1

A bill to be entitled

2

An act relating to railroads; amending s. 335.141, F.S.;

3

requiring public railroad-highway grade crossings opened

4

after a certain date to be maintained by the railroad

5

company at its own expense; providing that certain

6

responsibilities of a railroad company to maintain and

7

inspect public railroad-highway grade signal crossings

8

shall not be abrogated, transferred, or nullified by

9

contract or administrative rule; directing the Department

10

of Transportation to amend specified rules to delete the

11

provision for department participation in the cost of

12

maintaining grade crossing traffic control devices located

13

on the State Highway System; creating s. 351.31, F.S.;

14

providing authorization for governmental entities to

15

access railroad real property adjoining public property as

16

necessary to plan, facilitate, and complete road or

17

highway construction, improvement, or repair projects,

18

subject to specified procedures; prohibiting a railroad

19

company from refusing such access; providing that entry

20

pursuant to such authorization is not trespass; requiring

21

the governmental entity or its agent to comply with laws

22

and rules; limiting liability of the railroad company for

23

conduct of the agent; providing procedures to be followed

24

by the governmental entity prior to entry onto the

25

railroad property; requiring notification; providing

26

procedures for the railroad company to object; providing

27

for filing of the objection in court; providing

28

specifications for court review and findings; providing

29

for compensation if the court finds that granting access

30

would result in a taking; authorizing the court to order

31

such conditions on granting access and certain limitations

32

on activities as it deems necessary; providing that the

33

railroad company may not condition access on the use of

34

services provided by railroad company employees by

35

contract, agreement, or otherwise; providing for

36

applicability; providing an effective date.

37

38

Be It Enacted by the Legislature of the State of Florida:

39

40

     Section 1.  Subsection (2) of section 335.141, Florida

41

Statutes, is amended to read:

42

     335.141  Regulation of public railroad-highway grade

43

crossings; reduction of hazards.--

44

     (2)(a)  The department, in cooperation with the several

45

railroad companies operating in the state, shall develop and

46

adopt a program for the expenditure of funds available for the

47

construction of projects for the reduction of the hazards at

48

public railroad-highway grade crossings. The department and the

49

railroad companies are not liable for any action or omission in

50

the development of such program or for the priority given to any

51

crossing improvement.

52

     (b)  Every railroad company maintaining a public railroad-

53

highway grade crossing shall, upon reasonable notice from the

54

department, install, maintain, and operate at such grade crossing

55

traffic control devices to provide motorists with warning of the

56

approach of trains. The department shall base its notice on its

57

adopted program for the reduction of hazards at such crossings

58

and on construction efficiency considerations relating to the

59

geographical proximity of crossings included in such program. The

60

design of the grade crossing traffic control devices must be

61

approved by the department, and the cost of their purchase and

62

installation must be paid from the funds described in paragraph

63

(a).

64

     (c) Any public railroad-highway grade crossing opened on or

65

after July 1, 1972, shall be maintained by the railroad company

66

at its own expense. Any public railroad-highway grade railroad

67

crossing opened prior to July 1, 1972, shall be maintained by the

68

railroad company at its own expense, unless the maintenance has

69

been provided for in another manner by contractual agreement

70

entered into prior to October 1, 1982. If the railroad company

71

fails to maintain the crossing, the unit of government with

72

jurisdiction over the public road that is crossed, after

73

notifying the railroad company of the needed repairs and after

74

giving the company 30 days after the date of receipt of the

75

notice to make the repairs, shall proceed to make the repairs.

76

The cost of repairs shall thereupon become a lien upon the

77

railroad and its rolling stock, which lien shall be enforceable

78

by an ordinary suit at law. Any judgment rendered under this

79

paragraph shall include a reasonable attorney's fee. The

80

responsibility of a railroad company to comply with federal

81

requirements of maintenance and inspection of public railroad-

82

highway grade signal crossings and the public policy of the state

83

that such responsibility be carried out by the railroad company

84

at its own expense shall not be abrogated, transferred, or

85

nullified by contract or administrative rule.

86

     (d)  Prior to commencing the construction, rehabilitation,

87

or maintenance of the railroad grade or highway approaches at a

88

public railroad-highway grade crossing, the railroad company or

89

governmental entity initiating the work shall notify the other

90

party in order to promote the coordination of activities and to

91

ensure a safe crossing with smooth pavement transitions from the

92

grade of the railroad to the highway approaches.

93

     (e) The department shall amend rule 14-57.011(3)(a),

94

Florida Administrative Code, to delete the provision for

95

department participation in the cost of maintaining grade

96

crossing traffic control devices located on the State Highway

97

System.

98

     Section 2.  Section 351.31, Florida Statutes, is created to

99

read:

100

     351.31 Access to railroad property by government officials;

101

conditions of access prohibited.--

102

     (1) Subject to the procedure provided in subsection (5),

103

access to railroad real property that is adjacent to, abutting,

104

or intersecting public lands, roadways, or highways is authorized

105

for governmental entities and their agents for all purposes

106

necessary to plan, facilitate, and complete road or highway

107

construction, improvement, or repair projects. The access

108

authorized under this section shall apply during the period of

109

time that the road or highway construction, improvement or repair

110

project undertaken by or on behalf of the jurisdictional

111

governmental entity is in progress. Access authorized under this

112

section does not give authority to any governmental entity or its

113

agent to destroy, injure, damage, or remove any private property

114

belonging to the railroad or to make any physical improvements to

115

or conduct any excavation of any real property belonging to the

116

railroad without first obtaining written permission of the

117

railroad company.

118

     (2) No railroad company or railroad company representative

119

shall refuse access to railroad real property authorized under

120

subsection (1). Entry onto railroad property authorized by this

121

section does not constitute trespass and neither governmental

122

entities nor their agents shall be liable to arrest or to a civil

123

action for trespass by reason of such entry.

124

     (3) A governmental entity or its agent authorized to enter

125

railroad property under this section shall do so in compliance

126

with all federal, state, and local laws, as well as agency rules

127

pertaining to premises security and other health and safety

128

requirements applicable to such property.

129

     (4) A railroad company is not liable to any third party for

130

civil or criminal acts or damages that result from the negligent

131

or intentional conduct of any agent of a governmental entity who

132

is on railroad property under the authority granted under this

133

section.

134

     (5)(a) Prior to entry onto railroad property by a

135

governmental entity or its agent pursuant to this section, the

136

governmental entity must deliver to the railroad company written

137

notice of its intended entry not less than 5 days before the date

138

of entry. The notice must include:

139

     1. The full name of each individual who is authorized to

140

enter railroad property on its behalf as well as the name of his

141

or her employer and immediate supervisor.

142

     2. The name of the governmental entity on whose behalf the

143

entering agents are acting.

144

     3. The location, size, and area of the property to which

145

access will be required.

146

     4. The name of the work project for which access is

147

required.

148

     5. The estimated time required for access.

149

     6. A description of the work or other activity to be

150

performed which makes access to railroad property necessary.

151

     (b) Within 72 hours after delivery of the written notice, a

152

railroad company may file an action stating its objection in the

153

circuit court of the jurisdiction in which the railroad property

154

to be accessed is located. If no objection is filed by the

155

railroad company within 72 hours after delivery of the written

156

notice, access as specified in the written notice is authorized.

157

Upon receipt of an objection, the circuit court shall set a

158

hearing to determine the basis for the objection. A timely filed

159

objection shall suspend authority to access railroad property

160

granted under this section for 10 days unless, before the end of

161

the 10-day period, a hearing has been scheduled and a stay has

162

been issued in which event authority to access the railroad

163

property shall remain suspended pending resolution by order of

164

the circuit court.

165

     (c) At the hearing, the circuit court shall have for review

166

the following issues:

167

     1. Whether or not the access to railroad property is

168

necessary in scope, duration, and purpose for the planning,

169

facilitation, and completion of a road or highway construction,

170

improvement, or repair project;

171

     2. Whether or not the location of the property or the

172

purpose for which entry is sought is of such a nature that denial

173

of access is necessary to avoid a substantial risk of physical

174

harm to persons or railroad property;

175

     3. Whether or not, based on the description of the work or

176

activity to be done on the property, access to the property for

177

the work or activity described would be in violation of federal,

178

state, or local laws or agency rules pertaining to premises

179

security or other health and safety requirements applicable to

180

such property;

181

     4. Whether or not, based on the description of the work or

182

activity to be done on the property, there is a reasonable

183

probability that railroad property would be damaged, destroyed,

184

injured, or removed or real property excavated without permission

185

of the railroad company.

186

     5. Whether or not, based on the description of the work or

187

activity to be done on the property, the activity to be done

188

would cause a substantial impairment of railroad operations. For

189

purposes of this section "substantial impairment of railroad

190

operations" means that it has been established by clear and

191

convincing evidence that the granting of access for the purpose

192

or activity intended would significantly delay or prevent the

193

scheduled operation of any train, as defined in s. 341.301.

194

     6. Whether or not granting the access requested would

195

constitute a taking of property under the Fifth Amendment to the

196

United States Constitution or s. 6, Art. X of the State

197

Constitution.

198

     a. In determining whether or not granting access to the

199

property constitutes a taking, the court shall consider to what

200

extent, if any, granting the requested access would:

201

     (I) Prevent the railroad from using the property for the

202

purpose or in the manner in which it is ordinarily used; or

203

     (II) Deprive the railroad of its beneficial use of the

204

property at issue for the period of time access is granted.

205

     b. If the court finds that granting access would result in

206

a taking, the amount of compensation shall be limited to cover

207

only the period of time for which access is authorized.

208

     (d) At the hearing, the court may order such conditions on

209

granting access to railroad property as it determines necessary

210

to mitigate the risk of harm to persons or property, except that

211

this section shall not be construed to authorize the court to

212

require the governmental entity or its agent to procure the

213

services of railroad employees as a condition of authorizing

214

entry onto such property. In issuing its order, the court may

215

limit the number of persons granted access and the duration of

216

such access authorized under this section. In addition, the court

217

may limit the activities which may be conducted on the railroad

218

property as well as the time, place, and manner in which those

219

activities are conducted.

220

     (6) A railroad company may not compel or require the use of

221

flagging or other services provided by railroad company employees

222

by contract, agreement, or otherwise as a condition of allowing

223

access to their property as authorized in subsection (1).

224

     (7) This section does not authorize access to railroad

225

property in violation of the requirements of federal law or to an

226

employee of a railroad or a contractor to a railroad who is

227

performing work within the definition of roadway worker as

228

defined in 49 C.F.R. s. 214.7.

229

     (8) For purposes of this section "jurisdictional

230

governmental entity" means any public body vested with the power

231

to exercise eminent domain over the property for which access is

232

sought.

233

     Section 3.  This act shall take effect July 1, 2008.