Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1464
       
       
       
       
       
       
                                Ì846968iÎ846968                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/11/2020           .                                
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       The Committee on Banking and Insurance (Flores) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (8) and (9) through (14) of
    6  section 556.102, Florida Statutes, are redesignated as
    7  subsections (10) and (12) through (17), respectively, and new
    8  subsections (8), (9), and (11) are added to that section, to
    9  read:
   10         556.102 Definitions.—As used in this act:
   11         (8) “High-priority subsurface installation” means an
   12  underground gas transmission or gas distribution pipeline, or an
   13  underground pipeline used to transport gasoline, jet fuel, or
   14  any other refined petroleum product or hazardous or highly
   15  volatile liquid, such as anhydrous ammonia or carbon dioxide, if
   16  the pipeline is deemed to be critical by the operator of the
   17  pipeline and is identified as a high-priority subsurface
   18  installation to an excavator who has provided a notice of intent
   19  to excavate under to s. 556.105(1), or would have been
   20  identified as a high-priority subsurface installation except for
   21  the excavator’s failure to give proper notice of intent to
   22  excavate.
   23         (9)“Incident” means an event that involves damage to a
   24  high-priority subsurface installation that has been identified
   25  as such by the operator according to the notification procedures
   26  set forth in s. 556.116(1) and that:
   27         1.Results in death or serious bodily injury requiring
   28  inpatient hospitalization.
   29         2.Results in property damage, including service
   30  restoration costs, in an amount in excess of $50,000 or
   31  interruption of service to 2,500 or more customers.
   32         (11)“Permanent marker” means a clearly visible indication
   33  of the approximate location of an underground facility which is
   34  made of material that is durable in nature and which is
   35  reasonably expected to remain in position for the life of the
   36  underground facility.
   37         Section 2. Section 556.107, Florida Statutes, is amended to
   38  read:
   39         556.107 Violations.—
   40         (1) NONCRIMINAL INFRACTIONS.—
   41         (a)1. Violations of the following provisions are
   42  noncriminal infractions:
   43         a.1. Section 556.105(1), relating to providing required
   44  information.
   45         b.Section 556.105(5)(c), relating to excavation practices
   46  in tolerance zones.
   47         c.2. Section 556.105(6), relating to the avoidance of
   48  excavation.
   49         d.3. Section 556.105(11), relating to the need to stop
   50  excavation or demolition because marks are no longer visible,
   51  or, in the case of underwater facilities, are inadequately
   52  documented.
   53         e.4. Section 556.105(12), relating to the need to cease
   54  excavation or demolition activities because of contact or damage
   55  to an underground facility.
   56         f.5. Section 556.105(5)(a) and (b), relating to
   57  identification of underground facilities, if a member operator
   58  does not mark an underground facility, but not if a member
   59  operator marks an underground facility incorrectly.
   60         g.6. Section 556.109(2), relating to falsely notifying the
   61  system of an emergency situation or condition.
   62         h.7. Section 556.114(1), (2), (3), and (4), relating to a
   63  failure to follow low-impact marking practices, as defined
   64  therein.
   65         2.Violations of the following provisions involving an
   66  underground facility transporting hazardous materials that are
   67  regulated by the Pipeline and Hazardous Materials Safety
   68  Administration of the United States Department of Transportation
   69  are noncriminal infractions, subject to enhanced civil penalties
   70  under paragraph (c):
   71         a.Section 556.105(1), relating to providing required
   72  information.
   73         b.Section 556.105(5)(c), relating to excavation practices
   74  in tolerance zones.
   75         c.Section 556.105(6), relating to the avoidance of certain
   76  excavation.
   77         d.Section 556.105(11), relating to the need to stop
   78  excavation or demolition because certain marks are no longer
   79  visible or are inadequately documented.
   80         e.Section 556.105(12), relating to the need to cease
   81  excavation or demolition activities because of contact or damage
   82  to an underground facility.
   83         (b) Any excavator or member operator who commits a
   84  noncriminal infraction under paragraph (a) may be issued a
   85  citation by the State Fire Marshal or agents as provided in ss.
   86  633.114 and 633.116; the fire chief of the special district,
   87  municipality, or county; or any local or state law enforcement
   88  officer, government code inspector, or code enforcement officer,
   89  and the issuer of a citation may require an excavator to cease
   90  work on any excavation or not start a proposed excavation until
   91  there has been compliance with the provisions of this chapter.
   92  Citations shall be hand delivered to any employee of the
   93  excavator or member operator who is involved in the noncriminal
   94  infraction. The citation shall be issued in the name of the
   95  excavator or member operator, whichever is applicable.
   96         (c)1. Any excavator or member operator who commits a
   97  noncriminal infraction under subparagraph (a)1. paragraph (a)
   98  may be required to pay a civil penalty of $500 plus court costs
   99  for each infraction, which is $500 plus court costs. If a
  100  citation is issued by a state law enforcement officer, a local
  101  law enforcement officer, a local government code inspector, or a
  102  code enforcement officer, 80 percent of the civil penalty
  103  collected by the clerk of the court must shall be distributed to
  104  the governmental entity whose employee issued the citation and
  105  20 percent of the penalty must shall be retained by the clerk to
  106  cover administrative costs, in addition to any other court
  107  costs. Any person who fails to properly respond to a citation
  108  issued under pursuant to paragraph (b) shall, in addition to the
  109  citation, be charged with the offense of failing to respond to
  110  the citation and, upon conviction, commits a misdemeanor of the
  111  second degree, punishable as provided in s. 775.082 or s.
  112  775.083. A written warning to this effect must be provided at
  113  the time any citation is issued under pursuant to paragraph (b).
  114         2.Any excavator or member operator who commits a
  115  noncriminal infraction under subparagraph (a)2. may be required
  116  to pay an enhanced civil penalty of $2,500 plus court costs for
  117  each infraction. If a citation is issued, 80 percent of the
  118  civil penalty collected by the clerk of the court must be
  119  distributed to the governmental entity whose employee issued the
  120  citation and 20 percent must be retained by the clerk in
  121  addition to any court costs.
  122         3.Any person who willfully fails to properly respond to a
  123  citation issued under paragraph (b) shall, in addition to the
  124  citation, be charged with the offense of failing to respond to
  125  the citation and, upon conviction, commits a misdemeanor of the
  126  second degree, punishable as provided in s. 775.082 or s.
  127  775.083. A written warning to this effect must be provided at
  128  the time a citation is issued under paragraph (b).
  129         (d) Any person cited for an infraction under paragraph (a)
  130  or s. 556.116(2)(c) may post a bond, which must shall be equal
  131  in amount to the applicable civil penalty plus any additional
  132  court costs.
  133         (e) A person charged with a noncriminal infraction under
  134  paragraph (a) or s. 556.116(2)(c) may pay the applicable civil
  135  penalty plus the additional court costs, by mail or in person,
  136  within 30 days after the date of receiving the citation. If the
  137  person cited pays the civil penalty, she or he is deemed to have
  138  admitted to committing the infraction and to have waived the
  139  right to a hearing on the issue of commission of the infraction.
  140  The admission may be used as evidence in any other proceeding
  141  under this chapter.
  142         (f) Any person may elect to have a hearing on the
  143  commission of the infraction appear before the county court. A
  144  person who elects to have a hearing waives and if so electing is
  145  deemed to have waived the limitations on the civil penalties
  146  penalty specified in paragraph (c). The court, after a hearing,
  147  shall make a determination as to whether an infraction has been
  148  committed. If the commission of an infraction has been proven,
  149  the court may impose a civil penalty not to exceed the
  150  applicable civil penalty $5,000 plus court costs for each
  151  infraction. In determining the amount of the civil penalty, the
  152  court may consider previous noncriminal infractions committed.
  153         (g) At a court hearing under this chapter, the commission
  154  of a charged infraction must be proven by a preponderance of the
  155  evidence.
  156         (h) If the court finds that a person is found by a judge or
  157  hearing official to have committed an infraction, the person may
  158  appeal that finding or the amount of the civil penalties imposed
  159  to the circuit court.
  160         (i) Sunshine State One-Call of Florida, Inc., may, at its
  161  own cost, retain an attorney to assist in the presentation of
  162  relevant facts and law in the county court proceeding pertaining
  163  to the citation issued under this section. The corporation may
  164  also appear in any case appealed to the circuit court if a
  165  county court judge finds that an infraction of the chapter was
  166  committed. An appellant in the circuit court proceeding shall
  167  timely notify the corporation of any appeal under this section.
  168         (2) REPORT OF INFRACTIONS.—By March 31 of each year, each
  169  clerk of court shall submit a report to the State Fire Marshal
  170  and Sunshine State One-Call of Florida, Inc., listing each
  171  citation issued for a violation notice written under paragraph
  172  (1)(a) and s. 556.116(2)(c) which has been filed in that county
  173  during the preceding calendar year. The report must state the
  174  name and address of the member or excavator who committed each
  175  infraction, the enforcement authority, the specific statutory
  176  infraction, and the type of underground facility related to the
  177  infraction and must indicate whether or not the civil penalty
  178  for the infraction was paid.
  179         (3) MISDEMEANORS.—
  180         (a) Any person who knowingly and willfully removes or
  181  otherwise destroys the valid stakes or other valid physical
  182  markings described in s. 556.105(5)(a) and (b) used to mark the
  183  horizontal route of an underground facility commits a
  184  misdemeanor of the second degree, punishable as provided in s.
  185  775.082 or s. 775.083. For purposes of this subsection, stakes
  186  or other nonpermanent physical markings are considered valid for
  187  30 calendar days after information is provided to the system
  188  under s. 556.105(1)(a).
  189         (b)Any person who knowingly and willfully removes or
  190  damages a permanent marker placed to identify the approximate
  191  location of an underground facility commits a misdemeanor of the
  192  second degree, punishable as provided in s. 775.082 or s.
  193  775.083.
  194         Section 3. Section 556.116, Florida Statutes, is amended to
  195  read:
  196         556.116 High-priority subsurface installations; special
  197  procedures.—
  198         (1) As used in this section, the term:
  199         (a)“Division” means the Division of Administrative
  200  Hearings.
  201         (b)“High-priority subsurface installation” means an
  202  underground gas transmission or gas distribution pipeline, an
  203  underground pipeline used to transport gasoline, jet fuel, or
  204  any other refined petroleum product or hazardous or highly
  205  volatile liquid, such as anhydrous ammonia or carbon dioxide, if
  206  the pipeline is deemed to be critical by the operator of the
  207  pipeline and is identified as a high-priority subsurface
  208  installation to an excavator who has provided a notice of intent
  209  to excavate pursuant to s. 556.105(1), or would have been
  210  identified as a high-priority subsurface installation except for
  211  the excavator’s failure to give proper notice of intent to
  212  excavate.
  213         (c)“Incident” means an event that involves damage to a
  214  high-priority subsurface installation that has been identified
  215  as such by the operator according to the notification procedures
  216  set forth in subsection (2) and that:
  217         1.Results in death or serious bodily injury requiring
  218  inpatient hospitalization.
  219         2.Results in property damage, including service
  220  restoration costs, in an amount in excess of $50,000 or
  221  interruption of service to 2,500 or more customers.
  222         (2) When an excavator proposes to excavate or demolish
  223  within 15 feet of the horizontal route of an underground
  224  facility that has been identified as a high-priority subsurface
  225  installation by the operator of the facility, the operator
  226  shall, in addition to identifying the horizontal route of its
  227  facility as set forth in s. 556.105(5)(a) and (b), and within
  228  the time period set forth in s. 556.105(9)(a) for a positive
  229  response, notify the excavator that the facility is a high
  230  priority subsurface installation. If the member operator
  231  provides such timely notice of the existence of a high-priority
  232  subsurface installation, an excavator shall notify the operator
  233  of the planned excavation start date and time before beginning
  234  excavation. If the member operator does not provide timely
  235  notice, the excavator may proceed, after waiting the prescribed
  236  time period set forth in s. 556.105(9)(a), to excavate without
  237  notifying the member operator of the excavation start date and
  238  time. The exemptions stated in s. 556.108 apply to the
  239  notification requirements in this subsection.
  240         (2)(a)(3)(a) An alleged commission of an infraction listed
  241  in s. 556.107(1) which results in an incident must be reported
  242  to the system and the State Fire Marshal by a member operator or
  243  an excavator within 24 hours after learning of the alleged
  244  occurrence of an incident.
  245         (b) Upon receipt of an allegation that an incident has
  246  occurred, the member operator or excavator system shall transmit
  247  an incident report to the State Fire Marshal, who shall division
  248  and contract with the division so that the division may conduct
  249  an investigation a hearing to determine whether an incident has
  250  occurred, and, if so, whether a violation of s. 556.107(1)(a)
  251  was a proximate cause of the incident. The State Fire Marshal
  252  may authorize its agents as provided in ss. 633.114, 633.116,
  253  and 633.118 to conduct investigations of incidents The contract
  254  for services to be performed by the division must include
  255  provisions for the system to reimburse the division for any
  256  costs incurred by the division for court reporters, transcript
  257  preparation, travel, facility rental, and other customary
  258  hearing costs, in the manner set forth in s. 120.65(9).
  259         (c) The State Fire Marshal or agents as provided in ss.
  260  633.114, 633.116, and 633.118 division has jurisdiction in a
  261  proceeding under this section to determine the facts and law
  262  concerning an alleged incident. The division may issue a
  263  citation and impose a civil penalty fine against a violator in
  264  an amount not to exceed $50,000 if the person violated a
  265  provision of s. 556.107(1)(a) and that violation was a proximate
  266  cause of the incident. However, if a state agency or political
  267  subdivision caused the incident, the state agency or political
  268  subdivision may not be fined in an amount in excess of $10,000.
  269         (d) The civil penalty A fine imposed under this subsection
  270  by the division is in addition to any amount payable as a result
  271  of a citation relating to the incident under s. 556.107(1)(a).
  272         (e) If an additional civil penalty is imposed by the State
  273  Fire Marshal or his or her agents, 5 percent of the civil
  274  penalty must be retained by the clerk to cover administrative
  275  costs, and the remainder of the civil penalty must be equally
  276  distributed between a program created to procure equipment,
  277  supplies, and educational training designed to mitigate
  278  firefighter exposure to hazardous, cancer-causing chemicals and
  279  between the system to be used exclusively for damage-prevention
  280  education A fine against an excavator or a member operator
  281  imposed under this subsection shall be paid to the system, which
  282  shall use the collected fines to satisfy the costs incurred by
  283  the system for any proceedings under this section. To the extent
  284  there are any funds remaining, the system may use the funds
  285  exclusively for damage-prevention education.
  286         (f) Any excavator or member operator who commits a
  287  noncriminal infraction under s. 556.116(2)(c) must be provided a
  288  written warning at the time a citation is issued stating that
  289  any person who willfully fails to properly respond to a citation
  290  must, in addition to the citation, be charged with the offense
  291  of failing to respond to the citation and, upon conviction,
  292  commits a misdemeanor of the second degree, punishable as
  293  provided in s. 775.082 or s. 775.083.
  294         (g) This section does not change the basis for civil
  295  liability. The findings and results of an investigation a
  296  hearing under this section may not be used as evidence of
  297  liability in any civil action.
  298         (4)(a)The division shall issue and serve on all original
  299  parties an initial order that assigns the case to a specific
  300  administrative law judge and requests information regarding
  301  scheduling the final hearing within 5 business days after the
  302  division receives a petition or request for hearing. The
  303  original parties in the proceeding include all excavators and
  304  member operators identified by the system as being involved in
  305  the alleged incident. The final hearing must be conducted within
  306  60 days after the date the petition or the request for a hearing
  307  is filed with the division.
  308         (b)Unless the parties otherwise agree, venue for the
  309  hearing shall be in the county in which the underground facility
  310  is located.
  311         (c)An intervenor in the proceeding must file a petition to
  312  intervene no later than 15 days before the final hearing. A
  313  person who has a substantial interest in the proceeding may
  314  intervene.
  315         (5)The following procedures apply:
  316         (a)Motions shall be limited to the following:
  317         1.A motion in opposition to the petition.
  318         2.A motion requesting discovery beyond the informal
  319  exchange of documents and witness lists described in paragraph
  320  (c). Upon a showing of necessity, additional discovery may be
  321  permitted in the discretion of the administrative law judge, but
  322  only if the discovery can be completed no later than 5 days
  323  before the final hearing.
  324         3.A motion for continuance of the final hearing date.
  325         (b)All parties shall attend a prehearing conference for
  326  the purpose of identifying the legal and factual issues to be
  327  considered at the final hearing, the names and addresses of
  328  witnesses who may be called to testify at the final hearing,
  329  documentary evidence that will be offered at the final hearing,
  330  the range of penalties that may be imposed, and any other matter
  331  that would expedite resolution of the proceeding. The prehearing
  332  conference may be held by telephone conference call.
  333         (c)Not later than 5 days before the final hearing, the
  334  parties shall furnish to each other copies of documentary
  335  evidence and lists of witnesses who may testify at the final
  336  hearing.
  337         (d)All parties shall have an opportunity to respond, to
  338  present evidence and argument on all issues involved, to conduct
  339  cross-examination and submit rebuttal evidence, and to be
  340  represented by counsel or other qualified representative.
  341         (e)The record shall consist only of:
  342         1.All notices, pleadings, motions, and intermediate
  343  rulings.
  344         2.Evidence received during the final hearing.
  345         3.A statement of matters officially recognized.
  346         4.Proffers of proof and objections and rulings thereon.
  347         5.Matters placed on the record after an ex parte
  348  communication.
  349         6.The written final order of the administrative law judge
  350  presiding at the final hearing.
  351         7.The official transcript of the final hearing.
  352         (f)The division shall accurately and completely preserve
  353  all testimony in the proceeding and, upon request by any party,
  354  shall make a full or partial transcript available at no more
  355  than actual cost.
  356         (g)The administrative law judge shall issue a final order
  357  within 30 days after the final hearing or the filing of the
  358  transcript thereof, whichever is later. The final order of the
  359  administrative law judge must include:
  360         1.Findings of fact based exclusively on the evidence of
  361  record and matters officially recognized.
  362         2.Conclusions of law. In determining whether a party has
  363  committed an infraction of s. 556.107(1)(a), and whether the
  364  infraction was a proximate cause of an incident, the commission
  365  of an infraction must be proven by a preponderance of the
  366  evidence.
  367         3.Imposition of a fine, if applicable.
  368         4.Any other information required by law or rule to be
  369  contained in a final order.
  370  
  371  The final order of the administrative law judge constitutes
  372  final agency action subject to judicial review pursuant to s.
  373  120.68.
  374         Section 4. Section 556.117, Florida Statutes, is created to
  375  read:
  376         556.117Underground facility damage prevention review.
  377  Sunshine State One-Call of Florida, Inc., shall review the
  378  reports submitted by the clerks of court to the State Fire
  379  Marshal and any complaints of alleged violations under this
  380  chapter to identify issues or potential issues with damage
  381  prevention and enforcement. The corporation shall identify areas
  382  in the state where additional education related to damage
  383  prevention and enforcement is needed and shall recommend
  384  solutions to remedy issues related to damage prevention and
  385  enforcement. The corporation shall, by October 1 of each year,
  386  submit to the Governor, the President of the Senate, and the
  387  Speaker of the House of Representatives an analysis of its
  388  reviews and any recommendations for improving underground
  389  facility damage prevention and enforcement.
  390         Section 5. This act shall take effect July 1, 2020.
  391  
  392  ================= T I T L E  A M E N D M E N T ================
  393  And the title is amended as follows:
  394         Delete everything before the enacting clause
  395  and insert:
  396                        A bill to be entitled                      
  397         An act relating to underground facility damage
  398         prevention and safety; amending s. 556.102, F.S.;
  399         defining the term “permanent marker” and consolidating
  400         other definitions from throughout the chapter;
  401         amending s. 556.107, F.S.; revising noncriminal
  402         violations and providing noncriminal violations
  403         relating to the transportation of certain hazardous
  404         materials; authorizing the State Fire Marshal or his
  405         or her agents to issue certain citations; providing
  406         enhanced civil penalties; providing disposition of the
  407         civil penalty; requiring a report by additional
  408         entities; providing civil penalties relating to
  409         removing or damaging a permanent marker; amending s.
  410         556.116, F.S.; moving and consolidating definitions to
  411         the definition section for the chapter; providing that
  412         certain incident reports must be submitted to, and
  413         investigated by, the State Fire Marshal or his or her
  414         agents; authorizing the State Fire Marshal or his or
  415         her agents to issue citations and civil penalties;
  416         providing for disposition of the civil penalty;
  417         requiring written warnings for certain noncriminal
  418         infractions; providing for an enhanced penalty upon
  419         conviction for a failure to respond; removing
  420         provisions relating to hearings by the Division of
  421         Administrative Hearings of certain incidents; creating
  422         s. 556.117, F.S.; requiring Sunshine State One-Call of
  423         Florida, Inc., to review certain reports and
  424         complaints; requiring the corporation to identify
  425         areas for additional education and recommend
  426         solutions; requiring an annual report to the Governor
  427         and the Legislature; providing an effective date.