Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS/HB 1197, 1st Eng.
       
       
       
       
       
       
                                Barcode 626356                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/3R          .                                
             03/06/2012 10:16 AM       .                                
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       Senator Hays moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 184 and 185
    4  insert:
    5         Section 5. Subsection (4) of section 581.083, Florida
    6  Statutes, is amended to read:
    7         581.083 Introduction or release of plant pests, noxious
    8  weeds, or organisms affecting plant life; cultivation of
    9  nonnative plants; special permit and security required.—
   10         (4) A person may not cultivate a nonnative plant, algae, or
   11  blue-green algae, including a genetically engineered plant,
   12  algae, or blue-green algae or a plant that has been introduced,
   13  for purposes of fuel production or purposes other than
   14  agriculture in plantings greater in size than 2 contiguous
   15  acres, except under a special permit issued by the department
   16  through the division, which is the sole agency responsible for
   17  issuing such special permits. A person is not required to obtain
   18  a permit in order to cultivate any plant or group of plants if,
   19  based on experience or research data, the plant does not pose a
   20  threat to becoming an invasive species and is commonly grown in
   21  the state for the purpose of human food consumption, commercial
   22  feed, feedstuff, forage for livestock, nursery stock, or
   23  silviculture. The department may adopt rules exempting
   24  additional plants or groups of plants from the permitting
   25  requirements of this section if the department, after
   26  consultation with the Institute of Food and Agricultural
   27  Sciences at the University of Florida, determines that, based on
   28  experience or research data, the nonnative plant, algae, or
   29  blue-green algae does not pose a threat to becoming an invasive
   30  species or a pest to plants or native fauna under normal growing
   31  conditions in the state. Such a permit shall not be required if
   32  the department determines, in conjunction with the Institute of
   33  Food and Agricultural Sciences at the University of Florida,
   34  that the plant is not invasive and subsequently exempts the
   35  plant by rule.
   36         (a)1. Each application for a special permit must be
   37  accompanied by a fee as described in subsection (2) and proof
   38  that the applicant has obtained, on a form approved by the
   39  department, a bond in the form approved by the department and
   40  issued by a surety company admitted to do business in this state
   41  or a certificate of deposit, or other type of security adopted
   42  by rule of the department, which provides a financial assurance
   43  of cost recovery for the removal of a planting. The application
   44  must include, on a form provided by the department, the name of
   45  the applicant and the applicant’s address or the address of the
   46  applicant’s principal place of business; a statement completely
   47  identifying the nonnative plant to be cultivated; and a
   48  statement of the estimated cost of removing and destroying the
   49  plant that is the subject of the special permit and the basis
   50  for calculating or determining that estimate. If the applicant
   51  is a corporation, partnership, or other business entity, the
   52  applicant must also provide in the application the name and
   53  address of each officer, partner, or managing agent. The
   54  applicant shall notify the department within 10 business days
   55  after of any change of address or change in the principal place
   56  of business. The department shall mail all notices to the
   57  applicant’s last known address.
   58         2. As used in this subsection, the term “certificate of
   59  deposit” means a certificate of deposit at any recognized
   60  financial institution doing business in the United States. The
   61  department may not accept a certificate of deposit in connection
   62  with the issuance of a special permit unless the issuing
   63  institution is properly insured by the Federal Deposit Insurance
   64  Corporation or the Federal Savings and Loan Insurance
   65  Corporation.
   66         (b) Upon obtaining a permit, the permitholder may annually
   67  cultivate and maintain the nonnative plants as authorized by the
   68  special permit. If the permitholder ceases to maintain or
   69  cultivate the plants authorized by the special permit, if the
   70  permit expires, or if the permitholder ceases to abide by the
   71  conditions of the special permit, the permitholder shall
   72  immediately remove and destroy the plants that are subject to
   73  the permit, if any remain. The permitholder shall notify the
   74  department of the removal and destruction of the plants within
   75  10 days after such event.
   76         (c) If the department:
   77         1. Determines that the permitholder is no longer
   78  maintaining or cultivating the plants subject to the special
   79  permit and has not removed and destroyed the plants authorized
   80  by the special permit;
   81         2. Determines that the continued maintenance or cultivation
   82  of the plants presents an imminent danger to public health,
   83  safety, or welfare;
   84         3. Determines that the permitholder has exceeded the
   85  conditions of the authorized special permit; or
   86         4. Receives a notice of cancellation of the surety bond,
   87  
   88  the department may issue an immediate final order, which is
   89  shall be immediately appealable or enjoinable as provided by
   90  chapter 120, directing the permitholder to immediately remove
   91  and destroy the plants authorized to be cultivated under the
   92  special permit. A copy of the immediate final order shall be
   93  mailed to the permitholder and to the surety company or
   94  financial institution that has provided security for the special
   95  permit, if applicable.
   96         (d) If, upon issuance by the department of an immediate
   97  final order to the permitholder, the permitholder fails to
   98  remove and destroy the plants subject to the special permit
   99  within 60 days after issuance of the order, or such shorter
  100  period as is designated in the order as public health, safety,
  101  or welfare requires, the department may enter the cultivated
  102  acreage and remove and destroy the plants that are the subject
  103  of the special permit. If the permitholder makes a written
  104  request to the department for an extension of time to remove and
  105  destroy the plants that demonstrates specific facts showing why
  106  the plants could not reasonably be removed and destroyed in the
  107  applicable timeframe, the department may extend the time for
  108  removing and destroying plants subject to a special permit. The
  109  reasonable costs and expenses incurred by the department for
  110  removing and destroying plants subject to a special permit shall
  111  be reimbursed to the department by the permitholder within 21
  112  days after the date the permitholder and the surety company or
  113  financial institution are served a copy of the department’s
  114  invoice for the costs and expenses incurred by the department to
  115  remove and destroy the cultivated plants, along with a notice of
  116  administrative rights, unless the permitholder or the surety
  117  company or financial institution object to the reasonableness of
  118  the invoice. In the event of an objection, the permitholder or
  119  surety company or financial institution is entitled to an
  120  administrative proceeding as provided by chapter 120. Upon entry
  121  of a final order determining the reasonableness of the incurred
  122  costs and expenses, the permitholder has shall have 15 days
  123  following service of the final order to reimburse the
  124  department. Failure of the permitholder to timely reimburse the
  125  department for the incurred costs and expenses entitles the
  126  department to reimbursement from the applicable bond or
  127  certificate of deposit.
  128         (e) Each permitholder shall maintain for each separate
  129  growing location a bond or a certificate of deposit in an amount
  130  determined by the department, but not more less than 150 percent
  131  of the estimated cost of removing and destroying the cultivated
  132  plants. The bond or certificate of deposit may not exceed $5,000
  133  per acre, unless a higher amount is determined by the department
  134  to be necessary to protect the public health, safety, and
  135  welfare or unless an exemption is granted by the department
  136  based on conditions specified in the application which would
  137  preclude the department from incurring the cost of removing and
  138  destroying the cultivated plants and would prevent injury to the
  139  public health, safety, and welfare. The aggregate liability of
  140  the surety company or financial institution to all persons for
  141  all breaches of the conditions of the bond or certificate of
  142  deposit may not exceed the amount of the bond or certificate of
  143  deposit. The original bond or certificate of deposit required by
  144  this subsection shall be filed with the department. A surety
  145  company shall give the department 30 days’ written notice of
  146  cancellation, by certified mail, in order to cancel a bond.
  147  Cancellation of a bond does not relieve a surety company of
  148  liability for paying to the department all costs and expenses
  149  incurred or to be incurred for removing and destroying the
  150  permitted plants covered by an immediate final order authorized
  151  under paragraph (c). A bond or certificate of deposit must be
  152  provided or assigned in the exact name in which an applicant
  153  applies for a special permit. The penal sum of the bond or
  154  certificate of deposit to be furnished to the department by a
  155  permitholder in the amount specified in this paragraph must
  156  guarantee payment of the costs and expenses incurred or to be
  157  incurred by the department for removing and destroying the
  158  plants cultivated under the issued special permit. The bond or
  159  certificate of deposit assignment or agreement must be upon a
  160  form prescribed or approved by the department and must be
  161  conditioned to secure the faithful accounting for and payment of
  162  all costs and expenses incurred by the department for removing
  163  and destroying all plants cultivated under the special permit.
  164  The bond or certificate of deposit assignment or agreement must
  165  include terms binding the instrument to the Commissioner of
  166  Agriculture. Such certificate of deposit shall be presented with
  167  an assignment of the permitholder’s rights in the certificate in
  168  favor of the Commissioner of Agriculture on a form prescribed by
  169  the department and with a letter from the issuing institution
  170  acknowledging that the assignment has been properly recorded on
  171  the books of the issuing institution and will be honored by the
  172  issuing institution. Such assignment is irrevocable while a
  173  special permit is in effect and for an additional period of 6
  174  months after termination of the special permit if operations to
  175  remove and destroy the permitted plants are not continuing and
  176  if the department’s invoice remains unpaid by the permitholder
  177  under the issued immediate final order. If operations to remove
  178  and destroy the plants are pending, the assignment remains in
  179  effect until all plants are removed and destroyed and the
  180  department’s invoice has been paid. The bond or certificate of
  181  deposit may be released by the assignee of the surety company or
  182  financial institution to the permitholder, or to the
  183  permitholder’s successors, assignee, or heirs, if operations to
  184  remove and destroy the permitted plants are not pending and no
  185  invoice remains unpaid at the conclusion of 6 months after the
  186  last effective date of the special permit. The department may
  187  not accept a certificate of deposit that contains any provision
  188  that would give to any person any prior rights or claim on the
  189  proceeds or principal of such certificate of deposit. The
  190  department shall determine by rule whether an annual bond or
  191  certificate of deposit will be required. The amount of such bond
  192  or certificate of deposit shall be increased, upon order of the
  193  department, at any time if the department finds such increase to
  194  be warranted by the cultivating operations of the permitholder.
  195  In the same manner, the amount of such bond or certificate of
  196  deposit may be adjusted downward or removed decreased when a
  197  decrease in the cultivating operations of the permitholder
  198  occurs or when research or practical field knowledge and
  199  observations indicate a low risk of invasiveness by the
  200  nonnative species warrants such decrease. Factors that may be
  201  considered for change include multiple years or cycles of
  202  successful large-scale contained cultivation; no observation of
  203  plant, algae, or blue-green algae escape from managed areas; or
  204  science-based evidence that established or approved adjusted
  205  cultivation practices provide a similar level of containment of
  206  the nonnative plant, algae, or blue-green algae. This paragraph
  207  applies to any bond or certificate of deposit, regardless of the
  208  anniversary date of its issuance, expiration, or renewal.
  209         (f) In order to carry out the purposes of this subsection,
  210  the department or its agents may require from any permitholder
  211  verified statements of the cultivated acreage subject to the
  212  special permit and may review the permitholder’s business or
  213  cultivation records at her or his place of business during
  214  normal business hours in order to determine the acreage
  215  cultivated. The failure of a permitholder to furnish such
  216  statement, to make such records available, or to make and
  217  deliver a new or additional bond or certificate of deposit is
  218  cause for suspension of the special permit. If the department
  219  finds such failure to be willful, the special permit may be
  220  revoked.
  221  
  222  ================= T I T L E  A M E N D M E N T ================
  223         And the title is amended as follows:
  224         Between lines 17 and 18
  225  insert:
  226         amending s. 581.083, F.S.; prohibiting the cultivation
  227         of certain algae in plantings greater in size than 2
  228         contiguous acres; providing exceptions; providing
  229         certain exemptions from special permitting
  230         requirements; revising bonding requirements for the
  231         special permits;