January 27, 2020
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CS/HB 691

1
A bill to be entitled
2An act relating to underground facility damage prevention
3and safety; amending s. 556.101, F.S.; prohibiting
4municipalities, counties, districts, and other local
5governments from enacting ordinances or rules that
6conflict with specified provisions; amending s. 556.103,
7F.S.; requiring that the board of directors of Sunshine
8State One-Call of Florida, Inc., present to the Governor
9and Legislature an annual report that includes a summary
10of reports issued by the clerks of court; amending s.
11556.105, F.S.; requiring that an excavator provide the
12Sunshine State One-Call of Florida, Inc., system with
13certain specified information not less than 10 full
14business days before beginning an excavation or demolition
15beneath the waters of the state; prohibiting the use of
16such information by member operators for sales or
17marketing purposes; deleting obsolete provisions; removing
18provisions requiring the premarking of certain proposed
19excavation sites; requiring a mutually agreed excavation
20plan for high-priority excavations; amending s. 556.106,
21F.S.; removing redundant provisions that provide a limited
22waiver of sovereign immunity for the state, its agencies,
23and its political subdivisions arising from matters
24involving underground facilities; amending s. 556.107,
25F.S.; providing increased penalties for noncriminal
26infractions of the Sunshine State One-Call of Florida,
27Inc., system; requiring each clerk of court to submit a
28report to Sunshine State One-Call of Florida, Inc., by a
29specified date listing each violation that has been filed
30in the county during the preceding calendar year; amending
31s. 556.109, F.S.; specifying circumstances under which an
32excavator shall not notify the Sunshine State One-Call of
33Florida, Inc., system that there is an emergency; amending
34s. 556.110, F.S.; deleting a provision that limits
35assessments against a member operator who receives fewer
36than 10 notifications in any month; creating s. 556.114,
37F.S.; providing requirements for low-impact marking
38practices; providing procedures and methods to mark areas
39of excavation; requiring Sunshine State One-Call of
40Florida, Inc., to establish an educational program for the
41purpose of informing excavators and member operators about
42low-impact marking practices; creating s. 556.115, F.S.;
43requiring Sunshine State One-Call of Florida, Inc., to
44create a voluntary alternative dispute resolution program
45that is open to all member operators, excavators, and
46other stakeholders; requiring the voluntary users of the
47alternative dispute resolution program to choose the form
48of alternative dispute resolution to be used; requiring
49that the costs of using the voluntary program be borne by
50the users; providing that unless binding arbitration is
51the chosen method of alternative dispute resolution, the
52users or any one of such users may end the process at any
53time and proceed in a court of competent jurisdiction or
54before the Division of Administrative Hearings; creating
55s. 556.116, F.S.; defining the terms "division," "high-
56priority subsurface installation," and "incident";
57providing that if an excavation is proposed within 15 feet
58of a high-priority subsurface installation and is
59identified as such by the facility operator, the facility
60operator must notify the excavator of the existence of the
61high-priority subsurface installation and mark its
62location before excavation may begin; requiring an
63excavator to notify the operator of the excavation start
64time in the vicinity of a high-priority subsurface
65installation; providing that an alleged infraction that
66results in an incident must be reported to the system by
67an operator or an excavator; providing that the system
68shall transmit incident reports to the Division of
69Administrative Hearings; providing that the system and the
70division may contract for the division to conduct
71proceedings; providing that the division has jurisdiction
72to determine the facts and law concerning an alleged
73incident; authorizing the division to impose a fine for a
74violation if the violation was a proximate cause of the
75incident; providing procedures, venue, and standard of
76proof; providing an effective date.
77
78Be It Enacted by the Legislature of the State of Florida:
79
80     Section 1.  Paragraph (d) of subsection (3) of section
81556.101, Florida Statutes, is amended to read:
82     556.101  Short title; legislative intent.-
83     (3)  It is the purpose of this chapter to:
84     (d)  Reserve to the state the power to regulate any subject
85matter specifically addressed in this chapter. Municipalities,
86counties, districts, or other local governments may not adopt or
87enforce ordinances or rules that conflict with this chapter or
88that prescribe any of the following:
89     1.  Require operators of underground facilities to obtain
90permits from local governments in order to identify underground
91facilities.
92     2.  Require premarking or marking.
93     3.  Specify the types of paint or other marking devices
94that are used to identify underground facilities.
95     4.  Require removal of marks.
96     Section 2.  Subsections (4) and (5) of section 556.103,
97Florida Statutes, are amended to read:
98     556.103  Creation of the corporation; establishment of the
99board of directors; authority of the board; annual report.-
100     (4)  Beginning in 1994, The board of directors shall file
101with the Governor, not later than 60 days before the convening
102of each regular session of the Legislature, an annual progress
103report on the operation of the system, which must include a
104summary of the reports to the system from the clerks of court.
105     (5)  Beginning in 1998, The board of directors shall submit
106to the President of the Senate, the Speaker of the House of
107Representatives, and the Governor, not later than 60 days before
108the convening of each regular session of the Legislature, an
109annual progress report on the participation by municipalities
110and counties in the one-call notification system created by this
111chapter. The report must include a summary of the reports to the
112system from the clerks of court.
113     Section 3.  Paragraphs (a) and (d) of subsection (1),
114subsections (5) and (6), paragraph (a) of subsection (7),
115paragraph (a) of subsection (9), and subsection (11) of section
116556.105, Florida Statutes, are amended to read:
117     556.105  Procedures.-
118     (1)(a)  Not less than 2 full business days before beginning
119any excavation or demolition that is not, except an excavation
120beneath the waters of the state, and not less than 10 full
121business days before beginning any excavation or demolition that
122is beneath the waters of the state, an excavator shall provide
123the following information through the system:
124     1.  The name of the individual who provided notification
125and the name, address, including the street address, city,
126state, zip code, and telephone number of her or his employer.
127     2.  The name and telephone number of the representative for
128the excavator, and a valid electronic address to facilitate a
129positive response by the system should be provided, if
130available.
131     3.  The county, the city or closest city, and the street
132address or the closest street, road, or intersection to the
133location where the excavation or demolition is to be performed,
134and the construction limits of the excavation or demolition.
135     4.  The commencement date and anticipated duration of the
136excavation or demolition.
137     5.  Whether machinery will be used for the excavation or
138demolition.
139     6.  The person or entity for whom the work is to be done.
140     7.  The type of work to be done.
141     8.  The approximate depth of the excavation.
142     (d)  Member operators shall use the information provided to
143the system by other member operators only for the purposes
144stated in this chapter and not for sales or marketing purposes.
145     1.  The system shall study the feasibility of the
146establishment or recognition of zones for the purpose of
147allowing excavation within such zones to be undertaken without
148notice to the system as now required by this chapter when such
149zones are:
150     a.  In areas within which no underground facilities are
151located.
152     b.  Where permanent markings, permit and mapping systems,
153and structural protection for underwater crossings are required
154or in place.
155     c.  For previously marked utilities on construction of one-
156or two-family dwellings where the contractor remains in custody
157and control of the building site for the duration of the
158building permit.
159     2.  The system shall report the results of the study to the
160Legislature on or before February 1, 2007, along with
161recommendations for further legislative action.
162     (5)  All member operators within the defined area of a
163proposed excavation or demolition shall be promptly notified
164through the system, except that member operators with state-
165owned underground facilities located within the right-of-way of
166a state highway need not be notified of excavation or demolition
167activities and are under no obligation to mark or locate the
168facilities.
169     (a)  When an excavation site cannot be described in
170information provided under subparagraph (1)(a)3. with sufficient
171particularity to enable the member operator to ascertain the
172excavation site, and if the excavator and member operator have
173not mutually agreed otherwise, the excavator shall premark the
174proposed area of the excavation before a member operator is
175required to identify the horizontal route of its underground
176facilities in the proximity of any excavation. However,
177premarking is not required for any excavation that is over 500
178feet in length and is not required where the premarking could
179reasonably interfere with traffic or pedestrian control.
180     (a)(b)  If a member operator determines that a proposed
181excavation or demolition is in proximity to or in conflict with
182an underground facility of the member operator, except a
183facility beneath the waters of the state, which is governed by
184paragraph (b) (c), the member operator shall identify the
185horizontal route by marking to within 24 inches from the outer
186edge of either side of the underground facility by the use of
187stakes, paint, flags, or other suitable means within 2 full
188business days after the time the notification is received under
189subsection (1). If the member operator is unable to respond
190within such time, the member operator shall communicate with the
191person making the request and negotiate a new schedule and time
192that is agreeable to, and should not unreasonably delay, the
193excavator.
194     (b)(c)  If a member operator determines that a proposed
195excavation is in proximity to or in conflict with an underground
196facility of the member operator beneath the waters of the state,
197the member operator shall identify the estimated horizontal
198route of the underground facility, within 10 business days,
199using marking buoys or other suitable devices, unless directed
200otherwise by an agency having jurisdiction over the waters of
201the state under which the member operator's underground facility
202is located.
203     (c)(d)  When excavation is to take place within a tolerance
204zone, an excavator shall use increased caution to protect
205underground facilities. The protection requires hand digging,
206pot holing, soft digging, vacuum excavation methods, or other
207similar procedures to identify underground facilities. Any use
208of mechanized equipment within the tolerance zone must be
209supervised by the excavator.
210     (6)(a)  An excavator shall avoid excavation in the area
211described in the notice given under subsection (1) until each
212member operator underground facility has been marked and located
213or until the excavator has been notified that no member operator
214has underground facilities in the area described in the notice,
215or for the time allowed for markings set forth in paragraphs
216(5)(a) and (b) (5)(b) and (c), whichever occurs first. If a
217member operator has not located and marked its underground
218facilities within the time allowed for marking set forth in
219paragraphs (5)(a) and (b) (5)(b) and (c), the excavator may
220proceed with the excavation, if the excavator does so with
221reasonable care and if detection equipment or other acceptable
222means to locate underground facilities are used.
223     (b)  An excavator may not demolish in the area described in
224the notice given under subsection (1) until all member operator
225underground facilities have been marked and located or removed.
226     (7)(a)  A member operator that states that it does not have
227accurate information concerning the exact location of its
228underground facilities is exempt from the requirements of
229paragraphs (5)(a) and (b) (5)(b) and (c), but shall provide the
230best available information to the excavator in order to comply
231with the requirements of this section. An excavator is not
232liable for any damage to an underground facility under the
233exemption in this subsection if the excavation or demolition is
234performed with reasonable care and detection equipment or other
235acceptable means to locate underground facilities are used.
236     (9)(a)  After receiving notification from the system, a
237member operator shall provide a positive response to the system
238within 2 full business days, or 10 such days for an underwater
239excavation or demolition, indicating the status of operations to
240protect the facility.
241     (11)  Before or during excavation or demolition, if the
242marking of the horizontal route of any facility is removed or is
243no longer visible, or, in the case of an underwater facility, is
244inadequately documented, the excavator shall stop excavation or
245demolition activities in the vicinity of the facility and shall
246notify the system to have the route remarked or adequately
247documented by a member operator or in a manner approved by the
248member operator.
249     Section 4.  Section 556.106, Florida Statutes, is amended
250to read:
251     556.106  Liability of the member operator, excavator, and
252system.-
253     (1)  There is no liability on the part of, and no cause of
254action of any nature shall arise against, the board members of
255the corporation in their capacity as administrators of the
256system.
257     (2)(a)  If a person violates s. 556.105(1) or (6), and
258subsequently, whether by himself or herself or through the
259person's employees, contractors, subcontractors, or agents,
260performs an excavation or demolition that damages an underground
261facility of a member operator, it is rebuttably presumed that
262the person was negligent. The person, if found liable, is liable
263for the total sum of the losses to all member operators involved
264as those costs are normally computed. Any damage for loss of
265revenue and loss of use may not exceed $500,000 per affected
266underground facility, except that revenues lost by a
267governmental member operator whose revenues are used to support
268payments on principal and interest on bonds may not be limited.
269Any liability of the state and its agencies and its subdivisions
270which arises out of this chapter is subject to the provisions of
271s. 768.28.
272     (b)  If any excavator fails to discharge a duty imposed by
273the provisions of this chapter, the excavator, if found liable,
274is liable for the total sum of the losses to all parties
275involved as those costs are normally computed. Any damage for
276loss of revenue and loss of use may not exceed $500,000 per
277affected underground facility, except that revenues lost by a
278governmental member operator whose revenues are used to support
279payments on principal and interest on bonds may not be limited.
280     (c)  Any liability of the state, its agencies, or its
281subdivisions which arises out of this chapter is subject to the
282provisions of s. 768.28.
283     (c)(d)  Obtaining information as to the location of an
284underground facility from the member operator as required by
285this chapter does not excuse any excavator from performing an
286excavation or demolition in a careful and prudent manner, based
287on accepted engineering and construction practices, and it does
288not excuse the excavator from liability for any damage or injury
289resulting from any excavation or demolition.
290     (3)  If, after receiving proper notice, a member operator
291fails to discharge a duty imposed by the provisions of this act
292and an underground facility of a such member operator is damaged
293by an excavator who has complied with the provisions of this
294act, as a proximate result of the member operator's failure to
295discharge such duty, the such excavator is shall not be liable
296for such damage and the member operator, if found liable, is
297shall be liable to such person for the total cost of any loss or
298injury to any person or damage to equipment resulting from the
299member operator's failure to comply with this act. Any damage
300for loss of revenue and loss of use shall not exceed $500,000
301per affected underground facility, except that revenues lost by
302a governmental member operator, which revenues are used to
303support payments on principal and interest on bonds, shall not
304be limited. The liability of governmental member operators shall
305be subject to limitations provided in chapter 768.
306     (4)  If an owner of an underground facility fails to become
307a member of the corporation in order to use and participate in
308the system, as required by this act, and that failure is a cause
309of damage to that underground facility caused by an excavator
310who has complied with the provisions of this act and has
311exercised reasonable care in the performance of the excavation
312that has caused damage to the underground facility, the owner
313has no right of recovery against the excavator for the damage to
314that underground facility.
315     (5)  If, after receiving proper notification, the system
316fails to discharge its duties, resulting in damage to an
317underground facility, the system, if found liable, shall be
318liable to all parties, as defined in this act. Any damage for
319loss of revenue and loss of use shall not exceed $500,000 per
320affected underground facility, except that revenues lost by a
321governmental member operator, which revenues are used to support
322payments on principal and interest on bonds, shall not be
323limited.
324     (6)  The system does not have a duty to mark or locate
325underground facilities and may not do so, and a right of
326recovery does not exist against the system for failing to mark
327or locate underground facilities. The system is not liable for
328the failure of a member operator to comply with the requirements
329of this chapter.
330     (7)  An excavator or a member operator who performs any
331excavation with hand tools under s. 556.108(4)(c) or (5) is
332liable for any damage to any operator's underground facilities
333damaged during such excavation.
334     (8)  Any liability of the state, its agencies, or its
335subdivisions which arises out of this chapter is subject to the
336provisions of s. 768.28.
337     Section 5.  Section 556.107, Florida Statutes, is amended
338to read:
339     556.107  Violations.-
340     (1)  NONCRIMINAL INFRACTIONS.-
341     (a)  Violations of the following provisions are noncriminal
342infractions:
343     1.  Section 556.105(1), relating to providing required
344information.
345     2.  Section 556.105(6), relating to the avoidance of
346excavation.
347     3.  Section 556.105(11), relating to the need to stop
348excavation or demolition because marks are no longer visible,
349or, in the case of underwater facilities, are inadequately
350documented.
351     4.  Section 556.105(12), relating to the need to cease
352excavation or demolition activities because of contact or damage
353to an underground facility.
354     5.  Section 556.105(5)(a) and (b), 556.105(5)(b) and (c)
355relating to identification of underground facilities, if a
356member operator does not mark an underground facility, but not
357if a member operator marks an underground facility incorrectly.
358     6.  Section 556.109(2), relating to falsely notifying the
359system of an emergency situation or condition.
360     7.  Section 556.114(1), (2), (3), and (4), relating to a
361failure to follow low-impact marking practices, as defined
362therein.
363     (b)  Any excavator or member operator who commits a
364noncriminal infraction under paragraph (a) may be issued a
365citation by any local or state law enforcement officer,
366government code inspector, or code enforcement officer, and the
367issuer of a citation may require an excavator to cease work on
368any excavation or not start a proposed excavation until there
369has been compliance with the provisions of this chapter.
370Citations shall be hand delivered to any employee of the
371excavator or member operator who is involved in the noncriminal
372infraction. The citation shall be issued in the name of the
373excavator or member operator, whichever is applicable.
374     (c)  Any excavator or member operator who commits a
375noncriminal infraction under paragraph (a) may be required to
376pay a appear before the county court. The civil penalty for each
377any such infraction, which is $500 $250 plus court costs, except
378as otherwise provided in this section. If a citation is issued
379by a local law enforcement officer, a local government code
380inspector, or a code enforcement officer, 80 percent of the
381civil penalty collected by the clerk of the court shall be
382distributed to the local governmental entity whose employee
383issued the citation and 20 percent of the penalty shall be
384retained by the clerk to cover administrative costs, in addition
385to other court costs. If a citation is issued by a state law
386enforcement officer, the civil penalty collected by the clerk
387shall be retained by the clerk for deposit into the fine and
388forfeiture fund established pursuant to s. 142.01. Any person
389who fails to appear or otherwise properly respond to a citation
390issued pursuant to paragraph (b) (d) shall, in addition to the
391citation, be charged with the offense of failing to respond to
392the such citation and, upon conviction, commits a misdemeanor of
393the second degree, punishable as provided in s. 775.082 or s.
394775.083. A written warning to this effect must shall be provided
395at the time any citation is issued pursuant to paragraph (b).
396     (d)  Any person cited for an infraction under paragraph
397(a), unless required to appear before the county court, may:
398     1. post a bond, which shall be equal in amount to the
399applicable civil penalty plus court costs; or
400     2.  Sign and accept a citation indicating a promise to
401appear before the county court.
402
403The person issuing the citation may indicate on the citation the
404time and location of the scheduled hearing and shall indicate
405the applicable civil penalty.
406     (e)  A Any person charged with a noncriminal infraction
407under paragraph (a), unless required to appear before the county
408court, may:
409     1. pay the civil penalty plus court costs, in lieu of
410appearance, either by mail or in person, within 30 days after
411the date of receiving the citation; or
412     2.  Forfeit bond, if a bond has been posted, by not
413appearing at the designated time and location.
414
415If the person cited pays the civil penalty follows either of the
416above procedures, she or he is deemed to have admitted to
417committing the infraction and to have waived the right to a
418hearing on the issue of commission of the infraction. The
419admission may be used as evidence in any other proceeding under
420this chapter.
421     (f)  Any person may elect electing to appear before the
422county court and if so electing or who is required to appear
423shall be deemed to have waived the limitations on the civil
424penalty specified in paragraph (c). The court, after a hearing,
425shall make a determination as to whether an infraction has been
426committed. If the commission of an infraction has been proven,
427the court may impose a civil penalty not to exceed $5,000 plus
428court costs. In determining the amount of the civil penalty, the
429court may consider previous noncriminal infractions committed.
430     (g)  At a court hearing under this chapter, the commission
431of a charged infraction must be proven by a preponderance of the
432evidence.
433     (h)  If a person is found by a judge or the hearing
434official to have committed an infraction, the person may appeal
435that finding to the circuit court.
436     (i)  Sunshine State One-Call of Florida, Inc., may, at its
437own cost, retain an attorney to assist in the presentation of
438relevant facts and law in the county court proceeding pertaining
439to the citation issued under this section. The corporation may
440also appear in any case appealed to the circuit court if a
441county court judge finds that an infraction of the chapter was
442committed. An appellant in the circuit court proceeding shall
443timely notify the corporation of any appeal under this section.
444     (2)  REPORT OF INFRACTIONS.-By March 31 of each year, each
445clerk of court shall submit a report to Sunshine State One-Call
446of Florida, Inc., listing each violation notice written under
447paragraph (1)(a) which has been filed in that county during the
448preceding calendar year. The report must state the name and
449address of the member or excavator who committed each infraction
450and indicate whether or not the civil penalty for the infraction
451was paid.
452     (3)(2)  MISDEMEANORS.-Any person who knowingly and
453willfully removes or otherwise destroys the valid stakes or
454other valid physical markings described in s. 556.105(5)(a) and
455(b) s. 556.105(5)(b) and (c) used to mark the horizontal route
456of an underground facility commits a misdemeanor of the second
457degree, punishable as provided in s. 775.082 or s. 775.083. For
458purposes of this subsection, stakes or other nonpermanent
459physical markings are considered valid for 30 calendar days
460after information is provided to the system under s.
461556.105(1)(a) s. 556.105(1)(c).
462     Section 6.  Section 556.109, Florida Statutes, is amended
463to read:
464     556.109  Emergency excavations or demolitions attempted;
465exception.-
466     (1)  The provisions of This act does do not apply to making
467an excavation or demolition during an emergency if, provided the
468system or the member operator was notified at the earliest
469opportunity and all reasonable precautions had been taken to
470protect any underground facility. For the purposes of this act,
471"emergency" means any condition constituting a clear and present
472danger to life or property; a situation caused by the escape of
473any substance transported by means of an underground facility;
474any interruption of vital public service or communication caused
475by any break or defect in a member operator's underground
476facility; or, in the case of the State Highway System or streets
477or roads maintained by a political subdivision or underground
478facilities owned, operated, or maintained by a political
479subdivision, if the use of such highways, streets, roads, or
480underground facilities is, in the sole judgment of the
481Department of Highway Safety and Motor Vehicles, the Department
482of Transportation, or such political subdivision, impaired by an
483unforeseen occurrence that which necessitates repair beginning
484immediately after such occurrence.
485     (2)  An excavator shall not notify the system that there is
486an emergency unless the excavator reasonably believes that the
487intended excavation or demolition is due to a situation or
488condition as defined in subsection (1).
489     Section 7.  Section 556.110, Florida Statutes, is amended
490to read:
491     556.110  Costs assessed among member operators.-Member
492operators shall proportionately share in the cost of operating
493the system through monthly assessments made upon each member
494operator. However, any member that receives fewer than 10
495notifications in any month shall not be assessed for such month.
496     Section 8.  Section 556.114, Florida Statutes, is created
497to read:
498     556.114  Low-impact marking practices.-
499     (1)  An excavator providing notice under s. 556.105(1)(a)
500shall identify in its notice only the area that will be
501excavated during the period that the information in such notice
502is considered valid under s. 556.105(1)(c).
503     (2)  When an excavator has not completed an excavation
504noticed under s. 556.105(1)(a) within the period that the
505information in the notice is considered valid under s.
506556.105(1)(c), the excavator must provide a subsequent notice to
507the system under s. 556.105(1)(a) to continue with the
508excavation, and such subsequent notice shall identify only the
509remaining area to be excavated.
510     (3)  When an excavation site cannot be described in
511information provided under s. 556.105(1)(a) with sufficient
512particularity to enable the member operator to ascertain the
513excavation site, and if the excavator and member operator have
514not mutually agreed otherwise, the excavator shall premark the
515proposed area of the excavation before a member operator is
516required to identify the horizontal route of its underground
517facilities in the proximity of any excavation. However,
518premarking is not required when the premarking could reasonably
519interfere with traffic or pedestrian control.
520     (4)  A member operator shall identify the horizontal route
521of its underground facilities as set forth in s. 556.105(5)(a)
522and (b), and excavators shall premark an excavation site as set
523forth in subsection (3) using flags or stakes or temporary,
524nonpermanent paint or other industry-accepted low-impact marking
525practices.
526     (5)  Any horizontal route-identification marker must be in
527a color identified in the Uniform Color Code for Utilities.
528     (6)  Sunshine State One-Call of Florida, Inc., shall
529establish an educational program for the purpose of informing
530excavators and member operators about low-impact marking
531practices.
532     Section 9.  Section 556.115, Florida Statutes, is created
533to read:
534     556.115  Alternative dispute resolution.-
535     (1)  Sunshine State One-Call of Florida, Inc., shall create
536a voluntary alternative dispute resolution program. The program
537shall be available to all member operators, excavators, and
538other stakeholders, such as locators, utility service users, and
539governmental or quasi-governmental entities, for purposes of
540resolving disputes arising from excavation activities,
541including, but not limited to, loss of services, down time,
542delays, loss of use of facilities during restoration or
543replacement, and similar economic disruptions, exclusive of
544penalties imposed under other provisions of this act.
545     (2)  The alternative dispute resolution program created by
546Sunshine State One-Call of Florida, Inc., shall include
547mediation, arbitration, or other appropriate processes,
548including the use of the services of the Division of
549Administrative Hearings.
550     (3)  The costs of using the program shall be borne by the
551voluntary users, and the voluntary users shall choose the form
552of alternative dispute resolution to be used. If arbitration is
553used, the users shall decide whether the arbitration will be
554binding.
555     (4)  Unless binding arbitration is the chosen method of
556alternative dispute resolution, the users or any one of such
557users may end the process at any time and exercise the right to
558proceed in a court of competent jurisdiction or before the
559Division of Administrative Hearings.
560     (5)  This section does not change the basis for civil
561liability for damages.
562     Section 10.  Section 556.116, Florida Statutes, is created
563to read:
564     556.116  High-priority subsurface installations; special
565procedures.-
566     (1)  As used in this section, the term:
567     (a)  "Division" means the Division of Administrative
568Hearings.
569     (b)  "High-priority subsurface installation" means an
570underground gas transmission or gas distribution pipeline, an
571underground pipeline used to transport gasoline, jet fuel, or
572any other refined petroleum product or hazardous or highly
573volatile liquid, such as anhydrous ammonia or carbon dioxide, if
574the pipeline is deemed to be critical by the operator of the
575pipeline and is identified as a high-priority subsurface
576installation to an excavator who has provided a notice of intent
577to excavate pursuant to s. 556.105(1), or would have been
578identified as a high-priority subsurface installation except for
579the excavator's failure to give proper notice of intent to
580excavate.
581     (c)  "Incident" means an event that involves damage to a
582high-priority subsurface installation that has been identified
583as such by the operator according to the notification procedures
584set forth in subsection (2) and that:
585     1.  Results in death or serious bodily injury requiring
586inpatient hospitalization.
587     2.  Results in property damage, including service-
588restoration costs, in an amount in excess of $50,000 or
589interruption of service to 2,500 or more customers.
590     (2)  When an operator proposes to excavate or demolish
591within 15 feet of the horizontal route of an underground
592facility that has been identified as a high-priority subsurface
593installation by the operator of the facility, the operator
594shall, in addition to identifying the horizontal route of its
595facility as set forth in s. 556.105(5)(a) and (b), and within
596the time period set forth in s. 556.105(9)(a) for a positive
597response, notify the excavator that the facility is a high-
598priority subsurface installation. If the member operator
599provides such timely notice of the existence of a high-priority
600subsurface installation, an excavator shall notify the operator
601of the planned excavation start date and time before beginning
602excavation. If the member operator does not provide timely
603notice, the excavator may proceed, after waiting the prescribed
604time period set forth in s. 556.105(9)(a), to excavate without
605notifying the member operator of the excavation start date and
606time. The exemptions stated in s. 556.108 apply to the
607notification requirements in this subsection.
608     (3)(a)  An alleged commission of an infraction listed in s.
609556.107(1) which results in an incident must be reported to the
610system by a member operator or an excavator within 24 hours
611after learning of the alleged occurrence of an incident.
612     (b)  Upon receipt of an allegation that an incident has
613occurred, the system shall transmit an incident report to the
614division and contract with the division so that the division may
615conduct a hearing to determine whether an incident has occurred,
616and, if so, whether a violation of s. 556.107(1)(a) was a
617proximate cause of the incident. The contract for services to be
618performed by the division must include provisions for the system
619to reimburse the division for any costs incurred by the division
620for court reporters, transcript preparation, travel, facility
621rental, and other customary hearing costs, in the manner set
622forth in s. 120.65(11).
623     (c)  The division has jurisdiction in a proceeding under
624this section to determine the facts and law concerning an
625alleged incident. The division may impose a fine against a
626violator in an amount not to exceed $50,000 if the person
627violated a provision of s. 556.107(1)(a), and that violation was
628a proximate cause of the incident. However, if a state agency or
629political subdivision caused the incident, the state agency or
630political subdivision may not be fined in an amount in excess of
631$10,000.
632     (d)  A fine imposed by the division is in addition to any
633amount payable as a result of a citation relating to the
634incident under s. 556.107(1)(a).
635     (e)  A fine against an excavator or a member operator
636imposed under this subsection shall be paid to the system, which
637shall use the collected fines to satisfy the costs incurred by
638the system for any proceedings under this section. To the extent
639there are any funds remaining, the system may use the funds
640exclusively for damage-prevention education.
641     (f)  This section does not change the basis for civil
642liability. The findings and results of a hearing under this
643section may not be used as evidence of liability in any civil
644action.
645     (4)(a)  The division shall issue and serve on all original
646parties an initial order that assigns the case to a specific
647administrative law judge and requests information regarding
648scheduling the final hearing within 5 business days after the
649division receives a petition or request for hearing. The
650original parties in the proceeding include all excavators and
651member operators identified by the system as being involved in
652the alleged incident. The final hearing must be conducted within
65360 days after the date the petition or the request for a hearing
654is filed with the division.
655     (b)  Unless the parties otherwise agree, venue for the
656hearing shall be in the county in which the underground facility
657is located.
658     (c)  An intervenor in the proceeding must file a petition
659to intervene no later than 15 days before the final hearing. A
660person who has a substantial interest in the proceeding may
661intervene.
662     (5)  The following procedures apply:
663     (a)  Motions shall be limited to the following:
664     1.  A motion in opposition to the petition.
665     2.  A motion requesting discovery beyond the informal
666exchange of documents and witness lists described in paragraph
667(c). Upon a showing of necessity, additional discovery may be
668permitted in the discretion of the administrative law judge, but
669only if the discovery can be completed no later than 5 days
670before the final hearing.
671     3.  A motion for continuance of the final hearing date.
672     (b)  All parties shall attend a prehearing conference for
673the purpose of identifying the legal and factual issues to be
674considered at the final hearing, the names and addresses of
675witnesses who may be called to testify at the final hearing,
676documentary evidence that will be offered at the final hearing,
677the range of penalties that may be imposed, and any other matter
678that would expedite resolution of the proceeding. The prehearing
679conference may be held by telephone conference call.
680     (c)  Not later than 5 days before the final hearing, the
681parties shall furnish to each other copies of documentary
682evidence and lists of witnesses who may testify at the final
683hearing.
684     (d)  All parties shall have an opportunity to respond, to
685present evidence and argument on all issues involved, to conduct
686cross-examination and submit rebuttal evidence, and to be
687represented by counsel or other qualified representative.
688     (e)  The record shall consist only of:
689     1.  All notices, pleadings, motions, and intermediate
690rulings.
691     2.  Evidence received during the final hearing.
692     3.  A statement of matters officially recognized.
693     4.  Proffers of proof and objections and rulings thereon.
694     5.  Matters placed on the record after an ex parte
695communication.
696     6.  The written final order of the administrative law judge
697presiding at the final hearing.
698     7.  The official transcript of the final hearing.
699     (f)  The division shall accurately and completely preserve
700all testimony in the proceeding and, upon request by any party,
701shall make a full or partial transcript available at no more
702than actual cost.
703     (g)  The administrative law judge shall issue a final order
704within 30 days after the final hearing or the filing of the
705transcript thereof, whichever is later. The final order of the
706administrative law judge must include:
707     1.  Findings of fact based exclusively on the evidence of
708record and matters officially recognized.
709     2.  Conclusions of law. In determining whether a party has
710committed an infraction of s. 556.107(1)(a), and whether the
711infraction was a proximate cause of an incident, the commission
712of an infraction must be proven by a preponderance of the
713evidence.
714     3.  Imposition of a fine, if applicable.
715     4.  Any other information required by law or rule to be
716contained in a final order.
717
718The final order of the administrative law judge constitutes
719final agency action subject to judicial review pursuant to s.
720120.68.
721     Section 11.  This act shall take effect October 1, 2010.


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