Meeting Packet — Energy & Utilities Subcommittee (January 21, 2020)
Summary
A meeting packet for the Energy & Utilities Subcommittee meeting on Tuesday, January 21, 2020, 10:00 AM to 12:00 PM at Webster Hall, with Charlie Stone as Chair. The agenda and notice list HB 755 by DuBose, HB 969, Broadband Internet Service, by Drake and HB 1095 by Fitzenhagen. The staff analysis of HB 755 says the bill creates a public record exemption for specific records that identify the design, scope, and location of 911 or E911 communication system infrastructure, and a public meeting exemption for any portion of a meeting that would reveal them. It says the exemptions will stand repealed on October 1, 2025, unless reviewed and saved from repeal through reenactment by the Legislature. The packet ends with the closing pages of an amendment to HB 1095 concerning a review panel.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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“Meeting Packet — Energy & Utilities Subcommittee (January 21, 2020).”
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Energy & Utilities Subcommittee
Tuesday, January 21, 2020
10:00 AM - 12:00 PM
Webster Hall (212 Knott)
Meeting Packet
Jose Oliva Charlie Stone
Speaker Chair
The Florida House of Representatives
Commerce Committee
Energy & Utilities Subcommittee
Jose Oliva Charlie Stone
Speaker Chair
AGENDA
Tuesday, January 21, 2020
Webster Hall (212 Knott)
10:00 AM - 12:00 PM
I. Call to Order & Roll Call
II. Welcoming Remarks
III. Consideration of the following bills(s):
HB 755 by Rep. DuBose
Pub. Rec. and Meetings/911 and E911 Communication Systems
HB 969 by Rep. Drake
Broadband Internet Service
HB 1095 by Rep. Fitzenhagen
Underground Facility Damage Prevention and Safety
IV. Adjournment
303 House Office Building, 402 South Monroe Street, Tallahassee, Florida 32399-1300
(850) 717-4873 Fax: (850) 413-0419
Committee Meeting Notice
HOUSE OF REPRESENTATIVES
Energy & Utilities Subcommittee
Start Date and Time: Tuesday, January 21, 2020 10:00 am
End Date and Time: Tuesday, January 21, 2020 12:00 pm
Location: Webster Hall (212 Knott)
Duration: 2.00 hrs
Consideration of the following bill(s):
HB 755 Pub. Rec. and Meetings/911 and E911 Communication Systems by DuBose
HB 969 Broadband Internet Service by Drake
HB 1095 Underground Facility Damage Prevention and Safety by Fitzenhagen
Pursuant to rule 7.11, the deadline for amendments to bills on the agenda by non-appointed members shall
be 6:00 p.m., Friday, January 17, 2020.
By request of Chair Stone, all Energy & Utilities Subcommittee members are asked to have amendments to
bills on the agenda submitted to staff by 6:00 p.m., Friday, January 17, 2020.
NOTICE FINALIZED on 01/16/2020 4:02PM by Rigas.Amanda
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 755 Pub. Rec. and Meetings/911 and E911 Communication Systems
SPONSOR(S): DuBose
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1060
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy & Utilities Subcommittee Keating Keating C).
2) Oversight, Transparency & Public Management
Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
Current law provides public record exemptions for various records related.to the physical security of certain
structures and for certain information related to the Nationwide Public Safety Broadband Network. There is not
a specific public record exemption for records related to infrastructure used to provide 911 or E911
communication service.
The bill creates a public record exemption for specific records that identify the design, scope, and location of
911 or E911 communication system infrastructure owned and operated by an agency before, on, or after the
effective date of the bill. The bill also creates a public meeting exemption for any portion of a meeting that
would reveal these records. Specifically, the bill creates a public record exemption for:
• Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final
formats, which depict the structural elements of 911 or E911 communication system infrastructure,
including towers, antennae, equipment or facilities used to provide 911 or E911 communication
services, or other 911 or E911 communication structures or facilities owned and operated by an
agency; and
• Geographical maps indicating the actual or proposed locations of 911 or E911 communication system
infrastructure, including towers, antennae, equipment or facilities used to provide 911 or E911 services,
or other 911 or E911 communication structures or facilities owned and operated by an agency.
The bill identifies specific circumstances in which these records may be disclosed.
The bill provides that these public meeting and public record exemptions are subject to the Open Government
Sunset Review Act and will stand repealed on October 1, 2025, unless reviewed and saved from repeal
through reenactment by the Legislature. It also provides a statement of public necessity as required by the
Florida Constitution.
The bill does not appear to have a fiscal impact on state or local government.
The bill provides that it will take effect upon becoming law.
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public meeting or public record
exemption. The bill creates a new public meeting and public record exemption; thus, it requires a two-
thirds vote for final passage.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Public Records
Article I, section 24(a) of the Florida Constitution sets forth the state's public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. The Legislature, however, may
provide by general law for the exemption of records from the requirements of Article I, section 24(a). 1
The general law must state with specificity the public necessity justifying the exemption 2 and must be
no more broad than necessary to accomplish its purpose. 3
Public Meetings
Article I, section 24(b) of the Florida Constitution sets forth the state's public policy regarding access to
government meetings. The section requires that all meetings of any collegial public body of the
executive branch of state government or of any collegial public body of a county, municipality, school
district, or special district, at which official acts are to be taken or at which public business of such body
is to be transacted or discussed, be open and noticed to the public.
Public policy regarding access to government meetings also is addressed in the Florida Statutes.
Section 286.011, F.S., known as the "Government in the Sunshine Law" or "Sunshine Law," further
requires that all meetings of any board or commission of any state agency or authority or of any agency
or authority of any county, municipal corporation, or political subdivision, at which official acts are to be
taken be open to the public at all times. 4 The board or commission must provide reasonable notice of
all public meetings. 5 Public meetings may not be held at any location that discriminates on the basis of
sex, age, race, creed, color, origin, or economic status or that operates in a manner that unreasonably
restricts the public's access to the facility. 6 Minutes of a public meeting must be promptly recorded and
open to public inspection.7
The Legislature may provide by general law for the exemption of meetings from the requirements of
article I, section 24(b) of the Florida Constitution. 8 The general law must state with specificity the public
necessity justifying the exemption 9 and must be no more broad than necessary to accomplish its
purpose. 10
Open Government Sunset Review
The Open Government Sunset Review Act 11 provides that a public meeting and public record
exemption may be created or maintained only if it serves an identifiable public purpose. In addition, it
may be no more broad than necessary to meet one of the following purposes:
1 FLA. CONST. art. I, s. 24(c).
2
This portion of a public record exemption is commonly referred to as a "public necessity statement."
3
FLA. CONST. art. I, s. 24(c).
4
S. 286.011(1), F.S.
5 fd
6
S. 286.011(6), F.S.
7
S. 286.011(2), F.S.
8
FLA. CONST. art. I, s. 24(c).
9
This portion of a public meeting exemption is commonly referred to as a "public necessity statement."
lO FLA. CONST. art. I, s. 24(c).
11
S. 119.15, F.S.
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• Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
• Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual's safety; however, only the identity of an individual may be exempted
under this provision.
• Protect trade or business secrets. 12
The Act requires the automatic repeal of a public meeting or public record exemption on October 2nd of
the fifth year after its creation or substantial amendment, unless the Legislature reenacts the
exemption. 13
Public Record and Public Meeting Exemptions for Building Security and Public Safety Communications
System Information
Current law provides a public record exemption for various records related to the physical security of
certain structures. For example, building plans, blueprints, schematic drawings, and diagrams,
including draft, preliminary, and final formats, which depict the internal layout and structural elements of
a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency 14
are exempt from disclosure as a public record. 15 This information may be disclosed to another
governmental entity if necessary in the performance of its duties and responsibilities or to a licensed
architect, contractor, or engineer who is performing work on or related to the structure at issue. If
disclosed, the entity that receives the information must maintain its exempt status.
In addition, current law provides a public record exemption for certain information related to the
Nationwide Public Safety Broadband Network16 that is held by an agency. This information, which
includes geographical maps indicating actual or proposed locations of network infrastructure or
facilities, among other things, is confidential and exempt from disclosure as a public record. 17
Effect of Proposed Changes
The bill creates a public record exemption for specific records that identify the design, scope, and
location of 911 or E911 communication system infrastructure owned and operated by an agency
before, on, or after the effective date of the bill. The bill also creates a public meeting exemption for
any portion of a meeting that would reveal these records.
Specifically, the bill creates a public record exemption for:
• Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary,
and final formats, which depict the structural elements of 911 or E911 communication
system infrastructure, including towers, antennae, equipment or facilities used to provide
12
S. l 19.15(6)(b), F.S.
13
S. 119.15(3), F.S.
14
For purposes of the public record law, an "agency" means "any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of
this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or
private agency, person, partnership, corporation, or business entity acting on behalfof any public agency." S. 119.011 (2), F.S.
15
S. 119.017(3)(b), F.S.
16
In 2012, Federal law mandated the development ofa nationwide, interoperable public safety broadband network. 47 U.S.C. ss.
1401, et seq. The network is based on a single, national network architecture that evolves with technological advances and that
initially consists of a core network of national and regional data center that provides connectivity between the radio access network
and the public Internet or public switched network, or both. 47 U.S.C. s. 1422. The network was created "to give public safety 21st
century communication tools to help save lives, solve crimes and keep our communities and emergency responders safe." FirstNet,
The Network, https://firstnet.gov/network (last visited Jan. 17, 2020).
17
S. 119.017(3)(d), F.S.
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911 or E911 communication services, or other 911 or E911 communication structures or
facilities owned and operated by an agency; and
• Geographical maps indicating the actual or proposed locations of 911 or E911
communication system infrastructure, including towers, antennae, equipment or facilities
used to provide 911 or E911 services, or other 911 or E911 communication structures or
facilities owned and operated by an agency.
The bill provides that this information may be disclosed in three circumstances, provided that any entity
who receives the information must maintain its exempt status. First, it may be disclosed to another
governmental entity if necessary for the receiving entity to perform its duties and responsibilities.
Second, it may be disclosed to a licensed architect, contractor, or engineer who is performing work on
or related to the 911 or E911 communication system infrastructure. Third, it may be disclosed upon a
showing of good cause before a court of competent jurisdiction.
The bill provides a statement of public necessity as required by the Florida Constitution. It includes the
following legislative findings:
• The records for which the bill creates a public record exemption and public meeting exemption
identify information concerning the design, scope, and location of 911 and E911 communication
system infrastructure, both within and external to buildings and other structures.
• These records could be used by criminals or terrorists to examine 911 and E911 communication
system infrastructure for vulnerabilities and to plan and execute criminal actions including cyber-
crime, arson, and terrorism.
• This infrastructure must be protected to avoid disruption during an active shooter or other terror
event, as disruption could result in greater loss of life and property damage.
• It is a public necessity to exempt these records from disclosure to reduce exposure to these
security threats and to protect the public.
In accordance withs. 119.15, F.S, these exemptions are subject to the Open Government Sunset
Review Act and will stand repealed on October 1, 2025, unless reviewed and saved from repeal
through reenactment by the Legislature.
B. SECTION DIRECTORY:
Section 1. Amends s. 119.071, F.S., relating to general exemptions from inspection or copying of
public records.
Section 2. Amends s. 286.0113, F.S., relating to general exemptions from public meetings.
Section 3. Provides a statement of public necessity.
Section 4. Provides for the bill to take effect upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments, below.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill could have a minimal fiscal impact on government entities that handle records that qualify for
the exemptions created by the bill. Staff responsible for complying with public meeting and public
record requirements may require training related to implementation of the exemptions. The costs,
however, would be absorbed, as they are part of the day-to-day responsibilities of these entities.
Ill. COMMENTS
A CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities have to raise
revenue in the aggregate, nor reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
Vote Requirement
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created public meeting or public record exemption. The bill
creates a new public meeting and public record exemption; thus, it requires a two-thirds vote for final
passage.
Public Necessity Statement
Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
created or expanded public meeting or public record exemption. The bill creates a new public
meeting and public record exemption and includes a statement supporting the public necessity for
these exemptions.
Breadth of Exemption
Article I, section 24(c) of the Florida Constitution requires a newly created public meeting or public
record exemption to be no broader than necessary to accomplish the stated purpose of the law. The
bill creates a public record exemption for specified documents that depict structural elements of 911
or E911 communication system infrastructure and the locations of such infrastructure used to provide
911 or E911 services. The bill creates a public meeting exemption for only the portion of a public
meeting that would reveal such documents. The bill identifies specific entities to whom the exempt
information may be disclosed as necessary. The exemption does not appear to be in conflict with
the constitutional requirement that it be no broader than necessary to accomplish its purpose.
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B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
Not applicable.
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FLORIDA H O U S E 0 F REPRESENTATIVES
HB 755 2020
1 A bill to be entitled
2 An act relating to public records and meetings;
3 amending s. 119.071, F.S.; providing an exemption from
4 public records requirements for certain documents
5 which depict the structural elements of certain 911 or
6 E911 communication system infrastructure, structures,
7 or facilities; providing an exemption from public
8 records requirements for geographical maps indicating
9 the actual or proposed locations of certain 911 or
10 E911 communication system infrastructure, structures,
11 or facilities; providing for retroactive application;
12 authorizing disclosure under certain circumstances;
13 providing for future legislative review and repeal of
14 the exemptions; amending s. 286.0113, F.S.; providing
15 an exemption from public meetings requirements for
16 portions of meetings that would reveal certain
17 documents depicting the structural elements of 911 or
18 E911 communication system infrastructure, structures,
19 or facilities, or geographic maps indicating the
20 locations or proposed locations of 911 or E911
21 communication system infrastructure, structures, or
22 facilities; providing for future legislative review
23 and repeal of the exemption; providing a statement of
24 public necessity; providing an effective date.
25
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FLORIDA H O U S E 0 F REPRESENTATIVES
HB 755 2020
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. Paragraph (e) is added to subsection (3) of
29 section 119.071, Florida Statutes, to read:
30 119.071 General exemptions from inspection or copying of
31 public records.-
32 (3) SECURITY AND FIRESAFETY.-
33 (e)l.a. Building plans, blueprints, schematic drawings,
34 and diagrams, including draft, preliminary, and final formats,
35 which depict the structural elements of 911 or E911
36 communication system infrastructure, including towers, antennae,
37 equipment or facilities used to provide 911 or E911
38 communication services, or other 911 or E911 communication
39 structures or facilities owned and operated by an agency are
40 exempt from s. 119.07(1) ands. 24(a), Art. I of the State
41 Constitution.
42 b. Geographical maps indicating the actual or proposed
43 locations of 911 or E911 communication system infrastructure,
44 including towers, antennae, equipment or facilities used to
45 provide 911 or E911 services, or other 911 or E911 communication
46 structures or facilities owned and operated by an agency are
47 exempt from s. 119.07(1) ands. 24(a), Art. I of the State
48 Constitution.
49 2. This exemption applies to building plans, blueprints,
50 schematic drawings, and diagrams, including draft, preliminary,
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HB 755 2020
51 and final formats, which depict the structural elements of 911
52 or E911 communication system infrastructure or other 911 and
53 E911 communication structures or facilities owned and operated
54 by an agency, and geographical maps indicating actual or
55 proposed locations of 911 or E911 communication system
56 infrastructure or other 911 or E911 communication structures or
57 facilities owned and operated by an agency, before, on, or after
58 the effective date of this act.
59 3. Information made exempt by this paragraph may be
60 disclosed:
61 a. To another governmental entity if disclosure is
62 necessary for the receiving entity to perform its duties and
63 responsibilities;
64 b. To a licensed architect, engineer, or contractor who is
65 performing work on or related to the 911 or E911 communication
66 system infrastructure, including towers, antennae, equipment or
67 facilities used to provide 911 or E911 communication services,
68 or other 911 or E911 communication structures or facilities
69 owned and operated by an agency; or
70 c. Upon a showing of good cause before a court of
71 competent jurisdiction.
72 4. The entities or persons receiving such information must
73 maintain the exempt status of the information.
74 5. This paragraph is subject to the Open Government Sunset
75 Review Act in accordance withs. 119.15 and shall stand repealed
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HB 755 2020
76 on October 1, 2025, unless reviewed and saved from repeal
77 through reenactment by the Legislature.
78 Section 2. Subsection (4) is added to section 286.0113,
79 Florida Statutes, to read:
80 286.0113 General exemptions from public meetings.-
81 (4) (a) Any portion of a meeting that would reveal building
82 plans, blueprints, schematic drawings, or diagrams, including
83 draft, preliminary, and final formats, which depict the
84 structural elements of 911 or E911 communication system
85 infrastructure, including towers, antennae, equipment or
86 facilities used to provide 911 or E911 communication services,
87 or other 911 and E911 communication structures or facilities
88 made exempt bys. 119.071(3) (e)l.a. is exempt from s. 286.011
89 ands. 24, Art. I of the State Constitution.
90 (b) Any portion of a meeting that would reveal
91 geographical maps indicating the actual or proposed locations of
92 911 or E911 communication system infrastructure, including
93 towers, antennae, equipment or facilities used to provide 911 or
94 E911 communication services, or other 911 or E911 communication
95 structures or facilities made exempt by s. 119.071 (3) (e) 1.b. is
96 exempt from s. 286.011 ands. 24, Art. I of the State
97 Constitution.
98 (c) This subsection is subject to the Open Government
99 Sunset Review Act in accordance withs. 119.15 and shall stand
100 repealed on October 1, 2025, unless reviewed and saved from
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HB 755 2020
101 repeal through reenactment by the Legislature.
102 Section 3. The Legislature finds that it is a public
103 necessity that building plans, blueprints, schematic drawings,
104 and diagrams, including draft, preliminary, and final formats,
105 which depict the structural elements of 911 or E911
106 communication system infrastructure, including towers, antennae,
107 equipment or facilities used to provide 911 or E911
108 communication services, and other 911 or E911 communication
109 structures or facilities owned and operated by an agency, and
110 geographic maps indicating the actual or proposed locations of
111 such communication system infrastructure, structures, or
112 facilities should be made exempt from s. 119.07(1), Florida
113 Statutes, ands. 24(a), Article I of the State Constitution to
114 ensure the security of emergency communication infrastructure,
115 structures, and facilities. In addition, the Legislature finds
116 that it is a public necessity that any portion of a meeting
117 revealing such documents and maps that are held by an agency
118 should be made exempt from s. 286.011, Florida Statutes, ands.
119 24(b), Art. I of the State Constitution. Building plans,
120 blueprints, schematic drawings, and diagrams, including draft,
121 preliminary, and final formats, received and held by counties,
122 municipalities, and other governmental agencies that depict the
123 structural elements of 911 or E911 communication system
124 infrastructure, structures, and facilities are currently subject
125 to release as public records upon request. Similarly,
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HB 755 2020
126 geographical maps showing the present or proposed locations of
127 such 911 or E911 communication system infrastructure,
128 structures, and facilities that are in the possession of
129 counties, municipalities, and other governmental agencies are
130 also subject to release as public records upon request.
131 Counties, municipalities and other governmental agencies may
132 review the building plans or geographical maps to ensure
133 compliance with land development regulations, building codes,
134 agency rules, and standards to protect the public health and
135 safety. These building plans include diagrams and schematic
136 drawings of emergency communication systems, electrical systems,
137 and other physical plant and security details which depict the
138 structural elements of such emergency communications facilities
139 and structures. 911 and E911 communication facilities, including
140 towers and antennae, are a vital link in the chain of survival.
141 Such critical infrastructure must be protected as any disruption
142 during an active shooter or other terror event is very likely to
143 result in greater loss of life and property damage. To function
144 properly, towers and antennae need to be visible, increasing the
145 security risk of such facilities. Because architectural and
146 engineering plans reviewed and held by counties, municipalities
147 and other government agencies include information about tower,
148 equipment, ancillary facilities, critical systems, and
149 restricted areas, these plans could be used by criminals or
150 terrorists to examine the physical plant for vulnerabilities.
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HB 755 2020
151 Information contained in these documents could aid in the
152 planning of, training for, and execution of criminal actions
153 including cyber-crime, arson, and terrorism. Consequently, the
154 Legislature finds that it is a public necessity to exempt such
155 information from public records requirements to reduce exposure
156 to security threats and protect the public.
157 Section 4. This act shall take effect upon becoming a law.
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ENERGY & UTILITIES SUBCOMMITTEE
HB 755 by Rep. DuBose
PUB. REC. AND MEETINGS/ 911 AND E911 COMMUNICATION
SYSTEMS
AMENDMENT SUMMARY
January 21, 2020
Amendment 1 by Rep. DuBose (# 508983)
• Requires recording and transcription of the portions of a public meeting
exempted by the bill from the public meetings law, and provides that such
recordings and transcripts are confidential and exempt from the public records
law except to the extent that any portion of the recording or transcript is
determined by a court of competent jurisdiction to reveal nonexempt data.
• Corrects the date upon which each exemption created by the bill will stand
repealed unless reviewed and saved from repeal through reenactment.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 755 (2020)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Energy & Utilities
2 Subcommittee
3 Representative DuBose offered the following:
4
5 Amendment (with title amendment)
6 Remove lines 76-100 and insert:
7 on October 2, 2025, unless reviewed and saved from repeal
8 through reenactment by the Legislature.
9 Section 2. Subsection (4) is added to section 286.0113,
10 Florida Statutes, to read:
11 286.0113 General exemptions from public meetings.-
12 ( 4) (a) Any portion of a meeting that would reveal building
13 plans, blueprints, schematic drawings, or diagrams, including
14 draft, preliminary, and final formats, which depict the
15 structural elements of 911 or E911 communication system
16 infrastructure, including towers, antennae, equipment or
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 755 (2020)
Amendment No. 1
17 facilities used to provide 911 or E911 communication services,
18 or other 911 and E911 communication structures or facilities
19 made exempt bys. 119.071(3) (e)l.a. is exempt from s. 286.011
20 ands. 24, Art. I of the State Constitution.
21 (b) Any portion of a meeting that would reveal
22 geographical maps indicating the actual or proposed locations of
23 911 or E911 communication system infrastructure, including
24 towers, antennae, equipment or facilities used to provide 911 or
25 E911 communication services, or other 911 or E911 communication
26 structures or facilities made exempt bys. 119.071(3) (e)l.b. is
27 exempt from s. 286.011 ands. 24, Art. I of the State
28 Constitution.
29 (c) No portion of an exempt meeting under paragraphs (a)
30 or (b) may be off the record. All exempt portions of such
31 meeting shall be recorded and transcribed. Such recordings and
32 transcripts are confidential and exempt from disclosure under s.
33 119.07(1) ands. 24(a), Art. I of the State Constitution unless
34 a court of competent jurisdiction, after an in-camera review,
35 determines that the meeting was not restricted to the discussion
36 of the information made exempt bys. 119.071(3) (e)l.a orb. In
37 the event of such a judicial determination, only that portion of
38 the recording and transcript which reveals nonexempt information
39 may be disclosed to a third party.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 755 (2020)
Amendment No. 1
40 (d) This subsection is subject to the Open Government
41 Sunset Review Act in accordance withs. 119.15 and shall stand
42 repealed on October 2, 2025, unless reviewed and saved from
43
44
45
46 T I T L E A ME N D ME N T
47 Remove line 22 and insert:
48 facilities; requiring the recording and transcription of exempt
49 portions of such meetings; providing an exemption from public
50 records requirements for such recordings and transcripts;
51 providing an exception; providing for future legislative review
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL#: HB 969 Broadband Internet Service
SPONSOR(S): Drake
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy & Utilities Subcommittee Keating ~ Keating
2) Transportation & Tourism Appropriations
Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
In 2009, the Legislature authorized the Department of Management Services (OMS) to perform certain
functions to promote the increased use of broadband Internet service in the state. Under this authority, OMS
was awarded federal grant funding through a 2009 U.S. Department of Commerce State Broadband Initiative
program. Those funds have since been depleted, and the state broadband program is dormant.
The bill designates the Department of Economic Opportunity (DEO) as the lead state agency to facilitate the
expansion of broadband Internet service in the state. It creates the Florida Office of Broadband (Office) within
DEO's Division of Community Development for purposes of developing, marketing, and promoting broadband
Internet service in the state.
The bill transfers to the new Office most of the powers and duties previously given to OMS. Specifically, the
Office must:
• Create a strategic plan for increasing the use of broadband Internet service in the state;
• Build local technology planning teams representing, among others, libraries, schools, colleges and
universities, local health care providers, private businesses, community organizations, economic
development organizations, local governments, tourism, parks and recreation, and agriculture; and
• Encourage the use of broadband Internet service, especially in rural, unserved, and underserved areas
of the state through grant programs.
For these purposes, the bill authorizes DEO to apply for and accept federal grant funds, enter into necessary
or useful contracts, and establish any committee or workgroup to administer the program.
The bill also repeals ch. 2012-131, L.O.F., which became obsolete when the federal grant funds previously
awarded to OMS were depleted.
The bill will likely require DEO to expend resources to perform the duties required of the new Office. DEO
asserts that these duties can be absorbed through existing agency resources. The bill is not expected to have
a fiscal impact on local government.
The bill provides an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0969.EUS.DOCX
DATE: 1/19/2020
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
In 2009, the Legislature authorized the Department of Management Services (OMS) to work
collaboratively with Enterprise Florida, state agencies, local governments, private businesses, and
community organizations to:
• Assess the needs for broadband Internet service and develop data and maps that provide a
baseline assessment of the availability and speed of broadband service throughout Florida;
• Create a strategic plan to increase use of broadband Internet service in Florida;
• Build local technology planning teams representing, among others, libraries, schools, colleges
and universities, local health care providers, private businesses, community organizations,
economic development organizations, local governments, tourism, parks and recreation, and
agriculture; and
• Encourage the use of broadband Internet service, especially in rural, unserved, and
underserved areas of the state through grant programs.
OMS was also authorized to apply for and accept federal funds, as well as gifts and donations from
individuals, foundations, and private organizations, for these purposes. 1
In 2009, the U.S. Department of Commerce's National Telecommunications Information Administration
(NTIA) launched the State Broadband Initiative (SBI) to implement two federal laws, the American
Recovery and Reinvestment Act of 2009 and the Broadband Data Improvement Act of 2008.
According to the NTIA's SBI website, 2 twelve separate entities within Florida were awarded grants
totaling $183. 7 million for broadband infrastructure, sustainable adoption, and public computer center
projects. Among those grants, OMS was awarded a total of $8,877,028. 3
In 2012, the Legislature passed a law transferring the state's broadband program from OMS to the
Department of Economic Opportunity (DEO) and designating DEO as the single state entity to receive
and manage all federal SBI funds. 4 By its terms, this law would become effective only if the U.S.
Department of Commerce approved the transfer of the existing federal SBI grant from OMS to DEO.
This approval was never provided, thus the program remains under OMS. After depletion of the
remaining SBI grant funds, the state broadband program has been unfunded and dormant.
Currently, the U.S. Department of Agriculture (USDA}, through its Reconnect Program, offers federal
loans, grants, and loan/grant combinations to facilitate broadband deployment to rural areas without
access to sufficient broadband service. 5 Eligible entities include cooperatives and non-profits, for-profit
companies, and state and local governments and their agencies and political subdivisions. Applicants
requesting a grant or a loan/grant combination under the Reconnect Program are required to submit a
scoring sheet by which USDA may analyze nine separate evaluation criteria to score the application.
One of the evaluation criteria is whether the proposed project is in a state with a broadband plan that
has been updated within the previous 5 years. 6
1 Ch. 2009-226, L.O.F., codified at s. 364.0135, F.S.
2
Broadband USA - NTIA, State Broadband Initiative, http://www2.ntia.doc.gov/SBDD (last visited Jan. 17, 2020).
3
Broadband USA - NTIA, Florida Department of Management Services, http://www2.ntia.doc.gov/grantee/florida-department-of-
management-services (last visited Jan. 17, 2020).
4
Ch. 2012-13 I, L.O.F.
5
USDA, Broadband, https://www.usda.gov/broadband (last visited Jan. I 7, 2020).
6 Id.
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DATE: 1/19/2020
Effect of Proposed Changes
The bill designates DEO as the lead state agency to facilitate the expansion of broadband Internet
service in the state. It creates the Florida Office of Broadband (Office) within DEO's Division of
Community Development for purposes of developing, marketing, and promoting broadband Internet
service in the state.
The bill maintains most of the requirements previously imposed on DMS 7 and imposes them instead on
the new Office. Specifically, the Office must:
• Create a strategic plan for increasing the use of broadband Internet service in the state;
• Build local technology planning teams representing, among others, libraries, schools, colleges
and universities, local health care providers, private businesses, community organizations,
economic development organizations, local governments, tourism, parks and recreation, and
agriculture; and
• Encourage the use of broadband Internet service, especially in rural, unserved, and
underserved areas of the state through grant programs.
For these purposes, the bill authorizes DEO to apply for and accept federal grant funds, enter into
necessary or useful contracts, and establish any committee or workgroup to administer the program.
The bill repeals ch. 2012-131, L.O.F. This law is obsolete. The contingency upon which this law would
have become effective - federal approval of the transfer from DMS to DEO of a now-depleted federal
grant - did not, and can no longer, occur.
The bill provides an effective date of July 1, 2020.
B. SECTION DIRECTORY:
Section 1. Amends s. 364.0135, F.S., relating to promotion of broadband adoption.
Section 2. Repeals ch. 2012-131, L.O.F.
Section 3. Provides an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
Implementation of the bill will likely require DEO to expend resources to perform the duties required
of the new Florida Office of Broadband created by the bill. DEO asserts that these duties can be
absorbed through existing agency resources, as its Division of Community Development currently
works with rural and underserved communities.
7
The bill does not require the Office to develop data and maps related to the availability and speed of broadband service throughout
Florida.
STORAGE NAME: h0969.EUS.DOCX PAGE: 3
DATE: 1/19/2020
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
By requiring the creation of a strategic broadband plan for the state through a new Florida Office of
Broadband, the bill may improve the opportunity for entities within the state to receive funding for rural
broadband deployment through the USDA's Reconnect Program.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not provide rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
Not applicable.
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DATE: 1/19/2020
FLORIDA H O U S E 0 F R E P R E S E N T A T I V E S
HB 969 2020
1 A bill to be entitled
2 An act relating to broadband Internet service;
3 amending s. 364.0135, F.S.; defining terms;
4 designating the Department of Economic Opportunity as
5 the lead state agency to facilitate the expansion of
6 broadband Internet service in the state; requiring the
7 department to work collaboratively with certain
8 entities; creating the Florida Office of Broadband
9 within the Division of Community Development in the
10 department; providing purpose and duties of the
11 office; repealing chapter 2012-131, Laws of Florida,
12 relating to broadband Internet service; providing an
13 effective date.
14
15 Be It Enacted by the Legislature of the State of Florida:
16
17 Section 1. Section 364.0135, Florida Statutes, is amended
18 to read:
19 364.0135 Promotion of broadband adoption; Florida Office
20 of Broadband.-
21 (1) LEGISLATIVE FINDINGS.-The Legislature finds that the
22 sustainable adoption of broadband Internet service is critical
23 to the economic and business development of this the state and
24 is beneficial for libraries, schools, colleges and universities,
25 health care providers, and community organizations.
Page 1 of 5
CODING: Words stricken are deletions; words underlined are additions.
hb0969-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 969 2020
26 (2) DEFINITIONS.-As used in this section, the term~
27 (a) "Department" means the Department of Economic
28 Opportunity.
29 (b} "Office" means the Florida Office of Broadband.
30 Js:l "Sustainable adoption" means the ability for
31 communications service providers to offer broadband services in
32 all areas of the state by encouraging adoption and utilization
33 levels that allow for these services to be offered in the free
34 market absent the need for governmental subsidy.
35 ~-R-+- STATE AGENCY.-The department is designated as the
36 lead state agency to facilitate the expansion of broadband
37 Internet service in the state. The department shall e-.f.
38 ~4anagereent Services is authorized to work collaboratively with,
39 and to receive staffing support and other resources from,
40 Enterprise Florida, Inc., state agencies, local governments,
41 private businesses, and community organizations~ 'HH--
42 (4) FLORIDA OFFICE OF BROADBAND.-The Florida Office of
43 Broadband is created within the Division of Community
44 Development in the department for the purpose of developing,
45 marketing, and promoting broadband Internet services in the
46 state. The office, in the performance of its duties, shall do
47 all of the following:
48 (a} Monitor the adoption of broadband Internet service in
49 collaboration with cofflfflunications service providers, including,
50 but not lireited to, wireless and \1ireline Internet service
Page 2 of 5
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hb0969-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB969 2020
51 providers, to develop geographical information system maps at
52 the census tract level that will:
53 1. Identify geographic gaps in broadband services,
54 including areas unserved by any broadband provider and areas
55 served by a single broadband provider;
56 2. Identify the download and upload transmission speeds
57 made available to businesses and individuals in the state, at
58 the census tract level of detail, using data rate benchmarks for
59 broadband service used by the Federal Communications Commission
60 to reflect different speed tiers; and
61 3. Provide a baseline assessment of statewide broadband
62 deployment in terms of percentage of households with broadband
63 availability.
64 -te+- Create a strategic plan that has goals and strategies
65 for increasing the use of broadband Internet service in the
66 state.
67 J..!21-te+- Build and facilitate local technology planning
68 teams or partnerships with members representing cross-sections
69 of the community, which may include, but are not limited to,
70 representatives from the following organizations and industries:
71 libraries, K-12 education, colleges and universities, local
72 health care providers, private businesses, community
73 organizations, economic development organizations, local
74 governments, tourism, parks and recreation, and agriculture.
75 1£1-fe+- Encourage the use of broadband Internet service,
Page 3 of 5
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hb0969-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB969 2020
76 especially in the rural, unserved, or iHTEl---underserved
77 communities of the state through grant programs having effective
78 strategies to facilitate the statewide deployment of broadband
79 Internet service. For any grants to be awarded, priority must be
80 given to projects that:
81 1. Provide access to broadband education, awareness,
82 training, access, equipment, and support to libraries, schools,
83 colleges and universities, health care providers, and community
84 support organizations.
85 2. Encourage the sustainable adoption of broadband in
86 primarily underserved unserved areas by removing barriers to
87 entry.
88 3. Work toward encouraging investments in establishing
89 affordable and sustainable broadband Internet service in
90 underserved unserved areas of the state.
91 4. Facilitate the development of applications, programs,
92 and services, including, but not limited to, telework,
93 telemedicine, and e-learning to increase the usage of, and
94 demand for, broadband Internet service in the state.
95 ~+3+ ADMINISTRATION.-The department may~
96 ~ Apply for and accept federal funds for purposes of
97 this section, as well as gifts and donations from individuals,
98 foundations, and private organi2ations.
99 fil(4) The department may Enter into contracts necessary
100 or useful to carry out the purposes of this section.
Page 4 of 5
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hb0969-00
FLORIDA H O U S E 0 F REPRESENTATIVES
HB 969 2020
101 J£L (5) The departFRent FRay Establish any committee or
102 workgroup to administer and carry out the purposes of this
103 section.
104 Section 2. Chapter 2012-131, Laws of Florida, is repealed.
105 Section 3. This act shall take effect July 1, 2020.
Page 5 of 5
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hb0969-00
ENERGY & UTILITIES SUBCOMMITTEE
HB 969 by Rep. Ausley
BROADBAND INTERNET SERVICE
AMENDMENT SUMMARY
January 21, 2020
Amendment 1 by Rep. Ausley (# 668159)
• Expands the duties of the new Florida Office of Broadband to include:
o Developing geographical information system maps, consistent with
reporting standards established by the Federal Communications
Commission, that identify areas within the state where broadband-capable
networks exist and broadband Internet service is available to end users
and that identify download and upload date transmission speeds available
in each area;
o Establishing a mechanism to receive and verify public input concerning
the accuracy of this data; and
o Monitoring, participating in, and providing input in federal proceedings
related to the geographic availability and deployment of broadband
Internet service in the state.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 969 (2020)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Energy & Utilities
2 Subcommittee
3 Representative Ausley offered the following:
4
5 Amendment
6 Remove lines 48-64 and insert:
7 (a) Monitor the adoption of broadband Internet service in
8 collaboration with communications service providers, including,
9 but not limited to, wireless and wireline Internet service
10 providers, and 4:-e by June 30, 2021, and annually thereafter,
11 develop geographical information system maps at the census tract
12 level consistent with the Digital Opportunity Data Collection
13 program reporting standards established by the Federal
14 Communications Commission, that will:
15 1. Identify geographic areas and locations in the state
16 where broadband-capable networks exist and broadband Internet
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Page 1 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 969 (2020)
Amendment No. 1
17 service is available to end users gaps in broadband services,
18 including areas unserved by any broadband provider and areas
19 served by a single broadband provider; and
20 2. Identify the download and upload data transmission
21 speeds available in each geographic area ffiade available to
22 businesses and individuals in the state, at the census tract
23 level of detail, using data rate benchffiarks for broadband
24 service used by the Federal Coffiffiunications Coffiffiission to reflect
25 different speed tiers; and
26 3. Provide a baseline assessffient of statewide broadband
27 deployffient in terffis of percentage of households with broadband
28 availability.
29
30 In developing the maps required by this subsection, the office
31 shall establish a mechanism to receive and verify public input
32 that identifies locations in which broadband Internet service is
33 not available, including locations in which broadband Internet
34 service is provided at data transmission speeds below the
35 standard established by the Federal Communications Commission
36 for broadband Internet service. The office shall monitor,
37 participate in, and provide input in proceedings of the Federal
38 Communication Commission and other federal agencies related to
39 the geographic availability and deployment of broadband Internet
40 service in the state as necessary to ensure that this
41 information is accurately presented and that rural, unserved,
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Page 2 of 3
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 969 (2020)
Amendment No. 1
42 and underserved areas of the state are best positioned to
43 benefit from federal broadband deployment programs.
44 (b) Create a strategic plan that has goals and strategies
45
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1095 Underground Facility Damage Prevention and Safety
SPONSOR(S): Fitzenhagen
TIED BILLS: IDEN./SIM. BILLS: SB 1464
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy & Utilities Subcommittee Keating Keating
2) Government Operations & Technology
Appropriations Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
Chapter 556, F.S., is the "Underground Facility Damage Prevention and Safety Act" (Act). The stated purpose
of the Act is to identify and locate underground facilities prior to an excavation or demolition to prevent injury to
persons or property or interruption of services resulting from damage to those facilities. To accomplish this,
the Act creates a not-for-profit corporation (Sunshine 811) to administer a free-access notification system.
The bill amends ch. 556, F.S., to:
• Expand the list of entities that may issue citations for violations of ch. 556, F.S., to include the State
Fire Marshal and local fire chiefs.
• Increase the maximum civil penalty (up to $2,500 plus 5 percent, in addition to any other court costs)
for certain violations of ch. 556, F.S., that involve an underground pipe or facility transporting hazardous
materials regulated by the U.S. DOT Pipeline and Hazardous Material Safety Administration (PHMSA).
One hundred percent of the civil penalty will be distributed to the entity that issued the citation.
• Require each clerk of court to submit an annual report to the State Fire Marshal listing each violation
notice written under ch. 556, F.S., which was filed in that county during the preceding calendar year.
• Require Sunshine 811 to transmit reports of incidents that involve high-priority subsurface installations
(HPSI) for investigation by one of the following authorities, who may issue a citation and impose a civil
penalty for a violation of ch. 556, F.S., that was a proximate cause of the incident: the State Fire
Marshal, the fire chief of the county in which the incident occurred, a local or state law enforcement
officer, a government code inspector, or a code enforcement officer. Ninety-five percent of the civil
penalty will be distributed to the investigating authority that issued the citation, with the remaining 5
percent retained by the clerk of court for administrative costs.
• Create an "underground facility damage prevention review panel" (review panel) under the State Fire
Marshal for the purpose of reviewing complaints of alleged violations of ch. 556, F.S., and identifying
issues or potential issues related to damage prevention and enforcement.
The bill may have an indeterminate positive impact on state and local government revenues. The bill will
require the expenditure of resources by the State Fire Marshall to support the review panel, and it may require
the expenditure of resources by a state or local government entity to whom an HPSI incident is referred for
investigation. These expenditures may be offset in whole or in part by the portion of any civil penalties
collected and distributed to these entities through their enforcement of ch. 556, F.S.
The bill provides an effective date of July 1, 2020.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1095.EUS.DOCX
DATE: 1/19/2020
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Florida Underground Facility Damage Prevention and Safety Act
Chapter 556, F.S., is the "Underground Facility Damage Prevention and Safety Act" (Act). The goal of
the Act is to identify and locate underground facilities 1 prior to an excavation or demolition to prevent
injury to persons or property or interruption of services resulting from damage to those facilities. 2 To
accomplish this, the Act creates a not-for-profit corporation to administer a free-access notification
system whereby a person intending to conduct excavation or demolition activities can give prior notice
to the system of the person's intended activities, allowing operators of underground facilities the
opportunity to identify and locate their nearby facilities. 3 All operators of underground facilities in the
state are required to be members of the corporation ("member operators") and are required to use and
participate in the system. 4
The not-for-profit corporation created under the Act is Sunshine State One-Call of Florida, Inc., which
operates under the name "Sunshine 811" and exercises its powers through a board of directors. 5 The
system is required to provide a single toll-free telephone number (811) within Florida which excavators
can use to notify member operators of planned excavation or demolition activities. 6 The person
intending to conduct excavation or demolition must notify the system not less than two full business
days before beginning the operations. 7 The person must also provide specified identification, location,
and operational information which remain valid for 30 calendar days. 8 Upon receipt of this notice, the
system provides to the person a list of names of the member operators who will be advised of the
notification. 9
The system operator in turn notifies the potentially affected member operators of the planned
excavation or demolition activities. 10 Within two full business days after the time the notification is
received by the system (or 10 days if the proposed excavation is in proximity to facilities beneath state
waters), potentially affected member operators must determine the location of their underground
facilities in relation to the proposed excavation or demolition. If this cannot be done in this time period,
1
s. 556.102(13), F.S., defines "underground facility" as "any public or private personal property which is buried, placed below
ground, or submerged on any member operator's right-of-way, easement, or permitted use which is being used or will be used in
connection with the storage or conveyance of water; sewage; electronic, telephonic, or telegraphic communication; electric energy;
oil; petroleum products; natural gas; optical signals; or other substances, and includes, but is not limited to, pipelines, pipes, sewers,
conduits, cables, valves, and lines. For purposes of this act, a liquefied petroleum gas line regulated under chapter 527 is not an
underground facility unless such line is subject to the requirements of Title 49 C.F.R. adopted by the Department of Agriculture and
Consumer Services, provided there is no encroachment on any member operator's right-of-way, easement, or permitted use.
Petroleum storage systems subject to regulation pursuant to chapter 376 are not considered underground facilities for the purposes of
this act unless the storage system is located on a member operator's right-of-way or easement. Storm drainage systems are not
considered underground facilities."
2
S. 556.101(3), F.S.
3
S. 556.101(2), F.S.
4
S. 556.103(1), F.S.
5
S. 556.103, F.S.
6
S. 556.104, F.S.
7
S. 556.105(1 )(a), F.S. The law provides an exception to this requirement for excavation beneath state waters, but does not specify a
time frame for notifying the system of such an excavation.
8
S. 556.105(l)(c), F.S.
9
S. 556.105(3), F.S.
10
S. 556.105(5), F.S. The statute also provides that member operators with state-owned underground facilities located within the right-
of-way of a state highway need not be notified of excavation or demolition activities and are under no obligation to mark or locate
facilities.
STORAGE NAME: h1095.EUS.D0CX PAGE: 2
DATE: 1/19/2020
the member operator must contact the person giving notice and negotiate a new schedule and time that
is agreeable and does not unreasonably delay the excavator. If a member operator determines that a
proposed excavation or demolition is in proximity to or conflicts with an underground facility, the
member operator must identify the horizontal route of the facility in a specified manner. 11
An excavator is required to delay excavations until the first of the following events occurs: (1) each
member operator's underground facilities have been marked and located; (2) the excavator has been
notified that no member operator has underground facilities in the area described in the notice; or (3)
expiration of the time allowed for markings. If a member operator has not located and marked its
underground facilities within the time allowed for marking, the excavator may proceed with the
excavation, provided that the excavator does so with reasonable care and that detection equipment or
other acceptable means to locate underground facilities are used. An excavator may not conduct
demolition in an area until all member operators' underground facilities have been marked and located
or removed. 12
Violations of certain provisions are noncriminal infractions enforceable by citations which may be
issued by any local or state law enforcement officer, government code inspector, or code enforcement
officer. The law establishes a civil penalty of $500, plus court costs, for such infractions. 13 Eighty
percent of the civil penalty collected by the clerk of the court will be distributed to the government entity
whose employee issued the citation, with 20 percent of the penalty retained by the clerk of the court to
cover administrative costs. 14 The fine and forfeiture fund is established by the clerk of the circuit court
in each county of this state and functions as a separate fund for use by the clerk of the circuit court in
performing court-related functions.
In 2010, the Legislature established a special process to address damages to any facility identified as a
"high-priority subsurface installation." 15 These facilities are defined as "an underground gas
transmission or gas distribution pipeline, an underground pipeline used to transport gasoline, jet fuel, or
any other refined petroleum product or hazardous or highly volatile liquid" that the pipeline's operator
has identified as critical. 16 If an alleged violation of a required procedure involves damage to a high-
priority subsurface installation and the damage results in death or serious bodily injury or results in
property damage, including service-restoration costs, of more than $50,000 or interruption of service to
at least 2,500 customers, the incident must be reported to Sunshine 811 by the excavator or member
operator within 24 hours.17 Sunshine 811 must then transmit an incident report to the Division of
Administrative Hearings (DOAH) for a hearing to determine whether a violation of required procedure
was a proximate cause of the incident. If DOAH finds that a violation was a proximate cause of the
incident, it may impose a fine not to exceed $50,000 (or $10,000 if a state agency or political
subdivision caused the incident). 18 Funds collected from a fine issued by DOAH are paid to Sunshine
811 to cover its costs to engage DOAH's services, and any remaining funds may be used only for
damage-prevention education. 19
In 2017, the Legislature established additional reporting requirements. First, an excavator must
immediately call 911 to report any contact with or damage to an underground facility that results in the
escape of natural gas or other hazardous substance or material regulated by the U.S. Department of
Transportation (DOT) Pipeline and Hazardous Material Safety Administration (PHMSA). Second, if an
11
S. 556.105(5), F.S.
12
S. 556. l 05(6), F.S.
13
S. 556.107(1), F.S.
14
S. 556.107(l)(c), F.S.
15
Ch. 2010-100, L.O.F., s. 10.
16
S. 556.116, F.S.
11 Id.
1s Id.
19 Id.
STORAGE NAME: h1095.EUS.D0CX PAGE: 3
DATE: 1/19/2020
event damages any pipe, cable, or other underground facility, the member operator must file a report
with Sunshine 811. 20
By March 31 of each year, each clerk of court must submit a report to Sunshine 811 listing each
violation notice written under s. 556.107(1 )(a}, F.S., which was filed in that county during the preceding
calendar year. 21 The report must state the name and address of the member or excavator who
committed each infraction and indicate whether or not the civil penalty for the infraction was paid. 22
The Sunshine 811 board must submit an annual progress report to the President of the Senate, the
Speaker of the House of Representative, and the Governor, no later than 60 days before the convening
of each regular session of the Legislature. 23 This report must include a summary of the reports
provided by the clerks of court, a summary of damage data reported to the system for the prior year,
and any analysis of this data by the board. 24
In its most recent Annual Report, Sunshine 811 indicates that 16,576 damage incidents were reported
in 2018, while 13 citations were issued by entities authorized to enforce the Act. 25 These citations
resulted in $6,602.50 of fines being levied. Further, the Annual Report identifies one case referred to
DOAH involving damage to a natural gas distribution main. In that case, DOAH found that the
excavator's failure to notify Sunshine 811 prior to excavation was the proximate cause of the incident
and imposed a $5,000 fine. 26
U.S. DOT Pipeline and Hazardous Material Safety Administration - Pipeline Damage Prevention
Programs
The U.S. DOT has back-stop authority to conduct administrative civil enforcement proceedings against
excavators who damage hazardous liquid and natural gas pipelines in a state that has failed to
adequately enforce its excavation damage prevention or one-call laws. 27
On July 13, 2015, PHMSA announced the issuance of a final rule to establish the process for
evaluating state excavation damage prevention law enforcement programs and enforcing minimum
Federal damage prevention standards in states where damage prevention law enforcement is deemed
inadequate or does not exist. 28
Under its rule, PHMSA uses the following criteria in evaluating the effectiveness of a state damage
prevention program 29 :
• Does the state have the authority to enforce its state excavation damage prevention law using
civil penalties and other appropriate sanctions for violations?
• Has the state designated a state agency or other body as the authority responsible for
enforcement of the state excavation damage prevention law?
• Is the state assessing civil penalties and other appropriate sanctions for violations at levels
sufficient to deter noncompliance and is the state making publicly available information that
demonstrates the effectiveness of the state's enforcement program?
°Ch. 2017-102, L.O.F.
2
21
S. 556.107(2), F.S.
22 Id.
23
S. 556.103(5), F.S.
24 Id.
25
Sunshine 811, 2018-19 Annual Report, available at
https://static 1.sguarespace.com/static/533db0bde4b0d9f7ba7fl ee7 /t/5dcfilcd 17b2a3459bd9a81d6/1573850332734/2018-
19 annualrpt.pdf (last visited Jan. 18, 2020).
26 Id.
27
49 U.S.C. § 60114.
28
Department of Transportation, Pipeline and Hazardous Materials Safety Administration, 80 Fed. Reg. 43,868 (July 23, 2015)
(codified at 49 C.F.R. Pts. 196 and 198).
29 Id.
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• Does the enforcement authority (if one exists) have a reliable mechanism (e.g., mandatory
reporting, complaint driven reporting) for learning about excavation damage to underground
facilities?
• Does the state employ excavation damage investigation practices that are adequate to
determine the responsible party or parties when excavation damage to underground facilities
occurs?
• At a minimum, do the state's excavation damage prevention requirements include the following:
o Excavators may not engage in excavation activity without first using an available one-
call notification system to establish the location of underground facilities in the
excavation area.
o Excavators may not engage in excavation activity in disregard of the marked location of
a pipeline facility as established by a pipeline operator.
o An excavator who causes damage to a pipeline facility:
• Must report the damage to the operator of the facility at the earliest practical
moment following discovery of the damage; and
• If the damage results in the escape of any PHMSA regulated natural and other
gas or hazardous liquid, must promptly report to other appropriate authorities by
calling the 911 emergency telephone number or another emergency telephone
number.
• Does the state limit exemptions for excavators from its excavation damage prevention law?
o A state must provide to PHMSA a written justification for any exemptions for excavators
from state damage prevention requirements.
o PHMSA will make the written justifications available to the public.
PHMSA will enforce federal requirements and may take immediate enforcement against excavators in
states where a state pipeline excavation damage prevention law enforcement program is not
determined to be adequate by the criteria and procedures used by PHMSA. 30 States that fail to
establish an adequate enforcement program within five years of the date of a finding of inadequacy
may be subject to up to a 4 percent reduction in base state pipeline safety grant funding. 31
State Fire Marshal
Florida's Chief Financial Officer is designated by law as the State Fire Marshal. 32 The State Fire
Marshal is responsible for minimizing the loss of life and property in the state due to fire. 33 It is also
charged with enforcing laws related to: the prevention of fire and explosion through the regulation of
conditions which could lead to fire and explosion; installation and maintenance of fire alarm systems
and fire protection systems; the maintenance of fire cause and loss records; and suppression of arson
and the investigation of the cause, origin, and circumstances of fire. 34
The State Fire Marshal operates as a division of the Department of Financial Services. It operates
through an Office of the Director and two bureaus: the Bureau of Fire Prevention and the Bureau of
Firefighter Standards and Training. 35 The Bureau of Firefighter Standards and Training approves
firefighter training curricula, offers fire service training at the Florida State Fire College, and certifies fire
service members that meet standards. The Bureau of Fire Prevention conducts fire/life safety
inspections and reviews construction plans for all state-owned buildings, regulates the fireworks and
fire sprinkler industries, inspects and licenses boilers, and certifies fire suppression industry workers. It
has six field offices and 3 satellite offices around the state. 36
30 Id.
31 Id.
32
S. 633.104(1), F.S.
33
S. 633.104(2), F.S.
34 Id.
35
Chief Financial Officer, Division of State Fire Marshal, https://www.myfloridacfo.com/Division/SFM/ (last visited Jan. 28, 2020).
36 Id.
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Florida law provides investigatory authority for the State Fire Marshal. 37 Upon request, the State Fire
Marshall must investigate the cause, origin, and circumstances of fires and explosions where property
has been damaged or destroyed and there is probable cause to believe that the fire or explosion was
the result of carelessness or design. If the fire or explosion occurs in a municipality, county, or special
district with an organized fire department, the local fire official must provide for an initial investigation
before requesting an investigation by the State Fire Marshal. In an investigation, the State Fire Marshal
may require testimony under oath from persons believed to be aware of any facts related to matters
under investigation. If the State Fire Marshal believes that there is sufficient evidence to charge a
person with an offense, he or she must cause the person to be arrested and must provide the
appropriate prosecuting office with all pertinent information collected. The State Fire Marshal may
compel the testimony of witnesses and the production of pertinent documents and may seize personal
property to be held for evidence. The State Fire Marshal may designate an agent for the purpose of
conducting an investigation, and the agent may hold hearings, sign and issue subpoenas, administer
oaths, examine witnesses, receive evidence, and require the attendance and testimony of witnesses
and the production of documents or other evidence material to the investigation. The State Fire
Marshal must keep a record of all fires and explosions investigated under its authority.
Effect of Proposed Changes
Expanded Enforcement Authority
The bill expands the list of entities that may issue citations for certain violations of ch. 556, F.S. The bill
authorizes the State Fire Marshal and local fire chiefs to issue such citations.
Enhanced Civil Penalties for Certain Violations
The bill provides for civil penalties of up to $2,500 (plus 5 percent, in addition to any other court costs)
for certain violations of ch. 556, F.S., that involve an underground pipe or other underground facility
transporting hazardous materials regulated by PHMSA. Specifically, the following violations are subject
to this enhanced civil penalty:
• Failure by an excavator to comply with s. 556.105(1 ), F.S., which requires an excavator to
provide notice and certain information to the Sunshine 811 system within specified timeframes
prior to beginning excavation of demolition work.
• Failure by an excavator to comply withs. 556.105(5)(c), F.S., which requires an excavator to
use increased caution when working within a tolerance zone, 38 such as hand digging, pot
holing, soft digging, vacuum methods, or other similar procedures.
• Failure by an excavator to comply with s. 556.105(6), F.S., which requires an excavator to
avoid excavation in an area until whichever of the following occurs first: each member
operator's underground facilities have been located and marked; the exacter has been notified
that no member operator has underground facilities in the area; or the time allowed for
markings has expired.
• Failure by an excavator to comply with s. 556.106(11 ), F.S., which requires an excavator to
stop excavation and demolition activities in the vicinity of an underground facility and notify the
Sunshine 811 system if the marking for the facility is removed or no longer visible.
• Failure by an excavator to comply withs. 556.105(12), F.S., which requires an excavator to
immediately notify the appropriate member operator if the excavator causes contact with or
damage to a pipe and to immediately call 911 to report contact or damage that causes the
escape of any natural gas or other hazardous substance or material regulated by PHMSA.
37
S. 366.112, F.S.
38
"Tolerance zone" means "24 inches from the outer edge of either side of the exterior surface ofa marked underground facility." S.
556.102(12), F.S.
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If the clerk of court collects a civil penalty for one of these violations, the bill provides that 100 percent
of the civil penalty will be distributed to the entity that issued the citation. The additional five percent,
plus any additional court costs, is retained by the clerk to cover administrative costs. The bill provides
that a person who fails to properly respond to a citation issued for one of these violations will be
charged with the offense of failing to respond to the citation and, if convicted, commits a misdemeanor
of the second degree. The bill provides that a written warning to this effect must be provided at the
time the citation is issued.
Reporting Requirements
The bill provides that, by March 31 of each year, each clerk of court must submit a report to the State
Fire Marshal listing each violation notice written under s. 556.107(1 )(a}, F.S., which has been filed in
that county during the preceding calendar year. The report must state the name and address of the
member or excavator who committed each infraction and indicate whether or not the civil penalty for the
infraction was paid. This is the same information currently reported by the clerks of court to Sunshine
811.
Incidents involving High-Priority Subsurface Installations
For incidents reported to Sunshine 811 that involve high-priority subsurface installations, Sunshine 811
must transmit the incident report to one of the following enforcement authorities: the State Fire Marshal,
the fire chief of the county in which the incident occurred, a local or state law enforcement officer, a
government code inspector, or a code enforcement officer. The authority to whom the incident report is
transmitted must conduct an investigation to determine whether an incident has occurred and, if so,
whether a violation of s. 556.107(1 )(a}, F.S., was a proximate cause of the incident. The investigating
authority may issue a citation and impose a civil penalty if it finds that a violation occurred and was a
proximate cause of the incident. Upon collection of the civil penalty, the clerk of court must distribute
95 percent of the penalty to the investigating authority that issued the citation. The remaining five
percent is retained by the clerk to cover administrative costs.
These provisions replace the requirement in current law that DOAH conduct investigations of incidents
involving high-priority subsurface installations. The bill removes all provisions of current law that
establish the procedural requirements for DOAH review of such incidents.
Underground Facility Damage Prevention Review Panel
The bill creates "underground facility damage prevention review panel" (review panel) under the State
Fire Marshal. The review panel is responsible for reviewing complaints of alleged violations of ch. 556,
F.S., and identifying issues or potential issues related to damage prevention and enforcement. The
review panel must identify areas where additional education is needed and recommend solutions to
issues it has identified. The review panel also must review current practices for locating underground
pipes or other underground facilities that transport materials regulated by PHMSA and determine
whether statutory changes are needed to make these pipes or facilities more resilient and safer for
communities. The bill requires the review panel to operate consistent withs. 20.052, F.S., which
governs advisory bodies created by statute as adjuncts to an executive agency.
The review panel must consist of nine members appointed by the Sunshine 811 board and must
include a seat for each of the following:
• One member representing the electric utility industry;
• One member representing the telecommunications industry;
• One member licensed as an underground utility and excavation contractor under ch. 489, F.S.,
and engaged in work within road or highway rights-of-way;
• One member representing the natural gas industry;
• One member representing the utility locator industry;
• One member representing county or municipal water and sewer service providers;
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• One member representing excavators performing work unrelated to construction in road or
highways rights-of-way, including landscaping, fencing, or plumbing contractors;
• One member licensed as an underground utility and excavation contractor under ch. 489, F.S.,
and engaged in work for public utilities; and
• One member representing the public at large.
The bill provides for staggered two-year terms for each seat on the review panel and requires the
review panel to elect a chair and vice chair from its membership. The review panel must meet quarterly
in conjunction with the meeting of the Sunshine 811 board or at the call of the chair. The bill requires
the board to establish a process for receiving applications for appointment to the review panel.
The bill requires the State Fire Marshal to provide staff support and meeting space for the review panel.
To the extent that expenses to operate the review panel are not offset through civil penalties collected
under ch. 556, F.S, the bill requires member operators to make up the difference by paying monthly
assessments in equal share.
The bill provides an effective date of July 1, 2020.
B. SECTION DIRECTORY:
Section 1. Amends s. 556.107, F.S., relating to violations.
Section 2. Amends s. 556.116, F.S., relating to high-priority subsurface installations.
Section 3. Creates s. 556.117, F.S., establishing an underground facility damage prevention review
panel.
Section 4. Provides an effective date of July 1, 2020.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may have an indeterminate positive impact on state revenues.
The bill authorizes the State Fire Marshal to issue citations for certain violations specified in ch,
556, F.S. Further, the bill increases the maximum fine that may be imposed as a civil penalty for
violations related to an underground pipe or other underground facility transporting hazardous
materials regulated by PHMSA. Because the State Fire Marshal and other state law enforcement
entities that issue such citations will receive between 80 and 100 percent of the resulting civil
penalties collected by the clerk of court, the bill may encourage greater enforcement efforts by
these entities, leading to additional state revenues. The significance of the increase in state
revenues will depend on compliance with ch. 556, F.S., and the enforcement efforts of the State
Fire Marshal and state law enforcement officers.
2. Expenditures:
The bill may require the expenditure of resources by the State Fire Marshal or another state law
enforcement authority to whom an alleged HPSI incident is referred for investigation. The bill also
requires the State Fire Marshal to provide staff support and meeting space for the underground
facility damage prevention review panel created by the bill. Expenditures to perform these functions
may be offset in whole or in part by the portion of any civil penalties collected and distributed to
these entities through their enforcement of ch, 556, F.S.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
The bill may have an indeterminate positive impact on local government revenues.
The bill authorizes fire chiefs to issue citations for certain violations specified in ch, 556, F.S.
Further, the bill increases the maximum fine that may be imposed as a civil penalty for violations
related to an underground pipe or other underground facility transporting hazardous materials
regulated by PHMSA. Because fire chiefs that issue such citations will receive between 80 and 100
percent of the resulting civil penalties collected by the clerk of court, the bill may encourage greater
enforcement efforts by fire chiefs, leading to additional revenues. The significance of the increase
in revenues will depend on compliance with ch. 556, F.S., and the enforcement efforts of fire chiefs.
2. Expenditures:
The bill may require the expenditure of resources by a fire chief, local law enforcement authority, or
local code inspection or enforcement authority to whom an alleged HPSI incident is referred for
investigation. These expenditures may be offset in whole or in part by the portion of any civil
penalties collected and distributed to these entities through their enforcement of ch, 556, F.S.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may encourage increased enforcement of ch, 556, F.S. Increased enforcement will result in
additional fines imposed on persons who violate certain provisions of ch. 556, F.S. As a result,
increased enforcement may deter behaviors that cause damages to property, utility service outages,
and serious bodily injury.
D. FISCAL COMMENTS:
None.
Ill. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to: require counties or municipalities to spend funds or take
an action requiring the expenditure of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of a state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
Not applicable.
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FLORIDA H O U S E 0 F R E P R E S E N T A T I V E S
HB 1095 2020
1 A bill to be entitled
2 An act relating to underground facility damage
3 prevention and safety; amending s. 556.107, F.S.;
4 providing noncriminal violations relating to the
5 transportation of certain hazardous materials;
6 authorizing the State Fire Marshall or local fire
7 chief to issue certain citations; providing enhanced
8 civil penalties; providing disposition of the civil
9 penalty; requiring a report by additional entities;
10 amending s. 556.116, F.S.; providing that certain
11 incident reports must be submitted to, and
12 investigated by, the State Fire Marshall, local fire
13 chief, local or state law enforcement officer,
14 government code inspector, or code enforcement
15 officer; authorizing the State Fire Marshall, local
16 fire chief, or any local or state law enforcement
17 officer, government code inspector, or code
18 enforcement officer to issue citations and civil
19 penalties; providing for disposition of the civil
20 penalty; removing provisions relating to hearings by
21 the Division of Administrative Hearings of certain
22 incidents; creating s. 556.117, F.S.; creating an
23 underground facility damage prevention review panel;
24 providing duties and membership of the review panel;
25 specifying the term limits of the review panel;
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26 requiring the State Fire Marshall to provide support
27 to the review panel; specifying how the review panel
28 will be funded; providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
32 Section 1. Section 556.107, Florida Statutes, is amended
33 to read:
34 556.107 Violations.-
35 (1) NONCRIMINAL INFRACTI0NS.-
36 (a)1-:_ Violations of the following provisions are
37 noncriminal infractions:
38 a.±-.- Section 556.105(1), relating to providing required
39 information.
40 b.-&. Section 556.105(6), relating to the avoidance of
41 excavation.
42 c.-3-.- Section 556.105(11), relating to the need to stop
43 excavation or demolition because marks are no longer visible,
44 or, in the case of underwater facilities, are inadequately
45 documented.
46 d.4-. Section 556.105(12), relating to the need to cease
47 excavation or demolition activities because of contact or damage
48 to an underground facility.
49 e . ..§... Section 556.105 (5) (a) and (b), relating to
50 identification of underground facilities, if a member operator
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51 does not mark an underground facility, but not if a member
52 operator marks an underground facility incorrectly.
53 f.-6.- Section 556.109(2), relating to falsely notifying the
54 system of an emergency situation or condition.
55 5I.:_+-.- Section 556.114(1), (2), (3), and (4), relating to a
56 failure to follow low-impact marking practices, as defined
57 therein.
58 2. Violations of the following provisions when related to
59 an underground pipe or other underground facility transporting
60 hazardous materials that are regulated by the Pipeline and
61 Hazardous Materials Safety Administration of the United States
62 Department of Transportation are noncriminal infractions,
63 subject to enhanced civil penalties under paragraph (c):
64 a. Section 556.105(1), relating to providing required
65 information.
66 b. Section 556.105 (5) (c), relating to excavation practices
67 in tolerance zones.
68 c. Section 556.105(6), relating to the avoidance of
69 certain excavation.
70 d. Section 556.105(11), relating to the need to stop
71 excavation or demolition because certain marks are no longer
72 visible or are inadequately documented.
73 e. Section 556.105(12), relating to the need to cease
74 excavation or demolition activities because of contact or damage
75 to an underground facility.
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76 (b) Any excavator or member operator who commits a
77 noncriminal infraction under paragraph (a) may be issued a
78 citation by the State Fire Marshal, the fire chief of the county
79 in which the infraction happened, any local or state law
80 enforcement officer, government code inspector, or code
81 enforcement officer, and the issuer of a citation may require an
82 excavator to cease work on any excavation or not start a
83 proposed excavation until there has been compliance with the
84 provisions of this chapter. Citations shall be hand delivered to
85 any employee of the excavator or member operator who is involved
86 in the noncriminal infraction. The citation shall be issued in
87 the name of the excavator or member operator, Hhichever is
88 applicable.
89 (c}l.:_ Any excavator or member operator who commits a
90 noncriminal infraction under subparagraph (a)l. paragraph (a)
91 may be required to pay a civil penalty of $500 plus court costs
92 for each infraction, which is $500 plus court costs. If a
93 citation is issued by the State Fire Marshal, a fire chief, a
94 state law enforcement officer, a local law enforcement officer,
95 a local government code inspector, or a code enforcement
96 officer, 80 percent of the civil penalty collected by the clerk
97 of the court shall be distributed to the governmental entity
98 whose employee issued the citation and 20 percent of the penalty
99 shall be retained by the clerk to cover administrative costs, in
100 addition to other court costs. Any person who fails to properly
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101 respond to a citation issued under pursuant to paragraph (b)
102 shall, in addition to the citation, be charged with the offense
103 of failing to respond to the citation and, upon conviction,
104 commits a misdemeanor of the second degree, punishable as
105 provided ins. 775.082 ors. 775.083. A written warning to this
106 effect must be provided at the time any citation is issued under
107 pursuant to paragraph (b).
108 2. Any excavator or member operator who commits a
109 noncriminal infraction under subparagraph (a)2. may be required
110 to pay an enhanced civil penalty of $2,500 plus 5 percent in
111 addition to any other court costs for each infraction. If a
112 citation is issued by the State Fire Marshal, a fire chief, a
113 state law enforcement officer, a local law enforcement officer,
114 a local government code inspector, or a code enforcement
115 officer, 100 percent of the civil penalty collected by the clerk
116 of the court shall be distributed to the governmental entity
117 whose employee issued the citation. The additional 5 percent,
118 plus any additional court costs, is to be retained by the clerk
119 to cover administrative costs. Any person who fails to properly
120 respond to a citation issued under paragraph (b) shall, in
121 addition to the citation, be charged with the offense of failing
122 to respond to the citation and, upon conviction, commits a
123 misdemeanor of the second degree, punishable as provided ins.
124 775.082 ors. 775.083. A written warning to this effect must be
125 provided at the time a citation is issued under paragraph (b).
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126 (d) Any person cited for an infraction under paragraph (a)
127 may post a bond, which must shall be equal in amount to the
128 applicable civil penalty plus any additional court costs.
129 (e) A person charged with a noncriminal infraction under
130 paragraph (a) may pay the applicable civil penalty plus the
131 additional court costs, by mail or in person, within 30 days
132 after the date of receiving the citation. If the person cited
133 pays the civil penalty, she or he is deemed to have admitted to
134 committing the infraction and to have waived the right to a
135 hearing on the issue of commission of the infraction. The
136 admission may be used as evidence in any other proceeding under
137 this chapter.
138 (f) Any person may elect to have a hearing on the
139 commission of the infraction appear before the county court~
140 person who elects to have a hearing waives and if so electing is
141 deemed to have waived the limitations on the civil penalties
142 penalty specified in paragraph (c). The court, after a hearing,
143 shall make a determination as to whether an infraction has been
144 committed. If the commission of an infraction has been proven,
145 the court may impose a civil penalty not to exceed $5,000 plus
146 court costs for each infraction. In determining the amount of
147 the civil penalty, the court may consider previous noncriminal
148 infractions committed.
149 (g) At a court hearing under this chapter, the commission
150 of a charged infraction must be proven by a preponderance of the
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151 evidence.
152 (h) If the court finds that a person is found by a judge
153 or hearing official to have committed an infraction, the person
154 may appeal that finding or the amount of the civil penalties
155 imposed to the circuit court.
156 (i) Sunshine State One-Call of Florida, Inc., may, at its
157 own cost, retain an attorney to assist in the presentation of
158 relevant facts and law in the county court proceeding pertaining
159 to the citation issued under this section. The corporation may
160 also appear in any case appealed to the circuit court if a
161 county court judge finds that an infraction of the chapter was
162 committed. An appellant in the circuit court proceeding shall
163 timely notify the corporation of any appeal under this section.
164 (2) REPORT OF INFRACTIONS.-By March 31 of each year, each
165 clerk of court shall submit a report to the State Fire Marshal,
166 the Public Service Commission, and Sunshine State One-Call of
167 Florida, Inc., listing each violation notice written under
168 paragraph (1) (a) which has been filed in that county during the
169 preceding calendar year. The report must state the name and
170 address of the member or excavator who committed each infraction
171 and indicate whether or not the civil penalty for the infraction
172 was paid.
173 (3) MISDEMEANORS.-Any person who knowingly and willfully
174 removes or otherwise destroys the valid stakes or other valid
175 physical markings described in s. 556.105 (5) (a) and (b) used to
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176 mark the horizontal route of an underground facility commits a
177 misdemeanor of the second degree, punishable as provided ins.
178 775.082 ors. 775.083. For purposes of this subsection, stakes
179 or other nonpermanent physical markings are considered valid for
180 30 calendar days after information is provided to the system
181 under s. 556.105(1) (a).
182 Section 2. Section 556.116, Florida Statutes, is amended
183 to read:
184 556.116 High-priority subsurface installations; special
185 procedures.-
186 (1) As used in this section, the term:
187 (a) "Division" means the Division of Administrative
188 Hearings.
189 jtl-fe+- "High-priority subsurface installation" means an
190 underground gas transmission or gas distribution pipeline, an
191 underground pipeline used to transport gasoline, jet fuel, or
192 any other refined petroleum product or hazardous or highly
193 volatile liquid, such as anhydrous ammonia or carbon dioxide, if
194 the pipeline is deemed to be critical by the operator of the
195 pipeline and is identified as a high-priority subsurface
196 installation to an excavator who has provided a notice of intent
197 to excavate under pursuant to s. 556.105(1), or would have been
198 identified as a high-priority subsurface installation except for
199 the excavator's failure to give proper notice of intent to
200 excavate.
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201 le.l-fet "Incident" means an event that involves damage to a
202 high-priority subsurface installation that has been identified
203 as such by the operator according to the notification procedures
204 set forth in subsection (2) and that:
205 1. Results in death or serious bodily injury requiring
206 inpatient hospitalization.
207 2. Results in property damage, including service-
208 restoration costs, in an amount in excess of $50,000 or
209 interruption of service to 2,500 or more customers.
210 (2) When an excavator proposes to excavate or demolish
211 within 15 feet of the horizontal route of an underground
212 facility that has been identified as a high-priority subsurface
213 installation by the operator of the facility, the operator
214 shall, in addition to identifying the horizontal route of its
215 facility as set forth ins. 556.105(5) (a) and (b), and within
216 the time period set forth ins. 556.105(9) (a) for a positive
217 response, notify the excavator that the facility is a high-
218 priority subsurface installation. If the member operator
219 provides such timely notice of the existence of a high-priority
220 subsurface installation, an excavator shall notify the operator
221 of the planned excavation start date and time before beginning
222 excavation. If the member operator does not provide timely
223 notice, the excavator may proceed, after waiting the prescribed
224 time period set forth in s. 55 6. 105 ( 9) (a) , to excavate without
225 notifying the member operator of the excavation start date and
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HB 1095 2020
226 time. The exemptions stated ins. 556.108 apply to the
227 notification requirements in this subsection.
228 (3) (a) An alleged commission of an infraction listed ins.
229 556.107(1) which results in an incident must be reported to the
230 system by a member operator or an excavator within 24 hours
231 after learning of the alleged occurrence of an incident.
232 (b) Upon receipt of an allegation that an incident has
233 occurred, the system shall transmit an incident report to the
234 State Fire Marshall, the fire chief of the county in which the
235 incident happened, a local or state law enforcement officer, a
236 government code inspector, or a code enforcement officer in
237 order to division and contract with the division so that the
238 division may conduct an investigation a hearing to determine
239 whether an incident has occurred, and, if so, whether a
240 violation of s. 556.107(1) (a) was a proximate cause of the
241 incident. The contract for services to be performed by the
242 division must include provisions for the system to reimburse the
243 division for any costs incurred by the division for court
244 reporters, transcript preparation, travel, facility rental, and
245 other customary hearing costs, in the manner set forth ins.
246 120.65(9).
247 (c) The State Fire Marshall, a local fire chief, a local
248 or state law enforcement officer, a government code inspector,
249 or a code enforcement officer division has jurisdiction in a
250 proceeding under this section to determine the facto and law
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HB 1095 2020
251 eoneerning an alleged incident. The division may issue a
252 citation and impose a civil penalty £4.fie against a violator in
253 an amount not to exceed $50,000 if the person violated a
254 provision of s. 556.107(1) (a) and that violation was a proximate
255 cause of the incident. However, if a state agency or political
256 subdivision caused the incident, the state agency or political
257 subdivision may not be fined in an amount in excess of $10,000.
258 (d} The civil penalty A fine imposed under this subsection
259 by the division is in addition to any amount payable as a result
260 of a citation relating to the incident under s. 556.107(1) (a}.
261 (e) If a civil penalty is imposed by the State Fire
262 Marshall, a local fire chief, a local or state law enforcement
263 officer, a government code inspector, or a code enforcement
264 officer under this subsection, 95 percent of the civil penalty
265 collected by the clerk of the court shall be distributed to the
266 governmental entity whose employee issued the citation and civil
267 penalty and 5 percent of the civil penalty shall be retained by
268 the clerk to cover administrative costs~ fine against an
269 e}ceavator or a ffl:ember operator imposed under this subsection
270 shall be paid to the system, which shall use the collected fines
271 to satisfy the easts incurred by the systeffl for any proceedings
272 under this section. To the e1ctent there are any funds remaining,
273 the system may use the funds e1celusively for damage prevention
274 education.
275 (f) This section does not change the basis for civil
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276 liability. The findings and results of an investigation a
277 hearing under this section may not be used as evidence of
278 liability in any civil action.
279 ( 4) (a) The division shall issue and serve on all original
280 parties an initial order that assigns the case to a specific
281 administrative law judge and requests information regarding
282 scheduling the final hearing within 5 business days after the
283 division receives a petition or request for hearing. The
284 original parties in the proceeding include all eJEcavators and
285 member operators identified by the system as being involved in
286 the alleged incident. The final hearing must be conducted within
287 60 days after the date the petition or the request for a hearing
288 is filed with the division.
289 (b) Unless the parties otherwise agree, venue for the
290 hearing shall be in the county in which the underground facility
291 is located.
292 (c) An intervenor in the proceeding must file a petition
293 to intervene no later than 15 days before the final hearing. A
294 person who has a substantial interest in the proceeding may
295 intervene.
296 (5) The following procedures apply:
297 (a) Hotions shall be limited to the following:
298 1. A motion in opposition to the petition.
299 2. A motion requesting discovery beyond the informal
300 eJwhange of documents and witness lists described in paragraph
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301 (c). Upon a she.Jing of necessity, additional discovery may be
302 permitted in the discretion of the administrative law judge, but
303 only if the discovery can be completed no later than 5 days
304 before the final hearing.
305 3. A motion for continuance of the final hearing date.
306 (b) All parties shall attend a prehearing conference for
307 the purpose of identifying the legal and factual issues to be
308 considered at the final hearing, the names and addresses of
309 witnesses who may be called to testify at the final hearing,
310 documentary evidence that will be offered at the final hearing,
311 the range of penalties that may be imposed, and any other matter
312 that vJould eJcpedite resolution of the proceeding. The prehearing
313 conference may be held by telephone conference call.
314 (c) Not later than 5 days before the final hearing, the
315 parties shall furnish to each other copies of documentary
316 evidence and lists of witnesses who may testify at the final
31 7 hearing.
318 (d) All parties shall have an opportunity to respond, to
319 present evidence and argument on all issues involved, to conduct
320 cross eJwmination and submit rebuttal evidence, and to be
321 represented by counsel or other qualified representative.
322 (e) The record shall consist only of:
323 1. All notices, pleadings, motions, and intermediate
324 rulings.
325 2. Evidence received during the final hearing.
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HB 1095 2020
326 3. A statement of matters officially recognized.
327 4. Proffers of proof and objections and rulings thereon.
328 5. Hatters placed on the record after an CH parte
329 communication.
330 6. The written final order of the administrative law judge
331 presiding at the final hearing.
332 7. The official transcript of the final hearing.
333 (f) The division shall accurately and completely preserve
334 all testimony in the proceeding and, upon request by any party,
335 shall make a full or partial transcript available at no more
33 6 than actual cost.
337 (g) The administrative laH judge shall issue a final order
338 Hithin 30 days after the final hearing or the filing of the
339 transcript thereof, whichever is later. The final order of the
340 administrative law judge must include:
341 1. Findings of fact based mwlusively on the evidence of
342 record and matters officially recognized.
343 2. Conclusions of law. In determining whether a party has
344 committed an infraction of s. 55 6 .107 ( 1) (a) , and whether the
345 infraction was a prmdmate cause of an incident, the commission
346 of an infraction must be proven by a preponderance of the
347 evidence.
348 3. Iffif)osition of a fine, if applicable.
349 4. Any other information required by law or rule to be
350 contained in a final order.
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HB 1095 2020
351
352 The final order of the administrative law judge constitutes
353 final agency action subject to judicial revie\1 pursuant to s.
354 120.68.
355 Section 3. Section 556.117, Florida Statutes, is created
356 to read:
357 556.117 Underground facility damage prevention review
358 panel.-
359 (1) The underground facility damage prevention review
360 panel is established under the Division of State Fire Marshal
361 within the Department of Financial Services to review complaints
362 of an alleged violation under this chapter to identify issues or
363 potential issues with damage prevention and enforcement. The
364 review panel shall identify areas in the state where additional
365 education related to damage prevention and enforcement is needed
366 and shall create solutions to remedy issues related to damage
367 prevention and enforcement. The review panel shall also review
368 current practices for locating underground pipes or other
369 underground facilities that transport hazardous materials which
370 are regulated by the Pipeline and Hazardous Materials Safety
371 Administration of the United States Department of Transportation
372 in the state and determine if any statutory changes are needed
373 to make such pipelines or facilities more resilient and safer
374 for communities. Except as otherwise provided in this section,
375 the review panel shall operate in a manner consistent withs.
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HB 1095 2020
376 20.052.
377 (2) The review panel shall consist of nine members
378 appointed by the Sunshine State One-Call of Florida, Inc., board
379 of directors and shall include the following:
380 (a) One member representing the electrical utility
381 industry.
382 (b) One member representing the telecommunications
383 industry.
384 (c) One member licensed as an underground utility and
385 excavation contractor under chapter 489 and engaged in work
386 within road or highway rights-of-way.
387 (d) One member representing the natural gas industry.
388 (e) One member representing the utility locator industry.
389 (f) One member representing county or municipal water and
390 sewer service providers.
391 (g) One member representing excavators performing work
392 unrelated to construction in road or highway rights-of-way,
393 including landscaping, fencing, or plumbing contractors.
394 (h) One member licensed as an underground utility and
395 excavation contractor under chapter 489 and engaged in work for
396 public utilities.
397 (i) One member representing the public at large.
398 (3) The board of directors shall establish a process to
399 receive applications for the purpose of appointing members to
400 the review panel.
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401 (4) Each member shall serve for a 2-year term. A member
402 may not serve more than two consecutive 2-year terms, except
403 that members listed in paragraphs (2) (a)-(e) shall initially
404 serve a 1-year term and those members listed in paragraphs
405 (2) (f)-(i) shall serve a 2-year term. All subsequent
406 appointments shall be for 2-year terms. A vacancy for an
407 unexpired term of a member shall be filled in the same manner as
408 the original appointment. The review panel shall elect from
409 among its members a chair and vice chair and meet quarterly in
410 conjunction with the meeting of the board of directors or at the
411 call of the chair.
412 (5) The Division of State Fire Marshall shall provide
413 staff support and meeting space to the review panel. To the
414 extent expenses to operate the review panel are not offset
415 through civil penalties recovered under s. 556.107, member
416 operators must equally share in the cost of the operation of the
417 review panel through monthly assessments, which are in addition
418 to the monthly assessments under provided ins. 556.110.
419 Section 4. This act shall take effect July 1, 2020.
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ENERGY & UTILITIES SUBCOMMITTEE
HB 1095 by Rep. Fitzenhagen
UNDERGROUND FACILITY DAMAGE PREVENTION AND SAFETY
AMENDMENT SUMMARY
January 21, 2020
Amendment 1 by Rep. Fitzenhagen (# 012929)
• Replaces all references to "fire chief' with the term "fire chief of the special
district, municipality, or county."
• Removes the bill's requirement that an annual report of infractions be sent by
each clerk of court to the Public Service Commission.
• Requires the State Fire Marshal to appoint the members of the underground
facility damage prevention review panel created by the bill.
• Provides that members of the review panel will serve without compensation or
reimbursement of expenses.
• Removes a provision that requires member operators to share equally in the
costs of operating the review panel to the extent that those costs exceed the civil
penalties recovered through citations issued by the State Fire Marshal.
COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1095 (2020)
Amendment No. 1
COMMITTEE/SUBCOMMITTEE ACTION
ADOPTED (Y/N)
ADOPTED AS AMENDED (Y/N)
ADOPTED W/0 OBJECTION (Y/N)
FAILED TO ADOPT (Y/N)
WITHDRAWN (Y/N)
OTHER
1 Committee/Subcommittee hearing bill: Energy & Utilities
2 Subcommittee
3 Representative Fitzenhagen offered the following:
4
5 Amendment (with title amendment)
6 Remove lines 76-418 and insert:
7 (b) Any excavator or member operator who commits a
8 noncriminal infraction under paragraph (a) may be issued a
9 citation by the State Fire Marshal, the fire chief of the
10 special district, municipality, or county, any local or state
11 law enforcement officer, government code inspector, or code
12 enforcement officer, and the issuer of a citation may require an
13 excavator to cease work on any excavation or not start a
14 proposed excavation until there has been compliance with the
15 provisions of this chapter. Citations shall be hand delivered to
16 any employee of the excavator or member operator who is involved
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Bill No. HB 1095 (2020)
Amendment No. 1
17 in the noncriminal infraction. The citation shall be issued in
18 the name of the excavator or member operator, whichever is
19 applicable.
20 (c)l..:_ Any excavator or member operator who commits a
21 noncriminal infraction under subparagraph (a)l. paragraph (a)
22 may be required to pay a civil penalty of $500 plus court costs
23 for each infraction, which is $500 plus court costs. If a
24 citation is issued by the State Fire Marshal, the fire chief of
25 the special district, municipality, or county, a state law
26 enforcement officer, a local law enforcement officer, a local
27 government code inspector, or a code enforcement officer, 80
28 percent of the civil penalty collected by the clerk of the court
29 shall be distributed to the governmental entity whose employee
30 issued the citation and 20 percent of the penalty shall be
31 retained by the clerk to cover administrative costs, in addition
32 to other court costs. Any person who fails to properly respond
33 to a citation issued under pursuant to paragraph (b) shall, in
34 addition to the citation, be charged with the offense of failing
35 to respond to the citation and, upon conviction, commits a
36 misdemeanor of the second degree, punishable as provided ins.
37 775.082 ors. 775.083. A written warning to this effect must be
38 provided at the time any citation is issued under pursuant to
39 paragraph (b).
40 2. Any excavator or member operator who commits a
41 noncriminal infraction under subparagraph (a)2. may be required
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Bill No. HB 1095 (2020)
Amendment No. 1
42 to pay an enhanced civil penalty of $2,500 plus 5 percent in
43 addition to any other court costs for each infraction. If a
44 citation is issued by the State Fire Marshal, the fire chief of
45 the special district, municipality, or county, a state law
46 enforcement officer, a local law enforcement officer, a local
47 government code inspector, or a code enforcement officer, 100
48 percent of the civil penalty collected by the clerk of the court
49 shall be distributed to the governmental entity whose employee
50 issued the citation. The additional 5 percent, plus any
51 additional court costs, is to be retained by the clerk to cover
52 administrative costs. Any person who fails to properly respond
53 to a citation issued under paragraph (b) shall, in addition to
54 the citation, be charged with the offense of failing to respond
55 to the citation and, upon conviction, commits a misdemeanor of
56 the second degree, punishable as provided ins. 775.082 ors.
57 775.083. A written warning to this effect must be provided at
58 the time a citation is issued Under paragraph (b).
59 (d) Any person cited for an infraction under paragraph (a)
60 may post a bond, which must shall be equal in amount to the
61 applicable civil penalty plus any additional court costs.
62 (e) A person charged with a noncriminal infraction under
63 paragraph (a) may pay the applicable civil penalty plus the
64 additional court costs, by mail or in person, within 30 days
65 after the date of receiving the citation. If the person cited
66 pays the civil penalty, she or he is deemed to have admitted to
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Bill No. HB 1095 (2020)
Amendment No. 1
67 committing the infraction and to have waived the right to a
68 hearing on the issue of commission of the infraction. The
69 admission may be used as evidence in any other proceeding under
70 this chapter.
71 (f) Any person may elect to have a hearing on the
72 commission of the infraction appear before the county court~
73 person who elects to have a hearing waives and if so electing is
74 deeffied to have waived the limitations on the civil penalties
75 penalty specified in paragraph (c). The court, after a hearing,
76 shall make a determination as to whether an infraction has been
77 committed. If the commission of an infraction has been proven,
78 the court may impose a civil penalty not to exceed $5,000 plus
79 court costs for each infraction. In determining the amount of
80 the civil penalty, the court may consider previous noncriminal
81 infractions committed.
82 (g) At a court hearing under this chapter, the commission
83 of a charged infraction must be proven by a preponderance of the
84 evidence.
85 (h) If the court finds that a person is found by a judge
86 or hearing official to have committed an infraction, the person
87 may appeal that finding or the amount of the civil penalties
88 imposed to the circuit court.
89 (i) Sunshine State One-Call of Florida, Inc., may, at its
90 own cost, retain an attorney to assist in the presentation of
91 relevant facts and law in the county court proceeding pertaining
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Bill No. HB 1095 (2020)
Amendment No. 1
92 to the citation issued under this section. The corporation may
93 also appear in any case appealed to the circuit court if a
94 county court judge finds that an infraction of the chapter was
95 committed. An appellant in the circuit court proceeding shall
96 timely notify the corporation of any appeal under this section.
97 (2) REPORT OF INFRACTIONS.-By March 31 of each year, each
98 clerk of court shall submit a report to the State Fire Marshal
99 and Sunshine State One-Call of Florida, Inc., listing each
100 violation notice written under paragraph (1) (a) which has been
101 filed in that county during the preceding calendar year. The
102 report must state the name and address of the member or
103 excavator who committed each infraction and indicate whether or
104 not the civil penalty for the infraction was paid.
105 (3) MISDEMEANORS.-Any person who knowingly and willfully
106 removes or otherwise destroys the valid stakes or other valid
107 physical markings described ins. 556.105(5) (a) and (b) used to
108 mark the horizontal route of an underground facility commits a
109 misdemeanor of the second degree, punishable as provided ins.
110 775.082 ors. 775.083. For purposes of this subsection, stakes
111 or other nonpermanent physical markings are considered valid for
112 30 calendar days after information is provided to the system
113 under s. 5 5 6. 10 5 ( 1) (a) .
114 Section 2. Section 556.116, Florida Statutes, is amended
115 to read:
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Amendment No. 1
116 556.116 High-priority subsurface installations; special
117 procedures.-
118 (1) As used in this section, the term:
119 (a) "Division" means the Division of }'..:dministrative
120 Hearings.
121 Jtl-fe+ "High-priority subsurface installation" means an
122 underground gas transmission or gas distribution pipeline, an
123 underground pipeline used to transport gasoline, jet fuel, or
124 any other refined petroleum product or hazardous or highly
125 volatile liquid, such as anhydrous ammonia or carbon dioxide, if
126 the pipeline is deemed to be critical by the operator of the
127 pipeline and is identified as a high-priority subsurface
128 installation to an excavator who has provided a notice of intent
129 to excavate under pursuant to s. 556.105(1), or would have been
130 identified as a high-priority subsurface installation except for
131 the excavator's failure to give proper notice of intent to
132 excavate.
133 fil-te+ "Incident" means an event that involves damage to a
134 high-priority subsurface installation that has been identified
135 as such by the operator according to the notification procedures
136 set forth in subsection (2) and that:
137 1. Results in death or serious bodily injury requiring
138 inpatient hospitalization.
139 2. Results in property damage, including service-
140 restoration costs, in an amount in excess of $50,000 or
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Bill No. HB 1095 (2020)
Amendment No. 1
141 interruption of service to 2,500 or more customers.
142 (2) When an excavator proposes to excavate or demolish
143 within 15 feet of the horizontal route of an underground
144 facility that has been identified as a high-priority subsurface
145 installation by the operator of the facility, the operator
146 shall, in addition to identifying the horizontal route of its
147 facility as set forth in s. 556.105 (5) (a) and (b), and within
148 the time period set forth ins. 556.105(9) (a) for a positive
149 response, notify the excavator that the facility is a high-
150 priority subsurface installation. If the member operator
151 provides such timely notice of the existence of a high-priority
152 subsurface installation, an excavator shall notify the operator
153 of the planned excavation start date and time before beginning
154 excavation. If the member operator does not provide timely
155 notice, the excavator may proceed, after waiting the prescribed
156 time period set forth in s. 556.105 (9) (a), to excavate without
157 notifying the member operator of the excavation start date and
158 time. The exemptions stated ins. 556.108 apply to the
159 notification requirements in this subsection.
160 ( 3) (a) An alleged commission of an infraction listed in s.
161 556.107(1) which results in an incident must be reported to the
162 system by a member operator or an excavator within 24 hours
163 after learning of the alleged occurrence of an incident.
164 (b) Upon receipt of an allegation that an incident has
165 occurred, the system shall transmit an incident report to the
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Amendment No. 1
166 State Fire Marshal, the fire chief of the special district,
167 municipality, or county, a local or state law enforcement
168 officer, a government code inspector, or a code enforcement
169 officer in order to division and contract with the division so
170 that the division may conduct an investigation a hearing to
171 determine whether an incident has occurred, and, if so, whether
172 a violation of s. 556 .107 ( 1) (a) was a proximate cause of the
173 incident. The contract for services to be performed by the
174 division must include provisions for the system to reimburse the
175 division for any coots incurred by the division for court
17 6 reporters, transcript preparation, travel, facility rental, and
177 other customary hearing coots, in the manner set forth in o.
178 120.65(9).
179 (c) The State Fire Marshal, the fire chief of the special
180 district, municipality, or county, a local or state law
181 enforcement officer, a government code inspector, or a code
182 enforcement officer division has jurisdiction in a proceeding
183 under this section to determine the facto and law concerning an
184 alleged incident. The division may issue a citation and impose a
185 civil penalty .:f±fte against a violator in an amount not to exceed
186 $50,000 if the person violated a provision of s. 556 .107 ( 1) (a)
187 and that violation was a proximate cause of the incident.
188 However, if a state agency or political subdivision caused the
189 incident, the state agency or political subdivision may not be
190 fined in an amount in excess of $10,000.
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Amendment No. 1
191 (d} The civil penalty A fine imposed under this subsection
192 by the division is in addition to any amount payable as a result
193 of a citation relating to the incident under s. 556.107 (1) (a).
194 (e} If a civil penalty is imposed by the State Fire
195 Marshal, the fire chief of the special district, municipality,
196 or county, a local or state law enforcement officer, a
197 government code inspector, or a code enforcement officer under
198 this subsection, 95 percent of the civil penalty collected by
199 the clerk of the court shall be distributed to the governmental
200 entity whose employee issued the citation and civil penalty and
201 5 percent of the civil penalty shall be retained by the clerk to
202 cover administrative costs A fine against an excavator or a
203 member operator imposed under this subsection shall be paid to
204 the system, which shall use the collected fines to satisfy the
205 coots incurred by the system for any proceedings under this
206 section. To the extent there are any funds remaining, the system
207 may use the funds exclusively for damage prevention education.
208 (f} This section does not change the basis for civil
209 liability. The findings and results of an investigation a
210 hearing under this section may not be used as evidence of
211 liability in any civil action.
212 ( 4) (a) The division shall issue and serve on all original
213 parties an initial order that assigns the case to a specific
214 administrative law judge and requests information regarding
215 scheduling the final hearing within 5 business days after the
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Amendment No. 1
216 division receives a petition or request for hearing. The
217 original parties in the proceeding include all excavators and
218 m.em.ber operators identified by the system. as being involved in
219 the alleged incident. The final hearing m.ust be conducted within
220 60 days after the date the petition or the request for a hearing
221 is filed with the division.
222 (b) Unless the parties otherwise agree, venue for the
223 hearing shall be in the county in which the underground facility
224 is located.
225 (c) An intervenor in the proceeding m.ust file a petition
226 to intervene no later than 15 days before the final hearing. A
227 person who has a substantial interest in the proceeding m.ay
228 intervene.
229 (5) The following procedures apply:
230 (a) Motions shall be lim.ited to the following:
231 1. A m.otion in opposition to the petition.
232 2. A m.otion requesting discovery beyond the inform.al
233 exchange of docum.ents and witness lists described in paragraph
234 (c). Upon a showing of necessity, additional discovery m.ay be
235 perm.itted in the discretion of the adm.inistrative law judge, but
236 only if the discovery can be com.pleted no later than 5 days
237 before the final hearing.
238 3. A m.otion for continuance of the final hearing date.
239 (b) All parties shall attend a prehearing conference for
240 the purpose of identifying the legal and factual issues to be
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Amendment No. 1
241 considered at the final hearing, the names and addresses of
242 witnesses who may be called to testify at the final hearing,
243 documentary evidence that will be offered at the final hearing,
244 the range of penalties that may be imposed, and any other matter
245 that would expedite resolution of the proceeding. The prehearing
246 conference may be held by telephone conference call.
247 (c) Not later than 5 days before the final hearing, the
248 parties shall furnish to each other copies of documentary
249 evidence and lists of witnesses who may testify at the final
250 hearing.
251 (d) All parties shall have an opportunity to respond, to
252 present evidence and argument on all issues involved, to conduct
253 cross examination and submit rebuttal evidence, and to be
254 represented by counsel or other qualified representative.
255 (e) The record shall consist only of:
256 1. All notices, pleadings, motions, and intermediate
257 rulings.
258 2. Evidence received during the final hearing.
259 3. A statement of matters officially recogni~ed.
260 4. Proffers of proof and objections and rulings thereon.
261 5. Matters placed on the record after an e}{ parte
262 communication.
263 6. The written final order of the administrative law judge
264 presiding at the final hearing.
265 7. The official transcript of the final hearing.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1095 (2020)
Amendment No. 1
266 (f) The division shall accurately and cofflpletely preserve
267 all testifflony in the proceeding and, upon request by any party,
268 shall make a full or partial transcript available at no fflore
269 than actual cost.
270 (g) The adfflinistrative law judge shall issue a final order
271 within 30 days after the final hearing or the filing of the
272 transcript thereof, whichever is later. The final order of the
273 adfflinistrative law judge fflust include:
274 1. Findings of fact based exclusively on the evidence of
275 record and fflatters officially recogni~ed.
276 2. Conclusions of law. In deterfflining whether a party has
277 cofflfflitted an infraction of s. 556.107 (1) (a), and whether the
278 infraction was a pronifftate cause of an incident, the cofflfflission
279 of an infraction fflust be proven by a preponderance of the
280 evidence.
281 3. Ifflposition of a fine, if applicable.
282 4. Any other inforfflation required by law or rule to be
283 contained in a final order.
284
285 The final order of the administrative law judge constitutes
286 final agency action subject to judicial review pursuant to s.
287 120.68
288 Section 3. Section 556.117, Florida Statutes, is created
289 to read:
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1095 (2020)
Amendment No. 1
290 556.117 Underground facility damage prevention review
291 panel.-
292 (1) The underground facility damage prevention review
293 panel is established under the Division of State Fire Marshal
294 within the Department of Financial Services to review complaints
295 of an alleged violation under this chapter to identify issues or
296 potential issues with damage prevention and enforcement. The
297 review panel shall identify areas in the state where additional
298 education related to damage prevention and enforcement is needed
299 and shall recommend solutions to remedy issues related to damage
300 prevention and enforcement. The review panel shall also review
301 current practices for locating underground pipes or other
302 underground facilities that transport hazardous materials which
303 are regulated by the Pipeline and Hazardous Materials Safety
304 Administration of the United States Department of Transportation
305 in the state and determine if any statutory changes are needed
306 to make such pipelines or facilities more resilient and safer
307 for communities. Except as otherwise provided in this section,
308 the review panel shall operate in a manner consistent withs.
309 20.052.
310 (2) The review panel shall consist of nine members
311 appointed by the State Fire Marshal and shall include the
312 following:
313 (a) One member representing the electrical utility
314 industry.
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1095 (2020)
Amendment No. 1
315 (b) One member representing the telecommunications
316 industry.
317 (c) One member licensed as an underground utility and
318 excavation contractor under chapter 489 and engaged in work
319 within road or highway rights-of-way.
320 (d) One member representing the natural gas industry.
321 ( e) One member representing the utility locator industry.
322 (f) One member representing county or municipal water and
323 sewer service providers.
324 (g) One member representing excavators performing work
325 unrelated to construction in road or highway rights-of-way,
326 including landscaping, fencing, or plumbing contractors.
327 (h) One member licensed as an underground utility and
328 excavation contractor under chapter 489 and engaged in work for
329 public utilities.
330 (i) One member representing the public at large.
331 (3) The board of directors shall establish a process to
332 receive applications for the purpose of appointing members to
333 the review panel.
334 ( 4) Each member shall serve for a 2-year term. A member
335 may not serve more than two consecutive 2-year terms, except
336 that members listed in paragraphs (2) (a)-(e) shall initially
337 serve a 1-year term and those members listed in paragraphs
338 ( 2) ( f) - ( i) shall serve a 2-year term. All subsequent
339 appointments shall be for 2-year terms. A vacancy for an
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COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 1095 (2020)
Amendment No. 1
340 unexpired term of a member shall be filled in the same manner as
341 the original appointment. The review panel shall elect from
342 among its members a chair and vice chair and meet quarterly in
343 conjunction with the meeting of the board of directors or at the
344 call of the chair.
345 (5) The Division of State Fire Marshal shall provide staff
346 support and meeting space to the review panel. Members of the
347 panel shall serve without reimbursement of expenses and shall
348 receive no compensation for their service.
349
350
351 T I T L E A ME N D ME N T
352 Remove lines 27-28 and insert:
353 to the review panel; providing an effective date.
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