HB 789

1
A bill to be entitled
2An act relating to damage prevention and safety for
3underground facilities; amending s. 556.101, F.S.;
4providing legislative intent that Sunshine State One-Call
5of Florida, Inc., is not required or permitted to locate
6or mark underground facilities; revising purposes of the
7Underground Facility Damage Prevention and Safety Act;
8amending s. 556.102, F.S.; correcting a reference;
9redefining the term "member operator" to remove an
10exception for a small municipality that elects not to
11participate in the notification system; amending ss.
12556.103 and 556.104, F.S.; deleting provisions exempting a
13small city from membership in the Sunshine State One-Call
14of Florida, Inc.; amending s. 556.105, F.S.; requiring
15that specified information be placed in the excavation
16notification system; providing an exception for underwater
17excavations; providing that the information is valid for
1830 calendar days; providing for a study of the feasibility
19of zones where no notification is required; requiring a
20report to the Legislature; requiring a notification number
21assigned to an excavator to be provided to a law
22enforcement officer, government code inspector, or code
23enforcement officer upon request; requiring that a member
24operator respond to the system within a specified time
25indicating the status of its facility protection
26operations; requiring the corporation to establish a
27communication system between member operators and
28excavators; requiring an excavator to verify the system's
29positive responses before beginning excavation; requiring
30operators to use a specified color-code manual; amending
31s. 556.106, F.S.; providing that the notification system
32has no duty to and may not mark or locate underground
33facilities; providing that a person has no right of
34recovery against the notification system for failing to
35mark or locate underground facilities; providing that the
36system is not liable for the failure of a member operator
37to comply with the requirements of the act; amending s.
38556.107, F.S.; correcting cross-references; providing for
39the distribution of civil penalties; revising procedures
40for disposition of citations; authorizing the corporation
41to retain legal counsel to represent the corporation in
42certain legal proceedings; amending s. 556.108, F.S.;
43revising provisions that exempt excavation or demolition
44by the owner of residential property from specified
45notification requirements to exclude certain property that
46is subdivided or to be subdivided; providing that certain
47excavations are exempt from mandatory location
48notification if mechanized equipment is not used;
49exempting pest control services under certain
50circumstances; amending s. 556.111, F.S.; providing that
51specified applicability provisions do not exempt a local
52governmental member operator from specified provisions
53that apply to the member operator; amending s. 337.401,
54F.S.; correcting a cross-reference; providing an effective
55date.
56
57Be It Enacted by the Legislature of the State of Florida:
58
59     Section 1.  Section 556.101, Florida Statutes, is amended
60to read:
61     556.101  Short title; legislative intent.--
62     (1)  This chapter act may be cited as the "Underground
63Facility Damage Prevention and Safety Act."
64     (2)  It is the intent of the Legislature to provide access
65for excavating contractors and the public to provide
66notification to the system of their intent to engage in
67excavation or demolition. This notification system shall provide
68the member operators an opportunity to identify and locate their
69underground facilities. Under this notification system, Sunshine
70State One-Call of Florida, Inc., is not required or permitted to
71locate or mark underground facilities.
72     (3)  It is the purpose of this chapter act to:
73     (a)  Aid the public by preventing injury to persons or
74property and the interruption of services resulting from damage
75to an underground facility caused by excavation or demolition
76operations.
77     (b)  Create a not-for-profit corporation comprised of
78operators of underground facilities in this state to administer
79the provisions of this chapter act.
80     (c)  Fund the cost of administration through contributions
81from the member operators for services provided to the member
82operators and from charges made to others for services requested
83and provided, such as record searches, education or training,
84and damage prevention activities.
85     (d)  Reserve to the state the power to regulate any subject
86matter specifically addressed in this chapter act.
87     (e)  Permit any local law enforcement officer, local
88government code inspector, or code enforcement officer or
89permitting agency inspector to enforce this chapter act without
90the need to incorporate the provisions of this chapter act into
91any local code or ordinance.
92     (f)  Foster the awareness of federal laws and regulations
93that promote safety with respect to underground facilities,
94including, but not limited to, the Federal Pipeline Safety Act
95of 1968, as amended, the Pipeline Safety Improvement Act of
962002, OSHA Standard 1926.651, and the National Electric Safety
97Code, ANSI C-2, by requiring and facilitating the advance notice
98of activities by those who engage in excavation or demolition
99operations.
100     (4)  It is not the purpose of this chapter act to amend or
101void any permit issued by a state agency for placement or
102maintenance of facilities in its right-of-way.
103     Section 2.  Subsection (8) of section 556.102, Florida
104Statutes, is amended to read:
105     556.102  Definitions.--As used in this act:
106     (8)  "Member operator" means any person who furnishes or
107transports materials or services by means of an underground
108facility except a small municipality that has elected not to
109participate in the one-call notification system in the manner
110set forth in s. 556.103(1).
111     Section 3.  Subsection (1) of section 556.103, Florida
112Statutes, is amended to read:
113     556.103  Creation of the corporation; establishment of the
114board of directors; authority of the board; annual report.--
115     (1)  The "Sunshine State One-Call of Florida, Inc." is
116hereby created as a not-for-profit corporation. Each operator of
117an underground facility in this state shall be a member of the
118corporation and shall use and participate in the system, except
119that a small city as defined in s. 120.52 may elect by January
1201, 1998, not to participate in the system until January 1, 2003,
121through a written notification identifying any reasons for
122declining membership. The corporation shall be formed by June 1,
1231993. The corporation shall administer the provisions of this
124chapter act. The corporation shall exercise its powers through a
125board of directors established pursuant to this section.
126     Section 4.  Section 556.104, Florida Statutes, is amended
127to read:
128     556.104  Free-access notification system.--The corporation
129shall maintain a free-access notification system. Any person who
130furnishes or transports materials or services by means of an
131underground facility in this state shall participate as a member
132operator of the system except that a small city as defined in s.
133120.52 may elect not to participate in the system in the manner
134set forth in s. 556.103(1). The purpose of the system is to
135receive notification of planned excavation or demolition
136activities and to notify member operators of the such planned
137excavation or demolition activities. The system shall provide a
138single toll-free telephone number within this state which
139excavators can use to notify member operators of planned
140excavation or demolition activities, and the system may also
141provide additional modes of access at no cost to the user.
142     Section 5.  Section 556.105, Florida Statutes, is amended
143to read:
144     556.105  Procedures.--
145     (1)(a)  Not less than 2 nor more than 5 full business days
146before beginning any excavation or demolition, except an
147excavation beneath the waters of the state, an excavator shall
148provide the following information through the system:
149     1.  The name of the individual who provided notification
150and the name, address, including the street address, city,
151state, zip code, and telephone number of her or his employer.
152     2.  The name and telephone number of the representative for
153the excavator, and a valid electronic address to facilitate a
154positive response by the system should be provided, if
155available.
156     3.  The county, the city or closest city, and the street
157address or the closest street, road, or intersection to the
158location where the excavation or demolition is to be performed,
159and the construction limits of the excavation or demolition.
160     4.  The commencement date and anticipated duration of the
161excavation or demolition.
162     5.  Whether machinery will be used for the excavation or
163demolition.
164     6.  The person or entity for whom the work is to be done.
165     7.  The type of work to be done.
166     8.  The approximate depth of the excavation.
167     (b)  The excavator shall provide the such information by
168notifying the system through its free-access notification system
169during business hours, as determined by the corporation, or by
170such other method as authorized by the corporation. Any
171notification received by the system at any time other than
172during business hours shall be considered to be received at the
173beginning of the next business day.
174     (c)  Information provided by an excavator is shall be
175considered valid for 30 a period of 20 calendar days after the
176each date such information is provided to the system. In
177computing the period for which information furnished is
178considered valid, the date the notice is provided is shall not
179be counted, but the last day of the such period shall be counted
180unless it is a Saturday, Sunday, or a legal holiday, in which
181event, the period runs shall run until the end of the next day
182that which is not a Saturday, Sunday, or a legal holiday.
183     (d)1.  The system shall study the feasibility of the
184establishment or recognition of zones for the purpose of
185allowing excavation within such zones to be undertaken without
186notice to the system as now required by this chapter when such
187zones are:
188     a.  In areas within which no underground facilities are
189located.
190     b.  Where permanent markings, permit and mapping systems,
191and structural protection for underwater crossings are required
192or in place.
193     c.  For previously marked utilities on construction of one
194or two family dwellings where the contractor remains in custody
195and control of the building site for the duration of the
196building permit.
197     2.  The system shall report the results of the study to the
198Legislature on or before February 1, 2007, along with
199recommendations for further legislative action.
200     (2)  Each notification by means of the system shall be
201recorded to document compliance with this chapter act. Such
202record may be made by means of electronic, mechanical, or any
203other method of all incoming and outgoing wire and oral
204communications concerning location requests in compliance with
205chapter 934. The Such records shall be kept for a period of 5
206years and, upon written request, shall be available to the
207excavator making the request, the member operator intended to
208receive the request, and their agents. However, custody of the
209records may shall not be transferred from the system except
210under subpoena.
211     (3)  The system shall provide the person who provided
212notification with the names of the member operators who shall
213will be advised of the notification and a notification number
214that which specifies the date and time of the notification.
215     (4)  The notification number provided to the excavator
216under this section shall be provided to any law enforcement
217officer, government code inspector, or code enforcement officer
218upon request.
219     (5)(4)  All member operators within the defined area of a
220proposed excavation or demolition shall be promptly notified
221through the system, except that member operators with state-
222owned underground facilities located within the right-of-way of
223a state highway need not be notified of excavation or demolition
224activities and are under no obligation to mark or locate the
225such facilities.
226     (a)  When an excavation site cannot be described in
227information provided under subparagraph (1)(a)3. with sufficient
228particularity to enable the member operator to ascertain the
229excavation site, and if the excavator and member operator have
230not mutually agreed otherwise, the excavator shall premark the
231proposed area of the excavation before a member operator is
232required to identify the horizontal route of its underground
233facilities in the proximity of any excavation. However,
234premarking is not required for any excavation that is over 500
235feet in length and is not required where the premarking could
236reasonably interfere with traffic or pedestrian control.
237     (b)  If a member operator determines that a proposed
238excavation or demolition is in proximity to or in conflict with
239an underground facility of the member operator, except a
240facility beneath the waters of the state, which is governed by
241paragraph (c), the member operator shall identify the horizontal
242route by marking to within 24 inches from the outer edge of
243either side of the underground facility by the use of stakes,
244paint, flags, or other suitable means within 2 full business
245days after the time the notification is received under
246subsection (1). If the member operator is unable to respond
247within such time, the member operator shall communicate with the
248person making the request and negotiate a new schedule and time
249that is agreeable to, and should not unreasonably delay, the
250excavator.
251     (c)  If a member operator determines that a proposed
252excavation is in proximity to or in conflict with an underground
253facility of the member operator beneath the waters of the state,
254the member operator shall identify the estimated horizontal
255route of the underground facility, within 10 business days,
256using marking buoys or other suitable devices, unless directed
257otherwise by an agency having jurisdiction over the waters of
258the state under which the member operator's underground facility
259is located.
260     (d)  When excavation is to take place within a tolerance
261zone, an excavator shall use increased caution to protect
262underground facilities. The protection requires hand digging,
263pot holing, soft digging, vacuum excavation methods, or other
264similar procedures to identify underground facilities. Any use
265of mechanized equipment within the tolerance zone must be
266supervised by the excavator.
267     (6)(a)(5)(a)  An excavator shall avoid excavation in the
268area described in the notice given under pursuant to subsection
269(1) until each member operator underground facility has been
270marked and located or until the excavator has been notified that
271no member operator has underground facilities in the area
272described in the notice, or for the time allowed for markings
273set forth in paragraphs (5)(b) (4)(b) and (c), whichever occurs
274first. If a member operator has not located and marked its
275underground facilities within the time allowed for marking set
276forth in paragraphs (5)(b) (4)(b) and (c), the excavator may
277proceed with the excavation, if provided the excavator does so
278with reasonable care, and if provided, further, that detection
279equipment or other acceptable means to locate underground
280facilities are used.
281     (b)  An excavator may shall not demolish in the area
282described in the notice given under pursuant to subsection (1)
283until all member operator underground facilities have been
284marked and located, or removed.
285     (7)(a)(6)(a)  A member operator that states that it does
286not have accurate information concerning the exact location of
287its underground facilities is exempt from the requirements of
288paragraphs (5)(b) (4)(b) and (c), but shall provide the best
289available information to the excavator in order to comply with
290the requirements of this section. An excavator is not liable for
291any damage to an underground facility under the exemption in
292this subsection if the excavation or demolition is performed
293with reasonable care and detection equipment or other acceptable
294means to locate underground facilities are used.
295     (b)  A member operator may not exercise the exemption
296provided by this subsection if the member operator has
297underground facilities that have not been taken out of service
298and that are locatable using available designating technologies
299to locate underground facilities.
300     (8)(a)(7)(a)  If extraordinary circumstances exist, a
301member operator shall notify the system of the member operator's
302inability to comply with this section. For the purposes of this
303section, the term "extraordinary circumstances" means
304circumstances other than normal operating conditions that which
305exist and make it impractical for a member operator to comply
306with the provisions of this chapter act. After the system has
307received notification of a member operator's inability to
308comply, the system shall make that information known to
309excavators who subsequently notify the system of an intent to
310excavate. The member operator is relieved of responsibility for
311compliance under the law during the period that the
312extraordinary circumstances exist and shall promptly notify the
313system when the extraordinary circumstances cease to exist.
314     (b)  During the period when extraordinary circumstances
315exist, the system shall remain available during business hours
316to provide information to governmental agencies, member
317operators affected by the extraordinary circumstances, and
318member operators who can provide relief to the affected parties,
319unless the system itself has been adversely affected by
320extraordinary circumstances.
321     (9)(a)  After receiving notification from the system, a
322member operator shall provide a positive response to the system
323within 2 full business days, or 10 such days for an underwater
324excavation, indicating the status of operations to protect the
325facility.
326     (8)(a)  If a member operator determines that the excavation
327or demolition is not near an existing underground facility of
328the member operator, the member operator shall notify the
329excavator within 2 full business days after the time of the
330notification to the system that no conflict exists and that the
331excavation or demolition area is clear. An excavator who has
332knowledge of the existence of an underground facility of a
333member operator in the area is responsible for contacting the
334member operator if a facility is not marked.
335     (b)  The system shall establish and maintain a process to
336facilitate a positive-response communication between member
337operators and excavators. The system is exempt from any
338requirement to initiate a positive response to an excavator when
339an excavator does not provide a valid electronic address to
340facilitate a positive response by the system.
341     (c)  An excavator shall verify the system's positive
342responses before beginning excavation. If an excavator knows
343that an existing underground facility of a member operator is in
344the area, the excavator must contact the member operator if the
345facility is not marked and a positive response has not been
346received by the system. The system shall implement procedures
347for positive response by January 1, 2004.
348     (10)(9)  A member operator shall use the "Uniform Color
349Code for Utilities" recommended guidelines for uniform temporary
350marking of underground facilities as approved by the Utility
351Location and Coordinating Council of the American Public Works
352Association when marking the horizontal route of any underground
353facility of the operator.
354     (11)(10)  Before Prior to or during excavation or
355demolition, if the marking of the horizontal route of any
356facility is removed or is no longer visible, the excavator shall
357stop excavation or demolition activities in the vicinity of the
358facility and shall notify the system to have the route remarked.
359     (12)(11)  If any contact with or damage to any pipe, cable,
360or its protective covering, or any other underground facility
361occurs, the excavator causing the contact or damage shall
362immediately notify the member operator. Upon receiving notice,
363the member operator shall send personnel to the location as soon
364as possible to effect temporary or permanent repair of the
365contact or damage. Until such time as the contact or damage has
366been repaired, the excavator shall cease excavation or
367demolition activities that may cause further damage to such
368underground facility.
369     Section 6.  Subsection (2) of section 556.106, Florida
370Statutes, is amended, present subsection (6) is redesignated as
371subsection (7) and amended, and a new subsection (6) is added to
372that section, to read:
373     556.106  Liability of the member operator, excavator, and
374system.--
375     (2)(a)  If a In the event any person violates s. 556.105(1)
376or (6)(5), and subsequently, whether by himself or herself or
377through the person's employees, contractors, subcontractors, or
378agents, performs an excavation or demolition that which damages
379an underground facility of a member operator, it is shall be
380rebuttably presumed that the such person was negligent. The Such
381person, if found liable, is shall be liable for the total sum of
382the losses to all member operators involved as those costs are
383normally computed. Any damage for loss of revenue and loss of
384use may shall not exceed $500,000 per affected underground
385facility, except that revenues lost by a governmental member
386operator whose, which revenues are used to support payments on
387principal and interest on bonds may, shall not be limited. Any
388liability of the state and its agencies and its subdivisions
389which arises out of this chapter is shall be subject to the
390provisions of s. 768.28.
391     (b)  If any excavator fails to discharge a duty imposed by
392the provisions of this chapter act, the such excavator, if found
393liable, is shall be liable for the total sum of the losses to
394all parties involved as those costs are normally computed. Any
395damage for loss of revenue and loss of use may shall not exceed
396$500,000 per affected underground facility, except that revenues
397lost by a governmental member operator whose, which revenues are
398used to support payments on principal and interest on bonds may,
399shall not be limited.
400     (c)  Any liability of the state, its agencies, or its
401subdivisions which arises out of this chapter is act shall be
402subject to the provisions of s. 768.28.
403     (d)  Obtaining information as to the location of an
404underground facility from the member operator as required by
405this chapter act does not excuse any excavator from performing
406an excavation or demolition in a careful and prudent manner,
407based on accepted engineering and construction practices, and it
408nor does not it excuse the such excavator from liability for any
409damage or injury resulting from any excavation or demolition.
410     (e)  When an excavator knows or should know of the presence
411of an underground facility of a nonmember small city as defined
412in s. 120.52, he or she shall make reasonable efforts to contact
413the small city that owns or operates that facility prior to
414commencing an excavation or demolition.
415     (6)  The system does not have a duty to mark or locate
416underground facilities and may not do so, and a right of
417recovery does not exist against the system for failing to mark
418or locate underground facilities. The system is not liable for
419the failure of a member operator to comply with the requirements
420of this chapter.
421     (7)(6)  An excavator who performs any excavation with hand
422tools under pursuant to s. 556.108(4)(c) or (5) is liable for
423any damage to any operator's underground facilities damaged
424during such excavation.
425     Section 7.  Section 556.107, Florida Statutes, is amended
426to read:
427     556.107  Violations.--
428     (1)  NONCRIMINAL INFRACTIONS.--
429     (a)  Violations of the following provisions are noncriminal
430infractions:
431     1.  Section 556.105(1), relating to providing required
432information.
433     2.  Section 556.105(6) 556.105(5), relating to the
434avoidance of excavation.
435     3.  Section 556.105(11) 556.105(10), relating to the need
436to stop excavation or demolition.
437     4.  Section 556.105(12) 556.105(11), relating to the need
438to cease excavation or demolition activities.
439     5.  Section 556.105(5)(b) 556.105(4)(b) and (c) relating to
440identification of underground facilities, if a member operator
441does not mark an underground facility, but not if a member
442operator marks an underground facility incorrectly.
443     (b)  Any excavator or member operator who commits a
444noncriminal infraction under paragraph (a) may be issued a
445citation by any local or state law enforcement officer,
446government code inspector, or code enforcement officer
447permitting agency inspector, and the issuer of a citation may
448require an any excavator to cease work on any excavation or not
449start a proposed excavation until there has been compliance with
450the provisions of this chapter act. Citations shall may be hand-
451delivered issued to any employee of the excavator or member
452operator who is directly involved in the noncriminal infraction.
453The citation shall be issued in the name of the excavator or
454member operator, whichever is applicable.
455     (c)  Any excavator or member operator who commits a
456noncriminal infraction under paragraph (a) may be required to
457appear before the county court. The civil penalty for any such
458infraction is $250 plus court costs, except as otherwise
459provided in this section. If a citation is issued by a local law
460enforcement officer, a local government code inspector, or a
461code enforcement officer, 80 percent of the civil penalty
462collected by the clerk of the court shall be distributed to the
463local governmental entity whose employee issued the citation and
46420 percent of the penalty shall be retained by the clerk to
465cover administrative costs, in addition to other court costs. If
466a citation is issued by a state law enforcement officer, the
467civil penalty collected by the clerk shall be retained by the
468clerk for deposit into the fine and forfeiture fund established
469pursuant to s. 142.01. Any person who fails to appear or
470otherwise properly respond to a citation issued pursuant to
471paragraph (d) shall, in addition to the citation, be charged
472with the offense of failing to respond to such citation and,
473upon conviction, commits be guilty of a misdemeanor of the
474second degree, punishable as provided in s. 775.082 or s.
475775.083. A written warning to this effect shall be provided at
476the time any citation is issued pursuant to paragraph (b).
477     (d)  Any person cited for an infraction under paragraph
478(a), unless required to appear before the county court, may:
479     1.  Post a bond, which shall be equal in amount to the
480applicable civil penalty plus court costs; or
481     2.  Sign and accept a citation indicating a promise to
482appear before the county court.
483
484The person issuing the citation officer may indicate on the
485citation the time and location of the scheduled hearing and
486shall indicate the applicable civil penalty.
487     (e)  Any person charged with a noncriminal infraction under
488paragraph (a), unless required to appear before the county
489court, may:
490     1.  Pay the civil penalty plus court costs, in lieu of
491appearance, either by mail or in person, within 30 10 days after
492the date of receiving the citation; or
493     2.  Forfeit bond, if a bond has been posted, by not
494appearing at the designated time and location.
495
496If the person cited follows either of the above procedures, she
497or he is shall be deemed to have admitted to committing the
498infraction and to have waived the right to a hearing on the
499issue of commission of the infraction. The Such admission may be
500used as evidence in any other proceeding under this chapter act.
501     (f)  Any person electing to appear before the county court
502or who is required to appear shall be deemed to have waived the
503limitations on the civil penalty specified in paragraph (c). The
504court, after a hearing, shall make a determination as to whether
505an infraction has been committed. If the commission of an
506infraction has been proven, the court may impose a civil penalty
507not to exceed $5,000 plus court costs. In determining the amount
508of the civil penalty, the court may consider previous
509noncriminal infractions committed.
510     (g)  At a hearing under this chapter, the commission of a
511charged infraction must be proven by a preponderance of the
512evidence.
513     (h)  If a person is found by the hearing official to have
514committed an infraction, the such person may appeal that finding
515to the circuit court.
516     (i)  Sunshine State One-Call of Florida, Inc., may, at its
517own cost, retain an attorney to assist in the presentation of
518relevant facts and law in the county court proceeding pertaining
519to the citation issued under this section. The corporation may
520also appear in any case appealed to the circuit court if a
521county court finds that an infraction of the chapter was
522committed. An appellant in the circuit court proceeding shall
523timely notify the corporation of any appeal under this section.
524     (2)  MISDEMEANORS.--Any person who knowingly and willfully
525removes or otherwise destroys the valid stakes or other valid
526physical markings described in s. 556.105(5)(b) s. 556.105(4)(b)
527and (c) used to mark the horizontal route of an underground
528facility commits a misdemeanor of the second degree, punishable
529as provided in s. 775.082 or s. 775.083. For purposes of this
530subsection, stakes or other nonpermanent physical markings are
531considered valid for 30 20 calendar days after information is
532provided to the system under s. 556.105(1)(c).
533     Section 8.  Subsections (1), (4), and (5) of section
534556.108, Florida Statutes, are amended to read:
535     556.108  Exemptions.--The notification requirements
536provided in s. 556.105(1) do not apply to:
537     (1)  Any excavation or demolition performed by the owner of
538a single-family residential property, not including property
539that is subdivided or is to be subdivided into more than one
540single-family residential property; or for such owner by a
541member operator or an agent of a member operator when such
542excavation or demolition is made entirely on such land, and only
543up to a depth of 10 inches; provided due care is used and there
544is no encroachment on any member operator's right-of-way,
545easement, or permitted use.
546     (4)  Any excavation of 18 inches or less for:
547     (a)  Surveying public or private property by surveyors or
548mappers as defined in chapter 472 and services performed by a
549pest control licensee under chapter 482, excluding marked
550rights-of-way, marked easements, or permitted uses where marked,
551if provided mechanized equipment is not used in the process of
552such surveying or pest control services and the surveying or
553pest control services are is performed in accordance with the
554practice rules established under s. 472.027 or s. 482.051,
555respectively; or
556     (b)  Maintenance activities performed by a state agency and
557its employees when such activities are within the right-of-way
558of a public road; however, provided, if a member operator has
559permanently marked facilities on such right-of-way, no
560mechanized equipment may not be used without first providing
561notification; or
562     (c)  Locating, repairing, connecting, adjusting, or routine
563maintenance of a private or public underground utility facility
564by an excavator, if the excavator is performing such work for
565the current owner or future owner of the underground facility
566and if mechanized equipment is not used.
567     (5)(a)  Any excavation with hand tools by a member operator
568or an agent of a member operator for:
569     1.(a)  Locating, repairing, connecting, or protecting, or
570routine maintenance of, the member operator's underground
571facilities; or
572     2.(b)  The extension of a member operator's underground
573facilities onto the property of a person to be served by such
574facilities.
575     (b)(c)  The exemption provided in this subsection
576paragraphs (a) and (b) is limited to excavations to a depth of
57730 inches if the right-of-way has permanently marked facilities
578of a company other than the member operator or its agents
579performing the excavation.
580     Section 9.  Subsection (3) of section 556.111, Florida
581Statutes, is amended to read:
582     556.111  Applicability to existing law.--Nothing in this
583act shall be construed to:
584     (3)  Preempt a governmental member operator from reasonable
585regulation of its right-of-way. This subsection does not exempt
586a municipality, county, district, or other local governmental
587member operator from the provisions of this chapter that apply
588to the member operator.
589     Section 10.  Paragraph (c) of subsection (3) of section
590337.401, Florida Statutes, is amended to read:
591     337.401  Use of right-of-way for utilities subject to
592regulation; permit; fees.--
593     (3)
594     (c)1.  It is the intention of the state to treat all
595providers of communications services that use or occupy
596municipal or charter county roads or rights-of-way for the
597provision of communications services in a nondiscriminatory and
598competitively neutral manner with respect to the payment of
599permit fees. Certain providers of communications services have
600been granted by general law the authority to offset permit fees
601against franchise or other fees while other providers of
602communications services have not been granted this authority. In
603order to treat all providers of communications services in a
604nondiscriminatory and competitively neutral manner with respect
605to the payment of permit fees, each municipality and charter
606county shall make an election under either sub-subparagraph a.
607or sub-subparagraph b. and must inform the Department of Revenue
608of the election by certified mail by July 16, 2001. Such
609election shall take effect October 1, 2001.
610     a.(I)  The municipality or charter county may require and
611collect permit fees from any providers of communications
612services that use or occupy municipal or county roads or rights-
613of-way. All fees permitted under this sub-subparagraph must be
614reasonable and commensurate with the direct and actual cost of
615the regulatory activity, including issuing and processing
616permits, plan reviews, physical inspection, and direct
617administrative costs; must be demonstrable; and must be
618equitable among users of the roads or rights-of-way. A fee
619permitted under this sub-subparagraph may not: be offset against
620the tax imposed under chapter 202; include the costs of roads or
621rights-of-way acquisition or roads or rights-of-way rental;
622include any general administrative, management, or maintenance
623costs of the roads or rights-of-way; or be based on a percentage
624of the value or costs associated with the work to be performed
625on the roads or rights-of-way. In an action to recover amounts
626due for a fee not permitted under this sub-subparagraph, the
627prevailing party may recover court costs and attorney's fees at
628trial and on appeal. In addition to the limitations set forth in
629this section, a fee levied by a municipality or charter county
630under this sub-subparagraph may not exceed $100. However, permit
631fees may not be imposed with respect to permits that may be
632required for service drop lines not required to be noticed under
633s. 556.108(5)(a)2.(b) or for any activity that does not require
634the physical disturbance of the roads or rights-of-way or does
635not impair access to or full use of the roads or rights-of-way.
636     (II)  To ensure competitive neutrality among providers of
637communications services, for any municipality or charter county
638that elects to exercise its authority to require and collect
639permit fees under this sub-subparagraph, the rate of the local
640communications services tax imposed by such jurisdiction, as
641computed under s. 202.20, shall automatically be reduced by a
642rate of 0.12 percent.
643     b.  Alternatively, the municipality or charter county may
644elect not to require and collect permit fees from any provider
645of communications services that uses or occupies municipal or
646charter county roads or rights-of-way for the provision of
647communications services; however, each municipality or charter
648county that elects to operate under this sub-subparagraph
649retains all authority to establish rules and regulations for
650providers of communications services to use or occupy roads or
651rights-of-way as provided in this section. If a municipality or
652charter county elects to operate under this sub-subparagraph,
653the total rate for the local communications services tax as
654computed under s. 202.20 for that municipality or charter county
655may be increased by ordinance or resolution by an amount not to
656exceed a rate of 0.12 percent. If a municipality or charter
657county elects to increase its rate effective October 1, 2001,
658the municipality or charter county shall inform the department
659of such increased rate by certified mail postmarked on or before
660July 16, 2001.
661     c.  A municipality or charter county that does not make an
662election as provided for in this subparagraph shall be presumed
663to have elected to operate under the provisions of sub-
664subparagraph b.
665     2.  Each noncharter county shall make an election under
666either sub-subparagraph a. or sub-subparagraph b. and shall
667inform the Department of Revenue of the election by certified
668mail by July 16, 2001. Such election shall take effect October
6691, 2001.
670     a.  The noncharter county may elect to require and collect
671permit fees from any providers of communications services that
672use or occupy noncharter county roads or rights-of-way. All fees
673permitted under this sub-subparagraph must be reasonable and
674commensurate with the direct and actual cost of the regulatory
675activity, including issuing and processing permits, plan
676reviews, physical inspection, and direct administrative costs;
677must be demonstrable; and must be equitable among users of the
678roads or rights-of-way. A fee permitted under this sub-
679subparagraph may not: be offset against the tax imposed under
680chapter 202; include the costs of roads or rights-of-way
681acquisition or roads or rights-of-way rental; include any
682general administrative, management, or maintenance costs of the
683roads or rights-of-way; or be based on a percentage of the value
684or costs associated with the work to be performed on the roads
685or rights-of-way. In an action to recover amounts due for a fee
686not permitted under this sub-subparagraph, the prevailing party
687may recover court costs and attorney's fees at trial and on
688appeal. In addition to the limitations set forth in this
689section, a fee levied by a noncharter county under this sub-
690subparagraph may not exceed $100. However, permit fees may not
691be imposed with respect to permits that may be required for
692service drop lines not required to be noticed under s.
693556.108(5)(a)2.(b) or for any activity that does not require the
694physical disturbance of the roads or rights-of-way or does not
695impair access to or full use of the roads or rights-of-way.
696     b.  Alternatively, the noncharter county may elect not to
697require and collect permit fees from any provider of
698communications services that uses or occupies noncharter county
699roads or rights-of-way for the provision of communications
700services; however, each noncharter county that elects to operate
701under this sub-subparagraph shall retain all authority to
702establish rules and regulations for providers of communications
703services to use or occupy roads or rights-of-way as provided in
704this section. If a noncharter county elects to operate under
705this sub-subparagraph, the total rate for the local
706communications services tax as computed under s. 202.20 for that
707noncharter county may be increased by ordinance or resolution by
708an amount not to exceed a rate of 0.24 percent, to replace the
709revenue the noncharter county would otherwise have received from
710permit fees for providers of communications services. If a
711noncharter county elects to increase its rate effective October
7121, 2001, the noncharter county shall inform the department of
713such increased rate by certified mail postmarked on or before
714July 16, 2001.
715     c.  A noncharter county that does not make an election as
716provided for in this subparagraph shall be presumed to have
717elected to operate under the provisions of sub-subparagraph b.
718     3.  Except as provided in this paragraph, municipalities
719and counties retain all existing authority to require and
720collect permit fees from users or occupants of municipal or
721county roads or rights-of-way and to set appropriate permit fee
722amounts.
723     Section 11.  This act shall take effect October 1, 2006.


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