HB 0789

CS

CHAMBER ACTION

1	The Commerce Council recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to damage prevention and safety for
7	underground facilities; amending s. 556.101, F.S.;
8	providing legislative intent that Sunshine State One-Call
9	of Florida, Inc., is not required or permitted to locate
10	or mark underground facilities; revising purposes of the
11	Underground Facility Damage Prevention and Safety Act;
12	amending s. 556.102, F.S.; correcting a reference;
13	redefining the term "member operator" to remove an
14	exception for a small municipality that elects not to
15	participate in the notification system; amending ss.
16	556.103 and 556.104, F.S.; deleting provisions exempting a
17	small city from membership in the Sunshine State One-Call
18	of Florida, Inc.; amending s. 556.105, F.S.; requiring
19	that specified information be placed in the excavation
20	notification system; providing an exception for underwater
21	excavations; providing that the information is valid for
22	30 calendar days; providing for a study of the feasibility
23	of zones where no notification is required; requiring a
24	report to the Legislature; requiring a notification number
25	assigned to an excavator to be provided to a law
26	enforcement officer, government code inspector, or code
27	enforcement officer upon request; requiring that a member
28	operator respond to the system within a specified time
29	indicating the status of its facility protection
30	operations; requiring the corporation to establish a
31	communication system between member operators and
32	excavators; requiring an excavator to verify the system's
33	positive responses before beginning excavation; requiring
34	operators to use a specified color-code manual; amending
35	s. 556.106, F.S.; providing that the notification system
36	has no duty to and may not mark or locate underground
37	facilities; providing that a person has no right of
38	recovery against the notification system for failing to
39	mark or locate underground facilities; providing that the
40	system is not liable for the failure of a member operator
41	to comply with the requirements of the act; amending s.
42	556.107, F.S.; correcting cross-references; providing for
43	the distribution of civil penalties; revising procedures
44	for disposition of citations; authorizing the corporation
45	to retain legal counsel to represent the corporation in
46	certain legal proceedings; amending s. 556.108, F.S.;
47	revising provisions that exempt excavation or demolition
48	by the owner of residential property from specified
49	notification requirements to exclude certain property that
50	is subdivided or to be subdivided; providing that certain
51	excavations are exempt from mandatory location
52	notification if mechanized equipment is not used;
53	exempting pest control services under certain
54	circumstances; amending s. 556.111, F.S.; providing that
55	specified applicability provisions do not exempt a local
56	governmental member operator from specified provisions
57	that apply to the member operator; amending s. 337.401,
58	F.S.; correcting a cross-reference; providing an effective
59	date.
60
61	Be It Enacted by the Legislature of the State of Florida:
62
63	Section 1.  Section 556.101, Florida Statutes, is amended
64	to read:
65	556.101  Short title; legislative intent.--
66	(1)  This chapter act may be cited as the "Underground
67	Facility Damage Prevention and Safety Act."
68	(2)  It is the intent of the Legislature to provide access
69	for excavating contractors and the public to provide
70	notification to the system of their intent to engage in
71	excavation or demolition. This notification system shall provide
72	the member operators an opportunity to identify and locate their
73	underground facilities. Under this notification system, Sunshine
74	State One-Call of Florida, Inc., is not required or permitted to
75	locate or mark underground facilities.
76	(3)  It is the purpose of this chapter act to:
77	(a)  Aid the public by preventing injury to persons or
78	property and the interruption of services resulting from damage
79	to an underground facility caused by excavation or demolition
80	operations.
81	(b)  Create a not-for-profit corporation comprised of
82	operators of underground facilities in this state to administer
83	the provisions of this chapter act.
84	(c)  Fund the cost of administration through contributions
85	from the member operators for services provided to the member
86	operators and from charges made to others for services requested
87	and provided, such as record searches, education or training,
88	and damage prevention activities.
89	(d)  Reserve to the state the power to regulate any subject
90	matter specifically addressed in this chapter act.
91	(e)  Permit any local law enforcement officer, local
92	government code inspector, or code enforcement officer or
93	permitting agency inspector to enforce this chapter act without
94	the need to incorporate the provisions of this chapter act into
95	any local code or ordinance.
96	(f)  Foster the awareness of federal laws and regulations
97	that promote safety with respect to underground facilities,
98	including, but not limited to, the Federal Pipeline Safety Act
99	of 1968, as amended, the Pipeline Safety Improvement Act of
100	2002, OSHA Standard 1926.651, and the National Electric Safety
101	Code, ANSI C-2, by requiring and facilitating the advance notice
102	of activities by those who engage in excavation or demolition
103	operations.
104	(4)  It is not the purpose of this chapter act to amend or
105	void any permit issued by a state agency for placement or
106	maintenance of facilities in its right-of-way.
107	Section 2.  Subsection (8) of section 556.102, Florida
108	Statutes, is amended to read:
109	556.102  Definitions.--As used in this act:
110	(8)  "Member operator" means any person who furnishes or
111	transports materials or services by means of an underground
112	facility except a small municipality that has elected not to
113	participate in the one-call notification system in the manner
114	set forth in s. 556.103(1).
115	Section 3.  Subsection (1) of section 556.103, Florida
116	Statutes, is amended to read:
117	556.103  Creation of the corporation; establishment of the
118	board of directors; authority of the board; annual report.--
119	(1)  The "Sunshine State One-Call of Florida, Inc." is
120	hereby created as a not-for-profit corporation. Each operator of
121	an underground facility in this state shall be a member of the
122	corporation and shall use and participate in the system, except
123	that a small city as defined in s. 120.52 may elect by January
124	1, 1998, not to participate in the system until January 1, 2003,
125	through a written notification identifying any reasons for
126	declining membership. The corporation shall be formed by June 1,
127	1993. The corporation shall administer the provisions of this
128	chapter act. The corporation shall exercise its powers through a
129	board of directors established pursuant to this section.
130	Section 4.  Section 556.104, Florida Statutes, is amended
131	to read:
132	556.104  Free-access notification system.--The corporation
133	shall maintain a free-access notification system. Any person who
134	furnishes or transports materials or services by means of an
135	underground facility in this state shall participate as a member
136	operator of the system except that a small city as defined in s.
137	120.52 may elect not to participate in the system in the manner
138	set forth in s. 556.103(1). The purpose of the system is to
139	receive notification of planned excavation or demolition
140	activities and to notify member operators of the such planned
141	excavation or demolition activities. The system shall provide a
142	single toll-free telephone number within this state which
143	excavators can use to notify member operators of planned
144	excavation or demolition activities, and the system may also
145	provide additional modes of access at no cost to the user.
146	Section 5.  Section 556.105, Florida Statutes, is amended
147	to read:
148	556.105  Procedures.--
149	(1)(a)  Not less than 2 nor more than 5 full business days
150	before beginning any excavation or demolition, except an
151	excavation beneath the waters of the state, an excavator shall
152	provide the following information through the system:
153	1.  The name of the individual who provided notification
154	and the name, address, including the street address, city,
155	state, zip code, and telephone number of her or his employer.
156	2.  The name and telephone number of the representative for
157	the excavator, and a valid electronic address to facilitate a
158	positive response by the system should be provided, if
159	available.
160	3.  The county, the city or closest city, and the street
161	address or the closest street, road, or intersection to the
162	location where the excavation or demolition is to be performed,
163	and the construction limits of the excavation or demolition.
164	4.  The commencement date and anticipated duration of the
165	excavation or demolition.
166	5.  Whether machinery will be used for the excavation or
167	demolition.
168	6.  The person or entity for whom the work is to be done.
169	7.  The type of work to be done.
170	8.  The approximate depth of the excavation.
171	(b)  The excavator shall provide the such information by
172	notifying the system through its free-access notification system
173	during business hours, as determined by the corporation, or by
174	such other method as authorized by the corporation. Any
175	notification received by the system at any time other than
176	during business hours shall be considered to be received at the
177	beginning of the next business day.
178	(c)  Information provided by an excavator is shall be
179	considered valid for 30 a period of 20 calendar days after the
180	each date such information is provided to the system. In
181	computing the period for which information furnished is
182	considered valid, the date the notice is provided is shall not
183	be counted, but the last day of the such period shall be counted
184	unless it is a Saturday, Sunday, or a legal holiday, in which
185	event, the period runs shall run until the end of the next day
186	that which is not a Saturday, Sunday, or a legal holiday.
187	(d)1.  The system shall study the feasibility of the
188	establishment or recognition of zones for the purpose of
189	allowing excavation within such zones to be undertaken without
190	notice to the system as now required by this chapter when such
191	zones are:
192	a.  In areas within which no underground facilities are
193	located.
194	b.  Where permanent markings, permit and mapping systems,
195	and structural protection for underwater crossings are required
196	or in place.
197	c.  For previously marked utilities on construction of one
198	or two family dwellings where the contractor remains in custody
199	and control of the building site for the duration of the
200	building permit.
201	2.  The system shall report the results of the study to the
202	Legislature on or before February 1, 2007, along with
203	recommendations for further legislative action.
204	(2)  Each notification by means of the system shall be
205	recorded to document compliance with this chapter act. Such
206	record may be made by means of electronic, mechanical, or any
207	other method of all incoming and outgoing wire and oral
208	communications concerning location requests in compliance with
209	chapter 934. The Such records shall be kept for a period of 5
210	years and, upon written request, shall be available to the
211	excavator making the request, the member operator intended to
212	receive the request, and their agents. However, custody of the
213	records may shall not be transferred from the system except
214	under subpoena.
215	(3)  The system shall provide the person who provided
216	notification with the names of the member operators who shall
217	will be advised of the notification and a notification number
218	that which specifies the date and time of the notification.
219	(4)  The notification number provided to the excavator
220	under this section shall be provided to any law enforcement
221	officer, government code inspector, or code enforcement officer
222	upon request.
223	(5)(4)  All member operators within the defined area of a
224	proposed excavation or demolition shall be promptly notified
225	through the system, except that member operators with state-
226	owned underground facilities located within the right-of-way of
227	a state highway need not be notified of excavation or demolition
228	activities and are under no obligation to mark or locate the
229	such facilities.
230	(a)  When an excavation site cannot be described in
231	information provided under subparagraph (1)(a)3. with sufficient
232	particularity to enable the member operator to ascertain the
233	excavation site, and if the excavator and member operator have
234	not mutually agreed otherwise, the excavator shall premark the
235	proposed area of the excavation before a member operator is
236	required to identify the horizontal route of its underground
237	facilities in the proximity of any excavation. However,
238	premarking is not required for any excavation that is over 500
239	feet in length and is not required where the premarking could
240	reasonably interfere with traffic or pedestrian control.
241	(b)  If a member operator determines that a proposed
242	excavation or demolition is in proximity to or in conflict with
243	an underground facility of the member operator, except a
244	facility beneath the waters of the state, which is governed by
245	paragraph (c), the member operator shall identify the horizontal
246	route by marking to within 24 inches from the outer edge of
247	either side of the underground facility by the use of stakes,
248	paint, flags, or other suitable means within 2 full business
249	days after the time the notification is received under
250	subsection (1). If the member operator is unable to respond
251	within such time, the member operator shall communicate with the
252	person making the request and negotiate a new schedule and time
253	that is agreeable to, and should not unreasonably delay, the
254	excavator.
255	(c)  If a member operator determines that a proposed
256	excavation is in proximity to or in conflict with an underground
257	facility of the member operator beneath the waters of the state,
258	the member operator shall identify the estimated horizontal
259	route of the underground facility, within 10 business days,
260	using marking buoys or other suitable devices, unless directed
261	otherwise by an agency having jurisdiction over the waters of
262	the state under which the member operator's underground facility
263	is located.
264	(d)  When excavation is to take place within a tolerance
265	zone, an excavator shall use increased caution to protect
266	underground facilities. The protection requires hand digging,
267	pot holing, soft digging, vacuum excavation methods, or other
268	similar procedures to identify underground facilities. Any use
269	of mechanized equipment within the tolerance zone must be
270	supervised by the excavator.
271	(6)(a)(5)(a)  An excavator shall avoid excavation in the
272	area described in the notice given under pursuant to subsection
273	(1) until each member operator underground facility has been
274	marked and located or until the excavator has been notified that
275	no member operator has underground facilities in the area
276	described in the notice, or for the time allowed for markings
277	set forth in paragraphs (5)(b) (4)(b) and (c), whichever occurs
278	first. If a member operator has not located and marked its
279	underground facilities within the time allowed for marking set
280	forth in paragraphs (5)(b) (4)(b) and (c), the excavator may
281	proceed with the excavation, if provided the excavator does so
282	with reasonable care, and if provided, further, that detection
283	equipment or other acceptable means to locate underground
284	facilities are used.
285	(b)  An excavator may shall not demolish in the area
286	described in the notice given under pursuant to subsection (1)
287	until all member operator underground facilities have been
288	marked and located, or removed.
289	(7)(a)(6)(a)  A member operator that states that it does
290	not have accurate information concerning the exact location of
291	its underground facilities is exempt from the requirements of
292	paragraphs (5)(b) (4)(b) and (c), but shall provide the best
293	available information to the excavator in order to comply with
294	the requirements of this section. An excavator is not liable for
295	any damage to an underground facility under the exemption in
296	this subsection if the excavation or demolition is performed
297	with reasonable care and detection equipment or other acceptable
298	means to locate underground facilities are used.
299	(b)  A member operator may not exercise the exemption
300	provided by this subsection if the member operator has
301	underground facilities that have not been taken out of service
302	and that are locatable using available designating technologies
303	to locate underground facilities.
304	(8)(a)(7)(a)  If extraordinary circumstances exist, a
305	member operator shall notify the system of the member operator's
306	inability to comply with this section. For the purposes of this
307	section, the term "extraordinary circumstances" means
308	circumstances other than normal operating conditions that which
309	exist and make it impractical for a member operator to comply
310	with the provisions of this chapter act. After the system has
311	received notification of a member operator's inability to
312	comply, the system shall make that information known to
313	excavators who subsequently notify the system of an intent to
314	excavate. The member operator is relieved of responsibility for
315	compliance under the law during the period that the
316	extraordinary circumstances exist and shall promptly notify the
317	system when the extraordinary circumstances cease to exist.
318	(b)  During the period when extraordinary circumstances
319	exist, the system shall remain available during business hours
320	to provide information to governmental agencies, member
321	operators affected by the extraordinary circumstances, and
322	member operators who can provide relief to the affected parties,
323	unless the system itself has been adversely affected by
324	extraordinary circumstances.
325	(9)(a)  After receiving notification from the system, a
326	member operator shall provide a positive response to the system
327	within 2 full business days, or 10 such days for an underwater
328	excavation, indicating the status of operations to protect the
329	facility.
330	(8)(a)  If a member operator determines that the excavation
331	or demolition is not near an existing underground facility of
332	the member operator, the member operator shall notify the
333	excavator within 2 full business days after the time of the
334	notification to the system that no conflict exists and that the
335	excavation or demolition area is clear. An excavator who has
336	knowledge of the existence of an underground facility of a
337	member operator in the area is responsible for contacting the
338	member operator if a facility is not marked.
339	(b)  The system shall establish and maintain a process to
340	facilitate a positive-response communication between member
341	operators and excavators. The system is exempt from any
342	requirement to initiate a positive response to an excavator when
343	an excavator does not provide a valid electronic address to
344	facilitate a positive response by the system.
345	(c)  An excavator shall verify the system's positive
346	responses before beginning excavation. If an excavator knows
347	that an existing underground facility of a member operator is in
348	the area, the excavator must contact the member operator if the
349	facility is not marked and a positive response has not been
350	received by the system. The system shall implement procedures
351	for positive response by January 1, 2004.
352	(10)(9)  A member operator shall use the "Uniform Color
353	Code for Utilities" recommended guidelines for uniform temporary
354	marking of underground facilities as approved by the Utility
355	Location and Coordinating Council of the American Public Works
356	Association when marking the horizontal route of any underground
357	facility of the operator.
358	(11)(10)  Before Prior to or during excavation or
359	demolition, if the marking of the horizontal route of any
360	facility is removed or is no longer visible, the excavator shall
361	stop excavation or demolition activities in the vicinity of the
362	facility and shall notify the system to have the route remarked.
363	(12)(11)  If any contact with or damage to any pipe, cable,
364	or its protective covering, or any other underground facility
365	occurs, the excavator causing the contact or damage shall
366	immediately notify the member operator. Upon receiving notice,
367	the member operator shall send personnel to the location as soon
368	as possible to effect temporary or permanent repair of the
369	contact or damage. Until such time as the contact or damage has
370	been repaired, the excavator shall cease excavation or
371	demolition activities that may cause further damage to such
372	underground facility.
373	Section 6.  Subsection (2) of section 556.106, Florida
374	Statutes, is amended, present subsection (6) is redesignated as
375	subsection (7) and amended, and a new subsection (6) is added to
376	that section, to read:
377	556.106  Liability of the member operator, excavator, and
378	system.--
379	(2)(a)  If a In the event any person violates s. 556.105(1)
380	or (6)(5), and subsequently, whether by himself or herself or
381	through the person's employees, contractors, subcontractors, or
382	agents, performs an excavation or demolition that which damages
383	an underground facility of a member operator, it is shall be
384	rebuttably presumed that the such person was negligent. The Such
385	person, if found liable, is shall be liable for the total sum of
386	the losses to all member operators involved as those costs are
387	normally computed. Any damage for loss of revenue and loss of
388	use may shall not exceed $500,000 per affected underground
389	facility, except that revenues lost by a governmental member
390	operator whose, which revenues are used to support payments on
391	principal and interest on bonds may, shall not be limited. Any
392	liability of the state and its agencies and its subdivisions
393	which arises out of this chapter is shall be subject to the
394	provisions of s. 768.28.
395	(b)  If any excavator fails to discharge a duty imposed by
396	the provisions of this chapter act, the such excavator, if found
397	liable, is shall be liable for the total sum of the losses to
398	all parties involved as those costs are normally computed. Any
399	damage for loss of revenue and loss of use may shall not exceed
400	$500,000 per affected underground facility, except that revenues
401	lost by a governmental member operator whose, which revenues are
402	used to support payments on principal and interest on bonds may,
403	shall not be limited.
404	(c)  Any liability of the state, its agencies, or its
405	subdivisions which arises out of this chapter is act shall be
406	subject to the provisions of s. 768.28.
407	(d)  Obtaining information as to the location of an
408	underground facility from the member operator as required by
409	this chapter act does not excuse any excavator from performing
410	an excavation or demolition in a careful and prudent manner,
411	based on accepted engineering and construction practices, and it
412	nor does not it excuse the such excavator from liability for any
413	damage or injury resulting from any excavation or demolition.
414	(e)  When an excavator knows or should know of the presence
415	of an underground facility of a nonmember small city as defined
416	in s. 120.52, he or she shall make reasonable efforts to contact
417	the small city that owns or operates that facility prior to
418	commencing an excavation or demolition.
419	(6)  The system does not have a duty to mark or locate
420	underground facilities and may not do so, and a right of
421	recovery does not exist against the system for failing to mark
422	or locate underground facilities. The system is not liable for
423	the failure of a member operator to comply with the requirements
424	of this chapter.
425	(7)(6)  An excavator who performs any excavation with hand
426	tools under pursuant to s. 556.108(4)(c) or (5) is liable for
427	any damage to any operator's underground facilities damaged
428	during such excavation.
429	Section 7.  Section 556.107, Florida Statutes, is amended
430	to read:
431	556.107  Violations.--
432	(1)  NONCRIMINAL INFRACTIONS.--
433	(a)  Violations of the following provisions are noncriminal
434	infractions:
435	1.  Section 556.105(1), relating to providing required
436	information.
437	2.  Section 556.105(6) 556.105(5), relating to the
438	avoidance of excavation.
439	3.  Section 556.105(11) 556.105(10), relating to the need
440	to stop excavation or demolition.
441	4.  Section 556.105(12) 556.105(11), relating to the need
442	to cease excavation or demolition activities.
443	5.  Section 556.105(5)(b) 556.105(4)(b) and (c) relating to
444	identification of underground facilities, if a member operator
445	does not mark an underground facility, but not if a member
446	operator marks an underground facility incorrectly.
447	(b)  Any excavator or member operator who commits a
448	noncriminal infraction under paragraph (a) may be issued a
449	citation by any local or state law enforcement officer,
450	government code inspector, or code enforcement officer
451	permitting agency inspector, and the issuer of a citation may
452	require an any excavator to cease work on any excavation or not
453	start a proposed excavation until there has been compliance with
454	the provisions of this chapter act. Citations shall may be hand-
455	delivered issued to any employee of the excavator or member
456	operator who is directly involved in the noncriminal infraction.
457	The citation shall be issued in the name of the excavator or
458	member operator, whichever is applicable.
459	(c)  Any excavator or member operator who commits a
460	noncriminal infraction under paragraph (a) may be required to
461	appear before the county court. The civil penalty for any such
462	infraction is $250 plus court costs, except as otherwise
463	provided in this section. If a citation is issued by a local law
464	enforcement officer, a local government code inspector, or a
465	code enforcement officer, 80 percent of the civil penalty
466	collected by the clerk of the court shall be distributed to the
467	local governmental entity whose employee issued the citation and
468	20 percent of the penalty shall be retained by the clerk to
469	cover administrative costs, in addition to other court costs. If
470	a citation is issued by a state law enforcement officer, the
471	civil penalty collected by the clerk shall be retained by the
472	clerk for deposit into the fine and forfeiture fund established
473	pursuant to s. 142.01. Any person who fails to appear or
474	otherwise properly respond to a citation issued pursuant to
475	paragraph (d) shall, in addition to the citation, be charged
476	with the offense of failing to respond to such citation and,
477	upon conviction, commits be guilty of a misdemeanor of the
478	second degree, punishable as provided in s. 775.082 or s.
479	775.083. A written warning to this effect shall be provided at
480	the time any citation is issued pursuant to paragraph (b).
481	(d)  Any person cited for an infraction under paragraph
482	(a), unless required to appear before the county court, may:
483	1.  Post a bond, which shall be equal in amount to the
484	applicable civil penalty plus court costs; or
485	2.  Sign and accept a citation indicating a promise to
486	appear before the county court.
487
488	The person issuing the citation officer may indicate on the
489	citation the time and location of the scheduled hearing and
490	shall indicate the applicable civil penalty.
491	(e)  Any person charged with a noncriminal infraction under
492	paragraph (a), unless required to appear before the county
493	court, may:
494	1.  Pay the civil penalty plus court costs, in lieu of
495	appearance, either by mail or in person, within 30 10 days after
496	the date of receiving the citation; or
497	2.  Forfeit bond, if a bond has been posted, by not
498	appearing at the designated time and location.
499
500	If the person cited follows either of the above procedures, she
501	or he is shall be deemed to have admitted to committing the
502	infraction and to have waived the right to a hearing on the
503	issue of commission of the infraction. The Such admission may be
504	used as evidence in any other proceeding under this chapter act.
505	(f)  Any person electing to appear before the county court
506	or who is required to appear shall be deemed to have waived the
507	limitations on the civil penalty specified in paragraph (c). The
508	court, after a hearing, shall make a determination as to whether
509	an infraction has been committed. If the commission of an
510	infraction has been proven, the court may impose a civil penalty
511	not to exceed $5,000 plus court costs. In determining the amount
512	of the civil penalty, the court may consider previous
513	noncriminal infractions committed.
514	(g)  At a hearing under this chapter, the commission of a
515	charged infraction must be proven by a preponderance of the
516	evidence.
517	(h)  If a person is found by the hearing official to have
518	committed an infraction, the such person may appeal that finding
519	to the circuit court.
520	(i)  Sunshine State One-Call of Florida, Inc., may, at its
521	own cost, retain an attorney to assist in the presentation of
522	relevant facts and law in the county court proceeding pertaining
523	to the citation issued under this section. The corporation may
524	also appear in any case appealed to the circuit court if a
525	county court finds that an infraction of the chapter was
526	committed. An appellant in the circuit court proceeding shall
527	timely notify the corporation of any appeal under this section.
528	(2)  MISDEMEANORS.--Any person who knowingly and willfully
529	removes or otherwise destroys the valid stakes or other valid
530	physical markings described in s. 556.105(5)(b) s. 556.105(4)(b)
531	and (c) used to mark the horizontal route of an underground
532	facility commits a misdemeanor of the second degree, punishable
533	as provided in s. 775.082 or s. 775.083. For purposes of this
534	subsection, stakes or other nonpermanent physical markings are
535	considered valid for 30 20 calendar days after information is
536	provided to the system under s. 556.105(1)(c).
537	Section 8.  Subsections (1), (4), and (5) of section
538	556.108, Florida Statutes, are amended to read:
539	556.108  Exemptions.--The notification requirements
540	provided in s. 556.105(1) do not apply to:
541	(1)  Any excavation or demolition performed by the owner of
542	a single-family residential property, not including property
543	that is subdivided or is to be subdivided into more than one
544	single-family residential property; or for such owner by a
545	member operator or an agent of a member operator when such
546	excavation or demolition is made entirely on such land, and only
547	up to a depth of 10 inches; provided due care is used and there
548	is no encroachment on any member operator's right-of-way,
549	easement, or permitted use.
550	(4)  Any excavation of 18 inches or less for:
551	(a)  Surveying public or private property by surveyors or
552	mappers as defined in chapter 472 and services performed by a
553	pest control licensee under chapter 482, excluding marked
554	rights-of-way, marked easements, or permitted uses where marked,
555	if provided mechanized equipment is not used in the process of
556	such surveying or pest control services and the surveying or
557	pest control services are is performed in accordance with the
558	practice rules established under s. 472.027 or s. 482.051,
559	respectively; or
560	(b)  Maintenance activities performed by a state agency and
561	its employees when such activities are within the right-of-way
562	of a public road; however, provided, if a member operator has
563	permanently marked facilities on such right-of-way, no
564	mechanized equipment may not be used without first providing
565	notification; or
566	(c)  Locating, repairing, connecting, adjusting, or routine
567	maintenance of a private or public underground utility facility
568	by an excavator, if the excavator is performing such work for
569	the current owner or future owner of the underground facility
570	and if mechanized equipment is not used.
571	(5)(a)  Any excavation with hand tools by a member operator
572	or an agent of a member operator for:
573	1.(a)  Locating, repairing, connecting, or protecting, or
574	routine maintenance of, the member operator's underground
575	facilities; or
576	2.(b)  The extension of a member operator's underground
577	facilities onto the property of a person to be served by such
578	facilities.
579	(b)(c)  The exemption provided in this subsection
580	paragraphs (a) and (b) is limited to excavations to a depth of
581	30 inches if the right-of-way has permanently marked facilities
582	of a company other than the member operator or its agents
583	performing the excavation.
584	Section 9.  Subsection (3) of section 556.111, Florida
585	Statutes, is amended to read:
586	556.111  Applicability to existing law.--Nothing in this
587	act shall be construed to:
588	(3)  Preempt a governmental member operator from reasonable
589	regulation of its right-of-way. This subsection does not exempt
590	a municipality, county, district, or other local governmental
591	member operator from the provisions of this chapter that apply
592	to the member operator.
593	Section 10.  Paragraph (c) of subsection (3) of section
594	337.401, Florida Statutes, is amended to read:
595	337.401  Use of right-of-way for utilities subject to
596	regulation; permit; fees.--
597	(3)
598	(c)1.  It is the intention of the state to treat all
599	providers of communications services that use or occupy
600	municipal or charter county roads or rights-of-way for the
601	provision of communications services in a nondiscriminatory and
602	competitively neutral manner with respect to the payment of
603	permit fees. Certain providers of communications services have
604	been granted by general law the authority to offset permit fees
605	against franchise or other fees while other providers of
606	communications services have not been granted this authority. In
607	order to treat all providers of communications services in a
608	nondiscriminatory and competitively neutral manner with respect
609	to the payment of permit fees, each municipality and charter
610	county shall make an election under either sub-subparagraph a.
611	or sub-subparagraph b. and must inform the Department of Revenue
612	of the election by certified mail by July 16, 2001. Such
613	election shall take effect October 1, 2001.
614	a.(I)  The municipality or charter county may require and
615	collect permit fees from any providers of communications
616	services that use or occupy municipal or county roads or rights-
617	of-way. All fees permitted under this sub-subparagraph must be
618	reasonable and commensurate with the direct and actual cost of
619	the regulatory activity, including issuing and processing
620	permits, plan reviews, physical inspection, and direct
621	administrative costs; must be demonstrable; and must be
622	equitable among users of the roads or rights-of-way. A fee
623	permitted under this sub-subparagraph may not: be offset against
624	the tax imposed under chapter 202; include the costs of roads or
625	rights-of-way acquisition or roads or rights-of-way rental;
626	include any general administrative, management, or maintenance
627	costs of the roads or rights-of-way; or be based on a percentage
628	of the value or costs associated with the work to be performed
629	on the roads or rights-of-way. In an action to recover amounts
630	due for a fee not permitted under this sub-subparagraph, the
631	prevailing party may recover court costs and attorney's fees at
632	trial and on appeal. In addition to the limitations set forth in
633	this section, a fee levied by a municipality or charter county
634	under this sub-subparagraph may not exceed $100. However, permit
635	fees may not be imposed with respect to permits that may be
636	required for service drop lines not required to be noticed under
637	s. 556.108(5)(a)2.(b) or for any activity that does not require
638	the physical disturbance of the roads or rights-of-way or does
639	not impair access to or full use of the roads or rights-of-way.
640	(II)  To ensure competitive neutrality among providers of
641	communications services, for any municipality or charter county
642	that elects to exercise its authority to require and collect
643	permit fees under this sub-subparagraph, the rate of the local
644	communications services tax imposed by such jurisdiction, as
645	computed under s. 202.20, shall automatically be reduced by a
646	rate of 0.12 percent.
647	b.  Alternatively, the municipality or charter county may
648	elect not to require and collect permit fees from any provider
649	of communications services that uses or occupies municipal or
650	charter county roads or rights-of-way for the provision of
651	communications services; however, each municipality or charter
652	county that elects to operate under this sub-subparagraph
653	retains all authority to establish rules and regulations for
654	providers of communications services to use or occupy roads or
655	rights-of-way as provided in this section. If a municipality or
656	charter county elects to operate under this sub-subparagraph,
657	the total rate for the local communications services tax as
658	computed under s. 202.20 for that municipality or charter county
659	may be increased by ordinance or resolution by an amount not to
660	exceed a rate of 0.12 percent. If a municipality or charter
661	county elects to increase its rate effective October 1, 2001,
662	the municipality or charter county shall inform the department
663	of such increased rate by certified mail postmarked on or before
664	July 16, 2001.
665	c.  A municipality or charter county that does not make an
666	election as provided for in this subparagraph shall be presumed
667	to have elected to operate under the provisions of sub-
668	subparagraph b.
669	2.  Each noncharter county shall make an election under
670	either sub-subparagraph a. or sub-subparagraph b. and shall
671	inform the Department of Revenue of the election by certified
672	mail by July 16, 2001. Such election shall take effect October
673	1, 2001.
674	a.  The noncharter county may elect to require and collect
675	permit fees from any providers of communications services that
676	use or occupy noncharter county roads or rights-of-way. All fees
677	permitted under this sub-subparagraph must be reasonable and
678	commensurate with the direct and actual cost of the regulatory
679	activity, including issuing and processing permits, plan
680	reviews, physical inspection, and direct administrative costs;
681	must be demonstrable; and must be equitable among users of the
682	roads or rights-of-way. A fee permitted under this sub-
683	subparagraph may not: be offset against the tax imposed under
684	chapter 202; include the costs of roads or rights-of-way
685	acquisition or roads or rights-of-way rental; include any
686	general administrative, management, or maintenance costs of the
687	roads or rights-of-way; or be based on a percentage of the value
688	or costs associated with the work to be performed on the roads
689	or rights-of-way. In an action to recover amounts due for a fee
690	not permitted under this sub-subparagraph, the prevailing party
691	may recover court costs and attorney's fees at trial and on
692	appeal. In addition to the limitations set forth in this
693	section, a fee levied by a noncharter county under this sub-
694	subparagraph may not exceed $100. However, permit fees may not
695	be imposed with respect to permits that may be required for
696	service drop lines not required to be noticed under s.
697	556.108(5)(a)2.(b) or for any activity that does not require the
698	physical disturbance of the roads or rights-of-way or does not
699	impair access to or full use of the roads or rights-of-way.
700	b.  Alternatively, the noncharter county may elect not to
701	require and collect permit fees from any provider of
702	communications services that uses or occupies noncharter county
703	roads or rights-of-way for the provision of communications
704	services; however, each noncharter county that elects to operate
705	under this sub-subparagraph shall retain all authority to
706	establish rules and regulations for providers of communications
707	services to use or occupy roads or rights-of-way as provided in
708	this section. If a noncharter county elects to operate under
709	this sub-subparagraph, the total rate for the local
710	communications services tax as computed under s. 202.20 for that
711	noncharter county may be increased by ordinance or resolution by
712	an amount not to exceed a rate of 0.24 percent, to replace the
713	revenue the noncharter county would otherwise have received from
714	permit fees for providers of communications services. If a
715	noncharter county elects to increase its rate effective October
716	1, 2001, the noncharter county shall inform the department of
717	such increased rate by certified mail postmarked on or before
718	July 16, 2001.
719	c.  A noncharter county that does not make an election as
720	provided for in this subparagraph shall be presumed to have
721	elected to operate under the provisions of sub-subparagraph b.
722	3.  Except as provided in this paragraph, municipalities
723	and counties retain all existing authority to require and
724	collect permit fees from users or occupants of municipal or
725	county roads or rights-of-way and to set appropriate permit fee
726	amounts.
727	Section 11.  This act shall take effect October 1, 2006.

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