Florida Senate - 2016 CS for SB 1192 By the Committee on Environmental Preservation and Conservation; and Senator Hays 592-03276-16 20161192c1 1 A bill to be entitled 2 An act relating to waste management; creating s. 3 403.70491, F.S; prohibiting a local government from 4 preventing a private company from listing separately 5 on an invoice for solid waste collection, disposal, or 6 recycling any governmental taxes and fees; amending s. 7 403.70605, F.S.; revising provisions relating to solid 8 waste collection services to include disposal and 9 recycling services; providing that certain private 10 companies may bring an action against a state agency 11 for specified violations; revising definitions; 12 creating s. 812.0141, F.S.; defining a term; 13 establishing the crime of theft of recyclable 14 property; providing penalties; providing for a civil 15 remedy; providing for attorney fees and costs under 16 certain conditions; providing an effective date. 17 18 Be It Enacted by the Legislature of the State of Florida: 19 20 Section 1. Section 403.70491, Florida Statutes, is created 21 to read: 22 403.70491 Invoices for solid waste collection, disposal, or 23 recycling.—A local government may not prevent a private company 24 from listing separately on the company’s invoice for solid waste 25 collection, disposal, or recycling any governmental taxes or 26 fees, including, but not limited to, any franchise fee. 27 Section 2. Subsections (1) and (4) of section 403.70605, 28 Florida Statutes, are amended to read: 29 403.70605 Solid waste collection, disposal, or recycling 30 services in competition with private companies.— 31 (1) SOLID WASTE COLLECTION, DISPOSAL, OR RECYCLING SERVICES 32 IN COMPETITION WITH PRIVATE COMPANIES.— 33 (a) A local government that provides specific solid waste 34 collection, disposal, or recycling services in direct 35 competition with a private company: 36 1. Shall comply with the provisions of local environmental, 37 health, and safety standards that also are applicable to a 38 private company providing such collection, disposal, or 39 recycling services in competition with the local government. 40 2. Mayshallnot enact or enforce any license, permit, 41 registration procedure, or associated fee that: 42 a. Does not apply to the local government and for which 43 there is not a substantially similar requirement that applies to 44 the local government; and 45 b. Provides the local government with a material advantage 46 in its ability to compete with a private company in terms of 47 cost or ability to promptly or efficiently provide such 48 collection, disposal, or recycling services. Nothing in this 49 sub-subparagraph shall apply to any zoning, land use, or 50 comprehensive plan requirement. 51 (b)1. A private company with which a local government is in 52 competition may bring an action to enjoin a violation of 53 paragraph (a) against any local government or state agency. No 54 injunctive relief shall be granted if the official action that 55whichforms the basis for the suit bears a reasonable 56 relationship to the health, safety, or welfare of the citizens 57 of the local government unless the court finds that the actual 58 or potential anticompetitive effects outweigh the public 59 benefits of the challenged action. 60 2. As a condition precedent to the institution of an action 61 pursuant to this paragraph, the complaining party shall first 62 file with the local government a notice referencing this 63 paragraph and setting forth the specific facts upon which the 64 complaint is based and the manner in which the complaining party 65 is affected. The complaining party may provide evidence to 66 substantiate the claims made in the complaint. Within 30 days 67 after receipt of such a complaint, the local government shall 68 respond in writing to the complaining party explaining the 69 corrective action taken, if any. If no response is received 70 within 30 days or if appropriate corrective action is not taken 71 within a reasonable time, the complaining party may institute 72 the judicial proceedings authorized in this paragraph. However, 73 failure to comply with this subparagraph mayshallnot bar an 74 action for a temporary restraining order to prevent immediate 75 and irreparable harm from the conduct or activity complained of. 76 3. The court may, in its discretion, award to the 77 prevailing party or parties costs and reasonable attorney 78attorneys’fees. 79 (c) This subsection does not apply when the local 80 government is exclusively providing the specific solid waste 81 collection, disposal, or recycling services itself or pursuant 82 to an exclusive franchise. 83 (2) SOLID WASTE COLLECTION SERVICES OUTSIDE JURISDICTION.— 84 (a) Notwithstanding s. 542.235, or any other provision of 85 law, a local government that provides solid waste collection 86 services outside its jurisdiction in direct competition with 87 private companies is subject to the same prohibitions against 88 predatory pricing applicable to private companies under ss. 89 542.18 and 542.19. 90 (b) Any person injured by reason of violation of this 91 subsection may sue therefor in the circuit courts of this state 92 and shall be entitled to injunctive relief and to recover the 93 damages and the costs of suit. The court may, in its discretion, 94 award to the prevailing party or parties reasonable attorneys’ 95 fees. An action for damages under this subsection must be 96 commenced within 4 years. No person may obtain injunctive relief 97 or recover damages under this subsection for any injury that 98 results from actions taken by a local government in direct 99 response to a natural disaster or similar occurrence for which 100 an emergency is declared by executive order or proclamation of 101 the Governor pursuant to s. 252.36 or for which such a 102 declaration might be reasonably anticipated within the area 103 covered by such executive order or proclamation. 104 (c) As a condition precedent to the institution of an 105 action pursuant to this subsection, the complaining party shall 106 first file with the local government a notice referencing this 107 subsection and setting forth the specific facts upon which the 108 complaint is based and the manner in which the complaining party 109 is affected. Within 30 days after receipt of such complaint, the 110 local government shall respond in writing to the complaining 111 party explaining the corrective action taken, if any. If the 112 local government denies that it has engaged in conduct that is 113 prohibited by this subsection, its response shall include an 114 explanation showing why the conduct complained of does not 115 constitute predatory pricing. 116 (d) For the purposes of this subsection, the jurisdiction 117 of a county, special district, or solid waste authority shall 118 include all incorporated and unincorporated areas within the 119 county, special district, or solid waste authority. 120 (3) DISPLACEMENT OF PRIVATE WASTE COMPANIES.— 121 (a) As used in this subsection, the term “displacement” 122 means a local government’s provision of a collection service 123 which prohibits a private company from continuing to provide the 124 same service that it was providing when the decision to displace 125 was made. The term does not include: 126 1. Competition between the public sector and private 127 companies for individual contracts; 128 2. Actions by which a local government, at the end of a 129 contract with a private company, refuses to renew the contract 130 and either awards the contract to another private company or 131 decides for any reason to provide the collection service itself; 132 3. Actions taken against a private company because the 133 company has acted in a manner threatening to the public health 134 or safety or resulting in a substantial public nuisance; 135 4. Actions taken against a private company because the 136 company has materially breached its contract with the local 137 government; 138 5. Refusal by a private company to continue operations 139 under the terms and conditions of its existing agreement during 140 the 3-year notice period; 141 6. Entering into a contract with a private company to 142 provide garbage, trash, or refuse collection which contract is 143 not entered into under an ordinance that displaces or authorizes 144 the displacement of another private company providing garbage, 145 trash, or refuse collection; 146 7. Situations in which a majority of the property owners in 147 the displacement area petition the governing body to take over 148 the collection service; 149 8. Situations in which the private companies are licensed 150 or permitted to do business within the local government for a 151 limited time and such license or permit expires and is not 152 renewed by the local government. This subparagraph does not 153 apply to licensing or permitting processes enacted after May 1, 154 1999, or to occupational licenses; or 155 9. Annexations, but only to the extent that the provisions 156 of s. 171.062(4) apply. 157 (b) A local government or combination of local governments 158 may not displace a private company that provides garbage, trash, 159 or refuse collection service without first: 160 1. Holding at least one public hearing seeking comment on 161 the advisability of the local government or combination of local 162 governments providing the service. 163 2. Providing at least 45 days’ written notice of the 164 hearing, delivered by first-class mail to all private companies 165 that provide the service within the jurisdiction. 166 3. Providing public notice of the hearing. 167 (c) Following the final public hearing held under paragraph 168 (b), but not later than 1 year after the hearing, the local 169 government may proceed to take those measures necessary to 170 provide the service. A local government shall provide 3 years’ 171 notice to a private company before it engages in the actual 172 provision of the service that displaces the company. As an 173 alternative to delaying displacement 3 years, a local government 174 may pay a displaced company an amount equal to the company’s 175 preceding 15 months’ gross receipts for the displaced service in 176 the displacement area. The 3-year notice period shall lapse as 177 to any private company being displaced when the company ceases 178 to provide service within the displacement area. Nothing in this 179 paragraph prohibits the local government and the company from 180 voluntarily negotiating a different notice period or amount of 181 compensation. 182 (4) DEFINITIONS.—As used in this section, the term: 183 (a) “In competition” or “in direct competition” means the 184 competitionvyingbetween a local government and a private 185 company to provide substantially similar solid waste collection 186 services to the same customer. For the purposes of subsection 187 (1), the term also refers to the competition between private 188 companies to provide disposal or recycling services to the same 189 customer. 190 (b) “Private company” means ananyentity other than a 191 local government or other unit of government whichthatprovides 192 solid waste collection services. For the purposes of subsection 193 (1), the term also includes entities other than a local 194 government or other unit of government which provide disposal or 195 recycling services. 196 Section 3. Section 812.0141, Florida Statutes, is created 197 to read: 198 812.0141 Theft of recyclable property.— 199 (1) As used in this section, the term “recyclable property” 200 means recovered materials, as defined in s. 403.703, in addition 201 to wooden or plastic pallets. 202 (2) A person commits theft if he or she knowingly obtains 203 or uses, or endeavors to obtain or to use, the recyclable 204 property of another with intent to, either temporarily or 205 permanently: 206 (a) Deprive the other person of a right to possess the 207 recyclable property or of a benefit derived therefrom. 208 (b) Appropriate the recyclable property for his or her own 209 use or to the use of a person not entitled to the use of the 210 recyclable property. 211 (3) A person who violates this section is guilty of a 212 misdemeanor of the first degree, punishable as provided in s. 213 775.082 or s. 775.083. Prosecution for a violation of subsection 214 (2) does not preclude prosecution for theft pursuant to s. 215 812.014. 216 (4) A person who commits a third or subsequent violation of 217 subsection (2) within 3 years after the date of a prior 218 violation that resulted in a conviction for a violation of 219 subsection (2) commits a felony of the third degree, punishable 220 as provided in s. 775.082 or s. 775.083. 221 (5) A person who proves by clear and convincing evidence 222 that he or she has been injured in any manner by reason of a 223 violation of this section may pursue a civil remedy under s. 224 772.11. However, notwithstanding s. 772.11, the minimum damage 225 award under this subsection is $5,000, plus reasonable attorney 226 fees and costs in the trial and appellate courts. 227 Section 4. This act shall take effect July 1, 2016. 228