Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. SB 1192
       
       
       
       
       
       
                                Ì755340|Î755340                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/09/2016           .                                
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       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. May shall not 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
   40  which forms 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 may shall not 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
   63  attorneys’ 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  competition vying between 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 an any entity other than a
  176  local government or other unit of government which that provides
  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.