Senate Bill sb0472e1
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1 A bill to be entitled
2 An act relating to mining activities; amending
3 s. 552.30, F.S.; redefining the term
4 "construction materials mining activities";
5 creating ss. 552.32-552.44, F.S.; providing a
6 short title; providing legislative findings and
7 public purpose; providing that the Division of
8 Administrative Hearings has exclusive
9 jurisdiction over certain claims for damages
10 relating to the use of explosives in connection
11 with construction materials mining activities;
12 providing for filing fees except in cases of
13 indigence; designating a trust fund for deposit
14 of filing fees; requiring a person who uses
15 explosives in connection with such activities
16 to post security in a specified amount for a
17 specified period; providing for rulemaking by
18 the State Fire Marshal; providing for an
19 administrative remedy; providing procedures for
20 mediation and for formal hearings; allowing
21 recovery of certain costs and attorney's fees,
22 with exceptions; providing for appeals;
23 providing applicability; providing an effective
24 date.
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26 Be It Enacted by the Legislature of the State of Florida:
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28 Section 1. Subsection (1) of section 552.30, Florida
29 Statutes, is amended to read:
30 552.30 Construction materials mining activities.--
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1 (1) Notwithstanding the provisions of s. 552.25, the
2 State Fire Marshal shall have the sole and exclusive authority
3 to promulgate standards, limits, and regulations regarding the
4 use of explosives in conjunction with construction materials
5 mining activities. Such authority to regulate use shall
6 include, directly or indirectly, the operation, handling,
7 licensure, or permitting of explosives and setting standards
8 or limits, including, but not limited to, ground vibration,
9 frequency, intensity, blast pattern, air blast and time, date,
10 occurrence, and notice restrictions. As used in this section,
11 "construction materials mining activities" means the
12 extraction of limestone and sand suitable for production of
13 construction aggregates, sand, cement, and road base materials
14 for shipment offsite by any person or company primarily
15 engaged in the commercial mining of any such natural
16 resources.
17 Section 2. Section 552.32, Florida Statutes, is
18 created to read:
19 552.32 Short title.--Sections 552.32-552.44 may be
20 cited as the "Florida Construction Materials Mining Activities
21 Administrative Recovery Act."
22 Section 3. Section 552.34, Florida Statutes, is
23 created to read:
24 552.34 Legislative findings; public purpose.--The
25 Legislature finds and declares that:
26 (1) Construction materials mining activities require
27 the use of explosives to fracture the material prior to
28 excavation.
29 (2) The use of explosives results in physical ground
30 vibrations and air blasts that may affect other property
31 owners in the vicinity of the mining site.
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1 (3) It is in the best interests of the public to
2 provide a specific administrative remedy for complaints
3 related to the use of explosives in construction materials
4 mining activities.
5 Section 4. Section 552.36, Florida Statutes, is
6 created to read:
7 552.36 Exclusive jurisdiction; Division of
8 Administrative Hearings.--
9 (1) The Division of Administrative Hearings has
10 exclusive jurisdiction over all claims for damages to real or
11 personal property caused by the use of explosives in
12 connection with construction materials mining activities. This
13 chapter does not affect any claim seeking recovery for
14 personal injury, emotional distress, or punitive damages. Any
15 cause of action that involves both a claim for damage to real
16 or personal property and another claim that is not addressed
17 by this chapter must be bifurcated so that any claim seeking
18 recovery for damage to real or personal property is
19 adjudicated by the Division of Administrative Hearings.
20 (2) Notwithstanding s. 552.25, the review procedures
21 set forth in this chapter preempt any claims, recovery, or
22 similar procedure of any municipality, agency, board, or
23 county or any other subdivision, entity, or special district
24 of the state which would otherwise address a claim for damage
25 caused by the use of explosives in connection with
26 construction materials mining activities.
27 Section 5. Section 552.38, Florida Statutes, is
28 created to read:
29 552.38 Security requirement.--
30 (1) As a prerequisite to obtaining or renewing a valid
31 user license as required by s. 552.091(5)(a), or obtaining or
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1 renewing a valid license or permit under s. 552.30, a person
2 who uses explosives in connection with construction materials
3 mining activities must post and maintain a bond or letter of
4 credit as security as required under subsection (2). Evidence
5 that the bond has been posted and maintained in compliance
6 with this section must be maintained by any licensee or
7 permitholder for the use of explosives in connection with
8 construction materials mining activities as part of the
9 mandatory record maintenance requirements of s. 552.112. The
10 person must maintain, in a format approved by the Division of
11 State Fire Marshal of the Department of Financial Services, a
12 completed form that shows the amount and location of the bond
13 or identifies the bond surety and the current bond value.
14 (2) The bond or letter of credit required under
15 subsection (1) must be in an amount not less than $100,000,
16 notwithstanding an award made by an administrative law judge
17 under s. 552.40(7). In the case of a multiple licenseholder or
18 multiple permitholder, a single bond in the aggregate amount
19 of not less than $100,000 may be provided as security for the
20 individual permits or licenses. If the user of explosives has
21 not been identified as a respondent in any pending claim for
22 damages under this chapter, and if renewal of the license or
23 permit is not sought, the bond required under this section may
24 be released upon the expiration of the license or permit or
25 181 days after the final use of explosives under the license,
26 whichever occurs later, if the bond to be released is not
27 security for other permits.
28 (3) The State Fire Marshal may adopt rules for the
29 administration of this section.
30 Section 6. Section 552.40, Florida Statutes, is
31 created to read:
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1 552.40 Administrative remedy for alleged damage due to
2 the use of explosives in connection with construction
3 materials mining activities.--
4 (1) A person may initiate an administrative proceeding
5 to recover damages resulting from the use of explosives in
6 connection with construction materials mining activities by
7 filing a petition with the Division of Administrative Hearings
8 on a form provided by the division and accompanied by a filing
9 fee of $100 within 180 days after the occurrence of the
10 alleged damage. If the petitioner submits an affidavit stating
11 that the petitioner's annual income is less than 150 percent
12 of the applicable federal poverty guideline published in the
13 Federal Register by the United States Department of Health and
14 Human Services, the $100 filing fee must be waived.
15 (2) The petition must include:
16 (a) The name and address of the petitioner;
17 (b) The name and address of the respondent, including
18 the applicable user licenseholder under s. 552.091(5) and
19 permitholder under s. 552.30;
20 (c) The approximate time, date, and place of the use
21 of explosives which is alleged to have resulted in damage to
22 the petitioner; and
23 (d) A description of the damage caused and the amount
24 sought for recovery.
25 (3) Within 5 business days after the Division of
26 Administrative Hearings receives a petition, the division
27 shall issue and serve on the petitioner and the respondent an
28 initial order that assigns the case to a specific
29 administrative law judge and provides general information
30 regarding the practice and procedure before the division. The
31 initial order must advise that a summary hearing is available
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1 upon the agreement of the parties under subsection (6) and
2 must briefly describe the expedited time sequences, limited
3 discovery, and final order provisions of the summary
4 procedure. The initial order must also contain a statement
5 advising the petitioner and the respondent that a mandatory,
6 nonbinding mediation is required before a summary
7 administrative hearing or a formal administrative hearing may
8 be held.
9 (4) The administrative judge shall issue an order
10 directing mediation under Rule 1700 et seq., Florida Rules of
11 Civil Procedure. The parties shall jointly select a mediator
12 and the location of mediation. If the parties fail to do so
13 within 30 days after the order for mediation is issued, the
14 administrative law judge shall designate the mediator and the
15 location of mediation. Petitioner and respondent shall each
16 pay one-half of the cost of mediation. If the petitioner's
17 annual income is less than 150 percent of the applicable
18 federal poverty guideline published in the Federal Register by
19 the United States Department of Health and Human Services, the
20 respondent shall bear the full cost of mediation. The
21 mediation must be concluded within 60 days after the date of
22 designation of the mediator unless the parties agree upon a
23 different date.
24 (5) If the parties have not reached a settlement
25 within 30 days after the conclusion of the mediation, the
26 administrative law judge shall set the matter for formal
27 administrative hearing as soon thereafter as possible at a
28 location in the county where the alleged damage occurred.
29 However, a formal administrative hearing may not be scheduled
30 sooner than 30 days after the conclusion of the mediation.
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1 (6) In lieu of proceeding directly to a formal
2 administrative hearing scheduled in accordance with subsection
3 (5), upon agreement of the parties, the parties may, within 15
4 days after the conclusion of unsuccessful mediation, file a
5 motion for summary hearing. The summary hearing must be held
6 at a location in the county where the alleged damage occurred,
7 and all procedural requirements related to the hearing must be
8 governed by s. 120.574 and any rules implementing that
9 section.
10 (7) If the administrative law judge finds that the
11 preponderance of the evidence presented demonstrates that the
12 petitioner's damages were caused by the respondent's use of
13 explosives, the administrative law judge shall set forth in a
14 final order precise findings as to the damages attributable to
15 the respondent and shall direct the respondent to pay damages
16 in an amount supported by the preponderance of the evidence
17 presented within 30 days after the final order is issued,
18 unless the matter is appealed in accordance with s. 552.42. If
19 the respondent fails to pay the damages within 30 days after
20 the final order is issued or within 30 days after the entry of
21 an appellate mandate affirming a final order awarding damages,
22 the petitioner may request and the administrative law judge
23 may order that the petitioner be paid from the security posted
24 by the respondent under s. 552.38 the amount of the damages
25 awarded. To the extent the security does not satisfy the full
26 amount of the damages awarded, the administrative law judge
27 may enter a judgment directly against the respondent for the
28 amount of the difference.
29 (8) If the administrative law judge finds that the
30 preponderance of the evidence presented demonstrates that the
31 petitioner's alleged damages were not caused by the
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1 respondent's use of explosives, the administrative law judge
2 shall set forth in a final order precise findings as to the
3 lack of responsibility of the respondent.
4 (9) The prevailing party is entitled to recover
5 taxable costs, including reasonable expert witness fees and
6 any incidental administrative costs directly associated with
7 the case. The prevailing party is entitled to an award of
8 reasonable attorney's fees if the administrative law judge
9 determines that the claim or defense of the nonprevailing
10 party:
11 (a) Was not supported by the material facts necessary
12 to establish the claim or defense;
13 (b) Would not be supported by the application of
14 then-existing law to those material facts; or
15 (c) Was brought or advanced primarily to harass or
16 cause unnecessary delay, for frivolous purposes, or to
17 needlessly increase the cost incurred by the opposition.
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19 The losing party has up to 120 days to pay the total amount of
20 attorney's fees and taxable costs assessed. This subsection
21 does not apply to a petitioner who is the nonprevailing party
22 if the petitioner's annual income is less than 150 percent of
23 the applicable federal poverty guideline published in the
24 Federal Register by the United States Department of Health and
25 Human Services.
26 (10) Except as otherwise provided in this chapter, the
27 procedure for the administrative proceedings provided by this
28 act must be governed by the uniform rules of procedure for
29 decisions determining substantial interests which are
30 authorized by s. 120.54(5), notwithstanding the fact that
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1 those rules implement provisions of chapter 120 which are
2 applicable to proposed or final agency action.
3 (11) The filing fees paid pursuant to subsection (1)
4 shall be deposited into the Administrative Trust Fund of the
5 Division of Administrative Hearings to defray the expenses and
6 costs associated with the administration of ss. 552.32-552.44.
7 Section 7. Section 552.42, Florida Statutes, is
8 created to read:
9 552.42 Appeal.--The petitioner or the respondent may
10 appeal the final order of the administrative law judge to the
11 district court of appeal with jurisdiction over the county
12 where the hearing was held by filing a notice, accompanied by
13 the required filing fee, as provided by the Florida Rules of
14 Appellate Procedure. The payment of any award shall be stayed
15 during the pendency of an appeal.
16 Section 8. Section 552.44, Florida Statutes, is
17 created to read:
18 552.44 Prior claims.--This act does not affect any
19 claim filed in any tribunal before the effective date of this
20 act.
21 Section 9. This act shall take effect upon becoming a
22 law.
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