Senate Bill 1290c1

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    Florida Senate - 2000                           CS for SB 1290

    By the Committee on Comprehensive Planning, Local and Military
    Affairs; and Senators King, Grant, Dyer, Geller and Campbell




    316-1951-00

  1                      A bill to be entitled

  2         An act relating to solid waste; requiring local

  3         governments providing solid-waste-management

  4         services to be subject to the same requirements

  5         as private companies; providing exceptions;

  6         providing requirements for a local government

  7         providing solid-waste-management services

  8         outside its jurisdiction; providing procedures

  9         for the displacement of private

10         solid-waste-management companies; amending s.

11         165.061, F.S.; providing for the disposition of

12         existing contracts for solid-waste-management

13         services when a new municipality is

14         incorporated; amending s. 171.062, F.S.;

15         providing for the disposition of solid-waste

16         franchises or contracts in areas that are

17         annexed; defining the terms "in competition"

18         and "private company"; providing an effective

19         date.

20

21  Be It Enacted by the Legislature of the State of Florida:

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23         Section 1.  Solid waste collection services in

24  competition with private companies.--

25         (1)  A local government that provides specific solid

26  waste collection services in direct competition with a private

27  company:

28         (a)  Shall comply with the provisions of local

29  environmental, health, and safety standards that also are

30  applicable to a private company providing such collection

31  services in competition with the local government.

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    Florida Senate - 2000                           CS for SB 1290
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  1         (b)  Shall not enact or enforce any license, permit,

  2  registration procedure, or associated fee:

  3         1.  That does not apply to the local government and for

  4  which there is not a substantially similar requirement that

  5  applies to the local government and

  6         2.  That provides the local government with a material

  7  advantage in its ability to compete with a private company in

  8  terms of cost or ability to promptly or efficiently provide

  9  such collection services. Nothing in this section shall apply

10  to any zoning, land use, or comprehensive plan requirement.

11         (2)(a)  A private company with which a local government

12  is in competition may bring an action to enjoin a violation of

13  this section against any local government. No injunctive

14  relief shall be granted if the official action that forms the

15  basis for the suit bears a reasonable relationship to the

16  health, safety, or welfare of the citizens of the local

17  government unless the court finds that the actual or potential

18  anticompetitive effects outweigh the public benefits of the

19  challenged action.

20         (b)  As a condition precedent to the institution of an

21  action pursuant to this subsection, the complaining party

22  shall first file with the local government a notice

23  referencing this section and setting forth the specific facts

24  upon which the complaint is based and the manner in which the

25  complaining party is affected. The complaining party may

26  provide evidence to substantiate the claims made in the

27  complaint. Within 30 days after receipt of such a complaint,

28  the local government shall respond in writing to the

29  complaining party explaining the corrective action taken, if

30  any. If no response is received within 30 days or if

31  appropriate corrective action is not taken within a reasonable

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    Florida Senate - 2000                           CS for SB 1290
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  1  time, the complaining party may institute the judicial

  2  proceedings authorized in this subsection. However, failure to

  3  comply with this paragraph shall not bar an action for a

  4  temporary restraining order to prevent immediate and

  5  irreparable harm from the conduct or activity complained of.

  6         (c)  The court may, in its discretion, award to the

  7  prevailing party or parties costs and reasonable attorney's

  8  fees.

  9         (3)  This section does not apply when the local

10  government is exclusively providing the specific solid waste

11  management services itself or pursuant to an exclusive

12  franchise.

13         Section 2.  Solid waste collection services outside

14  jurisdiction.--

15         (1)  Notwithstanding section 542.235, Florida Statutes,

16  or any other provision of law, a local government that

17  provides solid waste collection services outside its

18  jurisdiction in direct competition with private companies is

19  subject to the same prohibitions against predatory pricing

20  applicable to private companies.

21         (2)  Any person injured by reason of violation of this

22  section may sue therefor in the circuit courts of this state

23  and shall be entitled to injunctive relief and to recover the

24  damages and the costs of suit. The court may, in its

25  discretion, award to the prevailing party or parties

26  reasonable attorney's fees. An action for damages under this

27  section must be commenced within 4 years. No person may

28  recover damages under this section for injury that results

29  from actions taken by a local government in direct response to

30  a natural disaster or similar occurrence for which an

31  emergency is declared by executive order or proclamation of

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    Florida Senate - 2000                           CS for SB 1290
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  1  the Governor pursuant to section 252.36, Florida Statutes,

  2  within the area covered by such executive order or

  3  proclamation.

  4         (3)  As a condition precedent to the institution of an

  5  action pursuant to this section, the complaining party shall

  6  first file with the local government a notice referencing this

  7  section and setting forth the specific facts upon which the

  8  complaint is based and the manner in which the complaining

  9  party is affected. Within 30 days after receipt of such

10  complaint, the local government shall respond in writing to

11  the complaining party explaining the corrective action taken,

12  if any. If the local government denies that it has engaged in

13  conduct that is prohibited by this section, then its response

14  shall include an explanation showing why the complained-of

15  conduct does not constitute predatory pricing.

16         (4)  For the purposes of this section, the

17  "jurisdiction" of a county, special district, or solid waste

18  authority shall include all incorporated and unincorporated

19  areas within the county, special district, or solid waste

20  authority.

21         (5)  When two or more local governments have entered

22  into an interlocal agreement to provide solid waste disposal

23  services, then, for the purposes of this section, their

24  "jurisdiction" with respect to such services includes the

25  collective jurisdiction of the participating local

26  governments.

27         Section 3.  Displacement of private waste companies.--

28         (1)  As used in this section, the term "displacement"

29  means a local government's provision of a service which

30  prohibits a private company from continuing to provide the

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    Florida Senate - 2000                           CS for SB 1290
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  1  same service that it was providing when the decision to

  2  displace was made. The term does not include:

  3         (a)  Competition between the public sector and private

  4  companies for individual contracts;

  5         (b)  Actions by which a local government, at the end of

  6  a contract with a private company, refuses to renew the

  7  contract and either awards the contract to another private

  8  company or decides for any reason to provide the collection

  9  service itself;

10         (c)  Actions taken against a private company because

11  the company has acted in a manner threatening to the public

12  health or safety or resulting in a substantial public

13  nuisance;

14         (d)  Actions taken against a private company because

15  the company has materially breached its contract with the

16  local government;

17         (e)  Refusal by a private company to continue

18  operations under the terms and conditions of its existing

19  agreement during the 3-year notice period;

20         (f)  Entering into a contract with a private company to

21  provide garbage, trash, or refuse collection which contract is

22  not entered into under an ordinance that displaces or

23  authorizes the displacement of another private company

24  providing garbage, trash, or refuse collection;

25         (g)  Situations in which a majority of the property

26  owners in the displacement area petition the governing body to

27  take over the collection service;

28         (h)  Situations in which the private companies are

29  licensed or permitted to do business within the local

30  government for a limited time and such license or permit

31  expires and is not renewed by the local government. This

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    Florida Senate - 2000                           CS for SB 1290
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  1  paragraph does not apply to licensing or permitting processes

  2  enacted after May 1, 1999, or to occupational licenses; or

  3         (i)  Annexations, to the extent that the provisions of

  4  section 171.062(4), Florida Statutes, apply.

  5         (2)  A local government or combination of local

  6  governments may not displace a private company that provides

  7  garbage, trash, or refuse collection service without first:

  8         (a)  Holding at least one public hearing seeking

  9  comment on the advisability of the local government or

10  combination of local governments providing the service;

11         (b)  Providing at least 45 days' written notice of the

12  hearing, delivered by first-class mail to all private

13  companies that provide the service within the jurisdiction;

14  and

15         (c)  Providing public notice of the hearing.

16         (3)  Following the final public hearing held under

17  subsection (1) but not later than 1 year after the hearing,

18  the local government may proceed to take those measures

19  necessary to provide the service. A local government shall

20  provide 3 years' notice to a private company before it engages

21  in the actual provision of the service that displaces the

22  company. As an alternative to delaying displacement 3 years, a

23  local government may pay a displaced company an amount equal

24  to the company's preceding 15 months' gross receipts for the

25  displaced service in the displacement area. The 3-year notice

26  period shall lapse as to any private company being displaced

27  when the company ceases to provide service within the

28  displacement area. Nothing herein shall prohibit the local

29  government and the company from voluntarily negotiating a

30  different notice period or amount of compensation.

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    Florida Senate - 2000                           CS for SB 1290
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  1         Section 4.  Subsection (4) of section 171.062, Florida

  2  Statutes, is amended, and subsection (5) is added to that

  3  section, to read:

  4         171.062  Effects of annexations or contractions.--

  5         (4)(a)  A party that has an exclusive franchise that

  6  which was in effect for at least 6 months prior to the

  7  initiation of an annexation to provide solid waste collection

  8  services in an unincorporated area may continue to provide

  9  such services to an annexed area for 5 years or the remainder

10  of the franchise term, whichever is shorter, if:

11         1.  The franchisee provides, if the annexing

12  municipality requires, a level of quality and frequency of

13  service which is equivalent to that required by the

14  municipality in other areas of the municipality not served by

15  the franchisee, and

16         2.  The franchisee provides such service to the annexed

17  area at a reasonable cost.  The cost must include the

18  following as related to providing services to the annexed

19  area:

20         a.  Capital costs for land, structures, vehicles,

21  equipment, and other items used for solid waste management;

22         b.  Operating and maintenance costs for solid waste

23  management;

24         c.  Costs to comply with applicable statutes, rules,

25  permit conditions, and insurance requirements;

26         d.  Disposal costs; and

27         e.  A reasonable profit.

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29  If the municipality and the franchisee cannot enter into an

30  agreement as to such cost, they shall submit the matter of

31  cost to arbitration.

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    Florida Senate - 2000                           CS for SB 1290
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  1         (b)  A municipality, at its option, may allow the

  2  franchisee to continue providing services pursuant to the

  3  existing franchise agreement.

  4         (c)  A municipality may terminate any franchise if the

  5  franchisee does not agree to comply with the requirements of

  6  paragraph (a) within 90 days after the effective date of the

  7  proposed annexation.

  8         (5)(a)  A party that has a contract that was in effect

  9  for at least 6 months before the initiation of an annexation

10  to provide solid waste collection services in an

11  unincorporated area may continue to provide such services to

12  an annexed area for 5 years or the remainder of the contract

13  term, whichever is shorter. Within a reasonable time following

14  a written request to do so, the party shall provide the

15  annexing municipality with a copy of the pertinent portion of

16  the contract or other written evidence showing the duration of

17  the contract, excluding any automatic renewals or so-called

18  "evergreen" provisions.

19         (b)  Paragraph (a) does not apply to contracts to

20  provide solid waste collection services to single-family

21  residential properties in those enclaves described in s.

22  171.046.

23         Section 5.  Paragraph (d) is added to subsection (2) of

24  section 165.061, Florida Statutes, to read:

25         165.061  Standards for incorporation, merger, and

26  dissolution.--

27         (2)  The incorporation of a new municipality through

28  merger of existing municipalities and associated

29  unincorporated areas must meet the following conditions:

30         (d)  In accordance with Article I, Section 10 of the

31  State Constitution, the plan for merger or incorporation must

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    Florida Senate - 2000                           CS for SB 1290
    316-1951-00




  1  honor existing solid waste contracts in the affected

  2  geographic area subject to merger or incorporation; however,

  3  the plan for merger or incorporation may provide that existing

  4  contracts for solid waste collection services shall be honored

  5  only for 5 years or for the remainder of the contract term,

  6  whichever is shorter, and may require that a copy of the

  7  pertinent portion of the contract or any other written

  8  evidence of the duration of the contract, excluding any

  9  automatic renewal or so-called "evergreen" provision, be

10  provided to the municipality within a reasonable time

11  following a written request to do so.

12         Section 6.  As used in this act, the term:

13         (1)  "In competition" or "in direct competition" means

14  the vying between a local government and a private company to

15  provide substantially similar solid waste collection services

16  to the same customer or market.

17         (2)  "Private company" means any entity other than a

18  local government or other unit of government which provides

19  solid waste management services.

20         Section 7.  This act shall take effect July 1, 2000.

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    Florida Senate - 2000                           CS for SB 1290
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1290

  3

  4  Requires local governments that provide solid waste collection
    services in competition with a private company to comply with
  5  similar health and safety standards imposed on local
    governments. Deletes requirement that local governments
  6  provide a cost accounting for its provision of solid waste
    management services and refrain from subsidizing waste
  7  management services.

  8  Creates a new cause of action for predatory pricing against a
    local government that provides solid waste services outside of
  9  its jurisdiction, notwithstanding the government antitrust
    liability shield of s. 542.235, F.S.
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    Defines displacement of solid waste collection service from a
11  private company by local government. A local government must
    give 3 rather than 5 years notice to a private company before
12  it can displace it or, alternatively, pay a displaced company
    an amount equal to the preceding 15 months rather than 18
13  months gross receipts.

14  Defines "in competition" and "private company."

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