\n\n ENROLLED<\/strong>\r\n 2010<\/strong> Legislature<\/strong> CS for CS for SB 982, 1st Engrossed<\/strong>\r\n\r\n 2010982er\r\n 1\r\n 2 An act relating to underground facility damage\r\n 3 prevention and safety; amending s. 556.101, F.S.;\r\n 4 prohibiting municipalities, counties, districts, and\r\n 5 other local governments from enacting ordinances or\r\n 6 rules that conflict with ch. 556, F.S.; amending s.\r\n 7 556.103, F.S.; requiring that the board of directors\r\n 8 of Sunshine State One-Call of Florida, Inc., present\r\n 9 to the Governor and Legislature an annual report that\r\n 10 includes a summary of reports issued by the clerks of\r\n 11 court; amending s. 556.105, F.S.; requiring that an\r\n 12 excavator provide the Sunshine State One-Call of\r\n 13 Florida, Inc., system with certain specified\r\n 14 information not less than 10 full business days before\r\n 15 beginning an excavation or demolition beneath the\r\n 16 waters of the state; prohibiting the use of such\r\n 17 information by member operators for sales or marketing\r\n 18 purposes; deleting obsolete provisions; removing\r\n 19 provisions requiring the premarking of certain\r\n 20 proposed excavation sites; requiring a mutually agreed\r\n 21 excavation plan for high-priority excavations;\r\n 22 amending s. 556.106, F.S.; removing redundant\r\n 23 provisions that provide a limited waiver of sovereign\r\n 24 immunity for the state and its agencies and\r\n 25 subdivisions arising from matters involving\r\n 26 underground facilities; amending s. 556.107, F.S.;\r\n 27 providing increased penalties for noncriminal\r\n 28 infractions of the Sunshine State One-Call of Florida,\r\n 29 Inc., system; requiring each clerk of court to submit\r\n 30 a report to Sunshine State One-Call of Florida, Inc.,\r\n 31 by a specified date listing each violation that has\r\n 32 been filed in the county during the preceding calendar\r\n 33 year; amending s. 556.109, F.S.; specifying\r\n 34 circumstances under which an excavator shall not\r\n 35 notify the Sunshine State One-Call of Florida, Inc.,\r\n 36 system that there is an emergency; amending s.\r\n 37 556.110, F.S.; deleting a provision that limits\r\n 38 assessments against a member operator who receives\r\n 39 fewer than 10 notifications in any month; creating s.\r\n 40 556.114, F.S.; providing requirements for low-impact\r\n 41 marking practices; providing procedures and methods to\r\n 42 mark areas of excavation; requiring Sunshine State\r\n 43 One-Call of Florida, Inc., to establish an educational\r\n 44 program for the purpose of informing excavators and\r\n 45 member operators about low-impact marking practices;\r\n 46 creating s. 556.115, F.S.; requiring Sunshine State\r\n 47 One-Call of Florida, Inc., to create a voluntary\r\n 48 alternative dispute resolution program that is open to\r\n 49 all member operators, excavators, and other\r\n 50 stakeholders; requiring the voluntary users of the\r\n 51 alternative dispute resolution program to choose the\r\n 52 form of alternative dispute resolution to be used;\r\n 53 requiring that the costs of using the voluntary\r\n 54 program be borne by the users; providing that unless\r\n 55 binding arbitration is the chosen method of\r\n 56 alternative dispute resolution, the users or any one\r\n 57 of such users may end the process at any time and\r\n 58 proceed in a court of competent jurisdiction or before\r\n 59 the Division of Administrative Hearings; creating s.\r\n 60 556.116, F.S.; defining the terms \u201chigh-priority\r\n 61 subsurface installations\u201d and \u201cincident\u201d; providing\r\n 62 that if an excavation is proposed within 15 feet of a\r\n 63 high-priority subsurface installation and is\r\n 64 identified as such by the facility operator, the\r\n 65 facility operator must notify the excavator of the\r\n 66 existence of the high-priority subsurface installation\r\n 67 and mark its location before excavation may begin;\r\n 68 requiring an excavator to notify the operator of the\r\n 69 excavation start time in the vicinity of a high\r\n 70 priority subsurface installation; providing that an\r\n 71 alleged infraction that results in an incident must be\r\n 72 reported to the system by an operator or an excavator;\r\n 73 providing that the system shall transmit incident\r\n 74 reports to the Division of Administrative Hearings;\r\n 75 providing that the system and the division may\r\n 76 contract for the division to conduct proceedings;\r\n 77 providing that the division has jurisdiction to\r\n 78 determine the facts and law concerning an alleged\r\n 79 incident; authorizing the division to impose a fine on\r\n 80 a violator if the violation was a proximate cause of\r\n 81 the incident; providing procedures, venue, and\r\n 82 standard of proof; providing an effective date.\r\n 83\r\n 84 Be It Enacted by the Legislature of the State of Florida:\r\n 85\r\n 86 Section 1.\u2003Paragraph (d) of subsection (3) of section\r\n 87 556.101, Florida Statutes, is amended to read:\r\n 88 556.101\u2003Short title; legislative intent.\u2014\r\n 89 (3)\u2003It is the purpose of this chapter to:\r\n 90 (d)\u2003Reserve to the state the power to regulate any subject\r\n 91 matter specifically addressed in this chapter. Municipalities,<\/span>\r\n 92 counties, districts, or other local governments may not adopt or<\/span>\r\n 93 enforce ordinances or rules that conflict with this chapter or<\/span>\r\n 94 that prescribe any of the following:<\/span>\r\n 95 1.<\/span>\u2003<\/span>Require operators of underground facilities to obtain<\/span>\r\n 96 permits from local governments in order to identify underground<\/span>\r\n 97 facilities.<\/span>\r\n 98 2.<\/span>\u2003<\/span>Require premarking or marking.<\/span>\r\n 99 3.<\/span>\u2003<\/span>Specify the types of paint or other marking devices that<\/span>\r\n 100 are used to identify underground facilities.<\/span>\r\n 101 4.<\/span>\u2003<\/span>Require removal of marks.<\/span>\r\n 102 Section 2.\u2003Subsections (4) and (5) of section 556.103,\r\n 103 Florida Statutes, are amended to read:\r\n 104 556.103\u2003Creation of the corporation; establishment of the\r\n 105 board of directors; authority of the board; annual report.\u2014\r\n 106 (4)\u2003Beginning in 1994, The board of directors shall file\r\n 107 with the Governor, not later than 60 days before the convening\r\n 108 of each regular session of the Legislature, an annual progress\r\n 109 report on the operation of the system, which must include a<\/span>\r\n 110 summary of the reports to the system from the clerks of court<\/span>.\r\n 111 (5)\u2003Beginning in 1998, The board of directors shall submit\r\n 112 to the President of the Senate, the Speaker of the House of\r\n 113 Representatives, and the Governor, not later than 60 days before\r\n 114 the convening of each regular session of the Legislature, an\r\n 115 annual progress report on the participation by municipalities\r\n 116 and counties in the one-call notification system created by this\r\n 117 chapter. The report must include a summary of the reports to the<\/span>\r\n 118 system from the clerks of court.<\/span>\r\n 119 Section 3.\u2003Paragraphs (a) and (d) of subsection (1),\r\n 120 subsections (5) and (6), paragraph (a) of subsection (7),\r\n 121 paragraph (a) of subsection (9), and subsection (11) of section\r\n 122 556.105, Florida Statutes, are amended to read:\r\n 123 556.105\u2003Procedures.\u2014\r\n 124 (1)(a)\u2003Not less than 2 full business days before beginning\r\n 125 any excavation or demolition that is not<\/span>, except an excavation\r\n 126 beneath the waters of the state, and not less than 10 full<\/span>\r\n 127 business days before beginning any excavation or demolition that<\/span>\r\n 128 is beneath the waters of the state,<\/span> an excavator shall provide\r\n 129 the following information through the system:\r\n 130 1.\u2003The name of the individual who provided notification and\r\n 131 the name, address, including the street address, city, state,\r\n 132 zip code, and telephone number of her or his employer.\r\n 133 2.\u2003The name and telephone number of the representative for\r\n 134 the excavator, and a valid electronic address to facilitate a\r\n 135 positive response by the system should be provided, if\r\n 136 available.\r\n 137 3.\u2003The county, the city or closest city, and the street\r\n 138 address or the closest street, road, or intersection to the\r\n 139 location where the excavation or demolition is to be performed,\r\n 140 and the construction limits of the excavation or demolition.\r\n 141 4.\u2003The commencement date and anticipated duration of the\r\n 142 excavation or demolition.\r\n 143 5.\u2003Whether machinery will be used for the excavation or\r\n 144 demolition.\r\n 145 6.\u2003The person or entity for whom the work is to be done.\r\n 146 7.\u2003The type of work to be done.\r\n 147 8.\u2003The approximate depth of the excavation.\r\n 148 (d)\u2003Member operators shall use the information provided to<\/span>\r\n 149 the system by other member operators only for the purposes<\/span>\r\n 150 stated in this chapter and not for sales or marketing purposes.<\/span>\r\n 151 1.\u2003The system shall study the feasibility of the\r\n 152 establishment or recognition of zones for the purpose of\r\n 153 allowing excavation within such zones to be undertaken without\r\n 154 notice to the system as now required by this chapter when such\r\n 155 zones are:\r\n 156 a.\u2003In areas within which no underground facilities are\r\n 157 located.\r\n 158 b.\u2003Where permanent markings, permit and mapping systems,\r\n 159 and structural protection for underwater crossings are required\r\n 160 or in place.\r\n 161 c.\u2003For previously marked utilities on construction of one-\r\n 162 or two-family dwellings where the contractor remains in custody\r\n 163 and control of the building site for the duration of the\r\n 164 building permit.\r\n 165 2.\u2003The system shall report the results of the study to the\r\n 166 Legislature on or before February 1, 2007, along with\r\n 167 recommendations for further legislative action.\r\n 168 (5)\u2003All member operators within the defined area of a\r\n 169 proposed excavation or demolition shall be promptly notified\r\n 170 through the system, except that member operators with state\r\n 171 owned underground facilities located within the right-of-way of\r\n 172 a state highway need not be notified of excavation or demolition\r\n 173 activities and are under no obligation to mark or locate the\r\n 174 facilities.\r\n 175 (a)\u2003When an excavation site cannot be described in\r\n 176 information provided under subparagraph (1)(a)3. with sufficient\r\n 177 particularity to enable the member operator to ascertain the\r\n 178 excavation site, and if the excavator and member operator have\r\n 179 not mutually agreed otherwise, the excavator shall premark the\r\n 180 proposed area of the excavation before a member operator is\r\n 181 required to identify the horizontal route of its underground\r\n 182 facilities in the proximity of any excavation. However,\r\n 183 premarking is not required for any excavation that is over 500\r\n 184 feet in length and is not required where the premarking could\r\n 185 reasonably interfere with traffic or pedestrian control.\r\n 186 (a)<\/span>(b)\u2003If a member operator determines that a proposed\r\n 187 excavation or demolition is in proximity to or in conflict with\r\n 188 an underground facility of the member operator, except a\r\n 189 facility beneath the waters of the state, which is governed by\r\n 190 paragraph (b)<\/span> (c), the member operator shall identify the\r\n 191 horizontal route by marking to within 24 inches from the outer\r\n 192 edge of either side of the underground facility by the use of\r\n 193 stakes, paint, flags, or other suitable means within 2 full\r\n 194 business days after the time the notification is received under\r\n 195 subsection (1). If the member operator is unable to respond\r\n 196 within such time, the member operator shall communicate with the\r\n 197 person making the request and negotiate a new schedule and time\r\n 198 that is agreeable to, and should not unreasonably delay, the\r\n 199 excavator.\r\n 200 (b)<\/span>(c)\u2003If a member operator determines that a proposed\r\n 201 excavation is in proximity to or in conflict with an underground\r\n 202 facility of the member operator beneath the waters of the state,\r\n 203 the member operator shall identify the estimated horizontal\r\n 204 route of the underground facility, within 10 business days,\r\n 205 using marking buoys or other suitable devices, unless directed\r\n 206 otherwise by an agency having jurisdiction over the waters of\r\n 207 the state under which the member operator\u2019s underground facility\r\n 208 is located.\r\n 209 (c)<\/span>(d)\u2003When excavation is to take place within a tolerance\r\n 210 zone, an excavator shall use increased caution to protect\r\n 211 underground facilities. The protection requires hand digging,\r\n 212 pot holing, soft digging, vacuum excavation methods, or other\r\n 213 similar procedures to identify underground facilities. Any use\r\n 214 of mechanized equipment within the tolerance zone must be\r\n 215 supervised by the excavator.\r\n 216 (6)(a)\u2003An excavator shall avoid excavation in the area\r\n 217 described in the notice given under subsection (1) until each\r\n 218 member operator underground facility has been marked and located\r\n 219 or until the excavator has been notified that no member operator\r\n 220 has underground facilities in the area described in the notice,\r\n 221 or for the time allowed for markings set forth in paragraphs\r\n 222 (5)(a) and (b)<\/span> (5)(b) and (c), whichever occurs first. If a\r\n 223 member operator has not located and marked its underground\r\n 224 facilities within the time allowed for marking set forth in\r\n 225 paragraphs (5)(a) and (b)<\/span> (5)(b) and (c), the excavator may\r\n 226 proceed with the excavation, if the excavator does so with\r\n 227 reasonable care and if detection equipment or other acceptable\r\n 228 means to locate underground facilities are used.\r\n 229 (b)\u2003An excavator may not demolish in the area described in\r\n 230 the notice given under subsection (1) until all member operator\r\n 231 underground facilities have been marked and located or removed.\r\n 232 (7)(a)\u2003A member operator that states that it does not have\r\n 233 accurate information concerning the exact location of its\r\n 234 underground facilities is exempt from the requirements of\r\n 235 paragraphs (5)(a) and (b)<\/span> (5)(b) and (c), but shall provide the\r\n 236 best available information to the excavator in order to comply\r\n 237 with the requirements of this section. An excavator is not\r\n 238 liable for any damage to an underground facility under the\r\n 239 exemption in this subsection if the excavation or demolition is\r\n 240 performed with reasonable care and detection equipment or other\r\n 241 acceptable means to locate underground facilities are used.\r\n 242 (9)(a)\u2003After receiving notification from the system, a\r\n 243 member operator shall provide a positive response to the system\r\n 244 within 2 full business days, or 10 such days for an underwater\r\n 245 excavation or demolition<\/span>, indicating the status of operations to\r\n 246 protect the facility.\r\n 247 (11)\u2003Before or during excavation or demolition, if the\r\n 248 marking of the horizontal route of any facility is removed or is\r\n 249 no longer visible, or, in the case of an underwater facility, is<\/span>\r\n 250 inadequately documented,<\/span> the excavator shall stop excavation or\r\n 251 demolition activities in the vicinity of the facility and shall\r\n 252 notify the system to have the route remarked or adequately<\/span>\r\n 253 documented by a member operator or in a manner approved by the<\/span>\r\n 254 member operator<\/span>.\r\n 255 Section 4.\u2003Section 556.106, Florida Statutes, is amended to\r\n 256 read:\r\n 257 556.106\u2003Liability of the member operator, excavator, and\r\n 258 system.\u2014\r\n 259 (1)\u2003There is no liability on the part of, and no cause of\r\n 260 action of any nature shall arise against, the board members of\r\n 261 the corporation in their capacity as administrators of the\r\n 262 system.\r\n 263 (2)(a)\u2003If a person violates s. 556.105(1) or (6), and\r\n 264 subsequently, whether by himself or herself or through the\r\n 265 person\u2019s employees, contractors, subcontractors, or agents,\r\n 266 performs an excavation or demolition that damages an underground\r\n 267 facility of a member operator, it is rebuttably presumed that\r\n 268 the person was negligent. The person, if found liable, is liable\r\n 269 for the total sum of the losses to all member operators involved\r\n 270 as those costs are normally computed. Any damage for loss of\r\n 271 revenue and loss of use may not exceed $500,000 per affected\r\n 272 underground facility, except that revenues lost by a\r\n 273 governmental member operator whose revenues are used to support\r\n 274 payments on principal and interest on bonds may not be limited.\r\n 275 Any liability of the state and its agencies and its subdivisions\r\n 276 which arises out of this chapter is subject to the provisions of\r\n 277 s. 768.28.\r\n 278 (b)\u2003If any excavator fails to discharge a duty imposed by\r\n 279 the provisions of this chapter, the excavator, if found liable,\r\n 280 is liable for the total sum of the losses to all parties\r\n 281 involved as those costs are normally computed. Any damage for\r\n 282 loss of revenue and loss of use may not exceed $500,000 per\r\n 283 affected underground facility, except that revenues lost by a\r\n 284 governmental member operator whose revenues are used to support\r\n 285 payments on principal and interest on bonds may not be limited.\r\n 286 (c)\u2003Any liability of the state, its agencies, or its\r\n 287 subdivisions which arises out of this chapter is subject to the\r\n 288 provisions of s. 768.28.\r\n 289 (c)<\/span>(d)\u2003Obtaining information as to the location of an\r\n 290 underground facility from the member operator as required by\r\n 291 this chapter does not excuse any excavator from performing an\r\n 292 excavation or demolition in a careful and prudent manner, based\r\n 293 on accepted engineering and construction practices, and it does\r\n 294 not excuse the excavator from liability for any damage or injury\r\n 295 resulting from any excavation or demolition.\r\n 296 (3)\u2003If, after receiving proper notice, a member operator\r\n 297 fails to discharge a duty imposed by the provisions of this act\r\n 298 and an underground facility of a<\/span> such member operator is damaged\r\n 299 by an excavator who has complied with the provisions of this\r\n 300 act, as a proximate result of the member operator\u2019s failure to\r\n 301 discharge such duty, the<\/span> such excavator is<\/span> shall not be liable\r\n 302 for such damage and the member operator, if found liable, is<\/span>\r\n 303 shall be liable to such person for the total cost of any loss or\r\n 304 injury to any person or damage to equipment resulting from the\r\n 305 member operator\u2019s failure to comply with this act. Any damage\r\n 306 for loss of revenue and loss of use shall not exceed $500,000\r\n 307 per affected underground facility, except that revenues lost by\r\n 308 a governmental member operator, which revenues are used to\r\n 309 support payments on principal and interest on bonds, shall not\r\n 310 be limited. The liability of governmental member operators shall\r\n 311 be subject to limitations provided in chapter 768.\r\n 312 (4)\u2003If an owner of an underground facility fails to become\r\n 313 a member of the corporation in order to use and participate in\r\n 314 the system, as required by this act, and that failure is a cause\r\n 315 of damage to that underground facility caused by an excavator\r\n 316 who has complied with the provisions of this act and has\r\n 317 exercised reasonable care in the performance of the excavation\r\n 318 that has caused damage to the underground facility, the owner\r\n 319 has no right of recovery against the excavator for the damage to\r\n 320 that underground facility.\r\n 321 (5)\u2003If, after receiving proper notification, the system\r\n 322 fails to discharge its duties, resulting in damage to an\r\n 323 underground facility, the system, if found liable, shall be\r\n 324 liable to all parties, as defined in this act. Any damage for\r\n 325 loss of revenue and loss of use shall not exceed $500,000 per\r\n 326 affected underground facility, except that revenues lost by a\r\n 327 governmental member operator, which revenues are used to support\r\n 328 payments on principal and interest on bonds, shall not be\r\n 329 limited.\r\n 330 (6)\u2003The system does not have a duty to mark or locate\r\n 331 underground facilities and may not do so, and a right of\r\n 332 recovery does not exist against the system for failing to mark\r\n 333 or locate underground facilities. The system is not liable for\r\n 334 the failure of a member operator to comply with the requirements\r\n 335 of this chapter.\r\n 336 (7)\u2003An excavator or a member operator<\/span> who performs any\r\n 337 excavation with hand tools under s. 556.108(4)(c) or (5) is\r\n 338 liable for any damage to any operator\u2019s underground facilities\r\n 339 damaged during such excavation.\r\n 340 (8)<\/span>\u2003<\/span>Any liability of the state, its agencies, or its<\/span>\r\n 341 subdivisions which arises out of this chapter is subject to the<\/span>\r\n 342 provisions of s. <\/span>768.28<\/span>.<\/span>\r\n 343 Section 5.\u2003Section 556.107, Florida Statutes, is amended to\r\n 344 read:\r\n 345 556.107\u2003Violations.\u2014\r\n 346 (1)\u2003NONCRIMINAL INFRACTIONS.\u2014\r\n 347 (a)\u2003Violations of the following provisions are noncriminal\r\n 348 infractions:\r\n 349 1.\u2003Section 556.105(1), relating to providing required\r\n 350 information.\r\n 351 2.\u2003Section 556.105(6), relating to the avoidance of\r\n 352 excavation.\r\n 353 3.\u2003Section 556.105(11), relating to the need to stop\r\n 354 excavation or demolition because marks are no longer visible,<\/span>\r\n 355 or, in the case of underwater facilities, are inadequately<\/span>\r\n 356 documented<\/span>.\r\n 357 4.\u2003Section 556.105(12), relating to the need to cease\r\n 358 excavation or demolition activities because of contact or damage<\/span>\r\n 359 to an underground facility<\/span>.\r\n 360 5.\u2003Section 556.105<\/span>(5)(a) and (b),<\/span> 556.105(5)(b) and (c)\r\n 361 relating to identification of underground facilities, if a\r\n 362 member operator does not mark an underground facility, but not\r\n 363 if a member operator marks an underground facility incorrectly.\r\n 364 6.<\/span>\u2003<\/span>Section <\/span>556.109<\/span>(2), relating to falsely notifying the<\/span>\r\n 365 system of an emergency situation or condition.<\/span>\r\n 366 7.<\/span>\u2003<\/span>Section <\/span>556.114<\/span>(1), (2), (3), and (4), relating to a<\/span>\r\n 367 failure to follow low-impact marking practices, as defined<\/span>\r\n 368 therein.<\/span>\r\n 369 (b)\u2003Any excavator or member operator who commits a\r\n 370 noncriminal infraction under paragraph (a) may be issued a\r\n 371 citation by any local or state law enforcement officer,\r\n 372 government code inspector, or code enforcement officer, and the\r\n 373 issuer of a citation may require an excavator to cease work on\r\n 374 any excavation or not start a proposed excavation until there\r\n 375 has been compliance with the provisions of this chapter.\r\n 376 Citations shall be hand delivered to any employee of the\r\n 377 excavator or member operator who is involved in the noncriminal\r\n 378 infraction. The citation shall be issued in the name of the\r\n 379 excavator or member operator, whichever is applicable.\r\n 380 (c)\u2003Any excavator or member operator who commits a\r\n 381 noncriminal infraction under paragraph (a) may be required to\r\n 382 pay a<\/span> appear before the county court. The civil penalty for each<\/span>\r\n 383 any such infraction, which<\/span> is $500<\/span> $250 plus court costs, except\r\n 384 as otherwise provided in this section. If a citation is issued\r\n 385 by a local law enforcement officer, a local government code\r\n 386 inspector, or a code enforcement officer, 80 percent of the\r\n 387 civil penalty collected by the clerk of the court shall be\r\n 388 distributed to the local governmental entity whose employee\r\n 389 issued the citation and 20 percent of the penalty shall be\r\n 390 retained by the clerk to cover administrative costs, in addition\r\n 391 to other court costs. If a citation is issued by a state law\r\n 392 enforcement officer, the civil penalty collected by the clerk\r\n 393 shall be retained by the clerk for deposit into the fine and\r\n 394 forfeiture fund established pursuant to s. 142.01. Any person\r\n 395 who fails to appear or otherwise properly respond to a citation\r\n 396 issued pursuant to paragraph (b)<\/span> (d) shall, in addition to the\r\n 397 citation, be charged with the offense of failing to respond to\r\n 398 the<\/span> such citation and, upon conviction, commits a misdemeanor of\r\n 399 the second degree, punishable as provided in s. 775.082 or s.\r\n 400 775.083. A written warning to this effect must<\/span> shall be provided\r\n 401 at the time any citation is issued pursuant to paragraph (b).\r\n 402 (d)\u2003Any person cited for an infraction under paragraph (a),\r\n 403 unless required to appear before the county court, may:\r\n 404 1. post a bond, which shall be equal in amount to the\r\n 405 applicable civil penalty plus court costs; or\r\n 406 2.\u2003Sign and accept a citation indicating a promise to\r\n 407 appear before the county court.\r\n 408\r\n 409 The person issuing the citation may indicate on the citation the\r\n 410 time and location of the scheduled hearing and shall indicate\r\n 411 the applicable civil penalty.\r\n 412 (e)\u2003A<\/span> Any person charged with a noncriminal infraction\r\n 413 under paragraph (a), unless required to appear before the county\r\n 414 court, may:\r\n 415 1. pay the civil penalty plus court costs, in lieu of\r\n 416 appearance, either by mail or in person, within 30 days after\r\n 417 the date of receiving the citation; or\r\n 418 2.\u2003Forfeit bond, if a bond has been posted, by not\r\n 419 appearing at the designated time and location.\r\n 420\r\n 421 If the person cited pays the civil penalty<\/span> follows either of the\r\n 422 above procedures, she or he is deemed to have admitted to\r\n 423 committing the infraction and to have waived the right to a\r\n 424 hearing on the issue of commission of the infraction. The\r\n 425 admission may be used as evidence in any other proceeding under\r\n 426 this chapter.\r\n 427 (f)\u2003Any person may elect<\/span> electing to appear before the\r\n 428 county court and if so electing<\/span> or who is required to appear\r\n 429 shall be deemed to have waived the limitations on the civil\r\n 430 penalty specified in paragraph (c). The court, after a hearing,\r\n 431 shall make a determination as to whether an infraction has been\r\n 432 committed. If the commission of an infraction has been proven,\r\n 433 the court may impose a civil penalty not to exceed $5,000 plus\r\n 434 court costs. In determining the amount of the civil penalty, the\r\n 435 court may consider previous noncriminal infractions committed.\r\n 436 (g)\u2003At a court<\/span> hearing under this chapter, the commission\r\n 437 of a charged infraction must be proven by a preponderance of the\r\n 438 evidence.\r\n 439 (h)\u2003If a person is found by a judge or<\/span> the hearing official\r\n 440 to have committed an infraction, the person may appeal that\r\n 441 finding to the circuit court.\r\n 442 (i)\u2003Sunshine State One-Call of Florida, Inc., may, at its\r\n 443 own cost, retain an attorney to assist in the presentation of\r\n 444 relevant facts and law in the county court proceeding pertaining\r\n 445 to the citation issued under this section. The corporation may\r\n 446 also appear in any case appealed to the circuit court if a\r\n 447 county court judge<\/span> finds that an infraction of the chapter was\r\n 448 committed. An appellant in the circuit court proceeding shall\r\n 449 timely notify the corporation of any appeal under this section.\r\n 450 (2)<\/span>\u2003<\/span>REPORT OF INFRACTIONS.\u2014By March 31 of each year, each<\/span>\r\n 451 clerk of court shall submit a report to Sunshine State One-Call<\/span>\r\n 452 of Florida, Inc., listing each violation notice written under<\/span>\r\n 453 paragraph (1)(a) which has been filed in that county during the<\/span>\r\n 454 preceding calendar year. The report must state the name and<\/span>\r\n 455 address of the member or excavator who committed each infraction<\/span>\r\n 456 and indicate whether or not the civil penalty for the infraction<\/span>\r\n 457 was paid.<\/span>\r\n 458 (3)<\/span>(2)\u2003MISDEMEANORS.\u2014Any person who knowingly and willfully\r\n 459 removes or otherwise destroys the valid stakes or other valid\r\n 460 physical markings described in s. <\/span>556.105<\/span>(5)(a) and (b)<\/span> s.\r\n 461 556.105(5)(b) and (c) used to mark the horizontal route of an\r\n 462 underground facility commits a misdemeanor of the second degree,\r\n 463 punishable as provided in s. 775.082 or s. 775.083. For purposes\r\n 464 of this subsection, stakes or other nonpermanent physical\r\n 465 markings are considered valid for 30 calendar days after\r\n 466 information is provided to the system under s. <\/span>556.105<\/span>(1)(a)<\/span> s.\r\n 467 556.105(1)(c).\r\n 468 Section 6.\u2003Section 556.109, Florida Statutes, is amended to\r\n 469 read:\r\n 470 556.109\u2003Emergency excavations or demolitions attempted;\r\n 471 exception.\u2014\r\n 472 (1)<\/span>\u2003The provisions of This act does<\/span> do not apply to making\r\n 473 an excavation or demolition during an emergency if<\/span>, provided the\r\n 474 system or the member operator was notified at the earliest\r\n 475 opportunity and all reasonable precautions had been taken to\r\n 476 protect any underground facility. For the purposes of this act,\r\n 477 \u201cemergency\u201d means any condition constituting a clear and present\r\n 478 danger to life or property; a situation caused by the escape of\r\n 479 any substance transported by means of an underground facility;\r\n 480 any interruption of vital public service or communication caused\r\n 481 by any break or defect in a member operator\u2019s underground\r\n 482 facility; or, in the case of the State Highway System or streets\r\n 483 or roads maintained by a political subdivision or underground\r\n 484 facilities owned, operated, or maintained by a political\r\n 485 subdivision, if the use of such highways, streets, roads, or\r\n 486 underground facilities is, in the sole judgment of the\r\n 487 Department of Highway Safety and Motor Vehicles, the Department\r\n 488 of Transportation, or such political subdivision, impaired by an\r\n 489 unforeseen occurrence that<\/span> which necessitates repair beginning\r\n 490 immediately after such occurrence.\r\n 491 (2)<\/span>\u2003<\/span>An excavator shall not notify the system that there is<\/span>\r\n 492 an emergency unless the excavator reasonably believes that the<\/span>\r\n 493 intended excavation or demolition is due to a situation or<\/span>\r\n 494 condition as defined in subsection (1).<\/span>\r\n 495 Section 7.\u2003Section 556.110, Florida Statutes, is amended to\r\n 496 read:\r\n 497 556.110\u2003Costs assessed among member operators.\u2014Member\r\n 498 operators shall proportionately share in the cost of operating\r\n 499 the system through monthly assessments made upon each member\r\n 500 operator. However, any member that receives fewer than 10\r\n 501 notifications in any month shall not be assessed for such month.\r\n 502 Section 8.\u2003Section 556.114, Florida Statutes, is created to\r\n 503 read:\r\n 504 556.114<\/span>\u2003<\/span>Low-impact marking practices.\u2014<\/span>\r\n 505 (1)<\/span>\u2003<\/span>An excavator providing notice under s. <\/span>556.105<\/span>(1)(a)<\/span>\r\n 506 shall identify in its notice only the area that will be<\/span>\r\n 507 excavated during the period that the information in such notice<\/span>\r\n 508 is considered valid under s. <\/span>556.105<\/span>(1)(c).<\/span>\r\n 509 (2)<\/span>\u2003<\/span>When an excavator has not completed an excavation<\/span>\r\n 510 noticed under s. <\/span>556.105<\/span>(1)(a) within the period that the<\/span>\r\n 511 information in the notice is considered valid under s.<\/span>\r\n 512 556.105<\/span>(1)(c), the excavator must provide a subsequent notice to<\/span>\r\n 513 the system under s. <\/span>556.105<\/span>(1)(a) to continue with the<\/span>\r\n 514 excavation, and such subsequent notice shall identify only the<\/span>\r\n 515 remaining area to be excavated.<\/span>\r\n 516 (3)<\/span>\u2003<\/span>When an excavation site cannot be described in<\/span>\r\n 517 information provided under s. <\/span>556.105<\/span>(1)(a) with sufficient<\/span>\r\n 518 particularity to enable the member operator to ascertain the<\/span>\r\n 519 excavation site, and if the excavator and member operator have<\/span>\r\n 520 not mutually agreed otherwise, the excavator shall premark the<\/span>\r\n 521 proposed area of the excavation before a member operator is<\/span>\r\n 522 required to identify the horizontal route of its underground<\/span>\r\n 523 facilities in the proximity of any excavation. However,<\/span>\r\n 524 premarking is not required when the premarking could reasonably<\/span>\r\n 525 interfere with traffic or pedestrian control.<\/span>\r\n 526 (4)<\/span>\u2003<\/span>A member operator shall identify the horizontal route<\/span>\r\n 527 of its underground facilities as set forth in s. <\/span>556.105<\/span>(5)(a)<\/span>\r\n 528 and (b), and excavators shall premark an excavation site as set<\/span>\r\n 529 forth in subsection (3) using flags or stakes or temporary, non<\/span>\r\n 530 permanent paint or other industryaccepted low-impact marking<\/span>\r\n 531 practices.<\/span>\r\n 532 (5)<\/span>\u2003<\/span>Any horizontal route-identification marker must be in a<\/span>\r\n 533 color identified in the Uniform Color Code for Utilities.<\/span>\r\n 534 (6)<\/span>\u2003<\/span>Sunshine State One-Call of Florida, Inc., shall<\/span>\r\n 535 establish an educational program for the purpose of informing<\/span>\r\n 536 excavators and member operators about low-impact marking<\/span>\r\n 537 practices.<\/span>\r\n 538 Section 9.\u2003Section 556.115, Florida Statutes, is created to\r\n 539 read:\r\n 540 556.115<\/span>\u2003<\/span>Alternative dispute resolution.\u2014<\/span>\r\n 541 (1)<\/span>\u2003<\/span>Sunshine State One-Call of Florida, Inc., shall create<\/span>\r\n 542 a voluntary alternative dispute resolution program. The program<\/span>\r\n 543 shall be available to all member operators, excavators, and<\/span>\r\n 544 other stakeholders, such as locators, utility service users, and<\/span>\r\n 545 governmental or quasi-governmental entities, for purposes of<\/span>\r\n 546 resolving disputes arising from excavation activities,<\/span>\r\n 547 including, but not limited to, loss of services, down time,<\/span>\r\n 548 delays, loss of use of facilities during restoration or<\/span>\r\n 549 replacement, and similar economic disruptions, exclusive of<\/span>\r\n 550 penalties imposed under other provisions of this act.<\/span>\r\n 551 (2)<\/span>\u2003<\/span>The alternative dispute resolution program created by<\/span>\r\n 552 Sunshine State One-Call of Florida, Inc., shall include<\/span>\r\n 553 mediation, arbitration, or other appropriate processes,<\/span>\r\n 554 including the use of the services of the Division of<\/span>\r\n 555 Administrative Hearings.<\/span>\r\n 556 (3)<\/span>\u2003<\/span>The costs of using the program shall be borne by the<\/span>\r\n 557 voluntary users, and the voluntary users shall choose the form<\/span>\r\n 558 of alternative dispute resolution to be used. If arbitration is<\/span>\r\n 559 used, the users shall decide whether the arbitration will be<\/span>\r\n 560 binding.<\/span>\r\n 561 (4)<\/span>\u2003<\/span>Unless binding arbitration is the chosen method of<\/span>\r\n 562 alternative dispute resolution, the users or any one of such<\/span>\r\n 563 users may end the process at any time and exercise the right to<\/span>\r\n 564 proceed in a court of competent jurisdiction or before the<\/span>\r\n 565 Division of Administrative Hearings.<\/span>\r\n 566 (5)<\/span>\u2003<\/span>This section does not change the basis for civil<\/span>\r\n 567 liability for damages.<\/span>\r\n 568 Section 10.\u2003Section 556.116, Florida Statutes, is created\r\n 569 to read:\r\n 570 556.116<\/span>\u2003<\/span>High-priority subsurface installations; special<\/span>\r\n 571 procedures.\u2014<\/span>\r\n 572 (1)<\/span>\u2003<\/span>As used in this section, the term:<\/span>\r\n 573 (a)<\/span>\u2003<\/span>\u201cDivision\u201d means the Division of Administrative<\/span>\r\n 574 |
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