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. May shall not 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
   55  which forms 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 may shall not 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
   78  attorneys’ 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  competition vying between 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 an any entity other than a
  191  local government or other unit of government which that provides
  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