HB 1207

1
A bill to be entitled
2An act relating to railroads; amending s. 335.141, F.S.;
3requiring public railroad-highway grade crossings opened
4after a certain date to be maintained by the railroad
5company at its own expense; providing that certain
6responsibilities of a railroad company to maintain and
7inspect public railroad-highway grade signal crossings
8shall not be abrogated, transferred, or nullified by
9contract or administrative rule; directing the Department
10of Transportation to amend specified rules to delete the
11provision for department participation in the cost of
12maintaining grade crossing traffic control devices located
13on the State Highway System; creating s. 351.31, F.S.;
14providing authorization for governmental entities to
15access railroad real property adjoining public property as
16necessary to plan, facilitate, and complete road or
17highway construction, improvement, or repair projects,
18subject to specified procedures; prohibiting a railroad
19company from refusing such access; providing that entry
20pursuant to such authorization is not trespass; requiring
21the governmental entity or its agent to comply with laws
22and rules; limiting liability of the railroad company for
23conduct of the agent; providing procedures to be followed
24by the governmental entity prior to entry onto the
25railroad property; requiring notification; providing
26procedures for the railroad company to object; providing
27for filing of the objection in court; providing
28specifications for court review and findings; providing
29for compensation if the court finds that granting access
30would result in a taking; authorizing the court to order
31such conditions on granting access and certain limitations
32on activities as it deems necessary; providing that the
33railroad company may not condition access on the use of
34services provided by railroad company employees by
35contract, agreement, or otherwise; providing for
36applicability; providing an effective date.
37
38Be It Enacted by the Legislature of the State of Florida:
39
40     Section 1.  Subsection (2) of section 335.141, Florida
41Statutes, is amended to read:
42     335.141  Regulation of public railroad-highway grade
43crossings; reduction of hazards.--
44     (2)(a)  The department, in cooperation with the several
45railroad companies operating in the state, shall develop and
46adopt a program for the expenditure of funds available for the
47construction of projects for the reduction of the hazards at
48public railroad-highway grade crossings. The department and the
49railroad companies are not liable for any action or omission in
50the development of such program or for the priority given to any
51crossing improvement.
52     (b)  Every railroad company maintaining a public railroad-
53highway grade crossing shall, upon reasonable notice from the
54department, install, maintain, and operate at such grade
55crossing traffic control devices to provide motorists with
56warning of the approach of trains. The department shall base its
57notice on its adopted program for the reduction of hazards at
58such crossings and on construction efficiency considerations
59relating to the geographical proximity of crossings included in
60such program. The design of the grade crossing traffic control
61devices must be approved by the department, and the cost of
62their purchase and installation must be paid from the funds
63described in paragraph (a).
64     (c)  Any public railroad-highway grade crossing opened on
65or after July 1, 1972, shall be maintained by the railroad
66company at its own expense. Any public railroad-highway grade
67railroad crossing opened prior to July 1, 1972, shall be
68maintained by the railroad company at its own expense, unless
69the maintenance has been provided for in another manner by
70contractual agreement entered into prior to October 1, 1982. If
71the railroad company fails to maintain the crossing, the unit of
72government with jurisdiction over the public road that is
73crossed, after notifying the railroad company of the needed
74repairs and after giving the company 30 days after the date of
75receipt of the notice to make the repairs, shall proceed to make
76the repairs. The cost of repairs shall thereupon become a lien
77upon the railroad and its rolling stock, which lien shall be
78enforceable by an ordinary suit at law. Any judgment rendered
79under this paragraph shall include a reasonable attorney's fee.
80The responsibility of a railroad company to comply with federal
81requirements of maintenance and inspection of public railroad-
82highway grade signal crossings and the public policy of the
83state that such responsibility be carried out by the railroad
84company at its own expense shall not be abrogated, transferred,
85or nullified by contract or administrative rule.
86     (d)  Prior to commencing the construction, rehabilitation,
87or maintenance of the railroad grade or highway approaches at a
88public railroad-highway grade crossing, the railroad company or
89governmental entity initiating the work shall notify the other
90party in order to promote the coordination of activities and to
91ensure a safe crossing with smooth pavement transitions from the
92grade of the railroad to the highway approaches.
93     (e)  The department shall amend rule 14-57.011(3)(a),
94Florida Administrative Code, to delete the provision for
95department participation in the cost of maintaining grade
96crossing traffic control devices located on the State Highway
97System.
98     Section 2.  Section 351.31, Florida Statutes, is created to
99read:
100     351.31  Access to railroad property by government
101officials; conditions of access prohibited.--
102     (1)  Subject to the procedure provided in subsection (5),
103access to railroad real property that is adjacent to, abutting,
104or intersecting public lands, roadways, or highways is
105authorized for governmental entities and their agents for all
106purposes necessary to plan, facilitate, and complete road or
107highway construction, improvement, or repair projects. The
108access authorized under this section shall apply during the
109period of time that the road or highway construction,
110improvement or repair project undertaken by or on behalf of the
111jurisdictional governmental entity is in progress. Access
112authorized under this section does not give authority to any
113governmental entity or its agent to destroy, injure, damage, or
114remove any private property belonging to the railroad or to make
115any physical improvements to or conduct any excavation of any
116real property belonging to the railroad without first obtaining
117written permission of the railroad company.
118     (2)  No railroad company or railroad company representative
119shall refuse access to railroad real property authorized under
120subsection (1). Entry onto railroad property authorized by this
121section does not constitute trespass and neither governmental
122entities nor their agents shall be liable to arrest or to a
123civil action for trespass by reason of such entry.
124     (3)  A governmental entity or its agent authorized to enter
125railroad property under this section shall do so in compliance
126with all federal, state, and local laws, as well as agency rules
127pertaining to premises security and other health and safety
128requirements applicable to such property.
129     (4)  A railroad company is not liable to any third party
130for civil or criminal acts or damages that result from the
131negligent or intentional conduct of any agent of a governmental
132entity who is on railroad property under the authority granted
133under this section.
134     (5)(a)  Prior to entry onto railroad property by a
135governmental entity or its agent pursuant to this section, the
136governmental entity must deliver to the railroad company written
137notice of its intended entry not less than 5 days before the
138date of entry. The notice must include:
139     1.  The full name of each individual who is authorized to
140enter railroad property on its behalf as well as the name of his
141or her employer and immediate supervisor.
142     2.  The name of the governmental entity on whose behalf the
143entering agents are acting.
144     3.  The location, size, and area of the property to which
145access will be required.
146     4.  The name of the work project for which access is
147required.
148     5.  The estimated time required for access.
149     6.  A description of the work or other activity to be
150performed which makes access to railroad property necessary.
151     (b)  Within 72 hours after delivery of the written notice,
152a railroad company may file an action stating its objection in
153the circuit court of the jurisdiction in which the railroad
154property to be accessed is located. If no objection is filed by
155the railroad company within 72 hours after delivery of the
156written notice, access as specified in the written notice is
157authorized. Upon receipt of an objection, the circuit court
158shall set a hearing to determine the basis for the objection. A
159timely filed objection shall suspend authority to access
160railroad property granted under this section for 10 days unless,
161before the end of the 10-day period, a hearing has been
162scheduled and a stay has been issued in which event authority to
163access the railroad property shall remain suspended pending
164resolution by order of the circuit court.
165     (c)  At the hearing, the circuit court shall have for
166review the following issues:
167     1.  Whether or not the access to railroad property is
168necessary in scope, duration, and purpose for the planning,
169facilitation, and completion of a road or highway construction,
170improvement, or repair project;
171     2.  Whether or not the location of the property or the
172purpose for which entry is sought is of such a nature that
173denial of access is necessary to avoid a substantial risk of
174physical harm to persons or railroad property;
175     3. Whether or not, based on the description of the work or
176activity to be done on the property, access to the property for
177the work or activity described would be in violation of federal,
178state, or local laws or agency rules pertaining to premises
179security or other health and safety requirements applicable to
180such property;
181     4.  Whether or not, based on the description of the work or
182activity to be done on the property, there is a reasonable
183probability that railroad property would be damaged, destroyed,
184injured, or removed or real property excavated without
185permission of the railroad company.
186     5.  Whether or not, based on the description of the work or
187activity to be done on the property, the activity to be done
188would cause a substantial impairment of railroad operations. For
189purposes of this section "substantial impairment of railroad
190operations" means that it has been established by clear and
191convincing evidence that the granting of access for the purpose
192or activity intended would significantly delay or prevent the
193scheduled operation of any train, as defined in s. 341.301.
194     6.  Whether or not granting the access requested would
195constitute a taking of property under the Fifth Amendment to the
196United States Constitution or s. 6, Art. X of the State
197Constitution.
198     a.  In determining whether or not granting access to the
199property constitutes a taking, the court shall consider to what
200extent, if any, granting the requested access would:
201     (I)  Prevent the railroad from using the property for the
202purpose or in the manner in which it is ordinarily used; or
203     (II)  Deprive the railroad of its beneficial use of the
204property at issue for the period of time access is granted.
205     b.  If the court finds that granting access would result in
206a taking, the amount of compensation shall be limited to cover
207only the period of time for which access is authorized.
208     (d)  At the hearing, the court may order such conditions on
209granting access to railroad property as it determines necessary
210to mitigate the risk of harm to persons or property, except that
211this section shall not be construed to authorize the court to
212require the governmental entity or its agent to procure the
213services of railroad employees as a condition of authorizing
214entry onto such property. In issuing its order, the court may
215limit the number of persons granted access and the duration of
216such access authorized under this section. In addition, the
217court may limit the activities which may be conducted on the
218railroad property as well as the time, place, and manner in
219which those activities are conducted.
220     (6)  A railroad company may not compel or require the use
221of flagging or other services provided by railroad company
222employees by contract, agreement, or otherwise as a condition of
223allowing access to their property as authorized in subsection
224(1).
225     (7)  This section does not authorize access to railroad
226property in violation of the requirements of federal law or to
227an employee of a railroad or a contractor to a railroad who is
228performing work within the definition of roadway worker as
229defined in 49 C.F.R. s. 214.7.
230     (8)  For purposes of this section "jurisdictional
231governmental entity" means any public body vested with the power
232to exercise eminent domain over the property for which access is
233sought.
234     Section 3.  This act shall take effect July 1, 2008.


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