Florida Senate - 2016                      CS for CS for SB 1192
       
       
        
       By the Committees on Fiscal Policy; and Environmental
       Preservation and Conservation; and Senator Hays
       
       594-04388-16                                          20161192c2
    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; revising definitions; creating s.
   10         812.0141, F.S.; defining a term; establishing the
   11         crime of theft of recyclable property; providing
   12         penalties; providing for a civil remedy; providing for
   13         attorney fees and costs under certain conditions;
   14         providing an effective date.
   15          
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Section 403.70491, Florida Statutes, is created
   19  to read:
   20         403.70491 Invoices for solid waste collection, disposal, or
   21  recycling.—A local government may not prevent a private company
   22  from listing separately on the company’s invoice for solid waste
   23  collection, disposal, or recycling any governmental taxes or
   24  fees, including, but not limited to, any franchise fee.
   25         Section 2. Subsections (1) and (4) of section 403.70605,
   26  Florida Statutes, are amended to read:
   27         403.70605 Solid waste collection, disposal, or recycling
   28  services in competition with private companies.—
   29         (1) SOLID WASTE COLLECTION, DISPOSAL, OR RECYCLING SERVICES
   30  IN COMPETITION WITH PRIVATE COMPANIES.—
   31         (a) A local government that provides specific solid waste
   32  collection, disposal, or recycling services in direct
   33  competition with a private company:
   34         1. Shall comply with the provisions of local environmental,
   35  health, and safety standards that also are applicable to a
   36  private company providing such collection, disposal, or
   37  recycling services in competition with the local government.
   38         2. May shall not enact or enforce any license, permit,
   39  registration procedure, or associated fee that:
   40         a. Does not apply to the local government and for which
   41  there is not a substantially similar requirement that applies to
   42  the local government; and
   43         b. Provides the local government with a material advantage
   44  in its ability to compete with a private company in terms of
   45  cost or ability to promptly or efficiently provide such
   46  collection, disposal, or recycling services. Nothing in this
   47  sub-subparagraph shall apply to any zoning, land use, or
   48  comprehensive plan requirement.
   49         (b)1. A private company with which a local government is in
   50  competition may bring an action to enjoin a violation of
   51  paragraph (a) against any local government. No injunctive relief
   52  shall be granted if the official action that which forms the
   53  basis for the suit bears a reasonable relationship to the
   54  health, safety, or welfare of the citizens of the local
   55  government unless the court finds that the actual or potential
   56  anticompetitive effects outweigh the public benefits of the
   57  challenged action.
   58         2. As a condition precedent to the institution of an action
   59  pursuant to this paragraph, the complaining party shall first
   60  file with the local government a notice referencing this
   61  paragraph and setting forth the specific facts upon which the
   62  complaint is based and the manner in which the complaining party
   63  is affected. The complaining party may provide evidence to
   64  substantiate the claims made in the complaint. Within 30 days
   65  after receipt of such a complaint, the local government shall
   66  respond in writing to the complaining party explaining the
   67  corrective action taken, if any. If no response is received
   68  within 30 days or if appropriate corrective action is not taken
   69  within a reasonable time, the complaining party may institute
   70  the judicial proceedings authorized in this paragraph. However,
   71  failure to comply with this subparagraph may shall not bar an
   72  action for a temporary restraining order to prevent immediate
   73  and irreparable harm from the conduct or activity complained of.
   74         3. The court may, in its discretion, award to the
   75  prevailing party or parties costs and reasonable attorney
   76  attorneys’ fees.
   77         (c) This subsection does not apply when the local
   78  government is exclusively providing the specific solid waste
   79  collection, disposal, or recycling services itself or pursuant
   80  to an exclusive franchise.
   81         (2) SOLID WASTE COLLECTION SERVICES OUTSIDE JURISDICTION.—
   82         (a) Notwithstanding s. 542.235, or any other provision of
   83  law, a local government that provides solid waste collection
   84  services outside its jurisdiction in direct competition with
   85  private companies is subject to the same prohibitions against
   86  predatory pricing applicable to private companies under ss.
   87  542.18 and 542.19.
   88         (b) Any person injured by reason of violation of this
   89  subsection may sue therefor in the circuit courts of this state
   90  and shall be entitled to injunctive relief and to recover the
   91  damages and the costs of suit. The court may, in its discretion,
   92  award to the prevailing party or parties reasonable attorneys’
   93  fees. An action for damages under this subsection must be
   94  commenced within 4 years. No person may obtain injunctive relief
   95  or recover damages under this subsection for any injury that
   96  results from actions taken by a local government in direct
   97  response to a natural disaster or similar occurrence for which
   98  an emergency is declared by executive order or proclamation of
   99  the Governor pursuant to s. 252.36 or for which such a
  100  declaration might be reasonably anticipated within the area
  101  covered by such executive order or proclamation.
  102         (c) As a condition precedent to the institution of an
  103  action pursuant to this subsection, the complaining party shall
  104  first file with the local government a notice referencing this
  105  subsection and setting forth the specific facts upon which the
  106  complaint is based and the manner in which the complaining party
  107  is affected. Within 30 days after receipt of such complaint, the
  108  local government shall respond in writing to the complaining
  109  party explaining the corrective action taken, if any. If the
  110  local government denies that it has engaged in conduct that is
  111  prohibited by this subsection, its response shall include an
  112  explanation showing why the conduct complained of does not
  113  constitute predatory pricing.
  114         (d) For the purposes of this subsection, the jurisdiction
  115  of a county, special district, or solid waste authority shall
  116  include all incorporated and unincorporated areas within the
  117  county, special district, or solid waste authority.
  118         (3) DISPLACEMENT OF PRIVATE WASTE COMPANIES.—
  119         (a) As used in this subsection, the term “displacement”
  120  means a local government’s provision of a collection service
  121  which prohibits a private company from continuing to provide the
  122  same service that it was providing when the decision to displace
  123  was made. The term does not include:
  124         1. Competition between the public sector and private
  125  companies for individual contracts;
  126         2. Actions by which a local government, at the end of a
  127  contract with a private company, refuses to renew the contract
  128  and either awards the contract to another private company or
  129  decides for any reason to provide the collection service itself;
  130         3. Actions taken against a private company because the
  131  company has acted in a manner threatening to the public health
  132  or safety or resulting in a substantial public nuisance;
  133         4. Actions taken against a private company because the
  134  company has materially breached its contract with the local
  135  government;
  136         5. Refusal by a private company to continue operations
  137  under the terms and conditions of its existing agreement during
  138  the 3-year notice period;
  139         6. Entering into a contract with a private company to
  140  provide garbage, trash, or refuse collection which contract is
  141  not entered into under an ordinance that displaces or authorizes
  142  the displacement of another private company providing garbage,
  143  trash, or refuse collection;
  144         7. Situations in which a majority of the property owners in
  145  the displacement area petition the governing body to take over
  146  the collection service;
  147         8. Situations in which the private companies are licensed
  148  or permitted to do business within the local government for a
  149  limited time and such license or permit expires and is not
  150  renewed by the local government. This subparagraph does not
  151  apply to licensing or permitting processes enacted after May 1,
  152  1999, or to occupational licenses; or
  153         9. Annexations, but only to the extent that the provisions
  154  of s. 171.062(4) apply.
  155         (b) A local government or combination of local governments
  156  may not displace a private company that provides garbage, trash,
  157  or refuse collection service without first:
  158         1. Holding at least one public hearing seeking comment on
  159  the advisability of the local government or combination of local
  160  governments providing the service.
  161         2. Providing at least 45 days’ written notice of the
  162  hearing, delivered by first-class mail to all private companies
  163  that provide the service within the jurisdiction.
  164         3. Providing public notice of the hearing.
  165         (c) Following the final public hearing held under paragraph
  166  (b), but not later than 1 year after the hearing, the local
  167  government may proceed to take those measures necessary to
  168  provide the service. A local government shall provide 3 years’
  169  notice to a private company before it engages in the actual
  170  provision of the service that displaces the company. As an
  171  alternative to delaying displacement 3 years, a local government
  172  may pay a displaced company an amount equal to the company’s
  173  preceding 15 months’ gross receipts for the displaced service in
  174  the displacement area. The 3-year notice period shall lapse as
  175  to any private company being displaced when the company ceases
  176  to provide service within the displacement area. Nothing in this
  177  paragraph prohibits the local government and the company from
  178  voluntarily negotiating a different notice period or amount of
  179  compensation.
  180         (4) DEFINITIONS.—As used in this section, the term:
  181         (a) “In competition” or “in direct competition” means the
  182  competition vying between a local government and a private
  183  company to provide substantially similar solid waste collection,
  184  disposal, or recycling services to the same customer.
  185         (b) “Private company” means an any entity other than a
  186  local government or other unit of government which that provides
  187  solid waste collection, disposal, or recycling services.
  188         Section 3. Section 812.0141, Florida Statutes, is created
  189  to read:
  190         812.0141 Theft of recyclable property.—
  191         (1)As used in this section, the term “recyclable property”
  192  means recovered materials, as defined in s. 403.703, in addition
  193  to wooden or plastic pallets.
  194         (2)A person commits theft if he or she knowingly obtains
  195  or uses, or endeavors to obtain or to use, the recyclable
  196  property of another with intent to, either temporarily or
  197  permanently:
  198         (a)Deprive the other person of a right to possess the
  199  recyclable property or of a benefit derived therefrom.
  200         (b)Appropriate the recyclable property for his or her own
  201  use or to the use of a person not entitled to the use of the
  202  recyclable property.
  203         (3)A person who violates this section is guilty of a
  204  misdemeanor of the first degree, punishable as provided in s.
  205  775.082 or s. 775.083. Prosecution for a violation of subsection
  206  (2) does not preclude prosecution for theft pursuant to s.
  207  812.014.
  208         (4)A person who commits a third or subsequent violation of
  209  subsection (2) within 3 years after the date of a prior
  210  violation that resulted in a conviction for a violation of
  211  subsection (2) commits a felony of the third degree, punishable
  212  as provided in s. 775.082 or s. 775.083.
  213         (5)A person who proves by clear and convincing evidence
  214  that he or she has been injured in any manner by reason of a
  215  violation of this section may pursue a civil remedy under s.
  216  772.11. However, notwithstanding s. 772.11, the minimum damage
  217  award under this subsection is $5,000, plus reasonable attorney
  218  fees and costs in the trial and appellate courts.
  219         Section 4. This act shall take effect July 1, 2016.