with traffic or pedestrian control.
222	(b)  If a member operator determines that a proposed
223	excavation or demolition is in proximity to or in conflict with
224	an underground facility of the member operator, except a
225	facility beneath the waters of the state, which is governed by
226	paragraph (c), the member operator shall identify the horizontal
227	route by marking to within 24 inches from the outer edge of
228	either side of the underground facility by the use of stakes,
229	paint, flags, or other suitable means within 2 full business
230	days after the time the notification is received under
231	subsection (1). If the member operator is unable to respond
232	within such time, the member operator shall communicate with the
233	person making the request and negotiate a new schedule and time
234	that is agreeable to, and should not unreasonably delay, the
235	excavator.
236	(c)  If a member operator determines that a proposed
237	excavation is in proximity to or in conflict with an underground
238	facility of the member operator beneath the waters of the state,
239	the member operator shall identify the estimated horizontal
240	route of the underground facility, within 10 business days,
241	using marking buoys or other suitable devices, unless directed
242	otherwise by an agency having jurisdiction over the waters of
243	the state under which the member operator's underground facility
244	is located.
245	(d)  When excavation is to take place within a tolerance
246	zone, an excavator shall use increased caution to protect
247	underground facilities. The protection requires hand digging,
248	pot holing, soft digging, vacuum excavation methods, or other
249	similar procedures to identify underground facilities. Any use
250	of mechanized equipment within the tolerance zone must be
251	supervised by the excavator.
252	(6)(a)(5)(a)  An excavator shall avoid excavation in the
253	area described in the notice given under pursuant to subsection
254	(1) until each member operator underground facility has been
255	marked and located or until the excavator has been notified that
256	no member operator has underground facilities in the area
257	described in the notice, or for the time allowed for markings
258	set forth in paragraphs (5)(b) (4)(b) and (c), whichever occurs
259	first. If a member operator has not located and marked its
260	underground facilities within the time allowed for marking set
261	forth in paragraphs (5)(b) (4)(b) and (c), the excavator may
262	proceed with the excavation, if provided the excavator does so
263	with reasonable care, and if provided, further, that detection
264	equipment or other acceptable means to locate underground
265	facilities are used.
266	(b)  An excavator may shall not demolish in the area
267	described in the notice given under pursuant to subsection (1)
268	until all member operator underground facilities have been
269	marked and located, or removed.
270	(7)(a)(6)(a)  A member operator that states that it does
271	not have accurate information concerning the exact location of
272	its underground facilities is exempt from the requirements of
273	paragraphs (5)(b) (4)(b) and (c), but shall provide the best
274	available information to the excavator in order to comply with
275	the requirements of this section. An excavator is not liable for
276	any damage to an underground facility under the exemption in
277	this subsection if the excavation or demolition is performed
278	with reasonable care and detection equipment or other acceptable
279	means to locate underground facilities are used.
280	(b)  A member operator may not exercise the exemption
281	provided by this subsection if the member operator has
282	underground facilities that have not been taken out of service
283	and that are locatable using available designating technologies
284	to locate underground facilities.
285	(8)(a)(7)(a)  If extraordinary circumstances exist, a
286	member operator shall notify the system of the member operator's
287	inability to comply with this section. For the purposes of this
288	section, the term "extraordinary circumstances" means
289	circumstances other than normal operating conditions that which
290	exist and make it impractical for a member operator to comply
291	with the provisions of this chapter act. After the system has
292	received notification of a member operator's inability to
293	comply, the system shall make that information known to
294	excavators who subsequently notify the system of an intent to
295	excavate. The member operator is relieved of responsibility for
296	compliance under the law during the period that the
297	extraordinary circumstances exist and shall promptly notify the
298	system when the extraordinary circumstances cease to exist.
299	(b)  During the period when extraordinary circumstances
300	exist, the system shall remain available during business hours
301	to provide information to governmental agencies, member
302	operators affected by the extraordinary circumstances, and
303	member operators who can provide relief to the affected parties,
304	unless the system itself has been adversely affected by
305	extraordinary circumstances.
306	(9)(a)  After receiving notification from the system, a
307	member operator shall provide a positive response to the system
308	within 2 full business days, or 10 such days for an underwater
309	excavation, indicating the status of operations to protect the
310	facility.
311	(8)(a)  If a member operator determines that the excavation
312	or demolition is not near an existing underground facility of
313	the member operator, the member operator shall notify the
314	excavator within 2 full business days after the time of the
315	notification to the system that no conflict exists and that the
316	excavation or demolition area is clear. An excavator who has
317	knowledge of the existence of an underground facility of a
318	member operator in the area is responsible for contacting the
319	member operator if a facility is not marked.
320	(b)  The system shall establish and maintain a process to
321	facilitate a positive-response communication between member
322	operators and excavators. The system is exempt from any
323	requirement to initiate a positive response to an excavator when
324	an excavator does not provide a valid electronic address to
325	facilitate a positive response by the system.
326	(c)  An excavator shall verify the system's positive
327	responses before beginning excavation. If an excavator knows
328	that an existing underground facility of a member operator is in
329	the area, the excavator must contact the member operator if the
330	facility is not marked and a positive response has not been
331	received by the system. The system shall implement procedures
332	for positive response by January 1, 2004.
333	(10)(9)  A member operator shall use the "Uniform Color
334	Code for Utilities" recommended guidelines for uniform temporary
335	marking of underground facilities as approved by the Utility
336	Location and Coordinating Council of the American Public Works
337	Association when marking the horizontal route of any underground
338	facility of the operator.
339	(11)(10)  Before Prior to or during excavation or
340	demolition, if the marking of the horizontal route of any
341	facility is removed or is no longer visible, the excavator shall
342	stop excavation or demolition activities in the vicinity of the
343	facility and shall notify the system to have the route remarked.
344	(12)(11)  If any contact with or damage to any pipe, cable,
345	or its protective covering, or any other underground facility
346	occurs, the excavator causing the contact or damage shall
347	immediately notify the member operator. Upon receiving notice,
348	the member operator shall send personnel to the location as soon
349	as possible to effect temporary or permanent repair of the
350	contact or damage. Until such time as the contact or damage has
351	been repaired, the excavator shall cease excavation or
352	demolition activities that may cause further damage to such
353	underground facility.
354	Section 6.  Subsection (2) of section 556.106, Florida
355	Statutes, is amended, present subsection (6) is redesignated as
356	subsection (7) and amended, and a new subsection (6) is added to
357	that section, to read:
358	556.106  Liability of the member operator, excavator, and
359	system.--
360	(2)(a)  If a In the event any person violates s. 556.105(1)
361	or (6)(5), and subsequently, whether by himself or herself or
362	through the person's employees, contractors, subcontractors, or
363	agents, performs an excavation or demolition that which damages
364	an underground facility of a member operator, it is shall be
365	rebuttably presumed that the such person was negligent. The Such
366	person, if found liable, is shall be liable for the total sum of
367	the losses to all member operators involved as those costs are
368	normally computed. Any damage for loss of revenue and loss of
369	use may shall not exceed $500,000 per affected underground
370	facility, except that revenues lost by a governmental member
371	operator whose, which revenues are used to support payments on
372	principal and interest on bonds may, shall not be limited. Any
373	liability of the state and its agencies and its subdivisions
374	which arises out of this chapter is shall be subject to the
375	provisions of s. 768.28.
376	(b)  If any excavator fails to discharge a duty imposed by
377	the provisions of this chapter act, the such excavator, if found
378	liable, is shall be liable for the total sum of the losses to
379	all parties involved as those costs are normally computed. Any
380	damage for loss of revenue and loss of use may shall not exceed
381	$500,000 per affected underground facility, except that revenues
382	lost by a governmental member operator whose, which revenues are
383	used to support payments on principal and interest on bonds may,
384	shall not be limited.
385	(c)  Any liability of the state, its agencies, or its
386	subdivisions which arises out of this chapter is act shall be
387	subject to the provisions of s. 768.28.
388	(d)  Obtaining information as to the location of an
389	underground facility from the member operator as required by
390	this chapter act does not excuse any excavator from performing
391	an excavation or demolition in a careful and prudent manner,
392	based on accepted engineering and construction practices, and it
393	nor does not it excuse the such excavator from liability for any
394	damage or injury resulting from any excavation or demolition.
395	(e)  When an excavator knows or should know of the presence
396	of an underground facility of a nonmember small city as defined
397	in s. 120.52, he or she shall make reasonable efforts to contact
398	the small city that owns or operates that facility prior to
399	commencing an excavation or demolition.
400	(6)  The system does not have a duty to mark or locate
401	underground facilities and may not do so, and a right of
402	recovery does not exist against the system for failing to mark
403	or locate underground facilities. The system is not liable for
404	the failure of a member operator to comply with the requirements
405	of this chapter.
406	(7)(6)  An excavator who performs any excavation with hand
407	tools under pursuant to s. 556.108(4)(c) or (5) is liable for
408	any damage to any operator's underground facilities damaged
409	during such excavation.
410	Section 7.  Section 556.107, Florida Statutes, is amended
411	to read:
412	556.107  Violations.--
413	(1)  NONCRIMINAL INFRACTIONS.--
414	(a)  Violations of the following provisions are noncriminal
415	infractions:
416	1.  Section 556.105(1), relating to providing required
417	information.
418	2.  Section 556.105(6) 556.105(5), relating to the
419	avoidance of excavation.
420	3.  Section 556.105(11) 556.105(10), relating to the need
421	to stop excavation or demolition.
422	4.  Section 556.105(12) 556.105(11), relating to the need
423	to cease excavation or demolition activities.
424	5.  Section 556.105(5)(b) 556.105(4)(b) and (c) relating to
425	identification of underground facilities, if a member operator
426	does not mark an underground facility, but not if a member
427	operator marks an underground facility incorrectly.
428	(b)  Any excavator or member operator who commits a
429	noncriminal infraction under paragraph (a) may be issued a
430	citation by any local or state law enforcement officer,
431	government code inspector, or code enforcement officer
432	permitting agency inspector, and the issuer of a citation may
433	require an any excavator to cease work on any excavation or not
434	start a proposed excavation until there has been compliance with
435	the provisions of this chapter act. Citations shall may be hand-
436	delivered issued to any employee of the excavator or member
437	operator who is directly involved in the noncriminal infraction.
438	The citation shall be issued in the name of the excavator or
439	member operator, whichever is applicable.
440	(c)  Any excavator or member operator who commits a
441	noncriminal infraction under paragraph (a) may be required to
442	appear before the county court. The civil penalty for any such
443	infraction is $250 plus court costs, except as otherwise
444	provided in this section. If a citation is issued by a local law
445	enforcement officer, a local government code inspector, or a
446	code enforcement officer, 80 percent of the civil penalty
447	collected by the clerk of the court shall be distributed to the
448	local governmental entity whose employee issued the citation and
449	20 percent of the penalty shall be retained by the clerk to
450	cover administrative costs, in addition to other court costs. If
451	a citation is issued by a state law enforcement officer, the
452	civil penalty collected by the clerk shall be retained by the
453	clerk for deposit into the fine and forfeiture fund established
454	pursuant to s. 142.01. Any person who fails to appear or
455	otherwise properly respond to a citation issued pursuant to
456	paragraph (d) shall, in addition to the citation, be charged
457	with the offense of failing to respond to such citation and,
458	upon conviction, commits be guilty of a misdemeanor of the
459	second degree, punishable as provided in s. 775.082 or s.
460	775.083. A written warning to this effect shall be provided at
461	the time any citation is issued pursuant to paragraph (b).
462	(d)  Any person cited for an infraction under paragraph
463	(a), unless required to appear before the county court, may:
464	1.  Post a bond, which shall be equal in amount to the
465	applicable civil penalty plus court costs; or
466	2.  Sign and accept a citation indicating a promise to
467	appear before the county court.
468
469	The person issuing the citation officer may indicate on the
470	citation the time and location of the scheduled hearing and
471	shall indicate the applicable civil penalty.
472	(e)  Any person charged with a noncriminal infraction under
473	paragraph (a), unless required to appear before the county
474	court, may:
475	1.  Pay the civil penalty plus court costs, in lieu of
476	appearance, either by mail or in person, within 30 10 days after
477	the date of receiving the citation; or
478	2.  Forfeit bond, if a bond has been posted, by not
479	appearing at the designated time and location.
480
481	If the person cited follows either of the above procedures, she
482	or he is shall be deemed to have admitted to committing the
483	infraction and to have waived the right to a hearing on the
484	issue of commission of the infraction. The Such admission may be
485	used as evidence in any other proceeding under this chapter act.
486	(f)  Any person electing to appear before the county court
487	or who is required to appear shall be deemed to have waived the
488	limitations on the civil penalty specified in paragraph (c). The
489	court, after a hearing, shall make a determination as to whether
490	an infraction has been committed. If the commission of an
491	infraction has been proven, the court may impose a civil penalty
492	not to exceed $5,000 plus court costs. In determining the amount
493	of the civil penalty, the court may consider previous
494	noncriminal infractions committed.
495	(g)  At a hearing under this chapter, the commission of a
496	charged infraction must be proven by a preponderance of the
497	evidence.
498	(h)  If a person is found by the hearing official to have
499	committed an infraction, the such person may appeal that finding
500	to the circuit court.
501	(i)  Sunshine State One-Call of Florida, Inc., may, at its
502	own cost, retain an attorney to assist in the presentation of
503	relevant facts and law in the county court proceeding pertaining
504	to the citation issued under this section. The corporation may
505	also appear in any case appealed to the circuit court if a
506	county court finds that an infraction of the chapter was
507	committed. An appellant in the circuit court proceeding shall
508	timely notify the corporation of any appeal under this section.
509	(2)  MISDEMEANORS.--Any person who knowingly and willfully
510	removes or otherwise destroys the valid stakes or other valid
511	physical markings described in s. 556.105(5)(b) s. 556.105(4)(b)
512	and (c) used to mark the horizontal route of an underground
513	facility commits a misdemeanor of the second degree, punishable
514	as provided in s. 775.082 or s. 775.083. For purposes of this
515	subsection, stakes or other nonpermanent physical markings are
516	considered valid for 30 20 calendar days after information is
517	provided to the system under s. 556.105(1)(c).
518	Section 8.  Subsections (1), (4), and (5) of section
519	556.108, Florida Statutes, are amended to read:
520	556.108  Exemptions.--The notification requirements
521	provided in s. 556.105(1) do not apply to:
522	(1)  Any excavation or demolition performed by the owner of
523	a single-family residential property, not including property
524	that is subdivided or is to be subdivided into more than one
525	single-family residential property; or for such owner by a
526	member operator or an agent of a member operator when such
527	excavation or demolition is made entirely on such land, and only
528	up to a depth of 10 inches; provided due care is used and there
529	is no encroachment on any member operator's right-of-way,
530	easement, or permitted use.
531	(4)  Any excavation of 18 inches or less for:
532	(a)  Surveying public or private property by surveyors or
533	mappers as defined in chapter 472 and services performed by a
534	pest control licensee under chapter 482, excluding marked
535	rights-of-way, marked easements, or permitted uses where marked,
536	if provided mechanized equipment is not used in the process of
537	such surveying or pest control services and the surveying or
538	pest control services are is performed in accordance with the
539	practice rules established under s. 472.027 or s. 482.051,
540	respectively; or
541	(b)  Maintenance activities performed by a state agency and
542	its employees when such activities are within the right-of-way
543	of a public road; however, provided, if a member operator has
544	permanently marked facilities on such right-of-way, no
545	mechanized equipment may not be used without first providing
546	notification; or
547	(c)  Locating, repairing, connecting, adjusting, or routine
548	maintenance of a private or public underground utility facility
549	by an excavator, if the excavator is performing such work for
550	the current owner or future owner of the underground facility
551	and if mechanized equipment is not used.
552	(5)(a)  Any excavation with hand tools by a member operator
553	or an agent of a member operator for:
554	1.(a)  Locating, repairing, connecting, or protecting, or
555	routine maintenance of, the member operator's underground
556	facilities; or
557	2.(b)  The extension of a member operator's underground
558	facilities onto the property of a person to be served by such
559	facilities.
560	(b)(c)  The exemption provided in this subsection
561	paragraphs (a) and (b) is limited to excavations to a depth of
562	30 inches if the right-of-way has permanently marked facilities
563	of a company other than the member operator or its agents
564	performing the excavation.
565	Section 9.  Subsection (3) of section 556.111, Florida
566	Statutes, is amended to read:
567	556.111  Applicability to existing law.--Nothing in this
568	act shall be construed to:
569	(3)  Preempt a governmental member operator from reasonable
570	regulation of its right-of-way. This subsection does not exempt
571	a municipality, county, district, or other local governmental
572	member operator from the provisions of this chapter that apply
573	to the member operator.
574	Section 10.  Paragraph (c) of subsection (3) of section
575	337.401, Florida Statutes, is amended to read:
576	337.401  Use of right-of-way for utilities subject to
577	regulation; permit; fees.--
578	(3)
579	(c)1.  It is the intention of the state to treat all
580	providers of communications services that use or occupy
581	municipal or charter county roads or rights-of-way for the
582	provision of communications services in a nondiscriminatory and
583	competitively neutral manner with respect to the payment of
584	permit fees. Certain providers of communications services have
585	been granted by general law the authority to offset permit fees
586	against franchise or other fees while other providers of
587	communications services have not been granted this authority. In
588	order to treat all providers of communications services in a
589	nondiscriminatory and competitively neutral manner with respect
590	to the payment of permit fees, each municipality and charter
591	county shall make an election under either sub-subparagraph a.
592	or sub-subparagraph b. and must inform the Department of Revenue
593	of the election by certified mail by July 16, 2001. Such
594	election shall take effect October 1, 2001.
595	a.(I)  The municipality or charter county may require and
596	collect permit fees from any providers of communications
597	services that use or occupy municipal or county roads or rights-
598	of-way. All fees permitted under this sub-subparagraph must be
599	reasonable and commensurate with the direct and actual cost of
600	the regulatory activity, including issuing and processing
601	permits, plan reviews, physical inspection, and direct
602	administrative costs; must be demonstrable; and must be
603	equitable among users of the roads or rights-of-way. A fee
604	permitted under this sub-subparagraph may not: be offset against
605	the tax imposed under chapter 202; include the costs of roads or
606	rights-of-way acquisition or roads or rights-of-way rental;
607	include any general administrative, management, or maintenance
608	costs of the roads or rights-of-way; or be based on a percentage
609	of the value or costs associated with the work to be performed
610	on the roads or rights-of-way. In an action to recover amounts
611	due for a fee not permitted under this sub-subparagraph, the
612	prevailing party may recover court costs and attorney's fees at
613	trial and on appeal. In addition to the limitations set forth in
614	this section, a fee levied by a municipality or charter county
615	under this sub-subparagraph may not exceed $100. However, permit
616	fees may not be imposed with respect to permits that may be
617	required for service drop lines not required to be noticed under
618	s. 556.108(5)(a)2.(b) or for any activity that does not require
619	the physical disturbance of the roads or rights-of-way or does
620	not impair access to or full use of the roads or rights-of-way.
621	(II)  To ensure competitive neutrality among providers of
622	communications services, for any municipality or charter county
623	that elects to exercise its authority to require and collect
624	permit fees under this sub-subparagraph, the rate of the local
625	communications services tax imposed by such jurisdiction, as
626	computed under s. 202.20, shall automatically be reduced by a
627	rate of 0.12 percent.
628	b.  Alternatively, the municipality or charter county may
629	elect not to require and collect permit fees from any provider
630	of communications services that uses or occupies municipal or
631	charter county roads or rights-of-way for the provision of
632	communications services; however, each municipality or charter
633	county that elects to operate under this sub-subparagraph
634	retains all authority to establish rules and regulations for
635	providers of communications services to use or occupy roads or
636	rights-of-way as provided in this section. If a municipality or
637	charter county elects to operate under this sub-subparagraph,
638	the total rate for the local communications services tax as
639	computed under s. 202.20 for that municipality or charter county
640	may be increased by ordinance or resolution by an amount not to
641	exceed a rate of 0.12 percent. If a municipality or charter
642	county elects to increase its rate effective October 1, 2001,
643	the municipality or charter county shall inform the department
644	of such increased rate by certified mail postmarked on or before
645	July 16, 2001.
646	c.  A municipality or charter county that does not make an
647	election as provided for in this subparagraph shall be presumed
648	to have elected to operate under the provisions of sub-
649	subparagraph b.
650	2.  Each noncharter county shall make an election under
651	either sub-subparagraph a. or sub-subparagraph b. and shall
652	inform the Department of Revenue of the election by certified
653	mail by July 16, 2001. Such election shall take effect October
654	1, 2001.
655	a.  The noncharter county may elect to require and collect
656	permit fees from any providers of communications services that
657	use or occupy noncharter county roads or rights-of-way. All fees
658	permitted under this sub-subparagraph must be reasonable and
659	commensurate with the direct and actual cost of the regulatory
660	activity, including issuing and processing permits, plan
661	reviews, physical inspection, and direct administrative costs;
662	must be demonstrable; and must be equitable among users of the
663	roads or rights-of-way. A fee permitted under this sub-
664	subparagraph may not: be offset against the tax imposed under
665	chapter 202; include the costs of roads or rights-of-way
666	acquisition or roads or rights-of-way rental; include any
667	general administrative, management, or maintenance costs of the
668	roads or rights-of-way; or be based on a percentage of the value
669	or costs associated with the work to be performed on the roads
670	or rights-of-way. In an action to recover amounts due for a fee
671	not permitted under this sub-subparagraph, the prevailing party
672	may recover court costs and attorney's fees at trial and on
673	appeal. In addition to the limitations set forth in this
674	section, a fee levied by a noncharter county under this sub-
675	subparagraph may not exceed $100. However, permit fees may not
676	be imposed with respect to permits that may be required for
677	service drop lines not required to be noticed under s.
678	556.108(5)(a)2.(b) or for any activity that does not require the
679	physical disturbance of the roads or rights-of-way or does not
680	impair access to or full use of the roads or rights-of-way.
681	b.  Alternatively, the noncharter county may elect not to
682	require and collect permit fees from any provider of
683	communications services that uses or occupies noncharter county
684	roads or rights-of-way for the provision of communications
685	services; however, each noncharter county that elects to operate
686	under this sub-subparagraph shall retain all authority to
687	establish rules and regulations for providers of communications
688	services to use or occupy roads or rights-of-way as provided in
689	this section. If a noncharter county elects to operate under
690	this sub-subparagraph, the total rate for the local
691	communications services tax as computed under s. 202.20 for that
692	noncharter county may be increased by ordinance or resolution by
693	an amount not to exceed a rate of 0.24 percent, to replace the
694	revenue the noncharter county would otherwise have received from
695	permit fees for providers of communications services. If a
696	noncharter county elects to increase its rate effective October
697	1, 2001, the noncharter county shall inform the department of
698	such increased rate by certified mail postmarked on or before
699	July 16, 2001.
700	c.  A noncharter county that does not make an election as
701	provided for in this subparagraph shall be presumed to have
702	elected to operate under the provisions of sub-subparagraph b.
703	3.  Except as provided in this paragraph, municipalities
704	and counties retain all existing authority to require and
705	collect permit fees from users or occupants of municipal or
706	county roads or rights-of-way and to set appropriate permit fee
707	amounts.
708	Section 11.  This act shall take effect October 1, 2006.

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