| 1 | Representative Homan offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Between lines 1287 and 1288, insert: |
| 5 | Section 19. Subsection (2) of section 335.141, Florida |
| 6 | Statutes, is amended to read: |
| 7 | 335.141 Regulation of public railroad-highway grade |
| 8 | crossings; reduction of hazards.-- |
| 9 | (2)(a) The department, in cooperation with the several |
| 10 | railroad companies operating in the state, shall develop and |
| 11 | adopt a program for the expenditure of funds available for the |
| 12 | construction of projects for the reduction of the hazards at |
| 13 | public railroad-highway grade crossings. The department and the |
| 14 | railroad companies are not liable for any action or omission in |
| 15 | the development of such program or for the priority given to any |
| 16 | crossing improvement. |
| 17 | (b) Every railroad company maintaining a public railroad- |
| 18 | highway grade crossing shall, upon reasonable notice from the |
| 19 | department, install, maintain, and operate at such crossing |
| 20 | traffic control devices to provide motorists with warning of the |
| 21 | approach of trains. The department shall base its notice on its |
| 22 | adopted program for the reduction of hazards at such grade |
| 23 | crossings and on construction efficiency considerations relating |
| 24 | to the geographical proximity of crossings included in such |
| 25 | program. The design of the grade crossing traffic control |
| 26 | devices must be approved by the department, and the cost of |
| 27 | their purchase and installation must be paid from the funds |
| 28 | described in paragraph (a). |
| 29 | (c) Any public railroad-highway grade crossing opened on |
| 30 | or after July 1, 1972, shall be maintained by the railroad |
| 31 | company at its own expense. Any public railroad-highway grade |
| 32 | railroad crossing opened prior to July 1, 1972, shall be |
| 33 | maintained by the railroad company at its own expense, unless |
| 34 | the maintenance has been provided for in another manner by |
| 35 | contractual agreement entered into prior to October 1, 1982. If |
| 36 | the railroad company fails to maintain the crossing, the unit of |
| 37 | government with jurisdiction over the public road that is |
| 38 | crossed, after notifying the railroad company of the needed |
| 39 | repairs and after giving the company 30 days after the date of |
| 40 | receipt of the notice to make the repairs, shall proceed to make |
| 41 | the repairs. The cost of repairs shall thereupon become a lien |
| 42 | upon the railroad and its rolling stock, which lien shall be |
| 43 | enforceable by an ordinary suit at law. Any judgment rendered |
| 44 | under this paragraph shall include a reasonable attorney's fee. |
| 45 | The responsibility of a railroad company to comply with federal |
| 46 | requirements of maintenance and inspection of public railroad- |
| 47 | highway grade signal crossings and the public policy of the |
| 48 | state that such responsibility be carried out by the railroad |
| 49 | company at its own expense shall not be abrogated, transferred, |
| 50 | or nullified by contract or administrative rule. |
| 51 | (d) Prior to commencing the construction, rehabilitation, |
| 52 | or maintenance of the railroad grade or highway approaches at a |
| 53 | public railroad-highway grade crossing, the railroad company or |
| 54 | governmental entity initiating the work shall notify the other |
| 55 | party in order to promote the coordination of activities and to |
| 56 | ensure a safe crossing with smooth pavement transitions from the |
| 57 | grade of the railroad to the highway approaches. |
| 58 | (e) The department shall amend rule 14-57.011(3)(a), |
| 59 | Florida Administrative Code, to delete the provision for |
| 60 | department participation in the cost of maintaining grade |
| 61 | crossing traffic control devices located on the State Highway |
| 62 | System. |
| 63 | Section 20. Section 351.31, Florida Statutes, is created |
| 64 | to read: |
| 65 | 351.31 Access to railroad property by government |
| 66 | officials; conditions of access prohibited.-- |
| 67 | (1) For purposes of this section, the term: |
| 68 | (a) "Jurisdictional governmental entity" means any public |
| 69 | body vested with the power to exercise eminent domain over the |
| 70 | property for which access is sought. |
| 71 | (b) "Substantial impairment of railroad operations" means |
| 72 | that it has been established by clear and convincing evidence |
| 73 | that the granting of access for the purpose or activity intended |
| 74 | would significantly delay or prevent the scheduled operation of |
| 75 | any train, as defined in s. 341.301. |
| 76 | (2) Subject to the procedure provided in subsection (6), |
| 77 | access to railroad real property that is adjacent to, abutting, |
| 78 | or intersecting public lands, roadways, or highways is |
| 79 | authorized for governmental entities and their agents for all |
| 80 | purposes necessary to plan, facilitate, and complete road or |
| 81 | highway construction, improvement, or repair projects. The |
| 82 | access authorized under this section shall apply during the |
| 83 | period of time that the road or highway construction, |
| 84 | improvement or repair project undertaken by or on behalf of the |
| 85 | jurisdictional governmental entity is in progress. Access |
| 86 | authorized under this section does not give authority to any |
| 87 | governmental entity or its agent to destroy, injure, damage, or |
| 88 | remove any private property belonging to the railroad or to make |
| 89 | any physical improvements to or conduct any excavation of any |
| 90 | real property belonging to the railroad without first obtaining |
| 91 | written permission of the railroad company. |
| 92 | (3) No railroad company or railroad company representative |
| 93 | shall refuse access to railroad real property authorized under |
| 94 | subsection (2). Entry onto railroad property authorized by this |
| 95 | section does not constitute trespass and neither governmental |
| 96 | entities nor their agents shall be liable to arrest or to a |
| 97 | civil action for trespass by reason of such entry. |
| 98 | (4) A governmental entity or its agent authorized to enter |
| 99 | railroad property under this section shall do so in compliance |
| 100 | with all federal, state, and local laws, as well as agency rules |
| 101 | pertaining to premises security and other health and safety |
| 102 | requirements applicable to such property. |
| 103 | (5) A railroad company is not liable to any third party |
| 104 | for civil or criminal acts or damages that result from the |
| 105 | negligent or intentional conduct of any agent of a governmental |
| 106 | entity who is on railroad property under the authority granted |
| 107 | under this section. |
| 108 | (6)(a) Prior to entry onto railroad property by a |
| 109 | governmental entity or its agent pursuant to this section, the |
| 110 | governmental entity must deliver to the railroad company written |
| 111 | notice of its intended entry not less than 5 days before the |
| 112 | date of entry. The notice must include: |
| 113 | 1. The full name of each individual who is authorized to |
| 114 | enter railroad property on its behalf as well as the name of his |
| 115 | or her employer and immediate supervisor. |
| 116 | 2. The name of the governmental entity on whose behalf the |
| 117 | entering agents are acting. |
| 118 | 3. The location, size, and area of the property to which |
| 119 | access will be required. |
| 120 | 4. The name of the work project for which access is |
| 121 | required. |
| 122 | 5. The estimated time required for access. |
| 123 | 6. A description of the work or other activity to be |
| 124 | performed which makes access to railroad property necessary. |
| 125 | (b) Within 72 hours after delivery of the written notice, |
| 126 | a railroad company may file an action stating its objection in |
| 127 | the circuit court of the jurisdiction in which the railroad |
| 128 | property to be accessed is located. If no objection is filed by |
| 129 | the railroad company within 72 hours after delivery of the |
| 130 | written notice, access as specified in the written notice is |
| 131 | authorized. Upon receipt of an objection, the circuit court |
| 132 | shall set a hearing to determine the basis for the objection. A |
| 133 | timely filed objection shall suspend authority to access |
| 134 | railroad property granted under this section for 10 days unless, |
| 135 | before the end of the 10-day period, a hearing has been |
| 136 | scheduled and a stay has been issued in which event authority to |
| 137 | access the railroad property shall remain suspended pending |
| 138 | resolution by order of the circuit court. |
| 139 | (c) At the hearing, the circuit court shall have for |
| 140 | review the following issues: |
| 141 | 1. Whether or not the access to railroad property is |
| 142 | necessary in scope, duration, and purpose for the planning, |
| 143 | facilitation, and completion of a road or highway construction, |
| 144 | improvement, or repair project; |
| 145 | 2. Whether or not the location of the property or the |
| 146 | purpose for which entry is sought is of such a nature that |
| 147 | denial of access is necessary to avoid a substantial risk of |
| 148 | physical harm to persons or railroad property; |
| 149 | 3. Whether or not, based on the description of the work or |
| 150 | activity to be done on the property, access to the property for |
| 151 | the work or activity described would be in violation of federal, |
| 152 | state, or local laws or agency rules pertaining to premises |
| 153 | security or other health and safety requirements applicable to |
| 154 | such property; |
| 155 | 4. Whether or not, based on the description of the work or |
| 156 | activity to be done on the property, there is a reasonable |
| 157 | probability that railroad property would be damaged, destroyed, |
| 158 | injured, or removed or real property excavated without |
| 159 | permission of the railroad company. |
| 160 | 5. Whether, based on the description of the work or |
| 161 | activity to be done on the property, the activity to be done |
| 162 | would cause a substantial impairment of railroad operations. |
| 163 | 6. Whether or not granting the access requested would |
| 164 | constitute a taking of property under the Fifth Amendment to the |
| 165 | United States Constitution or s. 6, Art. X of the State |
| 166 | Constitution. |
| 167 | a. In determining whether or not granting access to the |
| 168 | property constitutes a taking, the court shall consider to what |
| 169 | extent, if any, granting the requested access would: |
| 170 | (I) Prevent the railroad from using the property for the |
| 171 | purpose or in the manner in which it is ordinarily used; or |
| 172 | (II) Deprive the railroad of its beneficial use of the |
| 173 | property at issue for the period of time access is granted. |
| 174 | b. If the court finds that granting access would result in |
| 175 | a taking, the amount of compensation shall be limited to cover |
| 176 | only the period of time for which access is authorized. |
| 177 | (d) At the hearing, the court may order such conditions on |
| 178 | granting access to railroad property as it determines necessary |
| 179 | to mitigate the risk of harm to persons or property, except that |
| 180 | this section shall not be construed to authorize the court to |
| 181 | require the governmental entity or its agent to procure the |
| 182 | services of railroad employees as a condition of authorizing |
| 183 | entry onto such property. In issuing its order, the court may |
| 184 | limit the number of persons granted access and the duration of |
| 185 | such access authorized under this section. In addition, the |
| 186 | court may limit the activities that may be conducted on the |
| 187 | railroad property as well as the time, place, and manner in |
| 188 | which those activities are conducted. |
| 189 | (7) A railroad company may not compel or require the use |
| 190 | of flagging or other services provided by railroad company |
| 191 | employees by contract, agreement, or otherwise as a condition of |
| 192 | allowing access to their property as authorized in subsection |
| 193 | (2). |
| 194 | (8) This section does not authorize access to railroad |
| 195 | property in violation of the requirements of federal law or to |
| 196 | an employee of a railroad or a contractor to a railroad who is |
| 197 | performing work within the definition of roadway worker as |
| 198 | defined in 49 C.F.R. s. 214.7. |
| 199 |
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| 200 | ----------------------------------------------------- |
| 201 | T I T L E A M E N D M E N T |
| 202 | Remove line 89 and insert: |
| 203 | independent mixer; provides exemptions; amending s. 335.141, |
| 204 | F.S.; requiring public railroad-highway grade crossings opened |
| 205 | after a certain date to be maintained by the railroad company at |
| 206 | its own expense; providing that certain responsibilities of a |
| 207 | railroad company to maintain and inspect public railroad-highway |
| 208 | grade signal crossings shall not be abrogated, transferred, or |
| 209 | nullified by contract or administrative rule; directing the |
| 210 | Department of Transportation to amend specified rules to delete |
| 211 | the provision for department participation in the cost of |
| 212 | maintaining grade crossing traffic control devices located on |
| 213 | the State Highway System; creating s. 351.31, F.S.; providing |
| 214 | authorization for governmental entities to access railroad real |
| 215 | property adjoining public property as necessary to plan, |
| 216 | facilitate, and complete road or highway construction, |
| 217 | improvement, or repair projects, subject to specified |
| 218 | procedures; prohibiting a railroad company from refusing such |
| 219 | access; providing that entry pursuant to such authorization is |
| 220 | not trespass; requiring the governmental entity or its agent to |
| 221 | comply with laws and rules; limiting liability of the railroad |
| 222 | company for conduct of the agent; providing procedures to be |
| 223 | followed by the governmental entity prior to entry onto the |
| 224 | railroad property; requiring notification; providing procedures |
| 225 | for the railroad company to object; providing for filing of the |
| 226 | objection in court; providing specifications for court review |
| 227 | and findings; providing for compensation if the court finds that |
| 228 | granting access would result in a taking; authorizing the court |
| 229 | to order such conditions on granting access and certain |
| 230 | limitations on activities as it deems necessary; providing that |
| 231 | the railroad company may not condition access on the use of |
| 232 | services provided by railroad company employees by contract, |
| 233 | agreement, or otherwise; providing for applicability; amending |
| 234 | s. |