CS/HB 691

1	A bill to be entitled
2	An act relating to underground facility damage prevention
3	and safety; amending s. 556.101, F.S.; prohibiting
4	municipalities, counties, districts, and other local
5	governments from enacting ordinances or rules that
6	conflict with specified provisions; amending s. 556.103,
7	F.S.; requiring that the board of directors of Sunshine
8	State One-Call of Florida, Inc., present to the Governor
9	and Legislature an annual report that includes a summary
10	of reports issued by the clerks of court; amending s.
11	556.105, F.S.; requiring that an excavator provide the
12	Sunshine State One-Call of Florida, Inc., system with
13	certain specified information not less than 10 full
14	business days before beginning an excavation or demolition
15	beneath the waters of the state; prohibiting the use of
16	such information by member operators for sales or
17	marketing purposes; deleting obsolete provisions; removing
18	provisions requiring the premarking of certain proposed
19	excavation sites; requiring a mutually agreed excavation
20	plan for high-priority excavations; amending s. 556.106,
21	F.S.; removing redundant provisions that provide a limited
22	waiver of sovereign immunity for the state, its agencies,
23	and its political subdivisions arising from matters
24	involving underground facilities; amending s. 556.107,
25	F.S.; providing increased penalties for noncriminal
26	infractions of the Sunshine State One-Call of Florida,
27	Inc., system; requiring each clerk of court to submit a
28	report to Sunshine State One-Call of Florida, Inc., by a
29	specified date listing each violation that has been filed
30	in the county during the preceding calendar year; amending
31	s. 556.109, F.S.; specifying circumstances under which an
32	excavator shall not notify the Sunshine State One-Call of
33	Florida, Inc., system that there is an emergency; amending
34	s. 556.110, F.S.; deleting a provision that limits
35	assessments against a member operator who receives fewer
36	than 10 notifications in any month; creating s. 556.114,
37	F.S.; providing requirements for low-impact marking
38	practices; providing procedures and methods to mark areas
39	of excavation; requiring Sunshine State One-Call of
40	Florida, Inc., to establish an educational program for the
41	purpose of informing excavators and member operators about
42	low-impact marking practices; creating s. 556.115, F.S.;
43	requiring Sunshine State One-Call of Florida, Inc., to
44	create a voluntary alternative dispute resolution program
45	that is open to all member operators, excavators, and
46	other stakeholders; requiring the voluntary users of the
47	alternative dispute resolution program to choose the form
48	of alternative dispute resolution to be used; requiring
49	that the costs of using the voluntary program be borne by
50	the users; providing that unless binding arbitration is
51	the chosen method of alternative dispute resolution, the
52	users or any one of such users may end the process at any
53	time and proceed in a court of competent jurisdiction or
54	before the Division of Administrative Hearings; creating
55	s. 556.116, F.S.; defining the terms "division," "high-
56	priority subsurface installation," and "incident";
57	providing that if an excavation is proposed within 15 feet
58	of a high-priority subsurface installation and is
59	identified as such by the facility operator, the facility
60	operator must notify the excavator of the existence of the
61	high-priority subsurface installation and mark its
62	location before excavation may begin; requiring an
63	excavator to notify the operator of the excavation start
64	time in the vicinity of a high-priority subsurface
65	installation; providing that an alleged infraction that
66	results in an incident must be reported to the system by
67	an operator or an excavator; providing that the system
68	shall transmit incident reports to the Division of
69	Administrative Hearings; providing that the system and the
70	division may contract for the division to conduct
71	proceedings; providing that the division has jurisdiction
72	to determine the facts and law concerning an alleged
73	incident; authorizing the division to impose a fine for a
74	violation if the violation was a proximate cause of the
75	incident; providing procedures, venue, and standard of
76	proof; providing an effective date.
77
78	Be It Enacted by the Legislature of the State of Florida:
79
80	Section 1.  Paragraph (d) of subsection (3) of section
81	556.101, Florida Statutes, is amended to read:
82	556.101  Short title; legislative intent.-
83	(3)  It is the purpose of this chapter to:
84	(d)  Reserve to the state the power to regulate any subject
85	matter specifically addressed in this chapter. Municipalities,
86	counties, districts, or other local governments may not adopt or
87	enforce ordinances or rules that conflict with this chapter or
88	that prescribe any of the following:
89	1.  Require operators of underground facilities to obtain
90	permits from local governments in order to identify underground
91	facilities.
92	2.  Require premarking or marking.
93	3.  Specify the types of paint or other marking devices
94	that are used to identify underground facilities.
95	4.  Require removal of marks.
96	Section 2.  Subsections (4) and (5) of section 556.103,
97	Florida Statutes, are amended to read:
98	556.103  Creation of the corporation; establishment of the
99	board of directors; authority of the board; annual report.-
100	(4)  Beginning in 1994, The board of directors shall file
101	with the Governor, not later than 60 days before the convening
102	of each regular session of the Legislature, an annual progress
103	report on the operation of the system, which must include a
104	summary of the reports to the system from the clerks of court.
105	(5)  Beginning in 1998, The board of directors shall submit
106	to the President of the Senate, the Speaker of the House of
107	Representatives, and the Governor, not later than 60 days before
108	the convening of each regular session of the Legislature, an
109	annual progress report on the participation by municipalities
110	and counties in the one-call notification system created by this
111	chapter. The report must include a summary of the reports to the
112	system from the clerks of court.
113	Section 3.  Paragraphs (a) and (d) of subsection (1),
114	subsections (5) and (6), paragraph (a) of subsection (7),
115	paragraph (a) of subsection (9), and subsection (11) of section
116	556.105, Florida Statutes, are amended to read:
117	556.105  Procedures.-
118	(1)(a)  Not less than 2 full business days before beginning
119	any excavation or demolition that is not, except an excavation
120	beneath the waters of the state, and not less than 10 full
121	business days before beginning any excavation or demolition that
122	is beneath the waters of the state, an excavator shall provide
123	the following information through the system:
124	1.  The name of the individual who provided notification
125	and the name, address, including the street address, city,
126	state, zip code, and telephone number of her or his employer.
127	2.  The name and telephone number of the representative for
128	the excavator, and a valid electronic address to facilitate a
129	positive response by the system should be provided, if
130	available.
131	3.  The county, the city or closest city, and the street
132	address or the closest street, road, or intersection to the
133	location where the excavation or demolition is to be performed,
134	and the construction limits of the excavation or demolition.
135	4.  The commencement date and anticipated duration of the
136	excavation or demolition.
137	5.  Whether machinery will be used for the excavation or
138	demolition.
139	6.  The person or entity for whom the work is to be done.
140	7.  The type of work to be done.
141	8.  The approximate depth of the excavation.
142	(d)  Member operators shall use the information provided to
143	the system by other member operators only for the purposes
144	stated in this chapter and not for sales or marketing purposes.
145	1.  The system shall study the feasibility of the
146	establishment or recognition of zones for the purpose of
147	allowing excavation within such zones to be undertaken without
148	notice to the system as now required by this chapter when such
149	zones are:
150	a.  In areas within which no underground facilities are
151	located.
152	b.  Where permanent markings, permit and mapping systems,
153	and structural protection for underwater crossings are required
154	or in place.
155	c.  For previously marked utilities on construction of one-
156	or two-family dwellings where the contractor remains in custody
157	and control of the building site for the duration of the
158	building permit.
159	2.  The system shall report the results of the study to the
160	Legislature on or before February 1, 2007, along with
161	recommendations for further legislative action.
162	(5)  All member operators within the defined area of a
163	proposed excavation or demolition shall be promptly notified
164	through the system, except that member operators with state-
165	owned underground facilities located within the right-of-way of
166	a state highway need not be notified of excavation or demolition
167	activities and are under no obligation to mark or locate the
168	facilities.
169	(a)  When an excavation site cannot be described in
170	information provided under subparagraph (1)(a)3. with sufficient
171	particularity to enable the member operator to ascertain the
172	excavation site, and if the excavator and member operator have
173	not mutually agreed otherwise, the excavator shall premark the
174	proposed area of the excavation before a member operator is
175	required to identify the horizontal route of its underground
176	facilities in the proximity of any excavation. However,
177	premarking is not required for any excavation that is over 500
178	feet in length and is not required where the premarking could
179	reasonably interfere with traffic or pedestrian control.
180	(a)(b)  If a member operator determines that a proposed
181	excavation or demolition is in proximity to or in conflict with
182	an underground facility of the member operator, except a
183	facility beneath the waters of the state, which is governed by
184	paragraph (b) (c), the member operator shall identify the
185	horizontal route by marking to within 24 inches from the outer
186	edge of either side of the underground facility by the use of
187	stakes, paint, flags, or other suitable means within 2 full
188	business days after the time the notification is received under
189	subsection (1). If the member operator is unable to respond
190	within such time, the member operator shall communicate with the
191	person making the request and negotiate a new schedule and time
192	that is agreeable to, and should not unreasonably delay, the
193	excavator.
194	(b)(c)  If a member operator determines that a proposed
195	excavation is in proximity to or in conflict with an underground
196	facility of the member operator beneath the waters of the state,
197	the member operator shall identify the estimated horizontal
198	route of the underground facility, within 10 business days,
199	using marking buoys or other suitable devices, unless directed
200	otherwise by an agency having jurisdiction over the waters of
201	the state under which the member operator's underground facility
202	is located.
203	(c)(d)  When excavation is to take place within a tolerance
204	zone, an excavator shall use increased caution to protect
205	underground facilities. The protection requires hand digging,
206	pot holing, soft digging, vacuum excavation methods, or other
207	similar procedures to identify underground facilities. Any use
208	of mechanized equipment within the tolerance zone must be
209	supervised by the excavator.
210	(6)(a)  An excavator shall avoid excavation in the area
211	described in the notice given under subsection (1) until each
212	member operator underground facility has been marked and located
213	or until the excavator has been notified that no member operator
214	has underground facilities in the area described in the notice,
215	or for the time allowed for markings set forth in paragraphs
216	(5)(a) and (b) (5)(b) and (c), whichever occurs first. If a
217	member operator has not located and marked its underground
218	facilities within the time allowed for marking set forth in
219	paragraphs (5)(a) and (b) (5)(b) and (c), the excavator may
220	proceed with the excavation, if the excavator does so with
221	reasonable care and if detection equipment or other acceptable
222	means to locate underground facilities are used.
223	(b)  An excavator may not demolish in the area described in
224	the notice given under subsection (1) until all member operator
225	underground facilities have been marked and located or removed.
226	(7)(a)  A member operator that states that it does not have
227	accurate information concerning the exact location of its
228	underground facilities is exempt from the requirements of
229	paragraphs (5)(a) and (b) (5)(b) and (c), but shall provide the
230	best available information to the excavator in order to comply
231	with the requirements of this section. An excavator is not
232	liable for any damage to an underground facility under the
233	exemption in this subsection if the excavation or demolition is
234	performed with reasonable care and detection equipment or other
235	acceptable means to locate underground facilities are used.
236	(9)(a)  After receiving notification from the system, a
237	member operator shall provide a positive response to the system
238	within 2 full business days, or 10 such days for an underwater
239	excavation or demolition, indicating the status of operations to
240	protect the facility.
241	(11)  Before or during excavation or demolition, if the
242	marking of the horizontal route of any facility is removed or is
243	no longer visible, or, in the case of an underwater facility, is
244	inadequately documented, the excavator shall stop excavation or
245	demolition activities in the vicinity of the facility and shall
246	notify the system to have the route remarked or adequately
247	documented by a member operator or in a manner approved by the
248	member operator.
249	Section 4.  Section 556.106, Florida Statutes, is amended
250	to read:
251	556.106  Liability of the member operator, excavator, and
252	system.-
253	(1)  There is no liability on the part of, and no cause of
254	action of any nature shall arise against, the board members of
255	the corporation in their capacity as administrators of the
256	system.
257	(2)(a)  If a person violates s. 556.105(1) or (6), and
258	subsequently, whether by himself or herself or through the
259	person's employees, contractors, subcontractors, or agents,
260	performs an excavation or demolition that damages an underground
261	facility of a member operator, it is rebuttably presumed that
262	the person was negligent. The person, if found liable, is liable
263	for the total sum of the losses to all member operators involved
264	as those costs are normally computed. Any damage for loss of
265	revenue and loss of use may not exceed $500,000 per affected
266	underground facility, except that revenues lost by a
267	governmental member operator whose revenues are used to support
268	payments on principal and interest on bonds may not be limited.
269	Any liability of the state and its agencies and its subdivisions
270	which arises out of this chapter is subject to the provisions of
271	s. 768.28.
272	(b)  If any excavator fails to discharge a duty imposed by
273	the provisions of this chapter, the excavator, if found liable,
274	is liable for the total sum of the losses to all parties
275	involved as those costs are normally computed. Any damage for
276	loss of revenue and loss of use may not exceed $500,000 per
277	affected underground facility, except that revenues lost by a
278	governmental member operator whose revenues are used to support
279	payments on principal and interest on bonds may not be limited.
280	(c)  Any liability of the state, its agencies, or its
281	subdivisions which arises out of this chapter is subject to the
282	provisions of s. 768.28.
283	(c)(d)  Obtaining information as to the location of an
284	underground facility from the member operator as required by
285	this chapter does not excuse any excavator from performing an
286	excavation or demolition in a careful and prudent manner, based
287	on accepted engineering and construction practices, and it does
288	not excuse the excavator from liability for any damage or injury
289	resulting from any excavation or demolition.
290	(3)  If, after receiving proper notice, a member operator
291	fails to discharge a duty imposed by the provisions of this act
292	and an underground facility of a such member operator is damaged
293	by an excavator who has complied with the provisions of this
294	act, as a proximate result of the member operator's failure to
295	discharge such duty, the such excavator is shall not be liable
296	for such damage and the member operator, if found liable, is
297	shall be liable to such person for the total cost of any loss or
298	injury to any person or damage to equipment resulting from the
299	member operator's failure to comply with this act. Any damage
300	for loss of revenue and loss of use shall not exceed $500,000
301	per affected underground facility, except that revenues lost by
302	a governmental member operator, which revenues are used to
303	support payments on principal and interest on bonds, shall not
304	be limited. The liability of governmental member operators shall
305	be subject to limitations provided in chapter 768.
306	(4)  If an owner of an underground facility fails to become
307	a member of the corporation in order to use and participate in
308	the system, as required by this act, and that failure is a cause
309	of damage to that underground facility caused by an excavator
310	who has complied with the provisions of this act and has
311	exercised reasonable care in the performance of the excavation
312	that has caused damage to the underground facility, the owner
313	has no right of recovery against the excavator for the damage to
314	that underground facility.
315	(5)  If, after receiving proper notification, the system
316	fails to discharge its duties, resulting in damage to an
317	underground facility, the system, if found liable, shall be
318	liable to all parties, as defined in this act. Any damage for
319	loss of revenue and loss of use shall not exceed $500,000 per
320	affected underground facility, except that revenues lost by a
321	governmental member operator, which revenues are used to support
322	payments on principal and interest on bonds, shall not be
323	limited.
324	(6)  The system does not have a duty to mark or locate
325	underground facilities and may not do so, and a right of
326	recovery does not exist against the system for failing to mark
327	or locate underground facilities. The system is not liable for
328	the failure of a member operator to comply with the requirements
329	of this chapter.
330	(7)  An excavator or a member operator who performs any
331	excavation with hand tools under s. 556.108(4)(c) or (5) is
332	liable for any damage to any operator's underground facilities
333	damaged during such excavation.
334	(8)  Any liability of the state, its agencies, or its
335	subdivisions which arises out of this chapter is subject to the
336	provisions of s. 768.28.
337	Section 5.  Section 556.107, Florida Statutes, is amended
338	to read:
339	556.107  Violations.-
340	(1)  NONCRIMINAL INFRACTIONS.-
341	(a)  Violations of the following provisions are noncriminal
342	infractions:
343	1.  Section 556.105(1), relating to providing required
344	information.
345	2.  Section 556.105(6), relating to the avoidance of
346	excavation.
347	3.  Section 556.105(11), relating to the need to stop
348	excavation or demolition because marks are no longer visible,
349	or, in the case of underwater facilities, are inadequately
350	documented.
351	4.  Section 556.105(12), relating to the need to cease
352	excavation or demolition activities because of contact or damage
353	to an underground facility.
354	5.  Section 556.105(5)(a) and (b), 556.105(5)(b) and (c)
355	relating to identification of underground facilities, if a
356	member operator does not mark an underground facility, but not
357	if a member operator marks an underground facility incorrectly.
358	6.  Section 556.109(2), relating to falsely notifying the
359	system of an emergency situation or condition.
360	7.  Section 556.114(1), (2), (3), and (4), relating to a
361	failure to follow low-impact marking practices, as defined
362	therein.
363	(b)  Any excavator or member operator who commits a
364	noncriminal infraction under paragraph (a) may be issued a
365	citation by any local or state law enforcement officer,
366	government code inspector, or code enforcement officer, and the
367	issuer of a citation may require an excavator to cease work on
368	any excavation or not start a proposed excavation until there
369	has been compliance with the provisions of this chapter.
370	Citations shall be hand delivered to any employee of the
371	excavator or member operator who is involved in the noncriminal
372	infraction. The citation shall be issued in the name of the
373	excavator or member operator, whichever is applicable.
374	(c)  Any excavator or member operator who commits a
375	noncriminal infraction under paragraph (a) may be required to
376	pay a appear before the county court. The civil penalty for each
377	any such infraction, which is $500 $250 plus court costs, except
378	as otherwise provided in this section. If a citation is issued
379	by a local law enforcement officer, a local government code
380	inspector, or a code enforcement officer, 80 percent of the
381	civil penalty collected by the clerk of the court shall be
382	distributed to the local governmental entity whose employee
383	issued the citation and 20 percent of the penalty shall be
384	retained by the clerk to cover administrative costs, in addition
385	to other court costs. If a citation is issued by a state law
386	enforcement officer, the civil penalty collected by the clerk
387	shall be retained by the clerk for deposit into the fine and
388	forfeiture fund established pursuant to s. 142.01. Any person
389	who fails to appear or otherwise properly respond to a citation
390	issued pursuant to paragraph (b) (d) shall, in addition to the
391	citation, be charged with the offense of failing to respond to
392	the such citation and, upon conviction, commits a misdemeanor of
393	the second degree, punishable as provided in s. 775.082 or s.
394	775.083. A written warning to this effect must shall be provided
395	at the time any citation is issued pursuant to paragraph (b).
396	(d)  Any person cited for an infraction under paragraph
397	(a), unless required to appear before the county court, may:
398	1. post a bond, which shall be equal in amount to the
399	applicable civil penalty plus court costs; or
400	2.  Sign and accept a citation indicating a promise to
401	appear before the county court.
402
403	The person issuing the citation may indicate on the citation the
404	time and location of the scheduled hearing and shall indicate
405	the applicable civil penalty.
406	(e)  A Any person charged with a noncriminal infraction
407	under paragraph (a), unless required to appear before the county
408	court, may:
409	1. pay the civil penalty plus court costs, in lieu of
410	appearance, either by mail or in person, within 30 days after
411	the date of receiving the citation; or
412	2.  Forfeit bond, if a bond has been posted, by not
413	appearing at the designated time and location.
414
415	If the person cited pays the civil penalty follows either of the
416	above procedures, she or he is deemed to have admitted to
417	committing the infraction and to have waived the right to a
418	hearing on the issue of commission of the infraction. The
419	admission may be used as evidence in any other proceeding under
420	this chapter.
421	(f)  Any person may elect electing to appear before the
422	county court and if so electing or who is required to appear
423	shall be deemed to have waived the limitations on the civil
424	penalty specified in paragraph (c). The court, after a hearing,
425	shall make a determination as to whether an infraction has been
426	committed. If the commission of an infraction has been proven,
427	the court may impose a civil penalty not to exceed $5,000 plus
428	court costs. In determining the amount of the civil penalty, the
429	court may consider previous noncriminal infractions committed.
430	(g)  At a court hearing under this chapter, the commission
431	of a charged infraction must be proven by a preponderance of the
432	evidence.
433	(h)  If a person is found by a judge or the hearing
434	official to have committed an infraction, the person may appeal
435	that finding to the circuit court.
436	(i)  Sunshine State One-Call of Florida, Inc., may, at its
437	own cost, retain an attorney to assist in the presentation of
438	relevant facts and law in the county court proceeding pertaining
439	to the citation issued under this section. The corporation may
440	also appear in any case appealed to the circuit court if a
441	county court judge finds that an infraction of the chapter was
442	committed. An appellant in the circuit court proceeding shall
443	timely notify the corporation of any appeal under this section.
444	(2)  REPORT OF INFRACTIONS.-By March 31 of each year, each
445	clerk of court shall submit a report to Sunshine State One-Call
446	of Florida, Inc., listing each violation notice written under
447	paragraph (1)(a) which has been filed in that county during the
448	preceding calendar year. The report must state the name and
449	address of the member or excavator who committed each infraction
450	and indicate whether or not the civil penalty for the infraction
451	was paid.
452	(3)(2)  MISDEMEANORS.-Any person who knowingly and
453	willfully removes or otherwise destroys the valid stakes or
454	other valid physical markings described in s. 556.105(5)(a) and
455	(b) s. 556.105(5)(b) and (c) used to mark the horizontal route
456	of an underground facility commits a misdemeanor of the second
457	degree, punishable as provided in s. 775.082 or s. 775.083. For
458	purposes of this subsection, stakes or other nonpermanent
459	physical markings are considered valid for 30 calendar days
460	after information is provided to the system under s.
461	556.105(1)(a) s. 556.105(1)(c).
462	Section 6.  Section 556.109, Florida Statutes, is amended
463	to read:
464	556.109  Emergency excavations or demolitions attempted;
465	exception.-
466	(1)  The provisions of This act does do not apply to making
467	an excavation or demolition during an emergency if, provided the
468	system or the member operator was notified at the earliest
469	opportunity and all reasonable precautions had been taken to
470	protect any underground facility. For the purposes of this act,
471	"emergency" means any condition constituting a clear and present
472	danger to life or property; a situation caused by the escape of
473	any substance transported by means of an underground facility;
474	any interruption of vital public service or communication caused
475	by any break or defect in a member operator's underground
476	facility; or, in the case of the State Highway System or streets
477	or roads maintained by a political subdivision or underground
478	facilities owned, operated, or maintained by a political
479	subdivision, if the use of such highways, streets, roads, or
480	underground facilities is, in the sole judgment of the
481	Department of Highway Safety and Motor Vehicles, the Department
482	of Transportation, or such political subdivision, impaired by an
483	unforeseen occurrence that which necessitates repair beginning
484	immediately after such occurrence.
485	(2)  An excavator shall not notify the system that there is
486	an emergency unless the excavator reasonably believes that the
487	intended excavation or demolition is due to a situation or
488	condition as defined in subsection (1).
489	Section 7.  Section 556.110, Florida Statutes, is amended
490	to read:
491	556.110  Costs assessed among member operators.-Member
492	operators shall proportionately share in the cost of operating
493	the system through monthly assessments made upon each member
494	operator. However, any member that receives fewer than 10
495	notifications in any month shall not be assessed for such month.
496	Section 8.  Section 556.114, Florida Statutes, is created
497	to read:
498	556.114  Low-impact marking practices.-
499	(1)  An excavator providing notice under s. 556.105(1)(a)
500	shall identify in its notice only the area that will be
501	excavated during the period that the information in such notice
502	is considered valid under s. 556.105(1)(c).
503	(2)  When an excavator has not completed an excavation
504	noticed under s. 556.105(1)(a) within the period that the
505	information in the notice is considered valid under s.
506	556.105(1)(c), the excavator must provide a subsequent notice to
507	the system under s. 556.105(1)(a) to continue with the
508	excavation, and such subsequent notice shall identify only the
509	remaining area to be excavated.
510	(3)  When an excavation site cannot be described in
511	information provided under s. 556.105(1)(a) with sufficient
512	particularity to enable the member operator to ascertain the
513	excavation site, and if the excavator and member operator have
514	not mutually agreed otherwise, the excavator shall premark the
515	proposed area of the excavation before a member operator is
516	required to identify the horizontal route of its underground
517	facilities in the proximity of any excavation. However,
518	premarking is not required when the premarking could reasonably
519	interfere with traffic or pedestrian control.
520	(4)  A member operator shall identify the horizontal route
521	of its underground facilities as set forth in s. 556.105(5)(a)
522	and (b), and excavators shall premark an excavation site as set
523	forth in subsection (3) using flags or stakes or temporary,
524	nonpermanent paint or other industry-accepted low-impact marking
525	practices.
526	(5)  Any horizontal route-identification marker must be in
527	a color identified in the Uniform Color Code for Utilities.
528	(6)  Sunshine State One-Call of Florida, Inc., shall
529	establish an educational program for the purpose of informing
530	excavators and member operators about low-impact marking
531	practices.
532	Section 9.  Section 556.115, Florida Statutes, is created
533	to read:
534	556.115  Alternative dispute resolution.-
535	(1)  Sunshine State One-Call of Florida, Inc., shall create
536	a voluntary alternative dispute resolution program. The program
537	shall be available to all member operators, excavators, and
538	other stakeholders, such as locators, utility service users, and
539	governmental or quasi-governmental entities, for purposes of
540	resolving disputes arising from excavation activities,
541	including, but not limited to, loss of services, down time,
542	delays, loss of use of facilities during restoration or
543	replacement, and similar economic disruptions, exclusive of
544	penalties imposed under other provisions of this act.
545	(2)  The alternative dispute resolution program created by
546	Sunshine State One-Call of Florida, Inc., shall include
547	mediation, arbitration, or other appropriate processes,
548	including the use of the services of the Division of
549	Administrative Hearings.
550	(3)  The costs of using the program shall be borne by the
551	voluntary users, and the voluntary users shall choose the form
552	of alternative dispute resolution to be used. If arbitration is
553	used, the users shall decide whether the arbitration will be
554	binding.
555	(4)  Unless binding arbitration is the chosen method of
556	alternative dispute resolution, the users or any one of such
557	users may end the process at any time and exercise the right to
558	proceed in a court of competent jurisdiction or before the
559	Division of Administrative Hearings.
560	(5)  This section does not change the basis for civil
561	liability for damages.
562	Section 10.  Section 556.116, Florida Statutes, is created
563	to read:
564	556.116  High-priority subsurface installations; special
565	procedures.-
566	(1)  As used in this section, the term:
567	(a)  "Division" means the Division of Administrative
568	Hearings.
569	(b)  "High-priority subsurface installation" means an
570	underground gas transmission or gas distribution pipeline, an
571	underground pipeline used to transport gasoline, jet fuel, or
572	any other refined petroleum product or hazardous or highly
573	volatile liquid, such as anhydrous ammonia or carbon dioxide, if
574	the pipeline is deemed to be critical by the operator of the
575	pipeline and is identified as a high-priority subsurface
576	installation to an excavator who has provided a notice of intent
577	to excavate pursuant to s. 556.105(1), or would have been
578	identified as a high-priority subsurface installation except for
579	the excavator's failure to give proper notice of intent to
580	excavate.
581	(c)  "Incident" means an event that involves damage to a
582	high-priority subsurface installation that has been identified
583	as such by the operator according to the notification procedures
584	set forth in subsection (2) and that:
585	1.  Results in death or serious bodily injury requiring
586	inpatient hospitalization.
587	2.  Results in property damage, including service-
588	restoration costs, in an amount in excess of $50,000 or
589	interruption of service to 2,500 or more customers.
590	(2)  When an operator proposes to excavate or demolish
591	within 15 feet of the horizontal route of an underground
592	facility that has been identified as a high-priority subsurface
593	installation by the operator of the facility, the operator
594	shall, in addition to identifying the horizontal route of its
595	facility as set forth in s. 556.105(5)(a) and (b), and within
596	the time period set forth in s. 556.105(9)(a) for a positive
597	response, notify the excavator that the facility is a high-
598	priority subsurface installation. If the member operator
599	provides such timely notice of the existence of a high-priority
600	subsurface installation, an excavator shall notify the operator
601	of the planned excavation start date and time before beginning
602	excavation. If the member operator does not provide timely
603	notice, the excavator may proceed, after waiting the prescribed
604	time period set forth in s. 556.105(9)(a), to excavate without
605	notifying the member operator of the excavation start date and
606	time. The exemptions stated in s. 556.108 apply to the
607	notification requirements in this subsection.
608	(3)(a)  An alleged commission of an infraction listed in s.
609	556.107(1) which results in an incident must be reported to the
610	system by a member operator or an excavator within 24 hours
611	after learning of the alleged occurrence of an incident.
612	(b)  Upon receipt of an allegation that an incident has
613	occurred, the system shall transmit an incident report to the
614	division and contract with the division so that the division may
615	conduct a hearing to determine whether an incident has occurred,
616	and, if so, whether a violation of s. 556.107(1)(a) was a
617	proximate cause of the incident. The contract for services to be
618	performed by the division must include provisions for the system
619	to reimburse the division for any costs incurred by the division
620	for court reporters, transcript preparation, travel, facility
621	rental, and other customary hearing costs, in the manner set
622	forth in s. 120.65(11).
623	(c)  The division has jurisdiction in a proceeding under
624	this section to determine the facts and law concerning an
625	alleged incident. The division may impose a fine against a
626	violator in an amount not to exceed $50,000 if the person
627	violated a provision of s. 556.107(1)(a), and that violation was
628	a proximate cause of the incident. However, if a state agency or
629	political subdivision caused the incident, the state agency or
630	political subdivision may not be fined in an amount in excess of
631	$10,000.
632	(d)  A fine imposed by the division is in addition to any
633	amount payable as a result of a citation relating to the
634	incident under s. 556.107(1)(a).
635	(e)  A fine against an excavator or a member operator
636	imposed under this subsection shall be paid to the system, which
637	shall use the collected fines to satisfy the costs incurred by
638	the system for any proceedings under this section. To the extent
639	there are any funds remaining, the system may use the funds
640	exclusively for damage-prevention education.
641	(f)  This section does not change the basis for civil
642	liability. The findings and results of a hearing under this
643	section may not be used as evidence of liability in any civil
644	action.
645	(4)(a)  The division shall issue and serve on all original
646	parties an initial order that assigns the case to a specific
647	administrative law judge and requests information regarding
648	scheduling the final hearing within 5 business days after the
649	division receives a petition or request for hearing. The
650	original parties in the proceeding include all excavators and
651	member operators identified by the system as being involved in
652	the alleged incident. The final hearing must be conducted within
653	60 days after the date the petition or the request for a hearing
654	is filed with the division.
655	(b)  Unless the parties otherwise agree, venue for the
656	hearing shall be in the county in which the underground facility
657	is located.
658	(c)  An intervenor in the proceeding must file a petition
659	to intervene no later than 15 days before the final hearing. A
660	person who has a substantial interest in the proceeding may
661	intervene.
662	(5)  The following procedures apply:
663	(a)  Motions shall be limited to the following:
664	1.  A motion in opposition to the petition.
665	2.  A motion requesting discovery beyond the informal
666	exchange of documents and witness lists described in paragraph
667	(c). Upon a showing of necessity, additional discovery may be
668	permitted in the discretion of the administrative law judge, but
669	only if the discovery can be completed no later than 5 days
670	before the final hearing.
671	3.  A motion for continuance of the final hearing date.
672	(b)  All parties shall attend a prehearing conference for
673	the purpose of identifying the legal and factual issues to be
674	considered at the final hearing, the names and addresses of
675	witnesses who may be called to testify at the final hearing,
676	documentary evidence that will be offered at the final hearing,
677	the range of penalties that may be imposed, and any other matter
678	that would expedite resolution of the proceeding. The prehearing
679	conference may be held by telephone conference call.
680	(c)  Not later than 5 days before the final hearing, the
681	parties shall furnish to each other copies of documentary
682	evidence and lists of witnesses who may testify at the final
683	hearing.
684	(d)  All parties shall have an opportunity to respond, to
685	present evidence and argument on all issues involved, to conduct
686	cross-examination and submit rebuttal evidence, and to be
687	represented by counsel or other qualified representative.
688	(e)  The record shall consist only of:
689	1.  All notices, pleadings, motions, and intermediate
690	rulings.
691	2.  Evidence received during the final hearing.
692	3.  A statement of matters officially recognized.
693	4.  Proffers of proof and objections and rulings thereon.
694	5.  Matters placed on the record after an ex parte
695	communication.
696	6.  The written final order of the administrative law judge
697	presiding at the final hearing.
698	7.  The official transcript of the final hearing.
699	(f)  The division shall accurately and completely preserve
700	all testimony in the proceeding and, upon request by any party,
701	shall make a full or partial transcript available at no more
702	than actual cost.
703	(g)  The administrative law judge shall issue a final order
704	within 30 days after the final hearing or the filing of the
705	transcript thereof, whichever is later. The final order of the
706	administrative law judge must include:
707	1.  Findings of fact based exclusively on the evidence of
708	record and matters officially recognized.
709	2.  Conclusions of law. In determining whether a party has
710	committed an infraction of s. 556.107(1)(a), and whether the
711	infraction was a proximate cause of an incident, the commission
712	of an infraction must be proven by a preponderance of the
713	evidence.
714	3.  Imposition of a fine, if applicable.
715	4.  Any other information required by law or rule to be
716	contained in a final order.
717
718	The final order of the administrative law judge constitutes
719	final agency action subject to judicial review pursuant to s.
720	120.68.
721	Section 11.  This act shall take effect October 1, 2010.

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