HB 0673 2003
1	CHAMBER ACTION
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6	The Committee on Judiciary recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
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11	A bill to be entitled
12	An act relating to mining activities; amending s. 552.30,
13	F.S.; redefining the term "construction materials mining
14	activities"; creating ss. 552.32-552.44, F.S.; providing a
15	popular name; providing legislative findings and public
16	purpose; providing that the Division of Administrative
17	Hearings has exclusive jurisdiction over certain claims
18	for damages relating to the use of explosives in
19	connection with construction materials mining activities;
20	providing for filing fees, except in cases of indigence;
21	providing for deposit of filing fees; requiring a person
22	who uses explosives in connection with such activities to
23	post security in a specified amount for a specified
24	period; providing for rulemaking by the State Fire
25	Marshal; providing for an administrative remedy; providing
26	procedures for mediation and for formal hearings; allowing
27	recovery of certain costs and attorney's fees, with
28	exceptions; providing for appeals; providing
29	applicability; providing an effective date.
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31	Be It Enacted by the Legislature of the State of Florida:
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33	Section 1. Subsection (1) of section 552.30, Florida
34	Statutes, is amended to read:
35	552.30 Construction materials mining activities.--
36	(1) Notwithstanding the provisions of s. 552.25, the State
37	Fire Marshal shall have the sole and exclusive authority to
38	promulgate standards, limits, and regulations regarding the use
39	of explosives in conjunction with construction materials mining
40	activities. Such authority to regulate use shall include,
41	directly or indirectly, the operation, handling, licensure, or
42	permitting of explosives and setting standards or limits,
43	including, but not limited to, ground vibration, frequency,
44	intensity, blast pattern, air blast and time, date, occurrence,
45	and notice restrictions. As used in this section, "construction
46	materials mining activities" means the extraction of limestone
47	and sand suitable for production of construction aggregates,
48	sand, cement, and road base materials for shipment offsiteby
49	any person or company primarily engaged in the commercial mining
50	of any such natural resources.
51	Section 2. Section 552.32, Florida Statutes, is created to
52	read:
53	552.32 Popular name.--Sections 552.32-552.44 may be known
54	by the popular name the "Florida Construction Materials Mining
55	Activities Administrative Recovery Act."
56	Section 3. Section 552.34, Florida Statutes, is created to
57	read:
58	552.34 Legislative findings; public purpose.--The
59	Legislature finds and declares that:
60	(1) Construction materials mining activities require the
61	use of explosives to fracture material prior to excavation.
62	(2) The use of explosives results in physical ground
63	vibrations and air blasts that may affect other property owners
64	in the vicinity of a mining site.
65	(3) It is in the best interests of the public to provide a
66	specific administrative remedy for complaints related to the use
67	of explosives in construction materials mining activities.
68	Section 4. Section 552.36, Florida Statutes, is created to
69	read:
70	552.36 Exclusive jurisdiction; Division of Administrative
71	Hearings.--
72	(1) The Division of Administrative Hearings has exclusive
73	jurisdiction over all claims for damages to real or personal
74	property caused by the use of explosives in connection with
75	construction materials mining activities. The provisions of ss.
76	552.32-552.44 do not affect any claim seeking recovery for
77	personal injury, emotional distress, or punitive damages. Any
78	cause of action that involves both a claim for damage to real or
79	personal property and another claim that is not addressed by ss.
80	552.32-552.44 must be bifurcated so that any claim seeking
81	recovery for damage to real or personal property is adjudicated
82	by the Division of Administrative Hearings.
83	(2) Notwithstanding s. 552.25, the review procedures set
84	forth in ss. 552.32-552.44 preempt any claims, recovery, or
85	similar procedure of any municipality, agency, board, or county
86	or any other subdivision, entity, or special district of the
87	state which would otherwise address a claim for damage caused by
88	the use of explosives in connection with construction materials
89	mining activities.
90	Section 5. Section 552.38, Florida Statutes, is created to
91	read:
92	552.38 Security requirement.--
93	(1) As a prerequisite to obtaining or renewing a valid
94	user license as required by s. 552.091(5)(a), or obtaining or
95	renewing a valid license or permit under s. 552.30, a person who
96	uses explosives in connection with construction materials mining
97	activities must post and maintain a bond or letter of credit as
98	security as required under subsection (2). Evidence that the
99	bond has been posted and maintained in compliance with this
100	section must be maintained by any licensee or permitholder for
101	the use of explosives in connection with construction materials
102	mining activities as part of the mandatory record maintenance
103	requirements of s. 552.112. The person must maintain, in a
104	format approved by the Division of State Fire Marshal of the
105	Department of Financial Services, a completed form that shows
106	the amount and location of the bond or identifies the bond
107	surety and the current bond value.
108	(2) The bond or letter of credit required under subsection
109	(1) must be in an amount not less than $100,000, notwithstanding
110	an award made by an administrative law judge under s. 552.40(7).
111	In the case of multiple licenseholders and permitholders, a
112	single bond in the aggregate amount of not less than $100,000
113	may be provided as security for the individual permits and/or
114	licenses. If the user of explosives has not been identified as a
115	respondent in any pending claim for damages under ss. 552.32-
116	552.44, and if renewal of the license or permit is not sought,
117	the bond required under this section may be released upon the
118	expiration of the license or permit, or 181 days after the final
119	use of explosives under the license, whichever occurs later,
120	provided the bond to be released is not security for other
121	permits or licenses.
122	(3) The State Fire Marshal may adopt rules for the
123	administration of this section.
124	Section 6. Section 552.40, Florida Statutes, is created to
125	read:
126	552.40 Administrative remedy for alleged damage due to the
127	use of explosives in connection with construction materials
128	mining activities.--
129	(1) A person may initiate an administrative proceeding to
130	recover damages resulting from the use of explosives in
131	connection with construction materials mining activities by
132	filing a petition with the Division of Administrative Hearings
133	on a form provided by the division and accompanied by a filing
134	fee of $100 within 180 days after the occurrence of the alleged
135	damage. If the petitioner submits an affidavit stating that the
136	petitioner's annual income is less than 150 percent of the
137	applicable federal poverty guideline published in the Federal
138	Register by the United States Department of Health and Human
139	Services, the $100 filing fee must be waived.
140	(2) The petition must include:
141	(a) The name and address of the petitioner;
142	(b) The name and address of the respondent, including the
143	applicable user licenseholder under s. 552.091(5) and
144	permitholder under s. 552.30;
145	(c) The approximate time, date, and place of the use of
146	explosives which is alleged to have resulted in damage to the
147	petitioner; and
148	(d) A description of the damage caused and the amount
149	sought for recovery.
150	(3) Within 5 business days after the Division of
151	Administrative Hearings receives a petition, the division shall
152	issue and serve on the petitioner and the respondent an initial
153	order that assigns the case to a specific administrative law
154	judge and provides general information regarding the practice
155	and procedure before the division. The initial order must advise
156	that a summary hearing is available upon the agreement of the
157	parties under subsection (6) and must briefly describe the
158	expedited time sequences, limited discovery, and final order
159	provisions of the summary procedure. The initial order must also
160	contain a statement advising the petitioner and the respondent
161	that a mandatory, nonbinding mediation is required before a
162	summary administrative hearing or a formal administrative
163	hearing may be held.
164	(4) The administrative law judge shall issue an order
165	directing mediation under Rule 1700 et seq., Florida Rules of
166	Civil Procedure. The parties shall jointly select a mediator and
167	the location of mediation. If the parties fail to do so within
168	30 days after the order for mediation is issued, the
169	administrative law judge shall designate the mediator and the
170	location of mediation. Petitioner and respondent shall each pay
171	one-half of the cost of mediation. If the petitioner's annual
172	income is less than 150 percent of the applicable federal
173	poverty guideline published in the Federal Register by the
174	United States Department of Health and Human Services, the
175	respondent shall bear the full cost of mediation. The mediation
176	must be concluded within 60 days after the date of designation
177	of the mediator unless the parties agree upon a different date.
178	(5) If the parties have not reached a settlement within 30
179	days after the conclusion of the mediation, the administrative
180	law judge shall set the matter for formal administrative hearing
181	as soon thereafter as possible at a location in the county where
182	the alleged damage occurred. However, a formal administrative
183	hearing may not be scheduled sooner than 30 days after the
184	conclusion of the mediation.
185	(6) In lieu of proceeding directly to a formal
186	administrative hearing scheduled in accordance with subsection
187	(5), upon agreement of the parties, the parties may, within 15
188	days after the conclusion of unsuccessful mediation, file a
189	motion for summary hearing. The summary hearing must be held at
190	a location in the county where the alleged damage occurred, and
191	all procedural requirements related to the hearing must be
192	governed by s. 120.574 and any rules implementing that section.
193	(7) If the administrative law judge finds that the
194	preponderance of the evidence presented demonstrates that the
195	petitioner's damages were caused by the respondent's use of
196	explosives, the administrative law judge shall set forth in a
197	final order precise findings as to the damages attributable to
198	the respondent and shall direct the respondent to pay damages in
199	an amount supported by the preponderance of the evidence
200	presented within 30 days after the final order is issued, unless
201	the matter is appealed in accordance with s. 552.42. If the
202	respondent fails to pay the damages within 30 days after the
203	final order is issued or within 30 days after the entry of an
204	appellate mandate affirming a final order awarding damages, the
205	petitioner may request and the administrative law judge may
206	order that the petitioner be paid from the security posted by
207	the respondent under s. 552.38 the amount of the damages
208	awarded. To the extent the security does not satisfy the full
209	amount of the damages awarded, the administrative law judge may
210	enter a judgment directly against the respondent for the amount
211	of the difference.
212	(8) If the administrative law judge finds that the
213	preponderance of the evidence presented demonstrates that the
214	petitioner's alleged damages were not caused by the respondent's
215	use of explosives, the administrative law judge shall set forth
216	in a final order precise findings as to the lack of
217	responsibility of the respondent.
218	(9) The prevailing party shall be entitled to recover
219	taxable costs, including expert witness fees. The prevailing
220	party shall be entitled to an award of reasonable attorney’s
221	fees if the administrative law judge determines that the claim
222	or defense of the nonprevailing party:
223	(a) Was not supported by the material facts necessary to
224	establish the claim or defense;
225	(b) Would not be supported by the application of then-
226	existing law to those material facts; or
227	(c) Was brought or advanced primarily to harass or cause
228	unnecessary delay, for frivolous purposes, or to needlessly
229	increase the cost incurred by the opposition.
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231	The losing party has up to 120 days to pay the total amount of
232	attorney's fees and taxable costs assessed. This subsection does
233	not apply to a petitioner who is the nonprevailing party if the
234	petitioner's annual income is less than 150 percent of the
235	applicable federal poverty guideline published in the Federal
236	Register by the United States Department of Health and Human
237	Services.
238	(10) Except as otherwise provided in ss. 552.32-552.44,
239	the procedure for the administrative proceedings provided by
240	this act must be governed by the uniform rules of procedure for
241	decisions determining substantial interests which are authorized
242	by s. 120.54(5), notwithstanding the fact that those rules
243	implement provisions of chapter 120 which are applicable to
244	proposed or final agency action.
245	(11) The filing fees paid pursuant to subsection (1) shall
246	be deposited into the Administrative Trust Fund of the Division
247	of Administrative Hearings to defray the expenses and costs
248	associated with the administration of ss. 552.32-552.44.
249	Section 7. Section 552.42, Florida Statutes, is created to
250	read:
251	552.42 Appeal.--The petitioner or the respondent may
252	appeal the order of the administrative law judge to the district
253	court of appeal with jurisdiction over the county where the
254	hearing was held by filing a notice, accompanied by the required
255	filing fee, as provided by the Florida Rules of Appellate
256	Procedure. The payment of any award shall be stayed during the
257	pendency of an appeal.
258	Section 8. Section 552.44, Florida Statutes, is created to
259	read:
260	552.44 Prior claims.--This act does not affect any claim
261	filed in any tribunal before the effective date of this act.
262	Section 9. This act shall take effect upon becoming a law.