Senate Bill sb1156c2

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                    CS for CS for SB 1156

    By the Committees on Criminal Justice; Judiciary; and Senators
    Peaden and Posey




    307-1997-04

  1                      A bill to be entitled

  2         An act relating to sport shooting and training

  3         range environmental liability protection;

  4         creating s. 790.333, F.S.; providing

  5         legislative findings and intent; providing

  6         definitions; specifying immunity from liability

  7         for certain persons or entities from certain

  8         claims relating to projectiles at sport

  9         shooting and training ranges; providing a

10         limitation; requiring withdrawal of certain

11         claims from courts or administrative agencies

12         after a certain date; providing that certain

13         legal actions found in favor of the state may

14         not benefit the state; requiring the state to

15         pay all costs of litigation, attorney's fees,

16         damages, and economic loss for certain legal

17         actions found in its favor; requiring the

18         Department of Environmental Protection to

19         develop a plan to conduct review and cleanup;

20         requiring the department to conduct an

21         environmental cleanup under certain

22         circumstances; providing duties and

23         restrictions on the department and ranges;

24         creating an identification process; authorizing

25         the department to develop guidelines;

26         authorizing the department to use funds from

27         the Water Quality Assurance Trust Fund for

28         expenses associated with the act; providing

29         criminal penalties; specifying preemption by

30         the state; providing for construction;

31         providing an effective date.

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




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

 2  

 3         Section 1.  Section 790.333, Florida Statutes, is

 4  created to read:

 5         790.333  Sport shooting and training range protection;

 6  liability; claims, expenses, and fees; penalties; preemption;

 7  construction.--

 8         (1)  LEGISLATIVE FINDINGS.--

 9         (a)  The Legislature finds that more than 400 sport

10  shooting and training ranges exist on public and private lands

11  throughout this state.

12         (b)  These sport shooting and training ranges are

13  widely used and enjoyed by the residents of this state and are

14  a necessary component of the guarantees of the Second

15  Amendment to the United States Constitution and of s. 8, Art.

16  I of the State Constitution.

17         (c)  Many of these ranges are used by state and local

18  law enforcement agencies for training, practice, and regular

19  mandatory qualification by law enforcement officers; by hunter

20  safety instructors of the Fish and Wildlife Conservation

21  Commission who teach adults and youngsters the safe use and

22  handling of firearms in preparation for obtaining hunting

23  licenses; by school boards, colleges, and universities for

24  reserve officer training corps training and activities; by

25  school shooting teams; by Olympic competitors; and by

26  certified instructors who teach the safe use and handling of

27  firearms in preparation for applying for licenses to carry

28  concealed firearms for lawful self-protection.

29         (d)  The public policy of this state is to encourage

30  the safe handling and operation of firearms and mandates

31  appropriate training in the safe use and handling of firearms

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  for persons licensed to carry concealed firearms and for

 2  persons licensed to hunt in this state. Sport shooting and

 3  training ranges throughout this state provide the location at

 4  which this important public purpose is served and at which the

 5  firearms training mandates are fulfilled.

 6         (e)  Projectiles are integral to sport shooting and

 7  training range activity and to the ownership and use of

 8  firearms.

 9         (f)  Over years of operation, projectiles have

10  accumulated in the environment at many ranges, the

11  environmental impact of which is disputed.

12         (g)  Litigation has been initiated by certain state

13  agencies, including the Department of Environmental Protection

14  and the Southwest Florida Water Management District, against

15  sport shooting and training range owners and operators seeking

16  to compel such owners and operators to discontinue the use of

17  certain projectiles and to investigate and remove accumulated

18  projectiles under the theory that these projectiles were

19  deposited without authorization under prevailing state

20  environmental laws. The cost of defending these actions is

21  prohibitive and threatens to destroy the sport shooting and

22  training range industry.

23         (h)  The elimination of sport shooting and training

24  ranges would unnecessarily impair the ability of residents of

25  this state to exercise and practice their constitutional

26  guarantees under the Second Amendment to the United States

27  Constitution and under s. 8, Art. I of the State Constitution.

28         (2)  LEGISLATIVE INTENT.--The Legislature intends to

29  protect and immunize sport shooting and training range owners,

30  operators, users, employees, agents, contractors, and

31  customers from environmental liability as described in this

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  act and to prohibit actions by the state, special purpose

 2  districts, or political subdivisions which threaten to destroy

 3  or bankrupt sport shooting and training ranges.

 4         (3)  DEFINITIONS.--As used in this act, the term:

 5         (a)  "Owner" means any person who owns or has owned a

 6  sport shooting or training range or any interest therein.

 7         (b)  "Operator" means any person who operates or has

 8  operated a sport shooting or training range.

 9         (c)  "Projectile" means any object expelled, propelled,

10  discharged, shot, or otherwise released from a firearm, BB

11  gun, airgun, or similar device, including, but not limited to,

12  gunpowder, ammunition, lead, shot, skeet, and trap targets and

13  associated chemicals, derivatives, and constituents thereof.

14         (d)  "Environment" means the air, water, surface water,

15  sediment, soil, groundwater, and other natural and manmade

16  resources of this state.

17         (e)  "User" means any person, partner, joint venture,

18  business, or social entity or corporation, or any group of

19  such persons or entities, organized or united for a business,

20  sport, or social purpose.

21         (f)  "Sport shooting and training range" or "range"

22  means any area that has been designed or operated primarily

23  for the use of firearms, rifles, shotguns, pistols,

24  silhouettes, skeet, trap, black powder, BB guns, airguns, or

25  similar devices or for any other type of sport or training

26  shooting.

27         (4)  SPORT SHOOTING AND TRAINING RANGE LIABILITY

28  PROTECTION.--Notwithstanding any other provision of law, any

29  private or public owner, operator, employee, agent,

30  contractor, customer, or user of any sport shooting or

31  training range located in this state, identified to the

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  department by September 30, 2005, as set forth in paragraph

 2  (7)(i) shall have limited liability to this state or any

 3  agency of the state, special purpose district, or political

 4  subdivision of this state for any claim associated with the

 5  intentional or unintentional placement, deposition, or

 6  accumulation of projectiles in the environment on or under

 7  that sport shooting or training range or any other property

 8  over which the range has an easement, leasehold, or other

 9  legal right of use. For purposes of this subsection, a public

10  owner or operator means the state, a county, a municipal

11  corporation, a state university or college, or a school

12  district.

13         (5)  PENDING AND FUTURE CLAIMS.--

14         (a)  All claims from which private or public owners,

15  operators, employees, agents, contractors, customers, or users

16  of any sport shooting and training ranges are immunized under

17  this section which are pending in any court of this state or

18  before any administrative agency on January 1, 2004, shall be

19  withdrawn within 30 days after the effective date of this act

20  and failure to immediately withdraw such claim shall be a

21  violation of this act and shall be penalized in accordance

22  with subsection (6).

23         (b)  No state agency, county, municipality, town,

24  special purpose district, or other political subdivision may

25  benefit financially or otherwise from any such action pending

26  on or after January 1, 2004, in which any judgment or other

27  legal action or recourse is or has been entered in favor of

28  the state, any of its agencies, or a county, municipality,

29  town, special purpose district, or other political subdivision

30  against any private or public owner, operator, employee,

31  agent, contractor, customer, or user of any sport shooting or

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  training range. The state, agency, county, municipality, town,

 2  special purpose district, or other political subdivision that

 3  brought such action shall immediately pay all costs of

 4  litigation and all reasonable attorney's fees, paralegal's

 5  fees, and damages for all economic and other losses resulting

 6  from the initiation of such claim for which this section

 7  provides immunity.

 8         (c)  Any private or public owner, operator, employee,

 9  agent, contractor, customer, or user of any sport shooting or

10  training range injured as a result of a claim filed in

11  violation of this section shall have a civil cause of action

12  for damages, reasonable attorney's fees, and costs.

13         (6)  PENALTIES.--Any official, employee, or other agent

14  of this state or its agencies, or of a county, municipality,

15  town, special purpose district, or other political subdivision

16  of this state, who, while acting in his or her official

17  capacity and within the scope of his or her employment or

18  office, willfully and knowingly brings or is a party to

19  bringing an action in violation of this section commits a

20  misdemeanor of the first degree, punishable as provided in s.

21  775.082 or s. 775.083.

22         (7)  DUTIES.--

23         (a)  The Department of Environmental Protection shall

24  develop a plan and procedures for the reasonable review,

25  contamination assessment, and cleanup of sport shooting and

26  training ranges if there is credible reason to believe that

27  the accumulation of projectiles on such ranges poses an

28  immediate threat to the environment or to human health. The

29  department shall give 60 days' notice to the sport shooting or

30  training range owner, operator, tenant, or occupant of the

31  

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  department's intent to enter the site for the purpose of a

 2  contamination assessment.

 3         (b)  Principles of risk-based corrective action

 4  pursuant to s. 376.30701 shall be applied to sport shooting or

 5  training ranges.

 6         (c)  The department may enter a sport shooting or

 7  training range and conduct an environmental cleanup of the

 8  site under the following circumstances:

 9         1.  The department has proven by competent, substantial

10  evidence through scientifically accepted documentation that

11  the effect of accumulation of lead projectiles at the sport

12  shooting or training range is in violation of laws and rules

13  and is causing an unreasonable risk of injury or death to

14  humans or the environment;

15         2.  The department has presented scientifically

16  accepted documentation of contamination at the sport shooting

17  or training range to the sport shooting and training range

18  owner, operator, tenant, or occupant;

19         3.  The department has made a reasonable effort to

20  obtain permission from the sport shooting or training range

21  owner, operator, tenant, or occupant for entrance for the

22  purpose of environmental cleanup;

23         4.  The department has given 120 days' notice to the

24  sport shooting or training range owner, operator, tenant, or

25  occupant of the department's intent to enter the site for the

26  purpose of an environmental cleanup; and

27         5.  The sport shooting or training range owner,

28  operator, tenant, or occupant has given permission to the

29  department to conduct the environmental cleanup.

30         (d)  In the event that the department has complied with

31  the requirements of subparagraphs (c)1.-4. and been denied

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  permission to conduct the environmental cleanup, the

 2  department may seek judicial intervention for the purpose of

 3  fulfilling its duties.

 4         (e)  Should the department seek judicial intervention

 5  as authorized in paragraph (d), the owner, operator, tenant,

 6  or occupant shall have the opportunity to rebut the

 7  department's claims.

 8         (f)  Should the department seek judicial intervention,

 9  the prevailing party may recover related costs and fees from

10  the other party or parties.

11         (g)  Upon this act becoming law, the department shall

12  initially notify those sport shooting and training ranges

13  known to the department of the passage of this act and the

14  rights and obligations of range owners and operators under

15  this act.

16         (h)  No later than October 1, 2004, the department

17  shall establish a range identification process to identify the

18  ownership and location of all sport shooting and training

19  ranges in the state. The department is authorized to develop

20  the guidelines necessary to implement the range identification

21  process. However, the process for developing the guidelines by

22  the department shall be strictly limited to the following

23  activities:

24         1.  In establishing the identification process, the

25  department shall make a reasonable effort to notify the public

26  of the identification requirements which shall include

27  providing legal notice as provided in chapter 50.

28         2.  Any costs associated with this identification

29  process shall be borne by the department.

30         3.  The department shall develop an education program

31  to assist identified ranges and to promote the use of

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  best-management practices that can be implemented to limit

 2  environmental impacts associated with the operation of the

 3  ranges.

 4  

 5  Any owner of a sport shooting or training range must identify

 6  themselves to the department in accordance with department

 7  guidelines and provide, at a minimum, the name and legal

 8  address of the owner and the address and legal description of

 9  the range. Owners of ranges in existence on or before October

10  1, 2004, must identify themselves to the department by

11  September 30, 2005. Owners of ranges established after October

12  1, 2004, must identify themselves to the department within 1

13  year of the establishment of the ranges.

14         (i)  Sport shooting or training ranges that have been

15  identified to the department by September 30, 2005, may not be

16  required to pay for the initial environmental cleanup,

17  whenever it occurs, and the cost of the contamination

18  assessment and the initial environmental cleanup shall be

19  borne by the state. The cost of any subsequent cleanup will be

20  done at the expense of the owner, operator, tenant, or

21  occupant of the range. The cost of environmental cleanups

22  conducted at ranges that have identified themselves to the

23  department after September 30, 2005, shall be borne by the

24  owner, operator, tenant, or occupant of the range. The

25  liability protection in subsection (4) terminates after the

26  initial environmental cleanup is completed by the department.

27         (j)  A county, municipality, town, special purpose

28  district, other political subdivision, or any other government

29  entity in the state may not initiate any site investigation or

30  any other activity related to environmental issues or cleanup

31  of sport shooting or training ranges unless such activity is

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1  specifically permitted by the Department of Environmental

 2  Protection and is under the direct supervision of the

 3  department.

 4         (k)  The department may use funds from the Water

 5  Quality Assurance Trust Fund for expenses associated with this

 6  act.

 7         (l)  This section does not relieve the state of its

 8  duty to absorb the costs of environmental cleanups of sport

 9  shooting or training ranges under other circumstances.

10         (m)  The department may not initiate a range cleanup

11  unless funding is available to complete the cleanup project.

12  The department shall work with ranges to develop, with

13  reasonable certainty, estimates of the time necessary to clean

14  up each range and shall strictly adhere to a reasonable time

15  frame, consistent with the principles of risk-based corrective

16  action. Once a cleanup has begun, the department shall

17  proceed, without delay until completion, utilizing the most

18  fiscally responsible approach.

19         (8)  PREEMPTION.--Notwithstanding any other provision

20  of law, the Legislature preempts the entire field of

21  regulating the environmental effects of projectile deposition

22  at sport shooting and training ranges.

23         (9)  CONSTRUCTION.--This section shall be liberally

24  construed to effectuate its remedial and deterrent purposes.

25         Section 2.  This act shall take effect upon becoming a

26  law.

27  

28  

29  

30  

31  

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                            CS/SB 1156

 3                                 

 4  1.   Provides limited liability for, rather than blanket
         immunity from claims relating to the depositing of
 5       projectiles and their effect on the environment, to
         shooting ranges, and parties associated with the ranges,
 6       as identified to the Department of Environmental
         Regulation by September 30, 2005.
 7  
    2.   Changes the potential criminal penalty for bringing an
 8       action in violation of the bill from a third degree
         felony to a first degree misdemeanor. Provides that the
 9       criminal penalty may be imposed if any action pending as
         a January 1, 2004, is not withdrawn within 30 days of the
10       bill becoming law.

11  3.   Provides that no state agency or other political
         subdivision may benefit financially or otherwise from an
12       action that is pending as of January 1, 2004, in which a
         judgment, legal action, or other recourse has been
13       entered. The CS requires the agency or political
         subdivision to pay costs and fees associated with the
14       litigation as well as damages, economic or otherwise that
         resulted from the litigation.
15  
    4.   Deletes the potential for treble damages being available
16       to a claimant injured as a result of a claim filed in
         violation of the newly-created statute. The potential
17       claimants who may recover under this provision are
         limited to: any private or public owner, operator,
18       employee, agent, contractor, customer, or user of a
         range.
19  
    5.   The CS creates certain duties and methods by which they
20       may be carried out, within the Department of
         Environmental Protection.
21  
    6.   The CS provides that the Department may seek judicial
22       intervention under certain circumstances, in order to
         carry out its duties, and that the prevailing party shall
23       recover costs associated with the litigation.

24  7.   The CS creates a duty to use risk-based corrective
         action, using the most fiscally responsible approach in
25       the cleanup process.

26  8.   The CS requires the Department to notify ranges when the
         Act passes.
27  
    9.   The CS directs the Department to develop and implement a
28       range identification process. Ranges identified to the
         Department by September 30, 2005, may not be required to
29       pay for the cost of the initial cleanup. The limited
         liability protection is lifted after the initial cleanup
30       by the Department of Environmental Regulation.

31  10.  The CS restricts governmental entities other than the
         state from initiating any activity related to
                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2004                    CS for CS for SB 1156
    307-1997-04




 1       environmental issues, except under certain restricted
         circumstances.
 2  
    11.  The CS provides that funds from the Water Quality
 3       Assurance Trust Fund may be used for expenses associated
         with this Act.
 4  

 5  

 6  

 7  

 8  

 9  

10  

11  

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  12

CODING: Words stricken are deletions; words underlined are additions.