Florida Senate - 2016 COMMITTEE AMENDMENT Bill No. SB 1192 Ì755340|Î755340 LEGISLATIVE ACTION Senate . House Comm: RCS . 02/09/2016 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Environmental Preservation and Conservation (Hays) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Section 403.70491, Florida Statutes, is created 6 to read: 7 403.70491 Invoices for solid waste collection, disposal, or 8 recycling.—A local government may not prevent a private company 9 from listing separately on the company’s invoice for solid waste 10 collection, disposal, or recycling any governmental taxes or 11 fees, including, but not limited to, any franchise fee. 12 Section 2. Subsections (1) and (4) of section 403.70605, 13 Florida Statutes, are amended to read: 14 403.70605 Solid waste collection, disposal, or recycling 15 services in competition with private companies.— 16 (1) SOLID WASTE COLLECTION, DISPOSAL, OR RECYCLING SERVICES 17 IN COMPETITION WITH PRIVATE COMPANIES.— 18 (a) A local government that provides specific solid waste 19 collection, disposal, or recycling services in direct 20 competition with a private company: 21 1. Shall comply with the provisions of local environmental, 22 health, and safety standards that also are applicable to a 23 private company providing such collection, disposal, or 24 recycling services in competition with the local government. 25 2. Mayshallnot enact or enforce any license, permit, 26 registration procedure, or associated fee that: 27 a. Does not apply to the local government and for which 28 there is not a substantially similar requirement that applies to 29 the local government; and 30 b. Provides the local government with a material advantage 31 in its ability to compete with a private company in terms of 32 cost or ability to promptly or efficiently provide such 33 collection, disposal, or recycling services. Nothing in this 34 sub-subparagraph shall apply to any zoning, land use, or 35 comprehensive plan requirement. 36 (b)1. A private company with which a local government is in 37 competition may bring an action to enjoin a violation of 38 paragraph (a) against any local government or state agency. No 39 injunctive relief shall be granted if the official action that 40whichforms the basis for the suit bears a reasonable 41 relationship to the health, safety, or welfare of the citizens 42 of the local government unless the court finds that the actual 43 or potential anticompetitive effects outweigh the public 44 benefits of the challenged action. 45 2. As a condition precedent to the institution of an action 46 pursuant to this paragraph, the complaining party shall first 47 file with the local government a notice referencing this 48 paragraph and setting forth the specific facts upon which the 49 complaint is based and the manner in which the complaining party 50 is affected. The complaining party may provide evidence to 51 substantiate the claims made in the complaint. Within 30 days 52 after receipt of such a complaint, the local government shall 53 respond in writing to the complaining party explaining the 54 corrective action taken, if any. If no response is received 55 within 30 days or if appropriate corrective action is not taken 56 within a reasonable time, the complaining party may institute 57 the judicial proceedings authorized in this paragraph. However, 58 failure to comply with this subparagraph mayshallnot bar an 59 action for a temporary restraining order to prevent immediate 60 and irreparable harm from the conduct or activity complained of. 61 3. The court may, in its discretion, award to the 62 prevailing party or parties costs and reasonable attorney 63attorneys’fees. 64 (c) This subsection does not apply when the local 65 government is exclusively providing the specific solid waste 66 collection, disposal, or recycling services itself or pursuant 67 to an exclusive franchise. 68 (2) SOLID WASTE COLLECTION SERVICES OUTSIDE JURISDICTION.— 69 (a) Notwithstanding s. 542.235, or any other provision of 70 law, a local government that provides solid waste collection 71 services outside its jurisdiction in direct competition with 72 private companies is subject to the same prohibitions against 73 predatory pricing applicable to private companies under ss. 74 542.18 and 542.19. 75 (b) Any person injured by reason of violation of this 76 subsection may sue therefor in the circuit courts of this state 77 and shall be entitled to injunctive relief and to recover the 78 damages and the costs of suit. The court may, in its discretion, 79 award to the prevailing party or parties reasonable attorneys’ 80 fees. An action for damages under this subsection must be 81 commenced within 4 years. No person may obtain injunctive relief 82 or recover damages under this subsection for any injury that 83 results from actions taken by a local government in direct 84 response to a natural disaster or similar occurrence for which 85 an emergency is declared by executive order or proclamation of 86 the Governor pursuant to s. 252.36 or for which such a 87 declaration might be reasonably anticipated within the area 88 covered by such executive order or proclamation. 89 (c) As a condition precedent to the institution of an 90 action pursuant to this subsection, the complaining party shall 91 first file with the local government a notice referencing this 92 subsection and setting forth the specific facts upon which the 93 complaint is based and the manner in which the complaining party 94 is affected. Within 30 days after receipt of such complaint, the 95 local government shall respond in writing to the complaining 96 party explaining the corrective action taken, if any. If the 97 local government denies that it has engaged in conduct that is 98 prohibited by this subsection, its response shall include an 99 explanation showing why the conduct complained of does not 100 constitute predatory pricing. 101 (d) For the purposes of this subsection, the jurisdiction 102 of a county, special district, or solid waste authority shall 103 include all incorporated and unincorporated areas within the 104 county, special district, or solid waste authority. 105 (3) DISPLACEMENT OF PRIVATE WASTE COMPANIES.— 106 (a) As used in this subsection, the term “displacement” 107 means a local government’s provision of a collection service 108 which prohibits a private company from continuing to provide the 109 same service that it was providing when the decision to displace 110 was made. The term does not include: 111 1. Competition between the public sector and private 112 companies for individual contracts; 113 2. Actions by which a local government, at the end of a 114 contract with a private company, refuses to renew the contract 115 and either awards the contract to another private company or 116 decides for any reason to provide the collection service itself; 117 3. Actions taken against a private company because the 118 company has acted in a manner threatening to the public health 119 or safety or resulting in a substantial public nuisance; 120 4. Actions taken against a private company because the 121 company has materially breached its contract with the local 122 government; 123 5. Refusal by a private company to continue operations 124 under the terms and conditions of its existing agreement during 125 the 3-year notice period; 126 6. Entering into a contract with a private company to 127 provide garbage, trash, or refuse collection which contract is 128 not entered into under an ordinance that displaces or authorizes 129 the displacement of another private company providing garbage, 130 trash, or refuse collection; 131 7. Situations in which a majority of the property owners in 132 the displacement area petition the governing body to take over 133 the collection service; 134 8. Situations in which the private companies are licensed 135 or permitted to do business within the local government for a 136 limited time and such license or permit expires and is not 137 renewed by the local government. This subparagraph does not 138 apply to licensing or permitting processes enacted after May 1, 139 1999, or to occupational licenses; or 140 9. Annexations, but only to the extent that the provisions 141 of s. 171.062(4) apply. 142 (b) A local government or combination of local governments 143 may not displace a private company that provides garbage, trash, 144 or refuse collection service without first: 145 1. Holding at least one public hearing seeking comment on 146 the advisability of the local government or combination of local 147 governments providing the service. 148 2. Providing at least 45 days’ written notice of the 149 hearing, delivered by first-class mail to all private companies 150 that provide the service within the jurisdiction. 151 3. Providing public notice of the hearing. 152 (c) Following the final public hearing held under paragraph 153 (b), but not later than 1 year after the hearing, the local 154 government may proceed to take those measures necessary to 155 provide the service. A local government shall provide 3 years’ 156 notice to a private company before it engages in the actual 157 provision of the service that displaces the company. As an 158 alternative to delaying displacement 3 years, a local government 159 may pay a displaced company an amount equal to the company’s 160 preceding 15 months’ gross receipts for the displaced service in 161 the displacement area. The 3-year notice period shall lapse as 162 to any private company being displaced when the company ceases 163 to provide service within the displacement area. Nothing in this 164 paragraph prohibits the local government and the company from 165 voluntarily negotiating a different notice period or amount of 166 compensation. 167 (4) DEFINITIONS.—As used in this section, the term: 168 (a) “In competition” or “in direct competition” means the 169 competitionvyingbetween a local government and a private 170 company to provide substantially similar solid waste collection 171 services to the same customer. For the purposes of subsection 172 (1), the term also refers to the competition between private 173 companies to provide disposal or recycling services to the same 174 customer. 175 (b) “Private company” means ananyentity other than a 176 local government or other unit of government whichthatprovides 177 solid waste collection services. For the purposes of subsection 178 (1), the term also includes entities other than a local 179 government or other unit of government which provide disposal or 180 recycling services. 181 Section 3. Section 812.0141, Florida Statutes, is created 182 to read: 183 812.0141 Theft of recyclable property.— 184 (1) As used in this section, the term “recyclable property” 185 means recovered materials, as defined in s. 403.703, in addition 186 to wooden or plastic pallets. 187 (2) A person commits theft if he or she knowingly obtains 188 or uses, or endeavors to obtain or to use, the recyclable 189 property of another with intent to, either temporarily or 190 permanently: 191 (a) Deprive the other person of a right to possess the 192 recyclable property or of a benefit derived therefrom. 193 (b) Appropriate the recyclable property for his or her own 194 use or to the use of a person not entitled to the use of the 195 recyclable property. 196 (3) A person who violates this section is guilty of a 197 misdemeanor of the first degree, punishable as provided in s. 198 775.082 or s. 775.083. Prosecution for a violation of subsection 199 (2) does not preclude prosecution for theft pursuant to s. 200 812.014. 201 (4) A person who commits a third or subsequent violation of 202 subsection (2) within 3 years after the date of a prior 203 violation that resulted in a conviction for a violation of 204 subsection (2) commits a felony of the third degree, punishable 205 as provided in s. 775.082 or s. 775.083. 206 (5) A person who proves by clear and convincing evidence 207 that he or she has been injured in any manner by reason of a 208 violation of this section may pursue a civil remedy under s. 209 772.11. However, notwithstanding s. 772.11, the minimum damage 210 award under this subsection is $5,000, plus reasonable attorney 211 fees and costs in the trial and appellate courts. 212 Section 4. This act shall take effect July 1, 2016. 213 ================= T I T L E A M E N D M E N T ================ 214 And the title is amended as follows: 215 Delete everything before the enacting clause 216 and insert: 217 A bill to be entitled 218 An act relating to waste management; creating s. 219 403.70491, F.S; prohibiting a local government from 220 preventing a private company from listing separately 221 on an invoice for solid waste collection, disposal, or 222 recycling any governmental taxes and fees; amending s. 223 403.70605, F.S.; revising provisions relating to solid 224 waste collection services to include disposal and 225 recycling services; providing that certain private 226 companies may bring an action against a state agency 227 for specified violations; revising definitions; 228 creating s. 812.0141, F.S.; defining a term; 229 establishing the crime of theft of recyclable 230 property; providing penalties; providing for a civil 231 remedy; providing for attorney fees and costs under 232 certain conditions; providing an effective date.