Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. SB 1464
       
       
       
       
       
       
                                Ì661044}Î661044                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/28/2020           .                                
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       The Committee on Infrastructure and Security (Flores)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsections (9) through (14) of section 556.102,
    6  Florida Statutes, are redesignated as subsections (10) through
    7  (15), respectively, and a new subsection (9) is added to that
    8  section, to read:
    9         556.102 Definitions.—As used in this act:
   10         (9) “Permanent marker” means a clearly visible indication
   11  of the approximate location of an underground facility which is
   12  made of material that is durable in nature and which is
   13  reasonably expected to remain in position for the life of the
   14  underground facility.
   15         Section 2. Section 556.107, Florida Statutes, is amended to
   16  read:
   17         556.107 Violations.—
   18         (1) NONCRIMINAL INFRACTIONS.—
   19         (a)1. Violations of the following provisions are
   20  noncriminal infractions:
   21         a.1. Section 556.105(1), relating to providing required
   22  information.
   23         b.2. Section 556.105(6), relating to the avoidance of
   24  excavation.
   25         c.3. Section 556.105(11), relating to the need to stop
   26  excavation or demolition because marks are no longer visible,
   27  or, in the case of underwater facilities, are inadequately
   28  documented.
   29         d.4. Section 556.105(12), relating to the need to cease
   30  excavation or demolition activities because of contact or damage
   31  to an underground facility.
   32         e.5. Section 556.105(5)(a) and (b), relating to
   33  identification of underground facilities, if a member operator
   34  does not mark an underground facility, but not if a member
   35  operator marks an underground facility incorrectly.
   36         f.6. Section 556.109(2), relating to falsely notifying the
   37  system of an emergency situation or condition.
   38         g.7. Section 556.114(1), (2), (3), and (4), relating to a
   39  failure to follow low-impact marking practices, as defined
   40  therein.
   41         2.Violations of the following provisions when related to
   42  an underground pipe or other underground facility transporting
   43  hazardous materials that are regulated by the Pipeline and
   44  Hazardous Materials Safety Administration of the United States
   45  Department of Transportation are noncriminal infractions,
   46  subject to enhanced civil penalties under paragraph (c):
   47         a.Section 556.105(1), relating to providing required
   48  information.
   49         b.Section 556.105(5)(c), relating to excavation practices
   50  in tolerance zones.
   51         c.Section 556.105(6), relating to the avoidance of certain
   52  excavation.
   53         d.Section 556.105(11), relating to the need to stop
   54  excavation or demolition because certain marks are no longer
   55  visible or are inadequately documented.
   56         e.Section 556.105(12), relating to the need to cease
   57  excavation or demolition activities because of contact with or
   58  damage to an underground facility.
   59         (b) Any excavator or member operator who commits a
   60  noncriminal infraction under paragraph (a) may be issued a
   61  citation by the State Fire Marshal; the fire chief of the
   62  special district, municipality, or county; or any local or state
   63  law enforcement officer, government code inspector, or code
   64  enforcement officer, and the issuer of a citation may require an
   65  excavator to cease work on any excavation or not start a
   66  proposed excavation until there has been compliance with the
   67  provisions of this chapter. Citations shall be hand delivered to
   68  any employee of the excavator or member operator who is involved
   69  in the noncriminal infraction. The citation shall be issued in
   70  the name of the excavator or member operator, whichever is
   71  applicable.
   72         (c)1. Any excavator or member operator who commits a
   73  noncriminal infraction under subparagraph (a)1. paragraph (a)
   74  may be required to pay a civil penalty of $500 plus court costs
   75  for each infraction, which is $500 plus court costs. If a
   76  citation is issued by the State Fire Marshal; the fire chief of
   77  the special district, municipality, or county; a state law
   78  enforcement officer;, a local law enforcement officer;, a local
   79  government code inspector;, or a code enforcement officer, 80
   80  percent of the civil penalty collected by the clerk of the court
   81  shall be distributed to the governmental entity whose employee
   82  issued the citation and 20 percent of the penalty shall be
   83  retained by the clerk to cover administrative costs, in addition
   84  to other court costs. Any person who fails to properly respond
   85  to a citation issued under pursuant to paragraph (b) shall, in
   86  addition to the citation, be charged with the offense of failing
   87  to respond to the citation and, upon conviction, commits a
   88  misdemeanor of the second degree, punishable as provided in s.
   89  775.082 or s. 775.083. A written warning to this effect must be
   90  provided at the time any citation is issued under pursuant to
   91  paragraph (b).
   92         2.Any excavator or member operator who commits a
   93  noncriminal infraction under subparagraph (a)2. may be required
   94  to pay an enhanced civil penalty of $2,500 plus 5 percent in
   95  addition to any other court costs for each infraction. If a
   96  citation is issued by the State Fire Marshal; the fire chief of
   97  the special district, municipality, or county; a state law
   98  enforcement officer; a local law enforcement officer; a local
   99  government code inspector; or a code enforcement officer, 100
  100  percent of the civil penalty collected by the clerk of the court
  101  shall be distributed to the governmental entity whose employee
  102  issued the citation. The additional 5 percent, plus any
  103  additional court costs, is to be retained by the clerk to cover
  104  administrative costs. Any person who willfully fails to properly
  105  respond to a citation issued under paragraph (b) shall, in
  106  addition to the citation, be charged with the offense of failing
  107  to respond to the citation and, upon conviction, commits a
  108  misdemeanor of the second degree, punishable as provided in s.
  109  775.082 or s. 775.083. A written warning to this effect must be
  110  provided at the time a citation is issued under paragraph (b).
  111         (d) Any person cited for an infraction under paragraph (a)
  112  may post a bond, which must shall be equal in amount to the
  113  applicable civil penalty plus any additional court costs.
  114         (e) A person charged with a noncriminal infraction under
  115  paragraph (a) may pay the applicable civil penalty plus the
  116  additional court costs, by mail or in person, within 30 days
  117  after the date of receiving the citation. If the person cited
  118  pays the civil penalty, she or he is deemed to have admitted to
  119  committing the infraction and to have waived the right to a
  120  hearing on the issue of commission of the infraction. The
  121  admission may be used as evidence in any other proceeding under
  122  this chapter.
  123         (f) Any person may elect to have a hearing on the
  124  commission of the infraction appear before the county court. A
  125  person who elects to have a hearing waives and if so electing is
  126  deemed to have waived the limitations on the civil penalties
  127  penalty specified in paragraph (c). The court, after a hearing,
  128  shall make a determination as to whether an infraction has been
  129  committed. If the commission of an infraction has been proven,
  130  the court may impose a civil penalty not to exceed $5,000 plus
  131  court costs for each infraction. In determining the amount of
  132  the civil penalty, the court may consider previous noncriminal
  133  infractions committed.
  134         (g) At a court hearing under this chapter, the commission
  135  of a charged infraction must be proven by a preponderance of the
  136  evidence.
  137         (h) If the court finds that a person is found by a judge or
  138  hearing official to have committed an infraction, the person may
  139  appeal that finding or the amount of the civil penalties imposed
  140  to the circuit court.
  141         (i) Sunshine State One-Call of Florida, Inc., may, at its
  142  own cost, retain an attorney to assist in the presentation of
  143  relevant facts and law in the county court proceeding pertaining
  144  to the citation issued under this section. The corporation may
  145  also appear in any case appealed to the circuit court if a
  146  county court judge finds that an infraction of the chapter was
  147  committed. An appellant in the circuit court proceeding shall
  148  timely notify the corporation of any appeal under this section.
  149         (2) REPORT OF INFRACTIONS.—By March 31 of each year, each
  150  clerk of court shall submit a report to the State Fire Marshal
  151  and Sunshine State One-Call of Florida, Inc., listing each
  152  violation notice written under paragraph (1)(a) which has been
  153  filed in that county during the preceding calendar year. The
  154  report must state the name and address of the member or
  155  excavator who committed each infraction and indicate whether or
  156  not the civil penalty for the infraction was paid.
  157         (3) MISDEMEANORS.—
  158         (a) Any person who knowingly and willfully removes or
  159  otherwise destroys the valid stakes or other valid physical
  160  markings described in s. 556.105(5)(a) and (b) used to mark the
  161  horizontal route of an underground facility commits a
  162  misdemeanor of the second degree, punishable as provided in s.
  163  775.082 or s. 775.083. For purposes of this subsection, stakes
  164  or other nonpermanent physical markings are considered valid for
  165  30 calendar days after information is provided to the system
  166  under s. 556.105(1)(a).
  167         (b)Any person who knowingly and willfully removes or
  168  damages a permanent marker that has been placed to identify the
  169  approximate location of an underground facility commits a
  170  misdemeanor of the second degree, punishable as provided in s.
  171  775.082 or s. 775.083.
  172         Section 3. Section 556.116, Florida Statutes, is amended to
  173  read:
  174         556.116 High-priority subsurface installations; special
  175  procedures.—
  176         (1) As used in this section, the term:
  177         (a)“Division” means the Division of Administrative
  178  Hearings.
  179         (a)(b) “High-priority subsurface installation” means an
  180  underground gas transmission or gas distribution pipeline, an
  181  underground pipeline used to transport gasoline, jet fuel, or
  182  any other refined petroleum product or hazardous or highly
  183  volatile liquid, such as anhydrous ammonia or carbon dioxide, if
  184  the pipeline is deemed to be critical by the operator of the
  185  pipeline and is identified as a high-priority subsurface
  186  installation to an excavator who has provided a notice of intent
  187  to excavate under pursuant to s. 556.105(1), or would have been
  188  identified as a high-priority subsurface installation except for
  189  the excavator’s failure to give proper notice of intent to
  190  excavate.
  191         (b)(c) “Incident” means an event that involves damage to a
  192  high-priority subsurface installation that has been identified
  193  as such by the operator according to the notification procedures
  194  set forth in subsection (2) and that:
  195         1. Results in death or serious bodily injury requiring
  196  inpatient hospitalization.
  197         2. Results in property damage, including service
  198  restoration costs, in an amount in excess of $50,000 or
  199  interruption of service to 2,500 or more customers.
  200         (2) When an excavator proposes to excavate or demolish
  201  within 15 feet of the horizontal route of an underground
  202  facility that has been identified as a high-priority subsurface
  203  installation by the operator of the facility, the operator
  204  shall, in addition to identifying the horizontal route of its
  205  facility as set forth in s. 556.105(5)(a) and (b), and within
  206  the time period set forth in s. 556.105(9)(a) for a positive
  207  response, notify the excavator that the facility is a high
  208  priority subsurface installation. If the member operator
  209  provides such timely notice of the existence of a high-priority
  210  subsurface installation, an excavator shall notify the operator
  211  of the planned excavation start date and time before beginning
  212  excavation. If the member operator does not provide timely
  213  notice, the excavator may proceed, after waiting the prescribed
  214  time period set forth in s. 556.105(9)(a), to excavate without
  215  notifying the member operator of the excavation start date and
  216  time. The exemptions stated in s. 556.108 apply to the
  217  notification requirements in this subsection.
  218         (3)(a) An alleged commission of an infraction listed in s.
  219  556.107(1) which results in an incident must be reported to the
  220  system by a member operator or an excavator within 24 hours
  221  after learning of the alleged occurrence of an incident.
  222         (b) Upon receipt of an allegation that an incident has
  223  occurred, the system shall transmit an incident report to the
  224  State Fire Marshal; the fire chief of the special district,
  225  municipality, or county; a local or state law enforcement
  226  officer; a government code inspector; or a code enforcement
  227  officer in order to division and contract with the division so
  228  that the division may conduct an investigation a hearing to
  229  determine whether an incident has occurred, and, if so, whether
  230  a violation of s. 556.107(1)(a) was a proximate cause of the
  231  incident. The contract for services to be performed by the
  232  division must include provisions for the system to reimburse the
  233  division for any costs incurred by the division for court
  234  reporters, transcript preparation, travel, facility rental, and
  235  other customary hearing costs, in the manner set forth in s.
  236  120.65(9).
  237         (c) The State Fire Marshal; the fire chief of the special
  238  district, municipality, or county; a local or state law
  239  enforcement officer; a government code inspector; or a code
  240  enforcement officer division has jurisdiction in a proceeding
  241  under this section to determine the facts and law concerning an
  242  alleged incident. The division may issue a citation and impose a
  243  civil penalty fine against a violator in an amount not to exceed
  244  $50,000 if the person violated a provision of s. 556.107(1)(a)
  245  and that violation was a proximate cause of the incident.
  246  However, if a state agency or political subdivision caused the
  247  incident, the state agency or political subdivision may not be
  248  fined in an amount in excess of $10,000.
  249         (d) The civil penalty A fine imposed under this subsection
  250  by the division is in addition to any amount payable as a result
  251  of a citation relating to the incident under s. 556.107(1)(a).
  252         (e) If a civil penalty is imposed by the State Fire
  253  Marshal; the fire chief of the special district, municipality,
  254  or county; a local or state law enforcement officer; a
  255  government code inspector; or a code enforcement officer under
  256  this subsection, 95 percent of the civil penalty collected by
  257  the clerk of the court shall be distributed to the governmental
  258  entity whose employee issued the citation and civil penalty and
  259  5 percent of the civil penalty shall be retained by the clerk to
  260  cover administrative costs A fine against an excavator or a
  261  member operator imposed under this subsection shall be paid to
  262  the system, which shall use the collected fines to satisfy the
  263  costs incurred by the system for any proceedings under this
  264  section. To the extent there are any funds remaining, the system
  265  may use the funds exclusively for damage-prevention education.
  266         (f) This section does not change the basis for civil
  267  liability. The findings and results of an investigation a
  268  hearing under this section may not be used as evidence of
  269  liability in any civil action.
  270         (4)(a)The division shall issue and serve on all original
  271  parties an initial order that assigns the case to a specific
  272  administrative law judge and requests information regarding
  273  scheduling the final hearing within 5 business days after the
  274  division receives a petition or request for hearing. The
  275  original parties in the proceeding include all excavators and
  276  member operators identified by the system as being involved in
  277  the alleged incident. The final hearing must be conducted within
  278  60 days after the date the petition or the request for a hearing
  279  is filed with the division.
  280         (b)Unless the parties otherwise agree, venue for the
  281  hearing shall be in the county in which the underground facility
  282  is located.
  283         (c)An intervenor in the proceeding must file a petition to
  284  intervene no later than 15 days before the final hearing. A
  285  person who has a substantial interest in the proceeding may
  286  intervene.
  287         (5)The following procedures apply:
  288         (a)Motions shall be limited to the following:
  289         1.A motion in opposition to the petition.
  290         2.A motion requesting discovery beyond the informal
  291  exchange of documents and witness lists described in paragraph
  292  (c). Upon a showing of necessity, additional discovery may be
  293  permitted in the discretion of the administrative law judge, but
  294  only if the discovery can be completed no later than 5 days
  295  before the final hearing.
  296         3.A motion for continuance of the final hearing date.
  297         (b)All parties shall attend a prehearing conference for
  298  the purpose of identifying the legal and factual issues to be
  299  considered at the final hearing, the names and addresses of
  300  witnesses who may be called to testify at the final hearing,
  301  documentary evidence that will be offered at the final hearing,
  302  the range of penalties that may be imposed, and any other matter
  303  that would expedite resolution of the proceeding. The prehearing
  304  conference may be held by telephone conference call.
  305         (c)Not later than 5 days before the final hearing, the
  306  parties shall furnish to each other copies of documentary
  307  evidence and lists of witnesses who may testify at the final
  308  hearing.
  309         (d)All parties shall have an opportunity to respond, to
  310  present evidence and argument on all issues involved, to conduct
  311  cross-examination and submit rebuttal evidence, and to be
  312  represented by counsel or other qualified representative.
  313         (e)The record shall consist only of:
  314         1.All notices, pleadings, motions, and intermediate
  315  rulings.
  316         2.Evidence received during the final hearing.
  317         3.A statement of matters officially recognized.
  318         4.Proffers of proof and objections and rulings thereon.
  319         5.Matters placed on the record after an ex parte
  320  communication.
  321         6.The written final order of the administrative law judge
  322  presiding at the final hearing.
  323         7.The official transcript of the final hearing.
  324         (f)The division shall accurately and completely preserve
  325  all testimony in the proceeding and, upon request by any party,
  326  shall make a full or partial transcript available at no more
  327  than actual cost.
  328         (g)The administrative law judge shall issue a final order
  329  within 30 days after the final hearing or the filing of the
  330  transcript thereof, whichever is later. The final order of the
  331  administrative law judge must include:
  332         1.Findings of fact based exclusively on the evidence of
  333  record and matters officially recognized.
  334         2.Conclusions of law. In determining whether a party has
  335  committed an infraction of s. 556.107(1)(a), and whether the
  336  infraction was a proximate cause of an incident, the commission
  337  of an infraction must be proven by a preponderance of the
  338  evidence.
  339         3.Imposition of a fine, if applicable.
  340         4.Any other information required by law or rule to be
  341  contained in a final order.
  342  
  343  The final order of the administrative law judge constitutes
  344  final agency action subject to judicial review pursuant to s.
  345  120.68.
  346         Section 4. Upon the passage of SB 1092, 2020 Regular
  347  Session, paragraph (e) of subsection (3) of section 556.116,
  348  Florida Statutes, as amended by this act, is amended to read:
  349         556.116 High-priority subsurface installations; special
  350  procedures.—
  351         (3)
  352         (e) If a civil penalty is imposed by the State Fire
  353  Marshal; the fire chief of the special district, municipality,
  354  or county; a local or state law enforcement officer; a
  355  government code inspector; or a code enforcement officer under
  356  this subsection, $2,500 95 percent of the civil penalty
  357  collected by the clerk of the court shall be distributed to the
  358  governmental entity whose employee issued the citation and civil
  359  penalty, and 5 percent of the civil penalty shall be retained by
  360  the clerk to cover administrative costs, and the remainder of
  361  the civil penalty shall be distributed to the Firefighter Cancer
  362  Decontamination Equipment Grant Program created under s.
  363  633.137.
  364         Section 5. Section 556.117, Florida Statutes, is created to
  365  read:
  366         556.117Underground facility damage prevention review
  367  panel.—
  368         (1)The underground facility damage prevention review panel
  369  is established under the Division of State Fire Marshal within
  370  the Department of Financial Services to review complaints of an
  371  alleged violation under this chapter to identify issues or
  372  potential issues with damage prevention and enforcement. The
  373  review panel shall identify areas in the state where additional
  374  education related to damage prevention and enforcement is needed
  375  and shall recommend solutions to remedy issues related to damage
  376  prevention and enforcement. The review panel shall also review
  377  current practices for locating underground pipes or other
  378  underground facilities that transport hazardous materials which
  379  are regulated by the Pipeline and Hazardous Materials Safety
  380  Administration of the United States Department of Transportation
  381  in this state and determine if any statutory changes are needed
  382  to make such pipelines or facilities more resilient and safer
  383  for communities. Except as otherwise provided in this section,
  384  the review panel shall operate in a manner consistent with s.
  385  20.052.
  386         (2)The review panel shall consist of nine members
  387  appointed by the State Fire Marshal and shall include the
  388  following:
  389         (a)One member representing the electrical utility
  390  industry.
  391         (b)One member representing the telecommunications or cable
  392  industry.
  393         (c)One member licensed as an underground utility and
  394  excavation contractor under chapter 489 and engaged in work
  395  within road or highway rights-of-way.
  396         (d)One member representing the natural gas industry.
  397         (e)One member representing the utility locator industry.
  398         (f)One member representing county or municipal water and
  399  sewer service providers.
  400         (g)One member representing excavators performing work
  401  unrelated to construction in road or highway rights-of-way,
  402  including landscaping, fencing, or plumbing contractors.
  403         (h)One member licensed as an underground utility and
  404  excavation contractor under chapter 489 and engaged in work for
  405  public utilities.
  406         (i)One member representing the public at large.
  407         (3)The board of directors shall establish a process to
  408  receive applications for the purpose of appointing members to
  409  the review panel.
  410         (4)Each member shall serve for a 2-year term. A member may
  411  not serve more than two consecutive 2-year terms, except that
  412  members listed in paragraphs (2)(a)-(e) shall initially serve a
  413  1-year term and those members listed in paragraphs (2)(f)-(i)
  414  shall serve a 2-year term. All subsequent appointments shall be
  415  for 2-year terms. A vacancy for an unexpired term of a member
  416  shall be filled in the same manner as the original appointment.
  417  The review panel shall elect from among its members a chair and
  418  vice chair and meet quarterly in conjunction with the meeting of
  419  the board of directors or at the call of the chair.
  420         (5)The Division of State Fire Marshal shall provide staff
  421  support and meeting space to the review panel. Members of the
  422  panel shall serve without compensation and are not entitled to
  423  reimbursement for per diem or travel expenses.
  424         Section 6. This act shall take effect July 1, 2020.
  425  
  426  ================= T I T L E  A M E N D M E N T ================
  427  And the title is amended as follows:
  428         Delete everything before the enacting clause
  429  and insert:
  430                        A bill to be entitled                      
  431         An act relating to underground facility damage
  432         prevention and safety; amending s. 556.102, F.S.;
  433         defining the term “permanent marker” for purposes of
  434         the Underground Facility Damage Prevention and Safety
  435         Act; amending s. 556.107, F.S.; providing noncriminal
  436         violations relating to the transportation of certain
  437         hazardous materials; authorizing the State Fire
  438         Marshal or local fire chief to issue certain
  439         citations; providing enhanced civil penalties;
  440         providing disposition of the civil penalty; requiring
  441         a report by additional entities; providing criminal
  442         penalties; amending s. 556.116, F.S.; providing that
  443         certain incident reports must be submitted to, and
  444         investigated by, the State Fire Marshal, the local
  445         fire chief, a local or state law enforcement officer,
  446         a government code inspector, or a code enforcement
  447         officer; authorizing the State Fire Marshal, the local
  448         fire chief, a local or state law enforcement officer,
  449         a government code inspector, or a code enforcement
  450         officer to issue citations and civil penalties;
  451         providing for disposition of the civil penalty;
  452         removing provisions relating to hearings by the
  453         Division of Administrative Hearings of certain
  454         incidents; creating s. 556.117, F.S.; creating an
  455         underground facility damage prevention review panel
  456         under the Division of State Fire Marshal within the
  457         Department of Financial Services; providing duties and
  458         membership of the review panel; specifying the term
  459         limits of the review panel; requiring the Division of
  460         State Fire Marshal to provide support to the review
  461         panel; providing that members of the panel serve
  462         without reimbursement or compensation; providing an
  463         effective date.