The Florida Senate

556.107  Violations.--

(1)  NONCRIMINAL INFRACTIONS.--

(a)  Violations of the following provisions are noncriminal infractions:

1.  Section 556.105(1), relating to providing required information.

2.  Section 556.105(5), relating to the avoidance of excavation.

3.  Section 556.105(10), relating to the need to stop excavation or demolition.

4.  Section 556.105(11), relating to the need to cease excavation or demolition activities.

5.  Section 556.105(4)(b) and (c) relating to identification of underground facilities, if a member operator does not mark an underground facility, but not if a member operator marks an underground facility incorrectly.

(b)  Any excavator or member operator who commits a noncriminal infraction under paragraph (a) may be issued a citation by any local or state law enforcement officer or permitting agency inspector, and the issuer of a citation may require any excavator to cease work on any excavation or not start a proposed excavation until there has been compliance with the provisions of this act. Citations may be issued to any employee of the excavator or member operator who is directly involved in the noncriminal infraction.

(c)  Any excavator or member operator who commits a noncriminal infraction under paragraph (a) may be required to appear before the county court. The civil penalty for any such infraction is $250, except as otherwise provided in this section. Any person who fails to appear or otherwise properly respond to a citation issued pursuant to paragraph (d) shall, in addition to the citation, be charged with the offense of failing to respond to such citation and, upon conviction, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 A written warning to this effect shall be provided at the time any citation is issued pursuant to paragraph (b).

(d)  Any person cited for an infraction under paragraph (a), unless required to appear before the county court, may:

1.  Post a bond, which shall be equal in amount to the applicable civil penalty; or

2.  Sign and accept a citation indicating a promise to appear before the county court.

The issuing officer may indicate on the citation the time and location of the scheduled hearing and shall indicate the applicable civil penalty.

(e)  Any person charged with a noncriminal infraction under paragraph (a), unless required to appear before the county court, may:

1.  Pay the civil penalty, in lieu of appearance, either by mail or in person, within 10 days after the date of receiving the citation; or

2.  Forfeit bond, if a bond has been posted, by not appearing at the designated time and location.

If the person cited follows either of the above procedures, she or he shall be deemed to have admitted to committing the infraction and to have waived the right to a hearing on the issue of commission of the infraction. Such admission may be used as evidence in any other proceeding under this act.

(f)  Any person electing to appear before the county court or who is required to appear shall be deemed to have waived the limitations on the civil penalty specified in paragraph (c). The court, after a hearing, shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the court may impose a civil penalty not to exceed $5,000. In determining the amount of the civil penalty, the court may consider previous noncriminal infractions committed.

(g)  At a hearing under this chapter, the commission of a charged infraction must be proven by a preponderance of the evidence.

(h)  If a person is found by the hearing official to have committed an infraction, such person may appeal that finding to the circuit court.

(2)  MISDEMEANORS.--Any person who knowingly and willfully removes or otherwise destroys the valid stakes or other valid physical markings described in s. 556.105(4)(b) and (c) used to mark the horizontal route of an underground facility commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 For purposes of this subsection, stakes or other nonpermanent physical markings are considered valid for 20 calendar days after information is provided to the system under s. 556.105(1)(c).

History.--s. 7, ch. 93-240; s. 2, ch. 96-172; s. 1177, ch. 97-103; s. 6, ch. 2002-234.