September 26, 2020
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HB 691

A bill to be entitled
2An act relating to underground facility damage prevention
3and safety; amending s. 556.101, F.S.; clarifying
4legislative intent that the state has exclusive power to
5regulate underground facilities; prohibiting
6municipalities, counties, districts, and other local
7governments from enacting ordinances or rules that
8regulate the subject of underground facilities; amending
9s. 556.102, F.S.; defining the terms "high-priority
10subsurface installations" and "incident"; amending s.
11556.103, F.S.; requiring that the board of directors of
12Sunshine State One-Call of Florida, Inc., present to the
13Governor and Legislature an annual report that includes a
14summary of reports issued by the clerks of court; amending
15s. 556.105, F.S.; requiring that an excavator provide the
16Sunshine State One-Call of Florida, Inc., system with
17certain specified information not less than 10 full
18business days before beginning an excavation or demolition
19beneath the waters of the state; prohibiting the use of
20such information by member operators for sales or
21marketing purposes; deleting obsolete provisions; removing
22provisions requiring the premarking of certain proposed
23excavation sites; providing that if an excavation is
24proposed which is within 10 feet of a high-priority
25subsurface installation and is identified as a high-
26priority subsurface installation by the operator, the
27operator must notify the excavator of the existence of the
28high-priority subsurface installation and mark its
29location before the legal excavation start time; requiring
30a mutually agreed excavation plan for high-priority
31excavations; amending s. 556.106, F.S.; removing
32provisions that provide a limited waiver of sovereign
33immunity for the state and its agencies and subdivisions
34arising from matters involving underground facilities;
35amending s. 556.107, F.S.; providing penalties for
36noncriminal infractions of the Sunshine State One-Call of
37Florida, Inc., system; providing a civil penalty for each
38infraction; detailing procedures for citations; requiring
39each clerk of court to submit a report to Sunshine State
40One-Call of Florida, Inc., by a specified date listing
41each violation that has been filed in the county during
42the preceding calendar year; amending s. 556.109, F.S.;
43specifying circumstances under which an excavator need not
44notify the Sunshine State One-Call of Florida, Inc.,
45system that there is an emergency; amending s. 556.110,
46F.S.; deleting a provision that limits assessments against
47a member operator who receives fewer than 10 notifications
48in any month; creating s. 556.114, F.S.; providing
49requirements for low-impact marking practices; providing
50procedures and methods to mark areas of excavation;
51requiring Sunshine State One-Call of Florida, Inc., to
52establish an educational program for the purpose of
53informing excavators and member operators about low-impact
54marking practices; creating s. 556.115, F.S.; requiring
55Sunshine State One-Call of Florida, Inc., to create a
56voluntary alternative dispute resolution program that is
57open to all member operators, excavators, and other
58stakeholders; requiring the voluntary users of the
59alternative dispute resolution program to choose the form
60of alternative dispute resolution to be used; requiring
61that the costs of using the voluntary program be borne by
62the users; providing that unless binding arbitration is
63the chosen method of alternative dispute resolution, the
64users or any one of such users may end the process at any
65time and proceed in a court of competent jurisdiction or
66before the Division of Administrative Hearings; providing
67an effective date.
69Be It Enacted by the Legislature of the State of Florida:
71     Section 1.  Paragraph (d) of subsection (3) of section
72556.101, Florida Statutes, is amended to read:
73     556.101  Short title; legislative intent.-
74     (3)  It is the purpose of this chapter to:
75     (d)  Reserve and preempt to the state the exclusive power
76to regulate any subject matter specifically addressed in this
77chapter. Municipalities, counties, districts, or other local
78governments may not enact ordinances or rules or take other
79actions that regulate any subject addressed in this chapter or
80by Sunshine State One-Call of Florida, Inc., under this chapter,
81including delegations of authority to Sunshine State One-Call of
82Florida, Inc. Any ordinance or rule in existence on June 30,
832010, which is in conflict with this chapter is no longer valid
84or enforceable on or after July 1, 2010.
85     Section 2.  Present subsections (8) through (14) of section
86556.102, Florida Statutes, are renumbered as subsections (10)
87through (16), respectively, and new subsections (8) and (9) are
88added to that section, to read:
89     556.102  Definitions.-As used in this act:
90     (8)  "High-priority subsurface installations" means certain
91gas transmission, gas distribution, gasoline, petroleum, and
92other flammable, explosive, or corrosive commodity pipelines
93that are deemed to be critical by the operators of those
95     (9)  "Incident" means an event that involves damage to an
96underground facility in a high-priority zone which results in
97death or personal injury that requires inpatient hospitalization
98or causes property damage, including service-restoration costs
99in an amount in excess of $50,000 or interruption of service to
100more than 2,500 customers.
101     Section 3.  Subsections (4) and (5) of section 556.103,
102Florida Statutes, are amended to read:
103     556.103  Creation of the corporation; establishment of the
104board of directors; authority of the board; annual report.-
105     (4)  Beginning in 1994, The board of directors shall file
106with the Governor, not later than 60 days before the convening
107of each regular session of the Legislature, an annual progress
108report on the operation of the system, which must include a
109summary of the reports to the system from the clerks of court.
110     (5)  Beginning in 1998, The board of directors shall submit
111to the President of the Senate, the Speaker of the House of
112Representatives, and the Governor, not later than 60 days before
113the convening of each regular session of the Legislature, an
114annual progress report on the participation by municipalities
115and counties in the one-call notification system created by this
116chapter. The report must include a summary of the reports to the
117system from the clerks of court.
118     Section 4.  Paragraphs (a) and (d) of subsection (1),
119subsections (5) and (6), paragraph (a) of subsection (7),
120paragraph (a) of subsection (9), and subsection (11) of section
121556.105, Florida Statutes, are amended to read:
122     556.105  Procedures.-
123     (1)(a)  Not less than 2 full business days before beginning
124any excavation or demolition that is not, except an excavation
125beneath the waters of the state, and not less than 10 full
126business days before beginning any excavation or demolition that
127is beneath the waters of the state, an excavator shall provide
128the following information through the system:
129     1.  The name of the individual who provided notification
130and the name, address, including the street address, city,
131state, zip code, and telephone number of her or his employer.
132     2.  The name and telephone number of the representative for
133the excavator, and a valid electronic address to facilitate a
134positive response by the system should be provided, if
136     3.  The county, the city or closest city, and the street
137address or the closest street, road, or intersection to the
138location where the excavation or demolition is to be performed,
139and the construction limits of the excavation or demolition.
140     4.  The commencement date and anticipated duration of the
141excavation or demolition.
142     5.  Whether machinery will be used for the excavation or
144     6.  The person or entity for whom the work is to be done.
145     7.  The type of work to be done.
146     8.  The approximate depth of the excavation.
147     (d)  Member operators shall use the information provided to
148the system by other member operators only for the purposes
149stated in this chapter and not for sales or marketing purposes.
150     1.  The system shall study the feasibility of the
151establishment or recognition of zones for the purpose of
152allowing excavation within such zones to be undertaken without
153notice to the system as now required by this chapter when such
154zones are:
155     a.  In areas within which no underground facilities are
157     b.  Where permanent markings, permit and mapping systems,
158and structural protection for underwater crossings are required
159or in place.
160     c.  For previously marked utilities on construction of one-
161or two-family dwellings where the contractor remains in custody
162and control of the building site for the duration of the
163building permit.
164     2.  The system shall report the results of the study to the
165Legislature on or before February 1, 2007, along with
166recommendations for further legislative action.
167     (5)  All member operators within the defined area of a
168proposed excavation or demolition shall be promptly notified
169through the system, except that member operators with state-
170owned underground facilities located within the right-of-way of
171a state highway need not be notified of excavation or demolition
172activities and are under no obligation to mark or locate the
174     (a)  When an excavation site cannot be described in
175information provided under subparagraph (1)(a)3. with sufficient
176particularity to enable the member operator to ascertain the
177excavation site, and if the excavator and member operator have
178not mutually agreed otherwise, the excavator shall premark the
179proposed area of the excavation before a member operator is
180required to identify the horizontal route of its underground
181facilities in the proximity of any excavation. However,
182premarking is not required for any excavation that is over 500
183feet in length and is not required where the premarking could
184reasonably interfere with traffic or pedestrian control.
185     (a)(b)  If a member operator determines that a proposed
186excavation or demolition is in proximity to or in conflict with
187an underground facility of the member operator, except a
188facility beneath the waters of the state, which is governed by
189paragraph (b) (c), the member operator shall identify the
190horizontal route by marking to within 24 inches from the outer
191edge of either side of the underground facility by the use of
192stakes, paint, flags, or other suitable means within 2 full
193business days after the time the notification is received under
194subsection (1). If the member operator is unable to respond
195within such time, the member operator shall communicate with the
196person making the request and negotiate a new schedule and time
197that is agreeable to, and should not unreasonably delay, the
199     (b)(c)  If a member operator determines that a proposed
200excavation is in proximity to or in conflict with an underground
201facility of the member operator beneath the waters of the state,
202the member operator shall identify the estimated horizontal
203route of the underground facility, within 10 business days,
204using marking buoys or other suitable devices, unless directed
205otherwise by an agency having jurisdiction over the waters of
206the state under which the member operator's underground facility
207is located.
208     (c)(d)  When excavation is to take place within a tolerance
209zone, an excavator shall use increased caution to protect
210underground facilities. The protection requires hand digging,
211pot holing, soft digging, vacuum excavation methods, or other
212similar procedures to identify underground facilities. Any use
213of mechanized equipment within the tolerance zone must be
214supervised by the excavator.
215     (d)  If an excavation is proposed which is within 10 feet
216of a high-priority subsurface installation and is identified as
217a high-priority subsurface installation by the operator, the
218operator shall notify the excavator of the existence of the
219high-priority subsurface installation and shall mark its
220location before the legal excavation start time, as set forth in
221paragraphs (a) and (b). After receiving notice of the existence
222of a high-priority subsurface installation, an excavator shall
223provide notice to the operator of the planned excavation start
224date and time. Before excavation begins, the excavator and
225operator shall communicate in order to establish a mutually
226agreed-upon excavation plan.
227     (6)(a)  An excavator shall avoid excavation in the area
228described in the notice given under subsection (1) until each
229member operator underground facility has been marked and located
230or until the excavator has been notified that no member operator
231has underground facilities in the area described in the notice,
232or for the time allowed for markings set forth in paragraphs
233(5)(a) and (b) (5)(b) and (c), whichever occurs first. If a
234member operator has not located and marked its underground
235facilities within the time allowed for marking set forth in
236paragraphs (5)(a) and (b) (5)(b) and (c), the excavator may
237proceed with the excavation, if the excavator does so with
238reasonable care and if detection equipment or other acceptable
239means to locate underground facilities are used.
240     (b)  An excavator may not demolish in the area described in
241the notice given under subsection (1) until all member operator
242underground facilities have been marked and located or removed.
243     (7)(a)  A member operator that states that it does not have
244accurate information concerning the exact location of its
245underground facilities is exempt from the requirements of
246paragraphs (5)(a) and (b) (5)(b) and (c), but shall provide the
247best available information to the excavator in order to comply
248with the requirements of this section. An excavator is not
249liable for any damage to an underground facility under the
250exemption in this subsection if the excavation or demolition is
251performed with reasonable care and detection equipment or other
252acceptable means to locate underground facilities are used.
253     (9)(a)  After receiving notification from the system, a
254member operator shall provide a positive response to the system
255within 2 full business days, or 10 such days for an underwater
256excavation or demolition, indicating the status of operations to
257protect the facility.
258     (11)  Before or during excavation or demolition, if the
259marking of the horizontal route of any facility is removed or is
260no longer visible, or, in the case of an underwater facility, is
261inadequately documented, the excavator shall stop excavation or
262demolition activities in the vicinity of the facility and shall
263notify the system to have the route remarked or adequately
265     Section 5.  Paragraph (a) of subsection (2) and subsections
266(3) and (7) of section 556.106, Florida Statutes, are amended to
268     556.106  Liability of the member operator, excavator, and
270     (2)(a)  If a person violates s. 556.105(1) or (6), and
271subsequently, whether by himself or herself or through the
272person's employees, contractors, subcontractors, or agents,
273performs an excavation or demolition that damages an underground
274facility of a member operator, it is rebuttably presumed that
275the person was negligent. The person, if found liable, is liable
276for the total sum of the losses to all member operators involved
277as those costs are normally computed. Any damage for loss of
278revenue and loss of use may not exceed $500,000 per affected
279underground facility, except that revenues lost by a
280governmental member operator whose revenues are used to support
281payments on principal and interest on bonds may not be limited.
282Any liability of the state and its agencies and its subdivisions
283which arises out of this chapter is subject to the provisions of
284s. 768.28.
285     (3)  If, after receiving proper notice, a member operator
286fails to discharge a duty imposed by the provisions of this act
287and an underground facility of a such member operator is damaged
288by an excavator who has complied with the provisions of this
289act, as a proximate result of the member operator's failure to
290discharge such duty, the such excavator is shall not be liable
291for such damage and the member operator, if found liable, is
292shall be liable to such person for the total cost of any loss or
293injury to any person or damage to equipment resulting from the
294member operator's failure to comply with this act. Any damage
295for loss of revenue and loss of use shall not exceed $500,000
296per affected underground facility, except that revenues lost by
297a governmental member operator, which revenues are used to
298support payments on principal and interest on bonds, shall not
299be limited. The liability of governmental member operators shall
300be subject to limitations provided in chapter 768.
301     (7)  An excavator or a member operator who performs any
302excavation with hand tools under s. 556.108(4)(c) or (5) is
303liable for any damage to any operator's underground facilities
304damaged during such excavation.
305     Section 6.  Section 556.107, Florida Statutes, is amended
306to read:
307     556.107  Violations.-
309     (a)  Violations of the following provisions are noncriminal
311     1.  Section 556.105(1), relating to providing required
313     2.  Section 556.105(6), relating to the avoidance of
315     3.  Section 556.105(11), relating to the need to stop
316excavation or demolition because marks are no longer visible,
317or, in the case of underwater facilities, are inadequately
319     4.  Section 556.105(12), relating to the need to cease
320excavation or demolition activities because of contact or damage
321to an underground facility.
322     5.  Section 556.105(5)(a) and (b), 556.105(5)(b) and (c)
323relating to identification of underground facilities, if a
324member operator does not mark an underground facility, but not
325if a member operator marks an underground facility incorrectly.
326     6.  Section 556.109(2), relating to falsely notifying the
327system of an emergency situation or condition.
328     7.  Section 556.114(1), (2), (3), and (4), relating to a
329failure to follow low-impact marking practices, as defined
331     (b)  Any excavator or member operator who commits a
332noncriminal infraction under paragraph (a) may be issued a
333citation by any local or state law enforcement officer,
334government code inspector, or code enforcement officer, and the
335issuer of a citation may require an excavator to cease work on
336any excavation or not start a proposed excavation until there
337has been compliance with the provisions of this chapter.
338Citations shall be hand delivered to any employee of the
339excavator or member operator who is involved in the noncriminal
340infraction. The citation shall be issued in the name of the
341excavator or member operator, whichever is applicable.
342     (c)  Any excavator or member operator who commits a
343noncriminal infraction under paragraph (a) may be required to
344pay a appear before the county court. The civil penalty for each
345any such infraction, which is $500 $250 plus court costs, except
346as otherwise provided in this section. If a citation is issued
347by a local law enforcement officer, a local government code
348inspector, or a code enforcement officer, 80 percent of the
349civil penalty collected by the clerk of the court shall be
350distributed to the local governmental entity whose employee
351issued the citation and 20 percent of the penalty shall be
352retained by the clerk to cover administrative costs, in addition
353to other court costs. If a citation is issued by a state law
354enforcement officer, the civil penalty collected by the clerk
355shall be retained by the clerk for deposit into the fine and
356forfeiture fund established pursuant to s. 142.01. Any person
357who fails to appear or otherwise properly respond to a citation
358issued pursuant to paragraph (b) (d) shall, in addition to the
359citation, be charged with the offense of failing to respond to
360the such citation and, upon conviction, commits a misdemeanor of
361the second degree, punishable as provided in s. 775.082 or s.
362775.083. A written warning to this effect must shall be provided
363at the time any citation is issued pursuant to paragraph (b).
364     (d)  Any person cited for an infraction under paragraph
365(a), unless required to appear before the county court, may:
366     1.  post a bond, which shall be equal in amount to the
367applicable civil penalty plus court costs; or
368     2.  Sign and accept a citation indicating a promise to
369appear before the county court.
371The person issuing the citation may indicate on the citation the
372time and location of the scheduled hearing and shall indicate
373the applicable civil penalty.
374     (e)  A Any person charged with a noncriminal infraction
375under paragraph (a), unless required to appear before the county
376court, may:
377     1.  pay the civil penalty plus court costs, in lieu of
378appearance, either by mail or in person, within 30 days after
379the date of receiving the citation; or
380     2.  Forfeit bond, if a bond has been posted, by not
381appearing at the designated time and location.
383If the person cited pays the civil penalty follows either of the
384above procedures, she or he is deemed to have admitted to
385committing the infraction and to have waived the right to a
386hearing on the issue of commission of the infraction. The
387admission may be used as evidence in any other proceeding under
388this chapter.
389     (f)  Any person may elect electing to appear before the
390county court and if so electing or who is required to appear
391shall be deemed to have waived the limitations on the civil
392penalty specified in paragraph (c). The court, after a hearing,
393shall make a determination as to whether an infraction has been
394committed. If the commission of an infraction has been proven,
395the court may impose a civil penalty not to exceed $5,000 plus
396court costs. In determining the amount of the civil penalty, the
397court may consider previous noncriminal infractions committed.
398     (g)  At a court hearing or a hearing before the Division of
399Administrative Hearings under this chapter, the commission of a
400charged infraction must be proven by a preponderance of the
402     (h)  If a person is found by a judge or the hearing
403official to have committed an infraction, the person may appeal
404that finding to the circuit court.
405     (i)  Sunshine State One-Call of Florida, Inc., may, at its
406own cost, retain an attorney to assist in the presentation of
407relevant facts and law in the county court or administrative
408proceeding pertaining to the citation issued under this section
409or to any alleged violation that may have contributed to an
410alleged incident. The corporation may also appear in any case
411appealed to the circuit court if a county court judge or
412administrative hearing officer finds that an infraction of the
413chapter was committed. An appellant in the circuit court
414proceeding shall timely notify the corporation of any appeal
415under this section.
416     (j)1.  Violation of any of the infractions listed in
417paragraph (a) which may constitute an incident must be reported
418to the system by an excavator or a member operator within 24
419hours after learning that the threshold for an incident has been
421     2.  Upon receipt of information that an incident has
422occurred, the system shall contract with the Division of
423Administrative Hearings to conduct a hearing to determine
424whether there have been any violations of paragraph (a) which
425were a proximate cause of the incident.
426     3.  The division has jurisdiction in a proceeding under
427this paragraph to determine the facts and law surrounding any
428incident and to impose a fine against any violator in an amount
429that may not exceed $50,000 for any violation of paragraph (a)
430which was a proximate cause of the incident.
431     4.  Any fine imposed by the division must be in addition to
432any amount payable as a result of a citation relating to the
434     5.  A fine against an excavator or a member operator levied
435under this paragraph must be paid to the system, which shall use
436the proceeds of the fines exclusively for damage-prevention
438     (2)  REPORT OF INFRACTIONS.-By March 31 of each year, each
439clerk of court shall submit a report to Sunshine State One-Call
440of Florida, Inc., listing each violation notice written under
441paragraph (1)(a) which has been filed in that county during the
442preceding calendar year. The report must state the name and
443address of the member or excavator who committed each infraction
444and indicate whether or not the civil penalty for the infraction
445was paid.
446     (3)(2)  MISDEMEANORS.-Any person who knowingly and
447willfully removes or otherwise destroys the valid stakes or
448other valid physical markings described in s. 556.105(5)(a) and
449(b) s. 556.105(5)(b) and (c) used to mark the horizontal route
450of an underground facility commits a misdemeanor of the second
451degree, punishable as provided in s. 775.082 or s. 775.083. For
452purposes of this subsection, stakes or other nonpermanent
453physical markings are considered valid for 30 calendar days
454after information is provided to the system under s.
455556.105(1)(a) s. 556.105(1)(c).
456     Section 7.  Section 556.109, Florida Statutes, is amended
457to read:
458     556.109  Emergency excavations or demolitions attempted;
460     (1)  The provisions of This act does do not apply to making
461an excavation or demolition during an emergency if, provided the
462system or the member operator was notified at the earliest
463opportunity and all reasonable precautions had been taken to
464protect any underground facility. For the purposes of this act,
465"emergency" means any condition constituting a clear and present
466danger to life or property; a situation caused by the escape of
467any substance transported by means of an underground facility;
468any interruption of vital public service or communication caused
469by any break or defect in a member operator's underground
470facility; or, in the case of the State Highway System or streets
471or roads maintained by a political subdivision or underground
472facilities owned, operated, or maintained by a political
473subdivision, if the use of such highways, streets, roads, or
474underground facilities is, in the sole judgment of the
475Department of Highway Safety and Motor Vehicles, the Department
476of Transportation, or such political subdivision, impaired by an
477unforeseen occurrence that which necessitates repair beginning
478immediately after such occurrence.
479     (2)  An excavator need not notify the system that there is
480an emergency unless the excavator reasonably believes that the
481intended excavation or demolition is due to a situation or
482condition as defined in subsection (1).
483     Section 8.  Section 556.110, Florida Statutes, is amended
484to read:
485     556.110  Costs assessed among member operators.-Member
486operators shall proportionately share in the cost of operating
487the system through monthly assessments made upon each member
488operator. However, any member that receives fewer than 10
489notifications in any month shall not be assessed for such month.
490     Section 9.  Section 556.114, Florida Statutes, is created
491to read:
492     556.114  Low-impact marking practices.-
493     (1)  An excavator providing notice under s. 556.105(1)(a)
494shall identify in its notice only the area that will be
495excavated during the period that the information in such notice
496is considered valid under s. 556.105(1)(c).
497     (2)  When an excavator has not completed an excavation
498noticed under s. 556.105(1)(a) within the period that the
499information in the notice is considered valid under s.
500556.105(1)(c), the excavator must provide a subsequent notice to
501the system under s. 556.105(1)(a) to continue with the
502excavation, and such subsequent notice shall identify only the
503remaining area to be excavated.
504     (3)  When an excavation site cannot be described in
505information provided under s. 556.105(1)(a) with sufficient
506particularity to enable the member operator to ascertain the
507excavation site, and if the excavator and member operator have
508not mutually agreed otherwise, the excavator shall premark the
509proposed area of the excavation before a member operator is
510required to identify the horizontal route of its underground
511facilities in the proximity of any excavation. However,
512premarking is not required when the premarking could reasonably
513interfere with traffic or pedestrian control.
514     (4)  Member operators shall mark the area described or
515premarked by the excavator using temporary, nonpermanent paint,
516flags, stakes, and other acceptable means.
517     (5)  Any horizontal route-identification marker must be in
518a color identified in the Uniform Color Code for Utilities.
519     (6)  Sunshine State One-Call of Florida, Inc., shall
520establish an educational program for the purpose of informing
521excavators and member operators about low-impact marking
523     Section 10.  Section 556.115, Florida Statutes, is created
524to read:
525     556.115  Alternative dispute resolution.-
526     (1)  Sunshine State One-Call of Florida, Inc., shall create
527a voluntary alternative dispute resolution program. The program
528shall be available to all member operators, excavators, and
529other stakeholders, such as locators, utility service users, and
530governmental or quasi-governmental entities, for purposes of
531resolving disputes arising from excavation activities,
532including, but not limited to, loss of services, down time,
533delays, loss of use of facilities during restoration or
534replacement, and similar economic disruptions, exclusive of
535penalties imposed under other provisions of this act.
536     (2)  The alternative dispute resolution program created by
537Sunshine State One-Call of Florida, Inc., shall include
538mediation, arbitration, or other appropriate processes,
539including the use of the services of the Division of
540Administrative Hearings.
541     (3)  The costs of using the program shall be borne by the
542voluntary users, and the voluntary users shall choose the form
543of alternative dispute resolution to be used. If arbitration is
544used, the users shall decide whether the arbitration will be
546     (4)  Unless binding arbitration is the chosen method of
547alternative dispute resolution, the users or any one of such
548users may end the process at any time and exercise the right to
549proceed in a court of competent jurisdiction or before the
550Division of Administrative Hearings.
551     (5)  This section does not change the basis for civil
552liability for damages.
553     Section 11.  This act shall take effect July 1, 2010.

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