HB 0673 2003
1	A bill to be entitled
2	An act relating to mining activities; amending s. 552.30,
3	F.S.; redefining the term "construction materials mining
4	activities"; creating ss. 552.32-552.44, F.S.; providing a
5	popular name; providing legislative findings and public
6	purpose; providing that the Division of Administrative
7	Hearings has exclusive jurisdiction over certain claims
8	for damages relating to the use of explosives in
9	connection with construction materials mining activities;
10	providing for filing fees except incases of indigence;
11	providing for deposit of filing fees; requiring a person
12	who uses explosives in connection with such activities to
13	post security in a specified amount for a specified
14	period; providing for rulemaking by the State Fire
15	Marshal; providing for an administrative remedy; providing
16	procedures for mediation and for formal hearings; allowing
17	recovery of certain costs and attorney's fees, with
18	exceptions; providing for appeals; providing
19	applicability; providing an effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1. Subsection (1) of section 552.30, Florida
24	Statutes, is amended to read:
25	552.30 Construction materials mining activities.--
26	(1) Notwithstanding the provisions of s. 552.25, the State
27	Fire Marshal shall have the sole and exclusive authority to
28	promulgate standards, limits, and regulations regarding the use
29	of explosives in conjunction with construction materials mining
30	activities. Such authority to regulate use shall include,
31	directly or indirectly, the operation, handling, licensure, or
32	permitting of explosives and setting standards or limits,
33	including, but not limited to, ground vibration, frequency,
34	intensity, blast pattern, air blast and time, date, occurrence,
35	and notice restrictions. As used in this section, "construction
36	materials mining activities" means the extraction of limestone
37	and sand suitable for production of construction aggregates,
38	sand, cement, and road base materials for shipment offsiteby
39	any person or company primarily engaged in the commercial mining
40	of any such natural resources.
41	Section 2. Section 552.32, Florida Statutes, is created to
42	read:
43	552.32 Short title.--Sections 552.32-552.44 may be cited
44	as the "Florida Construction Materials Mining Activities
45	Administrative Recovery Act."
46	Section 3. Section 552.34, Florida Statutes, is created to
47	read:
48	552.34 Legislative findings; public purpose.--The
49	Legislature finds and declares that:
50	(1) Construction materials mining activities require the
51	use of explosives to fracture material prior to excavation.
52	(2) The use of explosives results in physical ground
53	vibrations and air blasts that may affect other property owners
54	in the vicinity of a mining site.
55	(3) It is in the best interests of the public to provide a
56	specific administrative remedy for complaints related to the use
57	of explosives in construction materials mining activities.
58	Section 4. Section 552.36, Florida Statutes, is created to
59	read:
60	552.36 Exclusive jurisdiction; Division of Administrative
61	Hearings.--
62	(1) The Division of Administrative Hearings has exclusive
63	jurisdiction over all claims for damages to real or personal
64	property caused by the use of explosives in connection with
65	construction materials mining activities. The provisions of ss.
66	552.32-552.44 do not affect any claim seeking recovery for
67	personal injury, emotional distress, or punitive damages. Any
68	cause of action that involves both a claim for damage to real or
69	personal property and another claim that is not addressed by ss.
70	552.32-552.44 must be bifurcated so that any claim seeking
71	recovery for damage to real or personal property is adjudicated
72	by the Division of Administrative Hearings.
73	(2) Notwithstanding s. 552.25, the review procedures set
74	forth in ss. 552.32-552.44 preempt any claims, recovery, or
75	similar procedure of any municipality, agency, board, or county
76	or any other subdivision, entity, or special district of the
77	state which would otherwise address a claim for damage caused by
78	the use of explosives in connection with construction materials
79	mining activities.
80	Section 5. Section 552.38, Florida Statutes, is created to
81	read:
82	552.38 Security requirement.--
83	(1) As a prerequisite to obtaining or renewing a valid
84	user license as required by s. 552.091(5)(a), a person who uses
85	explosives in connection with construction materials mining
86	activities must post and maintain a bond or letter of credit as
87	security during the period required under subsection (2).
88	Evidence that the bond has been posted and maintained in
89	compliance with this section must be maintained by any user of
90	explosives in connection with construction materials mining
91	activities as part of the mandatory record maintenance
92	requirements of s. 552.112. The person must maintain, in a
93	format approved by the Division of State Fire Marshal of the
94	Department of Financial Services, a completed form that shows
95	the amount and location of the bond or identifies the bond
96	surety and the current bond value.
97	(2) The bond or letter of credit required under subsection
98	(1) must be in an amount not less than $100,000, notwithstanding
99	an award made by an administrative law judge under s. 552.40(7).
100	If the user of explosives has not been identified as a
101	respondent in any pending claim for damages under ss. 552.32-
102	552.44, and if renewal of the user license is not sought, the
103	bond required under this section may be released upon the
104	expiration of the user license pursuant to s. 552.091(6) or 181
105	days after the final use of explosives under the license,
106	whichever occurs later.
107	(3) The State Fire Marshal may adopt rules for the
108	administration of this section.
109	Section 6. Section 552.40, Florida Statutes, is created to
110	read:
111	552.40 Administrative remedy for alleged damage due to the
112	use of explosives in connection with construction materials
113	mining activities.--
114	(1) A person may initiate an administrative proceeding to
115	recover damages resulting from the use of explosives in
116	connection with construction materials mining activities by
117	filing a petition with the Division of Administrative Hearings
118	on a form provided by the division and accompanied by a filing
119	fee of $100 within 180 days after the occurrence of the alleged
120	damage. If the petitioner submits an affidavit stating that the
121	petitioner's annual income is less than 150 percent of the
122	applicable federal poverty guideline published in the Federal
123	Register by the United States Department of Health and Human
124	Services, the $100 filing fee must be waived.
125	(2) The petition must include:
126	(a) The name and address of the petitioner;
127	(b) The name and address of the respondent;
128	(c) The approximate time, date, and place of the use of
129	explosives which is alleged to have resulted in damage to the
130	petitioner; and
131	(d) A description of the damage caused and the amount
132	sought for recovery.
133	(3) Within 5 business days after the Division of
134	Administrative Hearings receives a petition, the division shall
135	issue and serve on the petitioner and the respondent an initial
136	order that assigns the case to a specific administrative law
137	judge and provides general information regarding the practice
138	and procedure before the division. The initial order must advise
139	that a summary hearing is available upon the agreement of the
140	parties under subsection (6) and must briefly describe the
141	expedited time sequences, limited discovery, and final order
142	provisions of the summary procedure. The initial order must also
143	contain a statement advising the petitioner and the respondent
144	that a mandatory, nonbinding mediation is required before a
145	summary administrative hearing or a formal administrative
146	hearing may be held.
147	(4) The administrative judge shall issue an order
148	directing mediation under Rule 1700 et seq., Florida Rules of
149	Civil Procedure. The parties shall jointly select a mediator and
150	the location of mediation. If the parties fail to do so within
151	30 days after the order for mediation is issued, the
152	administrative law judge shall designate the mediator and the
153	location of mediation. Petitioner and respondent shall each pay
154	one-half of the cost of mediation. If the petitioner's annual
155	income is less than 150 percent of the applicable federal
156	poverty guideline published in the Federal Register by the
157	United States Department of Health and Human Services, the
158	respondent shall bear the full cost of mediation. The mediation
159	must be concluded within 60 days after the date of designation
160	of the mediator unless the parties agree upon a different date.
161	(5) If the parties have not reached a settlement within 30
162	days after the conclusion of the mediation, the administrative
163	law judge shall set the matter for formal administrative hearing
164	as soon thereafter as possible at a location in the county where
165	the alleged damage occurred. However, a formal administrative
166	hearing may not be scheduled sooner than 30 days after the
167	conclusion of the mediation.
168	(6) In lieu of proceeding directly to a formal
169	administrative hearing scheduled in accordance with subsection
170	(5), upon agreement of the parties, the parties may, within 15
171	days after the conclusion of unsuccessful mediation, file a
172	motion for summary hearing. The summary hearing must be held at
173	a location in the county where the alleged damage occurred, and
174	all procedural requirements related to the hearing must be
175	governed by s. 120.574 and any rules implementing that section.
176	(7) If the administrative law judge finds that the
177	preponderance of the evidence presented demonstrates that the
178	petitioner's damages were caused by the respondent's use of
179	explosives, the administrative law judge shall set forth in a
180	final order precise findings as to the damages attributable to
181	the respondent and shall direct the respondent to pay damages in
182	an amount supported by the preponderance of the evidence
183	presented within 30 days after the final order is issued, unless
184	the matter is appealed in accordance with s. 552.42. If the
185	respondent fails to pay the damages within 30 days after the
186	final order is issued or within 30 days after the entry of an
187	appellate mandate affirming a final order awarding damages, the
188	petitioner may request and the administrative law judge may
189	order that the petitioner be paid from the security posted by
190	the respondent under s. 552.38 the amount of the damages
191	awarded. To the extent the security does not satisfy the full
192	amount of the damages awarded, the administrative law judge may
193	enter a judgment directly against the respondent for the amount
194	of the difference.
195	(8) If the administrative law judge finds that the
196	preponderance of the evidence presented demonstrates that the
197	petitioner's alleged damages were not caused by the respondent's
198	use of explosives, the administrative law judge shall set forth
199	in a final order precise findings as to the lack of
200	responsibility of the respondent.
201	(9) The prevailing party is entitled to recovery of
202	reasonable taxable costs for the administrative proceedings,
203	including expert witness fees and reasonable attorney's fees,
204	not to exceed $15,000 in the aggregate. This $15,000 cap on the
205	combined amount of awardable costs and fees does not apply if
206	the administrative law judge determines that the claim or
207	defense of the nonprevailing party:
208	(a) Was not supported by the material facts necessary to
209	establish the claim or defense;
210	(b) Would not be supported by the application of then-
211	existing law to those material facts; or
212	(c) Was brought or advanced primarily to harass or cause
213	unnecessary delay, for frivolous purposes, or to needlessly
214	increase the cost incurred by the opposition.
215
216	The losing party has up to 120 days to pay the total amount of
217	attorney's fees and taxable costs assessed. This subsection does
218	not apply to a petitioner who is the nonprevailing party if the
219	petitioner's annual income is less than 150 percent of the
220	applicable federal poverty guideline published in the Federal
221	Register by the United States Department of Health and Human
222	Services.
223	(10) Except as otherwise provided in ss. 552.32-552.44,
224	the procedure for the administrative proceedings provided by
225	this act must be governed by the uniform rules of procedure for
226	decisions determining substantial interests which are authorized
227	by s. 120.54(5), notwithstanding the fact that those rules
228	implement provisions of chapter 120 which are applicable to
229	proposed or final agency action.
230	(11) The filing fees paid pursuant to subsection (1) shall
231	be deposited into the Administrative Trust Fund of the Division
232	of Administrative Hearings to defray the expenses and costs
233	associated with the administration of ss. 552.32-553.44.
234	Section 7. Section 552.42, Florida Statutes, is created to
235	read:
236	552.42 Appeal.--The petitioner or the respondent may
237	appeal the decision of the administrative law judge to the
238	district court of appeal with jurisdiction over the county where
239	the hearing was held by filing a notice, accompanied by the
240	required filing fee, as provided by the Florida Rules of
241	Appellate Procedure. The payment of any award shall be stayed
242	during the pendency of an appeal.
243	Section 8. Section 552.44, Florida Statutes, is created to
244	read:
245	552.44 Prior claims.--This act does not affect any claim
246	filed in any tribunal before the effective date of this act.
247	Section 9. This act shall take effect upon becoming a law.