Florida Statutes 1980 Supplement - Research Center · 2014. 10. 1. · s. 339.08 1980 SUPPLEMENT TO FLORIDA STATUTES 1979 s. 350.113 right-of-way acquisition, specifications, and

s. 339.08 ·1980 SlJPPLEMENT TO FLORIDA STATUTES 1979 s. 339.08

339.08 Use of gas tax revenue by department.-

(1) The department shall by regulation provide for the expenditure of the proceeds of the first gas tax accruing to the Division of Road Operations, in accordance with its annual budget.

(2) Such regulations shall provide that the use of the first gas tax be restricted to the following purposes:

(a) To pay administrative expenses of the department, including . administrative expenses incurred by the several state road districts.

(b) To pay the cost of construction of the state highway system and state park road system, including amounts necessary to. match federal aid funds for such purposes. The department shall also match federal aid highway funds allocated to the county road and city street systems: ·

(c) To pay the cost of maintaining the state high-way system and state park road system. '

(d) To make such other lawful expenditures of the department for the payment of which no other funds may be specified, including the payment of compensation to employees of the Division of Road Operations except those employees whose jobs are designated as "J" in the official Florida merit system pay plan for overtime work in excess of 40 hours per week or other accepted standard work week, in cash or by way of compensatory time as may be presqribed by regulation of the department. Any other laws in conflict herewith are hereby repealed. · (e) To pay the cost of maintaining state roads which were classified or maintained as primary roads on January 1, 1956, and not included by the road board in the state primary highway system when said system was reclassified by the road board in June, 1956, pursuant to the provisions of this code.

(3)(a) The department may use available funds for the preparation of preliminary engineering plans with valid cost estimates, which plans and estimates shall be completed prior to the issuance of any bonds on all revenue-producing transportation projects. However, the department shall be reimbursed for the costidncurred for such preparation from the proceeds of the bond issue.

(b) The department shall not use or pledge the proceeds of the first gas tax on any reve_nue-producing transportation project without legislative ap_proval. This limitation on pledging the proceeds of the first gas tax shall in no way impair the ability of the department or the counties to enter into covenants to complete transportation projects from all other legally available. funds.

.(c) "No state bonds shall be sold for any revenueproducing tra.nsportation project if the proceedings authorizing such bonds include a covenant to -complete by the department from the proceeds of the first gas tax until the department .shall have made cost estimates based on the most current information available after approval of the final environmental impact statement for such project and shall have determined based on such estimates that the projected available funds for any such project, excluding the use of any proceeds from the first gas tax pursuant to a covenant to complete, are sufficient to pay. for such project. No ·additions shall be made to

any revenue-producing project for which a covenant to complete from the first gas tax has been made which would expand the scope of such project unless such additions are spec_ifically approved by the Legislature. For the purposes of this subsection, "project scope" shall mean the terminal points, the number of interchanges, and grade separations as approved by the Legislature. No contingency funds in the construction trust fund for any revenue-producing project for which ·a covenant to complete from the first gas tax has been made shall be expended for any purpose other than such project until the completion of such project; however, such funds may be expended for other purposes if permitted by the proceedings authorizing such bonds and if the department certifies to the Executive Office of the Governor that such contingency funds are not required for the completion of the project and are available and sufficient for such other purposes and the Executjye Office of the Governor approves such certification in writing to the department. .

(d) In any lease-purchase agreement, which includes a covenan,t to complete by . the department from the proceeds of the first gas tax, the department shall provide for the expeditious repayment of any and all costs incurred by the department as a result of the covenant to complete the transportation project. Such agreement shall provide for such repayment from excess tolls or second gas tax proceeds not required for payment of principal, interest, reserves, and other required deposits for the bonds and for the annual reimbursement from tolls or other local moneys or both, to the extent legally available, of all operating and maintenance costs of the facilities, as provided bY, the applicable provisions of the State Constitution and the bond proceedings.

(e) The provisi~ns of subsections (c) and (d) shall not apply to any revenue-producing project· approved by the Legislature prior to July 1, 1978.

(4)(a) Beginning July 1, 1977, the department shall develop and _implement a phased tr.ansfer of the administrative responsibility for construction programs financed by the 80 percent portion of the second gas tax to the respective counties. In counties of over 100,000 population, this transfer of responsibility shall be made at the rate of not less than 20 percent per year and shall be completed by July 1, 1980. In counties having less than 100,000 population, there shall be an orderly transfer of responsibility, but in no case shall the transfer extend beyond July 1, 1980.

(b) All projects let to construction contract on or before June 30, 1977, shall be completed by the department. If requested by a county, the department may undertake or complete all stages of a project if it can be 90mpleted through the construction stage by July 1, 1980. Adequate arrangements shall be agreed to between the counties and the department to ensure that the department has sufficient funds to complete its projects as previously indicated. ·

(c) The Department of Transportation shall, until July 1, 1980, lend its assistance, advice, and counsel to the counties, when requested, in order to assist in the development of a program for the management of the county road program. This assistance may include such areas as consultant procurement,

401

s. 339.08 1980 SUPPLEMENT TO FLORIDA STATUTES 1979 s. 350.113

right-of-way acquisition, specifications, and construction inspection. After July 1, 1980, a county may enter into an agreement with the department to provide for the department to acquire rights-of-way for the county, provided the highway project is to be funded by the 80-percent portion of the second gas tax allocated to that county and requires the acquisition of at least 10 parcels of land, the total cost of which will equal or exceed $100,000.

(5) The department is required to maintain on deposit with the State Bqard of Administration all proceeds of the 80-percent surplus of the second gas tax. The department shall by regulation provide for the transfer of the proceeds of the 80-percent surplus of the second gas tax in each county's account necessary to meet the current expenditures of the several counties. No county shall submit a voucher for transfer of funds unless such funds are to reimburse a prior expenditure or to maintain sufficient funds to meet anticipated expenditures for the next 60 days. Such transfers shall be processed by the department within 3 working days of receipt of the county's voucher. Such regulations shall not provide for department approval or control over county expenditures, but are to_ provide for routine processing of transfer vouchers from the State Board of Administration to the counties and for the inv:estment of said second gas-tax funds so as to maximize investment earnings to the counties. The department shall not charge any fees or allocate department overhead to the counties for these services. '

(6) The department is authorized to advance second gas tax trust funds to the Working Capital Trust Fund in an amount not to exceed $22,500,000. However, nothing_herein contained shall' in any way impair the present county road and bridge district bonds, revenue certificates, or other vali"d obligations of the respective counties. The department shall replace the second gas tax funds in the Working Capital Trust Fund by July 1, 1983.

History.-s. 139, ch. 29965, 1955; s. 1, ch. 31416, 1956; s. 19, ch. 57-318; s. 1, ch. 63-219; ss. 23, 35, ch. 69-106; s. 13, ch. 77-165; s. 4, ch. 77-416; s. 1, ch. 78-286; s. 118, ch. 79-190; s. 2, ch. 80-312.

CHAPTER 350

FLORIDA PUBLIC SERVICE COMMISSION

350.111 Regulated company defined. 350.113 Florida Public Service Regulatory Trust

· Fund; moneys to be deposited therein. 350.115 Uniform systems and classifications of ac

counts. 350.117 . Reports; audits. 350.121 Commission inquiries; confidentiality of

business material. 350.123 Oaths; depositions; protective orders. 350.124 Compelled testimony. 350.125 Administrative hearing officers. 350.127 Penalties; rules; execution of contracts.

350.128 Judicial review.

1350.111 Regulated company defined.-As used in ss. 350.111-350.117 and ss. 350.121-350.128, "regulated company" means any public utility as defined in s. 366.02 or any person holding a valid and current certificate from the commission under chapter 323, chapter 351, chapter 364, chapter 365, or chapter 367. _

History.-ss. 3, 6, ch. 80-289. 1Note.-Section 6, ch. 80-289, provides, in effect, that this section as created

by ch. 80-289 shall stand repealed (expires) on July 1, 1990, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

1350.113 Florida Public Service Regulatory Trust Fund; moneys to be deposited therein.-

(}) There is hereby created in the State Treasury a special fund to be designated as the Florida Public Service Regulatory Trust Fund which shall be used in the operation of the commission in the performance of the various functions and duties required of it by law.

(2) All. fees, licenses, and other charges, collected by the commission, except road taxes under chapter 323, shall be deposited in the State Treasury to the credit of the Florida Public Service Regulatory Trust Fund to be used in the operation of the commission as authorized by the Legislature; however, penalties and interest assessed and collected by the commission shall not be deposited in the trust fund but shall be deposited in the General Revenue Fund.

(3) Each regulated company under the jurisdiction ofthe commission, which company was in operation for the preceding 6-month period, shall pay to the commission within 30 days following the end of each 6-month period, commencing June 30, 1977, a fee based upon the gross operating revenues for such period subject to the limitations of this subsection. The fees shall, to the extent practicable, be related to the cost of regulating such type of regulated company and shall in no event be greater than:

(a) For each railroad operating under chapter 351, one-eighth of 1 percent of its gross operating revenues derived from intrastate business.

(b) For each telephone company or radio common carrier licensed or operating under chapter 364, one-eighth of 1 percent of its gross operating revenues derived from intrastate business.

(c) For each public utility as defined in s. 366.02, one-eighth of 1 percent of its gross operating revenues derived from intrastate business, excluding sales for resale between public utilities, municipal electric utilities, and rural electric cooperatives, or any combination thereof. _

(d) For each municipal electric utility and rural electric cooperative, one sixty-fourth of 1 percent of its gross operating revenues derived from intrastate business, excluding sales for resale between public utilities, municipal electric utilities, and rural electric cooperatives, or any combination ,thereof.

(e) For each regulated company licensed under chapter 367, 2.5 percent of its gross revenues derived

402


from intrastate business.

Differences, if any, between the amount paid in any 6-month period and the amount actually determined by the commission to be due shall, upon notification by the commission, be immediately paid or refunded. Each regulated company which is subject to the jurisdiction of the commission, but which did not operate under the commission's jurisdiction during the entire preceding 6-month period, shall, within 30 days after the close of the first 6-month period during which it commenced operations under, or became subject to, the jurisdiction of the commission, pay to the commission the prescribed fee based upon its gross operating revenues derived from intrastate business during those months or parts of months in which the regulated company did operate during such 6-month period. In no event shall payments under this section be less than $25 annually.

(4) The commission shall provide each regulated company with written notice of the date that payment of the fee is due at least 45 days prior to such date. If any regulated company fails to pay the required fee by such date, the commission shall estimate the amount of fee due from such information as it may be able to obtain from any source and shall add 5 percent of such amount to the fee as a penalty if the failure is for not more than 30 days, with an additional 5 percent for each additional 30 days or fraction thereof during the time in which the failure continues, not to exceed a total penalty of25 percent. The commission shall collect the fee and penalty,. plus interest and all costs of collection, from the regulated company. However, no penalty shall be added to the fee if a return is made and the fee is paid before the date fixed in the notice given by the commission.

(5) The commission, for good cause shown by written request, may extend for a period not to exceed 30 days the time for paying any fee or for filing any report related thereto. If an extension is granted, there shall be collected a charge of0.75 percent of the fee to be remitted for an extension of 15 days or less, or a charge of 1.5 percent of the fee for an extension of more than 15 days. No other penalty or interest shall be collected if such fee is remitted within the extension time granted. In lieu of paying the interest charge imposed by this subsection, a regulated company may remit an estimated amount of fee by the 30th day following a 6-month period. Any regulated company which remits an estimated fee payment by such date shall be granted a 30-day extension period in which to file and remit the actual fee due without the interest charge provided hereunder being imposed, unless the estimated fee payment remitted is less than 90 percent of the actual fee due for such period.

(6) All moneys in the Florida Public Service Regulatory Trust Fund shall be for the use of the commission in the performance of its functions and duties as provided by law, subject to the fiscal and budgetary provisions of general law.

(7) Notwithstanding the provisions ofs. 350.111, as used in this section only, the term "regulated com-

pany" includes any rural electric cooperative or municipal electric utility.

History.-ss. 3, 6, ch. 80-289. 'Note.-Section 6, ch. 80-289, provides, in effect, that this section as created


1350.115 Uniform systems and classifications of accounts.-The commission may prescribe by rule uniform systems and classifications of accounts for each type of regulated company and approve or establish adequate, fair, and reasonable depreciation rates and charges. The commission shall use any such uniform system and classification of accounts that may be established by the Interstate Commerce Commission for railroads.



1350.117 Reports; audits.-(1) The commission may require such regular or

emergency reports, including, but not limited to, financial reports, as the commission deems necessary to fulfill its obligations under the law.

(2) The commission may perform management and operation audits of any regulated company except railroads. The commission may consider the results of such audits in establishing rates; however, the company shall not be denied due process as a result of the use of any such management or operation audit.

(3) As used in this section, "management and operation audit" means an appraisal, by a public accountant or other professional person, of management performance, including a testing of adherence to governing policy and profit capability; adequacy of operating controls and operating procedures; and relations with employees, customers, the trade, and the public generally.



1 350.121 Commission inquiries; confidentiality of business material.-If the commission undertakes an inquiry, any records, documents, papers, maps, books, tapes, photographs, files, sound recordings, or other business material, regardless of form or characteristics, obtained by the commission incident to the inquiry are considered confidential and exempt from s. 119.07(1) while the inquiry is pending. If at the conclusion of an inquiry the commission undertakes a formal proceeding, any matter determined by the commission or by a judicial or administrative body, federal or state, to be trade secrets or proprietary confidential business information coming into its possession pursuant to such inquiry shall be considered confidential and exempt from s. 119.07(1). Such material may be used in any administrative or judicial proceeding so long as the confidential or proprietary nature of the material is maintained.


by ch. 80-289 shall stand repealed (expires) on July 1, 1990, and shall be

403


reviewed by the Legislature pursuant to the Regula(!>ry Reform Act of 1976, as amended, or any successor legislation.

1350.123 Oaths; depositions; protective orders.-The commission may administer oaths, take depositions, issue protective orders, issue subpoenas, and compel the attendance of witnesses and the production of books, papers, documents, and other evidenc.e necessary for the purpose of any investigation or proceeding. Challenges to, and enforcement of, such subpoenas and orders shall be handled as pro-vided in s. 120.58. ·

History.-ss. 3, 6, ch. 80-289. 1 Note.-Section 6, ch. 80-289, provides, in effect, that this section as created

by ch. 80.289 shall stand repealed (expires) on July 1, 1990, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

1350.124 Compelled testimony.-lf any person called to testify in a commission proceeding shall refuse to testify because of a claim of possible selfincrimination, the commission, after consultation with the appropriate state attorney, may apply to the chief judge of the appropriate judicial circuit for a judiCial grant ofimmunity ordering the testimony of such person notwithstanding his opjection, but in such case no testimony or other information compelled under the order, or any information' directly or indirectly derived from such testimony or other information, may be used against .the witness in any criminal prosecution. ·

Histocy.-ss. 3, 6, ch: 80.289. ,'Note.-Section 6, ch. 80.289, provides, in effect, that this section as created

by ch. 80.289 shall stand repealed (expires) on July 1, 19~0. and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

1350.125 Administrative hearing officers.Any provision of law to . the contrary notwithstanding, the commission shall utilize hearing officers of the Division of Administrative Hearings of the Department of Administration to conduct hearings of the commission not assigned to members of the commission.

Hlstory.-ss. 3, 6, ch. 80.289. 'Note.-Section 6, ch. 80-289, provides, in effect, that this sectiol! as created

by ch. 80.289 shall stand repealed (expires) on July 1, 1990, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

1350.127 Penalties; rules; execution of contracts.-

(1) The commission may impose upon any regulated company that is found to have refused to comply with or willfully violated any lawful rule or order of the commission, or any statute administered by the commission, a .penalty for each such offense of not more than $5,000, to be fixed, imposed, and col: lected by the commission, or the commission may, for any such violation, amend, suspend, or revoke any certificate issued by the commission. Each day that such refusal or violation continues shall constitute a separate offense. Each penalty shall be a lien upon the real and personal property of the regulated company, enforceable by the commission as a statutory lien under chapter 85. The net proceeds from the enforcement of any such lien shall be deposited in the General Revenue Fund.

(2) The commission is authorized to adopt, by affirmative vote of. a majority of the commission, rules

reasonably necessary to implement any law which it administers.

(3) The commission may designate one or more employees to execute contracts on behalf of the commission.

History.-ss. 3, 6, ch. 80.289 .. 'Note.-Section 6, ch. 80.289, provides, in effect, that this section as created

by ch. S0:289 shall stand repealed (expires) on July 1, 1990, and shall be reviewed bY. the Legislature pl.lrsuant to the Regulatory Reform Act of 1976, as amended, ~r any successor Jegislation.

1350.128 Judicial review.-(1) · As authorized by s. 3(b)(2), Art. V of the State

Constitution, the Supreme .Court shall, upon petition, review any action ofthe commission relating to rates or service of utilities providing electriC, gas; or telephone service. The District Court of Appeal, First District, shall, upon petition', review any other action of the commission.

(2) Notice of such review shall 'be given by the petitioner to all parties who entered appearances of record in the proceedings before the commission in which the order sought to be reviewed was made.

(3) Such parties may file briefs in support of their interests, as such interests may appear; within the time and in the manner provided by the Florida Rules of Appellate Procedure.

(4) Such parties shall be entitled as a matter of right to make oral argument in support of their interests, as such interests may appear, in any case in which oral argument is granted by the court on the application of the petitioner or -the respondent.

History.-ss. 3, 6, ch. 80.289. 'Note.-Section 6, ch. 80.289, provides, in effect, tha't this section as created


CHAPT·ER 351

DUTIES.OF RAILROADS IN - OPERATING TRAINS

Chapter 351 is repealed by s. 5, ch. 80-289, Laws of Florida, effective October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any !)uccessor legislation.

351.001 Legislative intent. 351.002' · Definitions. · 351.003 Powers of the commission. 351.004 Rates; procedure for approval. 351.005 Interim rates; procedure. 351.006 Experimental and transitional rates. 351.007 · Discontinuance of service. 351.008 Freight receipts. 351.009 Fees.

. ;

1351.001 Legislative intent.-The Legislature finds and declares that there is a need to improve the flow of commerce, to conserve energy, and to improve rail service to the public by the promotion of a safe, adequate; economical, viable, and efficient

404

s. 351.001 1980 SUPPLEMENT TO FLORIDA STATUTES 1979 s. ·351.004

rail transportation system; the encouragement of competition in transportation; and the elimination of outdated and unnecessary rules and regulations.

Hlstory.-ss. 1, 5, ch. 80-289. · 'Nc;>te.-Section 5, ci). 80-289, provides, in effect, that this section is repealed

(exp1res) on October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

' '

1351.002 Definitions.~As used in ss. 351.001-351.009: . .

(1) "Railroacj.s" inch1des all equipment or facilities related to the fixed-rail transportation of personal property, including, but not limited to:

(a) All switches, spurs; tracks, and terminal facilities ·ofevery kind used or necessary in the transpor~ tatioh of property. ' · ·

(b) All freight depots, yards, and grounds used or necessary in the receiving, handling, transportation, and delivery Of freight. ·

(c) All freight terminal companies, whether' op-erating train service· or n<>t. ·

(2) '"Commission" means the Florida Public Service Commission.

(3) · "Rate" means any rate, charge, tariff, price; fee, or other form of monetary charge imposed by a railroad. '

Hlstory.-ss. 1, 5, ch. 80-289. 'Note.-Sectio.n 5, ch. 80-289, provides, in effect, that this section is repealed

(expires) on October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation. . ·

1351.003 Powers of the commission.-In addition to any other power conferred by law, the com-n;J.ission shall have power to: .

(1) Compel all railroads and railroad companies crossing or meeting each. other at any point, or serving the same locality, to construct such switches, sidetracks, and connections as' are necessary to transport to and from each other's lines. However, in such event, the commission shall apportion the cost between the affected railroad companies on a just and equitable basis or, if justice requires, impose the entire cost of construction u·pon one railroad company. . (2) Require two or more of the railroads servicing the same. locality to provide for the interchange of traffic between said railroads. ·

(3) Require railroads and railroad companies to make connections with private sidetracks along their respective lines upon reasonable terms and conditions. . ·

(4) Require repairs or improvements to any track, depot, station, or other property necessary to secure adequate and proper service. .

(5) Adopt all rules necessary to implement the provisions of this chapter.

Hlstory.-ss. 1, 5, ch. 80-289. 1N-;>te.--Sectic:m 5, ch. 80-289, provides, in effect, thB.t this section is repealed

(exptres) on October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Refor!Jl Act of 1976, as amended, or any successor legislation.

various notice requirements for railroads .seeking rate approval.

(3) The commission shall notify the railroad and all interested persons who request such notice under rules of the commission of the tariff filing.

(4) The commission may not investigate, suspend, revise, or revoke any intrastate rate filed by a railroad if the aggregate of increases or decreases in any such rate is riot more than 10 percent above the rate in effect ! .year prior to the effective date of the proposed rate, or more than 10 percent below the rate in effect 1 year prior.to the effective 'date of the proposed rate; exclusive of fuel surcharges authorized by the Interstate Commerce Commission and approved by the commission.

(5) The commission, by rule, may increase the percentage specified in subsection (4) for any railroad or railroads, if it finds that:

(a) There is sufficient actual or potential compe-tition to regulate rates; and · · · (b) ·There are benefits to the railroad, shippers, or

the public from increased price flexibility. (6) With respect to all other rate changes, the

commission may suspend the effective date of the tariff, upon its own motion or upon protest of persons showing substantial interest, by filing an order to that effect with the commission clerk within 60 days after the date of the filing of the tariff in the case of a general revenue or ex parte tariff filing or within 30 days in the case of any other tariff filing. The order shall state a reason or statement of good cause for the suspension. The commission shall provide 'a copy of the order to the railroad and all interested persons who have requested notice. Such suspension shall not be for a period longer than 8 months from the date of filing: The commission, upon request of the applicant railroad, shall provide that any rate suspended shall go into effect under bond or corporate undertaking subject to refund at the expiration of such period upon notice to the commission. 'The commission shall determine whether the corporate undertaking may be filed in .lieu of the bond, The railroad shall keep accurate, detailed accounts of all amounts received because of such rates becoming effective under bond or corporate undertaking subject to refund, specifying by whom and in whose behalf such amounts were paid. In-its final;order relating to such rate request, the commission shall direct the railroad to refund such portion of the increased rates collected during the periods specified herein found not to be justified, in .the manner set forth herein. The commission shall provide for the disposition of any funds not refunded, but in no event shall such funds accrue to the-benefit of the railroad. The commission shall take final commission action in .the docket and enter its final order within 12 months after the railroad has filed documents meeting the minimum filing requirements as established by rule of the commission. Within 30 days of receipt of the rate filing, the commission or its designee shall ei-

1351.004 Rates; procedure for approval.- ther determine that the minimum filing require(!) No railroad shall directly or indirectly charge ments have been met or issue . a statement of defi

or receive any rate unless the rate is first published ciencies to the applicant, specifically listing why the in a tariff on file with the commission under the applicant has failed to meet the minimum filing reprocedure set forth in this section. quirements. Any subsequent statements of deficien-

(2) The commission may adopt rules establishing cies shall not include any matter not referred to in

405


the -original statement of deficiencies. Commission determination of when the minimum filing requirements have been met is for the sole purpose of determining the beginning of the 12-month period in which final commission action must pe taken.

(7) The commission, upon its own motion or upon request, may initiate a rate proceeding by serving written notice upon the railroad and upon all interested persons who have requested such notice of a rate proceeding. After a hearing, the commission may order rates to be charged thereafter increased or decreased if the commission finds unfair discrimination against any person served by the railroad under a rate authorized by subsection (4); or as necessary to fulfill the provisions of subsections (6) and (8). .

(8) In any proceeding for approval of permanent or interim rates under subsection (6) or subsection (7), the commission shall set and approve only rates that are just, reasonable, and not unfairly discriminatory against any person served by the railroad. In setting rates, the commission may consider, among other things, energy conservation, efficiency, the value and the quality of the service rendered, rate of return, and the costs prudently incurred in providing the service.

(9) All previously approved rates being ch~rged by a railroad on July 1, 1980, shall be changed only in accordance with the procedure set forth herein.

(10) All commission proceedings conducted pursuant to any provision of the Florida Statutes which were commenced prior to July 1, 1980, and upon which a final order has been issued shall be continued to conclusion, including judicial review, under the provisions in effect on June 30, 1980. All other pending proceedings shall be conducted pursuant to this act.

History.-ss. 1, 5, ch. 80-289. 'Note.-Section 5, ch. 80.289, provides, in effect, that this section is repealed

(expires) on October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

1351.005 Interim rates; procedure.-(!) The commission may, during any ex parte

general rate proceeding under 2s. 351.004(6) or (7) for a change of rates, upon its own motion or upon petition from any party or by a tariff filing of a railroad, authorize the collection of interim rates until the effective date of the final order. Such interim rates may be based upon a test period different from the test period used in the request for permanent rate relief. To establish a prima facie entitlement for interim relief, the commission, the petitioning party, or the railroad shall demonstrate that the railroad is earning outside the 'range of reasonableness on the rate of return previously authorized by the commission. This determination shall be based upon the rate of return calculated in accordance with subsection (5).

(2)(a) In. a proceeding for an interim increase in rates, the commission shall authorize, within 60 days of the filing for such relief, the collection of rates sufficient to earn a rate of return at the minimum of the range of the last authorized rate of return. The difference between the intei'im rates and the previously authorized rates shall be collected under bond or corporate undertaking subject to refund

with interest at a rate ordered by the commission. (b) In a proceeding for an interim decrease in

rates, the commission shall authorize, within 60 days of the filing for such relief, the continued collection of the previously authorized rates; however, revenues collected under those rates sufficient to reduce the achieved rate of return to the maximum of the last authorized rate of return shall be placed under bond or corporate undertaking subject to refund with interest_ at a rate ordered by the commission.

(c) The commission shall determine whether corporate undertaking may be filed in lieu of the bond.

(3) In granting such relief, the commission may, in an expedited hearing within 60 days of the commencement of the p~;oceeding, upon petition or upon its own motion, preclude the recovery of any extraordinary or imprudently incurred expenditures or, for good cause shown, increase the amount of the bond or corporate undertaking.

(4) Any refund ordered by the commission shall be calculated to reduce the railroad's. rate of return during the pendency of the proceeqing to the same level within the range of the newly authorized rate of return which is found fair and reasonable on a prospective basis, but the refund shall not be in excess of the amount of the revenues collected subject to refund and in accordance with paragraph (2)(b). In addition, the commission may require interest on the refund at a rate established by the commission.

(5) The commission, in setting interim rates or setting revenues subject to refund, shall determine the deficiency or excess by applying:

(a) The rate of return for the railroad for the most recent 12-month period, which shall be calculated by applying appropriate adjustments consistent with those which were used in the railroad's most recent rate case, and annualizing any rate changes occurring during such period but ba5ed upon an average-investment rate base; or

(b) · The rate of return calculated in accordance with paragraph. (a) but based upon an end-of-period investment rate base.

History.-ss. 1, 5, ch. 8Q.289. 'Note.-Section 5, ch. 80.289, provides, in effect, that this section is repealed.

(expires) on October l , 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation. 'Note.-The words "s. 351.004(6) or (7)" were substituted for "subsection (6)

or (7) of section 4 of this act" to correct an apparent error in the preparation of C.S . for H.B. 1733 (1980). See ss. 4 and 5 of H.B. 1733 (1980).

1 351.006 Experimental and transitional rates.-

( I) The commission may approve rates on an experimental or transitional basis for any railroad to encourage energy conservation or to encourage efficiency. The application of such rates may be for limited geographic areas and for a limited period.

(2) The commission is authorized to approve the geographic area used in testing experimental rates and shall specify, in the order setting those rates, the area affected. The commission may extend the period designated for the test if it determines that further testing is necessary to fully evaluate the effectiveness of the experimental rates.

History.-ss. 1, 5, ch. 8Q.289. 'Note.-Section 5, ch. 80.289, provides, in effect, that this section is repealed

(expires) on October 1, 1982, and shall be reviewed by the Legislature pursu-

406


ant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

1351.007 Discontinuance of service.-No railroad shall discontinue service in any location in this state without the prior consent of the commission, except in the case of an abandonment of track approved by the Interstate Commerce Commission.

History.-ss. 1, 5, ch. 80-289. 'Note.-Section 5, ch. 80-289, provides, in effect, that this section is repealed


1351.008 Freight receipts.-Each railroad company in the state shall, upon demand, issue to a shipper duplicate freight receipts in which shall be stated the class or classes of freight shipped, the freight charges over the line of the railroad issuing such receipts, and, as far as practicable, the charges over the connecting lines transporting the freight. The commission may prescribe by rule the form or forms of freight receipts or bills of lading.

History.-ss. 1, 5, ch. 80-289. 1Note.-Section 5, ch. 80-289, provides, in effect, that this section is repealed


1351.009 Fees.-Every railroad company shall pay to the commission a fee for any application, said fee to be set by rule of the commission. The fees shall be deposited in the Florida Public Service Regulatory Trust Fund and, to the extent practicable, shall be generally related to the costs of processing the application, with the following limitations:

(1) The fee to curtail or change rail services shall not exceed $200.

(2) The fee for increased rates shall not exceed $1,000.

(3) The fee for initial rate filings shall not exceed $200.

(4) The fee for all other applications shall not exceed $250.

History.-ss. 1, 5, ch. 80-28.9. 'Note.-Section 5, ch. 80-289, provides, in effect, that this section is repealed

(expires) on .October 1, 1982,' and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

CHAPTER 352

DUTIES TO RAILROAD PASSENGERS AND FREIGHT

Chapter 352 is repealed by s. 5, ch. 80-289, Laws of Florida, effective October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

407

CHAPTER 353

CLAIMS FOR LOST OR DAMAGED FREIGHT


CHAPTER 354

SPECIAL OFFICERS FOR CARRIERS


CHAPTER 355

CARRIER'S LIEN AND ENFORCEMENT

Chapter 355 is repealed by s. 5, ch. 80-289, Laws of Florida, effective October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation. ·

CHAPTER 356

FENCING AND EVIDENCE IN LIVESTOCK CASES; RAILROADS


1980 SUPPLEMENT TO FLORIDA STATUTES 1979

CHAPTER 357

RAILROAD CROSSINGS

Chapter 357 is repealed by s. 5, ch. 80-289; Laws of Florida, effective October 1, 1982; and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

CHAPTER 358

TICKETS, PASSES, AND DISCOUNTS

Chapter 358 is repealed by s. 5, ch. 80-289, Laws of Florida, effective October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform'Act of 1976, as amended, or any successor legislation.

CHAPTER 359

EXPRESS COMPANIES;

PAYMENT OF CLAIMS; RATES ~

Chapter 359 is repealed by s. 5, ch. 80-289, Laws of Florida, effective October l , 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any successor legislation.

CHAPTER 360

SPECIAL POWERS OF RAILROAD AND CANAL COMPANIES; TOLLS

Chapter 360 is repealed by s. 5, ch. 80-289, Laws of Florida, effective October 1, 1982, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended, or any' successor legislation:

CHAPTER 364

TELEGRAPH AND TELEPHONE COMPANIES AND RADIO COMMON CARRIERS

364.01 364.02 364.03

364.035 364.04

364.05

364.055 364.057 364.06 364.07

364.08

364.09 364.10

364.11

364.12

364.13

364.14

364.15

364.16 364.17

364.18

364.185

364.19

364.20

364.21

364.22

364.23

364.24

364.25

364.26

408

PART I

TELEGRAPH AND TELEPHONE COMPANIES

Powers of commission, legislative intent. Terms used in part I defined. Rates to be reasonable; performance of ser

vice; maintenance of facilities and equipment.

Rate fixing; criteria service complaints. Schedules of rates, tolls, rentals,· contracts,

and charges; filing; public inspection. Changing rates, tolls, rentals, contracts, or

charges. ., , Interim rates; procedure. Experimental and transitional rates. Joint rates, tolls, contracts, or charges. Joint contracts; intrastate toll .revenue set-

tlement agreements. Unlawful to charge other than schedule

rates or charges; free service and re-duced rates prohibited. • ·

Giving rebate or special rate. prohibited. Undue advan'tage to person or locality pro-

hibited. . , · Short and long transmission of long dis

tance message. Transmission of messages of other compa

nies. Commissioners may require installation of

stations, etc. Readjustment of rates, charges, · tollf.?, or

rentals; hearing; order compelling facilities to be installed, etc. , · ..

Compelling repairs, improvements, changes, additions, or extensions.

Connection of lines and transfers. Forms of reports, accounts, records, imd

memoranda, etc. Inspection of accounts and records of com

panies. Investigations and inspections; power of

commission. Telephone service contracts; regulation by

commission. Power to prescribe rules; rule of evidence;

rules to be reasonable; presumptions in favor of commissiorrers, etc.

Penalty for violations; procedure for enforcement.

Penalty for illegal telegraph company charges. ·

Penalty ·for disclosing contents of telegrams.

Penalty for making telephone message known.

Power to summon witnesses, issue writs, and punish contempts. ·

Practice before, by, and against commissioners~in relation to rates, etc.


364.27

364.28 364.29 364.30

364.31

364.32 364.33

364.335 364.34 364.345 364.35

364.36

364.37

364.38

364.381 364.385 364.39

364.40

Powers and duties as to interstate rates, fares, charges, classifications, or rules of practice.

Judicial powers. Construction of part I. Telephone companies; use of outlets; pen

alties. Duty1 to report violations of gambling laws;

penalty. Definitions applicable to ss. 364.33-364.40. Certificate of necessity prerequisite to con

struction, operation or control of teleph<;me line, plant, system.

Application for certificate. Application for certificate. Certificates; territory served; transfer. Issuance of certificate; powers of commis-

sion. Issuance of certificate; construction, opera

tion existing on May 19, 1953. Controversy concerning territory to be

seryed; powers of commission. Unlawful construction; operation of tele

phone lines, plant, system; powers of commission.

Judicial review. Saving clauses. Authority under certificate to be exercised

within reasonable time. Penalty for violations of ss. 364.32-364.39.

'364.01 Powers of commission, legislative intent.-

(1) The Florida Public Service Commission shall exercise over and in relation to telephone companies the powers conferred by this part.

(2) It is the1legislative intent to give exclusive jurisdiction in all matters set forth in this chapter to the Florida Public Service Commission in regulating telephone and ~adio common carriers, and such preemption shall supersede any local or special act or municipal charter where any conflict of authority may exist.

History.-ss. 1-4, ch. 6186, 1911; ss. 1-6, ch. 6187, 1911; s. 1, ch. 6525, 1913; RGS 4393; CGL 6357; s. 1, ch. 63-279;· s. 1, ch. 65-52; s. 1, ch. 67-541; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 32, ch. 80-36. • 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 32, ch. 80-36. cf.-Ch. 350 Florida 1'\jblic Service Commission.

'364.02 Terms used in part I defined.-(!) The terrrt "commission," when used in this

part, means the1 Florida Public Service Commission.

(2) The term "corporation," when used in this part, includes a corporation, company, association, or joint stock aSsociation.

(3) The term "service" is used in this part in its broadest and most inclusive sense.

(4) The term' "telephone company," when used in this part, includes every corporation, company, association, joint stobk association, partnership, and per~ son and their le~sees, trustees, or receivers appointed by any court whatsoever, and every city or town owning, operating, or managing any telephone line or part of telephone line used in the conduct of the business of affording telephonic communication service for hire within this state.

(5) The term "telephone line," when used in this

part, includes conduits·, ducts, poles, wires, cables, crossarms, receivers, transmitters, instruments, machines, appliances, instrumentalities, and all devices, including radio and other advancements of the art of telephony, real estate, easements, apparatus, property, and routes used and operated to facilitate the business of affording telephonic communication service to the public for hire within this state.

History.-s. 2, ch. 6525, 1913; RGS 4394; CGL 6358; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 1, ch. 65-451; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 32, ch. 80-36.

1364.03 Rates to be reasonable; performance of service; maintenance of facilities and equipment.-

(1) All rates, tolls, contracts, and charges of, and all rules and regulations of, telepho'ne companies for messages, conversations, services rendered, and equipment and facilities supplied, whether such message, conversation, or service is to be performed over one company or line or over or by two or more companies or lines, shall be fair, just, reasonable, and sufficient, and the service so to be rendered any person by any telephone company shall be rendered and performed in a prompt, expeditious, and efficient manner and the facilities, instrumentalities, and equipment furnished by it shall be safe and kept in good condition and repair and its appliances, instrumentalities, and service shall be modern, adequate, sufficient, and efficient.

(2) Every telephone company operating in this state shall provide and maintain suitable and adequate buildings and facilities therein, or connected therewith, for the accommodation, comfort, and convenience of its patrons and employees.

(3) Every telephone company shall, upon reasonable notice, furnish to all persons who may apply therefor and be reasonably entitled thereto suitable and proper facilities and connections for telephonic communications and furnish telephone service as demanded upon terms to be approved by the commission.

Hlstory.-s. 3, ch. 6525, 1913; RGS 4395; CGL 6359; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 3, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 32, ch. 80-36. ·

364.035 Rate fixing; criteria service · com-plaints.- ·

(1) In fixing the just; reasonable, and comp-ensatory rates, charges, fares, tolls, or rentals to be observed and charged for service within the state by any and all telephone companies under its jurisdiction, the commission is authorized to give consideration, among other things, to the efficiency, sufficiency, and adequacy of the facilities provided and the services rendered, including energy conservation and the efficient use of alternative energy resources; the value of such service to the public; and the ability of the telephone company to improve such service and facilities; except that no telephone company shall be denied a reasonable rate of return upon its rate base in any order entered pursuant to such proceedings. In its consideration thereof, the commission shall have authority, and it shall be the commission's duty, to hear service complaints, if any, that may be presented by subscribers and the public during any proceedings involving such rates, charges,

409


fares, tolls, or rentals; however, no service complaints shall be taken up or considered by the commission at any proceedings involving rates, charges, fares, tolls, or rentals unless the telephone company has been given at least 30 days' written notice thereof, and any proceeding may be extended, prior to final determination, for such period; and, further, no order hereunder shall be made effective until a reasonable time, considering the factor of growth in the community and availability of necessary equipment, has been given the telephone company involved to correct the cause of service complaints.

(2) The power and authority herein conferred upon the commission shall not cancel or amend any existing punitive powers of the commission but shall be supplementary thereto and shall be construed liberally to further the legislative intent that adequate service be rendered by telephone companies in the state in consideration for the rates, charges, fares, tolls, and rentals fixed by the commission and observed by the telephone companies under its jurisdiction.

Hlstory.-s. 25, ch. 80-36.

the demand of any person. (5) A notice printed in bold type and stating that

such schedules are on file and open to inspection by any person, the places where the schedules are kept, and that the agent will assist any person to determine from such schedules any rate, toll, rental, rule, or regulation which is in force shall be kept posted by every telephone company in a conspicuous place in every station or office of the company. The commission may require compliance with the foregoing provisions, either in whole or in part.

Hlstory.-s. 4, ch. 6525, 1913; RGS 4396; CGL 6360; s. 3, ch. 76·168; s. 1, ch. 77-457; ss. 4, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77457, was nullified by s. 32, ch. 80·36.

1364.05 Changing rates, tolls, rentals, contracts, or charges.-

(1) Unless the commission otherwise orders, no change shall be made in any rate, toll, rental, contract, or charge which has been .filed and published by any telephone company in compliance with the requirements of s. 364.04, except after 60 days' notice to the commission and the .publication for 60 days as required by that section in the case of origi-

1364.04 Schedules of rates, tolls, rentals, con- nal schedules, which notice shall plainly state the tracts, and charges; filing; public inspection.- changes proposed to be made in the schedule then in

(1) Upon order of the commission, every tele- force and the time when the changed rate, toll, conphone company shall file with the commission, and tract, or charge will go into effect. All proposed shall print and keep open to public inspection at changes shall be shown by printing, filing, and pubsuch points as the commission may designate, sched- lishing new schedules or shall be plainly indicated ules showing the rates, tolls, rentals, contracts, and upon the schedules in force at the time and kept charges of that company for messages, conversa- open to public inspection. tions, and services rendered and equipment and fa- (2) The commission, for good cause shown, may cilities supplied for messages and service to be per- allow changes in rates, tolls, rentals, contracts, or formed within the state between each point upon its charges without requiring the 60 days' notice and line and all other points thereon, and between each publication herein provided for by an order specifypoint upon its line and all points upon every other ing the change so to be made, the time when it shall similar line operated or controlled by it, and between take effect, and the manner in which the same shall each point on its line or upon any line leased, operat- be filed and published. ed, or controlled by it and all points upon the line of (3) When any change is made in any rate, toll, any other similar company, whenever a through ser- rental, contract, or charge, the effect of which is to vice and joint rate shall have been established or increase any rate, toll, rental, or charge then existordered between any two such points. ing, attention shall be directed on the copy filed with

(2) If no joint rate covering a through service has the commission to such increase by some character been established, the several companies in such immediately preceding or following the item in such through service shall file, print, and keep open to schedule, which character shall be in such form as public inspection as aforesaid the separately estab- the commission may designate. No change shall be lished rates, tolls, rentals, contracts, and charges ap- made in any rate, toll, rental, contract, or charge plicable for such through service. prescribed by the commission without its consent.

(3) The schedule printed as aforesaid shall plain- (4) Pending a final order by the commission in ly state the places between which telephone service any rate proceeding under this section, the commiswill be rendered and shall also state separately all sion may withhold consent to the operation of all or charges and all privileges or facilities granted or any portion of the new rate schedules, delivering to allowed and any rules or regulations or forms of the telephone company requesting such increase, contract which may in anywise change, affect, or within 60 days, a reason or written statement of good determine any of the aggregate of the rates, tolls, cause for withholding its consent. Such consent shall rentals; or charges for the service rendered. not be withheld for a period longer than 8 months

(4) A schedule shall be plainly printed in large from the date of filing the new schedules. The new type, and a copy thereof shall be .kept by every tele- rates or any portion not consented to shall go into phone company readily accessible to, and for conven- effect under bond or corporate undertaking at the ient inspection by, the public at such places as may end of such period, but the commission shall, by orbe designated by the commission, which schedule der, require such telephone company to keep accushall state the rates charged from such station to rate account in detail of all amounts received by every other station on such company's line or on any reason of such increase, specifying by whom and in line controlled and used by it within the state. All or whose behalf such amounts were paid and, upon any of such schedules kept as aforesaid shall be im- completion of hearing and final decision in such promediately produced by the telephone company upon ceeding, shall by further order require such tele-

410


phone company to refund with interest at a fair rate, to be determined by the commission in such manner as it may direct, such portion of the increased rate or charge as by its decision shall be found not justified. Any portion of such refund not thus refunded to patrons or customers of the telephone company shall be refunded or disposed of by the telephone company as the commission may direct; however, no such funds shall accrue to the benefit of the telephone company. The commission shall take final commission action in the docket and enter its final order within 12 months after the commencement date for final agency action. As used in this section, "commencement date for final agency action" means the date upon which it has been determined by the commission or its designee that the telephone company has filed with the clerk the minimum filing requirements as established by rule of the commission. Within 30 days after receipt of the application, rate request, or other written document for which the commencement date for final agency action is to be established, the commission or its designee shall either determine the commencement date for final agency action or issue a statement of deficiencies to the applicant, specifically listing why the applicant has failed to meet the minimum filing requirements. The statement of deficiencies shall be binding upon the commission to the extent that, once the deficiencies in the statement are satisfied, the commencement date for final agency action shall be promptly established as provided in this section. Thereafter, within 15 days after the applicant indicates to the commission that it believes that it has met the minimum filing requirements, the commission or its designee shall either determine the commencement date for final agency action or specifically enumerate in writing why the requirements have not been met, in which case this procedure shall be repeated until the commencement date for final agency action is established. When the commission initiates a proceeding, the commencement date for final agency action shall be the date upon which the order initiating the proceeding is issued.

History.-s. 5, ch. 6525, 1913; RGS 4397; CGL 6361; s. 3, ch. 74-195; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 142, ch. 79-400; ss. 5, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 32, ch. 80-36. · cf.-ss. 366.06, 367.081 Rates; procedure for fixing and changing.

364.055 Interim rates; procedure.-(!) The commission may, during any proceeding

for a change of rates, upon its own motion, upon petition from any party, or by a tariff filing of a telephone company, authorize the collection of interim rates until the effective date of the final order. Such interim rates may be based upon a test period different from the test period used in the request for permanent rate relief. To establish a prima facie entitlement for interim relief, the commission, the petitioning party, or the telephone company shall demonstrate that the telephone company is earning outside the range of reasonableness on the rate of return previously authorized by the commission. This determination shall be based upon the rate of return calculated in accordance with paragraph (a) or paragraph (b) of subsection (5).

(2)(a) In a proceeding for an interim increase in rates, the commission shall authorize, within 60

days of the filing for such relief, the collection of rates sufficient to earn a rate of return at the minimum of the range of the last authorized rate of return. The difference between the interim rates and the previously authorized rates shall be collected under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.

(b) · In a proceeding for an interim decrease in rates, the commission shall authorize, within 60 days of the filing for such relief, the continued collection of the previously authorized rates; however, revenues collected under those rates sufficient to reduce the achieved rate of return to the maximum of the last authorized rate of return shall be placed under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.


(3) In granting such relief, the commission may, in an expedited hearing but within 60 days of the commencement of the proceeding, upon petition or upon its own motion, preclude the recovery of any extraordinary or imprudently incurred expenditures or, for good cause shown, increase the amount of the bond or corporate undertaking.

( 4) Any refund ordered by the commission shall be calculated to reduce the telephone company's rate of return during the pendency of the proceeding to the same level within the range of the newly authorized rate of return which is found fair and reasonable on a prospective basis, but the refund shall not be in excess of the amount of the revenues collected subject to refund and in accordance with paragraph (b) of subsection (2). In addition, the commission may require interest on the refund at a rate established by the commission.

(5) The commission, in setting interim rates or setting revenues subject to refund, shall determine the deficiency or excess by applying:

(a) The rate of return for the telephone company for the most recent 12-month period, which shall be calculated by applying appropriate adjustments consistent with those which were used in the telephone company's most recent rate case and annualizing any rate changes occurring during such period but based upon an average investment rate base; or

(b) The rate of return calculated in accordance with paragraph (a) but based upon an end-of-period investment rate base.

History.-s. 6, ch. 80-36.

364.057 Experimental and transitional rates.-

( I) ';r'he commission is authorized to approve rates on an experimental or transitional basis for any telephone company to encourage energy conservation or to encourage efficiency. The application of such rates may be for limited geographic areas and for a limited period.

(2) The commission is authorized to approve the geographic area used in testing experimental rates and shall specify in the order setting those rates the area affected. The commission may extend the period designated for the test if it determines that fur-

411


ther testing is necessary to fully evaluate the effectiveness of such experimental rates.

History.-s. 10, ch. 80-36.

1364.06 Joint rates, tolls, contracts, or charges.-The names of the several companies which are parties to any joint rates, tolls, contracts, or charges of telephone companies for messages, conversations, and service to be rendered shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the commission. When such evidence of concurrence or acceptance is filed, it shall not be necessary for the companies filing the same to also file copies of the tariff in which they are named as parties.

History.-s. 6, ch. 6525, 1913; RGS 4398; CGL 6362; s. 3, ch. 76-168; s. 1, ch. 77-457; 88. 7, 32, ch. 80-36.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 32, ch. 80-36.

1364.07 Joint contracts; intrastate toll rev& nue settlement agreements.-

(!) Every telephone co)llpany shall file with the commission, as and when required by it, a copy of any contract, agreement, or arrangement in writing with any other telephone company, or with any other corpQration, association, or person relating in any way to the construction, maintenance, or use of a telephone line or service by, or rates and charges over and upon,' any such telephone line.

(2) The commission is authorized to review intrastate toll settlement agreements and disapprove any such agreement if such agreement is detrimental to the public interest. The commission may also require the filing of all necessary reports and information pertinent to intrastate toll revenue settlements. The commission is also authorized to adjudicate disputes among telephone companies regarding intrastate telecommunications settlements.

History.-e. 7, ch. 6525, 1913; RGS 4399; CGL 6363; s. 3, ch. 76-168; s. 1, ch. 77-457; 88. 8, 32, ch. 80-36.

' Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 32, ch. 80-36.

1364.08 Unlawful to charge other than schedule rates or charges; free service and reduced rates prohibited.-

(!) No telephone company shall charge, demand, collect, or receive for any service rendered or to be rendered any compensation other than the charge applicable to such service as specified in its schedule on file and in effect at that time, nor shall any telephone company refund or remit, directly or indirectly, any portion of the rate or charge so specified, nor extend to any person any advantage of contract or agreement or the benefit of any rule or regulation or any privifege or facility not regularly and uniformly extended to all persons under like circumstances for like or substantially similar service.

(2) No telephone company subject to the provisions of this part shall, directly or indirectly, give any free or reduced service or any free pass or frank for the transmission of messages by telephone between points within this state; however, it shall be lawful in this state to issue exchange passes and franks, grant free and reduced service, and contract for exchange of services by and between common

carriers, as defined by and provided for in the Act of Congress entitled "The Communications Act of 1934," and acts amendatory thereof and supplemental thereto.

History.-e. 8, ch. 6525, 1913; RGS 4400; CGL 6364; s. 3, ch. 76-168; s. 1, ch. 77-457; 88. 9, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


1364.09 Giving rebate or special rate prohibited.-No telephone company shall, directly or indirectly, or by any special rate, rebate, drawback, or other device or method, charge, demand, collect, or receive from any person a greater or lesser compensation for any service rendered or to be rendered with respect to communication by telephone or in connection therewith, except as authorized in this part than it charges, demands, collects, or receives from any other person for doing a like and contemporaneous service with respect to communication by telephone under the same or substantially the same circumstances and conditions.

Hlstory.-s. 9, ch. 6525, 1913; RGS 4401; CGL 6365; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 11, 32, ch. 80-36.

'Note.- The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 32, ch. 80-36.

1364.10 Undue advantage to person or locality prohibited.-No telephone company shall make or give any undue or unreasonable preference or advantage to any person or locality or subject any particular person or locality to any undue or unreasonable prejudice ·or disadvantage in any respect whatsoever.



1364.U Short and long transmission of long distance message.-No telephone company subject to the provisions of this part shall charge or receive any greater compensation in the aggregate for the transmission of any long distance conversation or message of like kind for a shorter distance than for a longer distance over the same line, in the same direction, within this state, the shorter being included within the longer distance, or charge any greater compensation for a through service than the aggregate of the intermediate rates subject to the provisions of this part but this shall not be construed as authorizing any such telephone company to charge and receive as great a compensation for a shorter as for a longer distance. Upon the application of any telephone company, the commission may, by order, authorize the telephone company to charge less for longer than for a shorter distance service for the transmission of conversation or messages in special cases after investigation, but the order must specify and prescribe the extent to· which the telephone company making such application is relieved from the operation of this section, and the telephone company shall be relieved from the requirements of this section only to the extent so specified and prescribed.


412



364.12 Transmission of messages of other companies.-[Repealed by s. 31, ch. 80-36.]

364.13 Commissioners may require installation of stations, etc.-[Repealed by s. 31, ch. 80-36.]

1364.14 Readjustment of rates, charges, tolls, or rentals; hearing; order compelling facilities to be installed, etc.-

(1) Whenever the commission finds, upon its own motion or upon complaint, that the rates, charges, tolls, or rentals demanded, exacted, charged, or col: lected by any telephone company for the transmission of messages by telephone, or. for the rental or use of any telephone line; any telephone receiver, transmitter, instrument, wire, cable, apparatus, conduit, machine, appliance, or device; or any telephone extension or ext.ension system, or that the rules, regulations, or practices of any telephone company affecting such rates, charges, tolls, rentals, or service are unjust, unreasonable, unjustly discriminatory, unduly preferential, or in anywise in violation of law, or that such rates, charges, tolls, or rentals are insufficient to yield reasonable compensation for the service rendered, the commission shall determine the just and reasonable rates, charges, tolls, or rentals to be thereafter observed and in force and fix the same by order as hereinafter provided.' In prescribing rates, the commission shall allow a fair and reasonable return on the telephone company's honest and prudent investment in property used and useful in the public service.

(2) Whenever the commission finds that the rules, regulations, or practices of any telephone company are unjust or unreasonable, or that the equipment, facilities, or service of any telephone company are inadequate, inefficient, improper, or insufficient, the commission shall determine the just, reasonable, proper, adequate, and· efficient rules, regulations, practices, equipment, facilities, and service to be thereafter installed, observed, and used and shall. fix the same by order or rule as hereinafter provided.

History.-s. 15, ch. 6525, 1913; RGS 4407; CGL 6371; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 14, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended-by s. 1, ch.


1364.15 Compelling repairs, improvements, changes, additions, or extensions.-Whenever the commission finds, on its own motion or upon complaint, that repairs or improvements to, or changes in, any telephone line ought reasonably to be made, or that any additions or extensions should reasonably be made thereto, in order to promote the security or convenience of the public or employees or in order to secure adequate service or facilities for telephonic communications, the commission shall make and serve an order directing that such repairs, improvements, changes, additions, or extensions be made in the manner to be specified therein.

ffistory.-s. 16, ch. 6525, 1913; RGS 4408; CGL 6372; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 15, 32, ch. 80-36.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


1364.16 Connection of lines and transfers.Whenever the commission finds that any two or more telephone companies, whose lines form a continuous line of communication or could be made to do so by the construction and maintenance of suitable connections for the transfer of messages or conversations at common points between different localities which are not reached by the line of either company alone, and that such connections or facilities for the transfer of messages or conversations at common points can reasonably be made and efficient service obtained and that a necessity exists therefor, or shall find that any two or more telephone companies have failed to establish joint rates or charges for service by or over their lines and that joint rates or charges ought to be established, the commission may require such connection to be made, may require that messages be transferred, and may prescribe through lines and joint rates and charges to be made, used, observed, and in force in the future and fix the same by order to be served upon the company or companies affected. The commission is not authorized to require physical connection of telephone lines owned by different telephone companies where such connection would give interchange of local telephone service between such different telephone companies in the same municipality; and, further, the commission is not authorized to require physical connection between the toll lines owned by different telephone companies when or where all the points reached by the lines sought to be connected are already connected by a through toll line of a telephone company giving adequate service.

ffistory.-s. 17, ch. 6525, 1913; RGS 4409; CGL 6373; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 16, 32, ch. 80-36.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch . 77-457, was nullified by s. 32, ch. 80-36.

1364.17 FQrms of reports, accounts, recQrds, and memoranda, etc.-The commission may, in its discretion, prescribe the forms of any and all reports, accounts, records, and memoranda to be furnished and kept by any public service company whose lines extend beyond the limits of this state, which are operated partly within and partly without the state, so that the same shall show any information required by the commission concerning the business done, receipts, and expenditures appertaining to those parts of the line within the ·state. The forms of any and all accounts, records, and memoranda prescribed by the commission to be kept by companies which are subject to the interstate commerce act shall conform, whenever in the opinion of the commission 'it is practicable, to the forms and accounts, records, and memoranda prescribed by the Federal Communications Commission.

History.-s. IS, ch. 6525, 1913; RGS 4410; CGL 6374; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 17, 32, ch. 80-36.


1364.18 Inspection of accounts and ~ecords of companies.-The commission, or any person authorized by the commission, may inspect the accounts, books, records, and papers of any telephone company; however, any person, other than a commissioner, who makes a demand for inspection of the

413


books and papers shall produce in writing his authority from t~e commission.

History.-s. 21, ch. 6525, 1913; RGS 4413; CGL 6377; s. 3, ch. 76-168; s. 1, ch. 77·457; ss. 18, 32, ch. 80·36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


364.185 Investigations and inspections; power of commission.-The commission or its duly authorized representatives may during all reasonable hours enter upon any premises occupied by any telephone company and may set up and use thereon all necessary apparatus and appliances for the purpose of making investigations, inspections, examinations, and tests and exercising any power conferred by this chapter; however, the telephone company shall have the right to be notified of and be represented at the making of such investigations, inspections, examinations, and tests.

History.-s. 26, ch. 80-36.

1364.19 Telephone service contracts; regulation by commission.-The commission may regulate, by reasonable rules, the terms of telephone service contracts between telephone companies and their patrons.

History.-s. 19, ch. 6525, 1913; RGS 4411; CGL 6375; s. 3, ch. 76-168; s. 1, ch. 77-457;. ss. 19, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


364.20 Power to prescribe rules; rule of evidence; rules to be reasonable; presumptions in favor of commissioners, etc.-[Repealed by s. 31, 80-36.]

364.21 Penalty for violations; procedure for enforcement.-[Repealed by s. 31, ch. 80-36.]

364.22 Penalty for illegal telegraph company charges.-[Repealed by s. 31, ch. 80-36.]

364.23 Penalty for disclosing contents of telegrams.-[Repealed by s. 31, ch. 80-36.]

1364.24 Penalty for making telephone message known.-Except as otherwise deemed by law, any officer or person in the employ of any telephone company, or any person in charge of any office, exchange, or place where messages or communications are sent, received, or heard by telephone, who shall disclose or make known to any person other than the person to whom the telephone message or communication is directed, or his duly authorized agent, partner, clerk, or some member of his family, any part of the contents or substance of any message or communication sent, received, or heard by him, by telephone, by reason of the position he occupies or fills, without consent of the person sending or receiving such message or communication, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 1, ch. 5210, 1903; GS 3730; RGS 5755; CGL 7985; s. 273, ch. 71-136; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 20, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


364.25 Power to summon witnesses, issue writs, and punish contempts.-[Repealed by s. 31, ch. 80-36.]

364.26 Practice before, by, and against commissioners in relation to rates, etc.-[Repealed by s. 31, ch. 80-36.]

1364.27 Powers and duties as to interstate rates, fares, charges, classifications, or rules of practice.-The commission shall investigate. all interstate rates, fares, charges, classifications, or rules of practice in relation thereto, for or in relation to the transmission of messages or conversations, where any act in relation thereto shall take place within this state, and when the same are, in the opinion of the commission, excessive or discriminatory or are levied or laid in violation of. the Act of Congress entitled "The Communications Act of 1934," approved July 19, 1934, and the acts amendatory thereof and supplementary thereto, or in conflict with the rulings, orders, or regulations of the Federal Communications Commission, the commission shall apply, by petition, to the Federal Communications Commission for relief and may present to the Federal Communications Commission all facts coming to its knowledge as to violation of the rulings, orders, or regulations of that commission or as to violations of the said act to regulate commerce or acts amendatory thereof or supplementary thereto.

History.-s. 25, ch. 6525, 1913; RGS 4417; CGL 6381; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 21, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


364.28 Judicial powers.-[Repealed by s. 31, ch. 80-36.]

364.29 Construction-of part !.-[Repealed by s. 31, ch. 80-36.]

1364.30 Telephone companies; use of outlets; penalties.-

( I) Any telephone company, independent or otherwise, operating within the state subject to the provisions of part I, having more than one point of connection or outlet with or through any other telephone company, is hereby authorized and permitted to use and enjoy any of its said points of connection or outlets on any call at any time the same is not in use, and the company with which the telephone call is initiated shall be the sole judge in each instance as to whether the convenience and necessity of its own subscribers, the facility with which the connection and call may be completed, and its financial welfare are best served by the routing selected by the company receiving any such individual call; and under no circumstances shall any telephone company having two or more points of connection or outlets with any other company be required by the connecting company to route all or any specific number of its calls through any one connection at the will of the connecting company.

(2) Any connecting telephone company refusing to give and make a connection with the company through which the call was initially placed, over any

414

s; 364.30 1980 SUPPLEMENT TO FLORIDA STATUTES 1979 s. 364.335

connecting point or outlet not in use, is guilty of violating the provisions of this section and shall be fined by order of the commission the sum of$100 for each such violation, which sum shall be paid within 30 days of the entry of such order. On failure to pay such fine within 30 days, a certified copy of such order shall be filed with the clerk of the circuit court of the county in which such violation occurred, and the same shall be a lien against all of the property of the connecting company guilty of such violation. Thereafter, said fine, with interest at 6 percent per annum, beginning at the end of such 30-day period, may be enforced and collected as a judgment at law.

History.-ss. 1, 2, ch. 22073, 1943; s. 1, ch. 63-279; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 22, 32, ch. 80-36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


1364.31 Duty to _report violations of gambling laws; pen~lty.-

(1) All telephone companies furnishing communication facilities either to the public or by contract and their agents and employees are charged with the affirmative duty of reporting to the Florida Public Service Commission and the sheriff of the affected county any information obtained in any manner that any communication facility or service is being used in violation of the laws of the state having for their purpose the prohibition of bookmaking or other gambling.

(2) It is the duty of each telephone company to provide all reasonable means to ascertain if any of its facilities are being used in violation of any of the laws of the state having for their purpose the prohibition of bookmaking or other gambling.

(3) All telephone companies are charged with knowledge of the contents of any message or communication which in the regular course of its business comes clearly within its knowledge, or that of its employees or agents; and it shall be the duty of each telephone company to report the contents of such messages to the commission when any such message is for the purpose of aiding or abetting gambling, and it shall be the duty of all employees or agents of telephone companies to report in writing such knowledge either to the responsible officials of the telephone company by which they are employed or directly to the commission.

(4) Any person or telephone company refusing or failing to comply with the requirements of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(5) The commission under its general authority and rulemaking power may impose penalties in the enforcement of the requirements herein or of similar requirements provided by its rules; however, no telephone company shall be liable at law or in equity for any damages or penalties, either civil or criminal, because of the disclosure to the commission of the contents of any message resulting from its compliance with the provisions of this section, or of any rule, regulation, order, or action of the commission pursuant to this section.

(6) This section shall be deemed an exercise of the police power of the state for the protection of the public welfare, health, peace, safety, and morals of the people of the state, and all of the provisions of this section shall be liberally construed for the ac-

complishment of this purpose. (7) Nothing contained in this section shall be con

strued as amending or repealing the provisions of any other law or affecting in anywise the general powers of the commission, but is intended to be supplemental thereto.

(8) Nothing contained herein shall be construed to permit or require any violation of the provisions ofs. 605 of the Federal Communications Act of1934.

History.-ss. 1-7, ch. 26720, 1951; s. 1, ch. 63-279; s. 1, ch. 65~52; s. 274, ch. 71-136; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 23, 32, ch. 80.36.


1364.32 Definitions applicable to ss. 364.33-364.40.-As used in ss. 364.33-364.40:

(1) "Person" means: (a) Any natural person, firm, association, county,

municipality, corporation, business, trust, or partnership owning, leasing, or operating any line, facility, or system used in the furnishing of public telephone service within this state; and

(b) A cooperative, nonprofit, membership corporation, or limited dividend or mutual association, now or hereafter created, with respect to that part or portion of its operations devoted to the furnishing of telephone service within this state.

(2) "Territory" means any area, whether within or without the boundaries of a municipality.

History.-s. 9, ch. 28013, 1953; s. 24, ch. 57-1; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 24, 32, ch. 80.36. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


364.33 Certificate of necessity prerequisite to construction, operation or control of telephone line, plant, system.-{The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 32, ch. 80-36.]

364.335 Application for certificate.(!) Each applicant for a certificate shall: (a) Provide all information required by rule or

order of the commission, which may include a detailed inquiry into the ability of the applicant to provide service, a detailed inquiry into the territory and facilities involved, and a detailed inquiry into the existence of service from other sources within geographical proximity to the territory applied for.

(b) File with the commission schedules.showing all rates for service of every kind furnished by it and all rules and contracts relating thereto.

(c) File any application fee required by law. (d) Submit an affidavit that the applicant has

caused notice of its intention to file an application to be given:

1. By mail or personal delivery to the governing bodies of the counties and municipalities affected, to the public counsel, and to the commission.

2. To such other persons and in such other manner as may be prescribed by commission rule.

(2) If, within 20 days following the date of filing of the application, the commission does not receive written objection to the application, the commission may dispose of it without hearing. If the applicant is dissatisfied with the disposition, he shall be entitled to a proceeding under s. 120.57.

(3) If, within 20 days following the date of filing, the commission receives from the public counsel or

415


a governmental agency, or from any telephone company or consumer that would be substantially affected by the requested certification, a written objection requesting a proceeding pursuant to s. 120.57, the commission shall order such proceeding conducted in or near the territory applied for, iffea8ible. If any consumer, telephone company, or governmental agency or the public counsel requests a public hearing on the application, such hearing shall, iffeasible, be held in or near the territory applied for, and the transcript thereof and any material submitted at or prior to the hearing shall be considered as part of the record of the application and any proceeding related thereto. ·

(4) The commission may grant a certific~te, in whole or in part or with modifications in the public interest, but in no event granting authority greater than that requested in the application or amendments thereto and noticed under subsection (1); or it may deny a certificate. The commission f!!hall not grant a certificate for a proposed telephone company, or for the extension of an existing telephone company, which will be in competition with, or which will duplicate the services provided by, any other telephone company, unless it first determines that the existing facilities are ina,dequate to meet the reasonable needs of the public and it first amends the certificate of such other telephone company to remove the basis for competition or duplication of services.

(5) Revocation, suspension, transfer, or amendment of a certificate shall be subject to the provisions of this section, except that, when the commission initiates the action, the commission shall furnish notice to the appropriate local government and to the public counsel.

History.-s. 27, ch. 8().36.

364.34 Application for certificate.-[Repealed by s. 31, ch. 80-36.] ·

364.345 Certificates; territory served; transfer.-

(1) Each telephone company shall provide adequate and efficient service to the territory described in its certificate within a reasonable time as prescribed in the commission order. If the telephone company fails or refuses to do so, for vv-hatever reason, the commission, in addition to other powers provided by law, may amend the certificate to delete the territory not served or not properly served, or it may revoke the certificate. In addition, the commission, upon a finding that any. telephone company significantly misrepresented its intention or ability to serve the territory in question, may take such action to impose a penalty upon the telephone company as is authorized by general law.

(2) No telephone company shall sell, assign, or transfer its certificate or any portion thereof without:

(a) A determination by the commission that the proposed sale, assignment, or transfer is in the public interest; and

(b) The approval of the commission. Hlstory.-s. 28, ch. 80-36.

364.35 Issuance of certificate; powers of cominission.-[Repealed by s. 31, ch. 80-36.]

364.36 Issuance of certificate; construction, operation existing on May 19, ·1953.-[Repealed by s. 31, ch. 80-36.]

364.37 Controversy concerning territory to be served; powers of commission.-[The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified l:iy s. 32, ch. 80-36.]

364.38· Unlawful construction; operation of telephone lines, plant, system; powers of commissio~.-[Repealed by s. 31, ch. 80-36.]

.. 364.381 Judicial review.-As authorized by s. 3(b)(2), Art. V of the State Constitution, the Supreme Court shall review, upon petition, any action of the commission relating to rates or service of telephone companies. ·

History.-s. 30, ch. 80-36.

364.385 Saving clauses.-(!) This act shall not be construed to invalidate

any certificate or cause to be unlawful any rate which has been previously approved and which is lawfully being charged and collected immediately prior to July 1, 1980. However, no such rate may be changed, nor may any certificate be inodifiea, suspended, or revoked, on or after July 1, 1980, except in accordance with the provisions of this aCt.

(2) Proceedings including judicial reView pending on July 1, 1980, shall be governed by the law as it existed prior to July 1, 1980. Any administrative adjudicatory proceeding which has not progressed to the stage of a hearing may, with the consent of all parties and the commission, be conducted in accordance with the provisions of this act.

History.-s. 29, ch. 80-36.

364.39 Authority under certificate to be exercised within reasonable time.-[Repealed by s. 31, ch. 80-36.]

364.40 Penalty for violations of ss. 364.32-364.39.-[Repealed by s. 31, ch. 80-36.]

365.01 365.02

365.03 365.031 365.04

365.05 365.06

365.07 365.08

CHAPTER 365

PRIVATE WIRE SERViCES

Definitions. Unlawful to furnish or use Wire service for

gambling. Unlawful use declared a public nuisance. Attorney general; authority. Private wire; contract to declare purpose;

exceptions. Contracts reviewable by state attorney. Department of Legal Affairs, state attor

ney to assist commissioners. Procedure for canceling contracts. Procedure for discontinuance of service.

416


365.09

365.10

365.11 365.12

365.13 365.l4 365.15 365.16 365.165 365.171

Unlawful to use for purpose not in contract.

Horserace; etc., information prima facie unlawful.

Burden of proof. Florida Public Service Commission; pow-

ers; review of orders. Penalties. Construction. Party lines, emergency calls. Obscene or harassing telephone calls. Automated telephone solicitation. Emergency telephone number ·"911."

1365.01 Definitions.-As used in ss. 365.01-365.14:

(1) "Dissemination" means the act of transmitting, distributing, advising, spreading, communicating, conveying, or making known.

(2) "Private wire" means any and all "wire service," service equipment, facilities, conduits, poles, wires, circuits, systems ·by which or by means of which service is furnished for communication purposes, either through the medium of telephone, telegraph, teletypewriter, loudspeaker, radio, or television or any other means or by which the voice or electrical impulses are sent over a wire, but "private wire" shall not include private wires used for fire or burglar alarm purposes, telegraph messenger cell boxes and circuits used in connecting therewith, time clock circuits used for furnishing correct time service, or any private wires used by any department or agency of the United States Government or of this state or by any municipality or other political subdivision of this state.

(3) "Public utility" means a person, partnership, association, or corporation now or hereafter owning or operating in the state equipment or facilities for conveying or transmitting messages or communications by telephone or telegraph to the public for compensation.

Hlstory.-s. 1, ch. 25016, 1949; s. 1, ch. 26820, 1951; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 4, ch. 80-275.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 4, ch. 80.275.

'365.02 Unlawful to furnish or use wire service for gambling.-It is unlawful for any public utility knowingly to furnish to any person any private wire for use or intended for use in the dissemination of information in furtherance of gambling or for gambling purposes. It is also unlawful for any person knowingly to use any private wire in the dissemination of information in furtherance of gambling or for gambling purposes.

History.-s. 2, ch. 25016, 1949; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 4, ch. 80-275. 'Note.-The repeal of this section by s. 3, ch. 76-168; as amended by s. 1, ch.

77-457, was nullified by s. 4, ch. 80.275.

1365.03 Unlawful use declared a public nuisance.-The use of any private wire for dissemination of information in furtherance of gambling or for gambling purposes is a public nuisance and subject to abatement as provided for in ss. 60.05 and 60.06. This remedy of injunction is in addition to any reme-

dy provided by ss. 365.01-365.14 or otherwise provided by law.

History.-s. 3, ch. 25016, 1949; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 4, ch. 80.275.

'Note.-The repeal of this section by s. 3. ch. 76-168, as amended by s. I, ch. 77-457, was nullified by s. 4, ch. 80.275.

365.031 Attorney general; authority.-{Re-pealed by s. 4, ch. 80-275.] ·

1365.04 Private wire; contract to declare purpose; exceptions.-It is unlawful for any public utility to furnish to any person any private wire, except in pursuance of a written contract signed by the person contracting for the private wire and responsible under the terms of the contract for the payment for the service and by .the person in possession or control of any place or location designated in the contract for installation or connection of such private wire, which contract shall include a detailed statement of the purpose for which such private wire is intended to be used. This section shall not apply to the furnishing of any private wire in case of public emergency: This section .relating to written contracts shall not apply to any private wire furnished for use in radio broadcasting; to any protective service operating under a franchise granted by any municipality; for use in interstate commerce; for use of a newspaper of general circulation or recognized press association furnishing their news service; or for use of any agricultural or marketing agency or broker, railroad, pipeline, common carrier, public utility furnishing service to the public and requiring wires for their own intercommunication purposes, national or state bank, or licensed dealer or. broker in stocks, bonds, or other securities. Further, the provisions of this section relating to written contracts shall not apply to customary telephone service, either individual, party line, or public (pay station) service, which operates through the general telephone exchange system or toll service.

Hlstory.-s. 4, ch. 25016, 1949; s. 2, ch. 26820, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. I , 4, ch. 80.275.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. I , ch. 77-457, was nullified by s. 4, ch. 80.275.

'365.05 Contracts reviewable by state attorney.-

(1) It is unlawful for any public utility to furnish to any person any private wire without first furnishing to the state attorney ofthe judicial circuit where the place of installation or connection of the private wire is located one duplicate original of the written contract required by s. 365.04. The state attorney shall examine the contract and conduct such investigation as he may deem necessary. The state attorney may request from the person contracting for a private wire any information which the state attorney deems necessary to conduct the investigation. If, upon examination of the contract, or after investigation, or otherwise at any time, the state attorney finds that the private wire is intended for, has been used for, or is being used for the transmission of information or ad vices in furtherance of gambling, the state attorney shall disapprove the contract and give notice of such disapproval to the contracting parties. Thereafter it shall be unlawful for any public utility to furnish the private wire provided for in the contract; however, this section shall not apply to

417


the furnishing of any private wire in case of public emergency, or where the furnishing of the private wire is for a temporary purpose 2for a period not to exceed 48 hours.

(2) The state attorney shall conduct the investigation referred to in subsection (1) within 30 days after the date he receives the contract and shall notify the public utility and the person contracting for service of any action taken or pending on the contract. If the public utility receives no notice within 15 days after the date the contract is received by the state attorney, the public utility may install and connect such private wire service; and the connection shall not be a violation of the provisions ofss. 365.01-365.14; however, such contract shall be subject to review by the state attorney.



1Note.-The words "for a period" were inserted by the editors.

365.06 Department of Legal Affairs, state attorney to assist commissioners.-[Repealed by s. 4, ch. 80-275.]

365.07 Procedure for canceling contracts.[Repealed by s. 4, ch. 80-275.]

1365.08 Procedure for discontinuance of service.-

(1) Each telephone and telegraph company operating within the state under the jurisdiction of the Florida Public Service Commission shall furnish service subject to the condition that it will not be used for an unlawful purpose.

(2) Whenever any state or federal law enforcement officer acting within his apparent jurisdiction acquires proof that certain telephone or telegraph facilities, or any part thereof, are being used or have been used in violation of a~y federal law or the laws of the state, then such officer may make application to the circuit court in the county where the alleged violation took place for an order requiring the public utility to disconnect and remove such facilities and discontinue all telephone and telegraph service as hereinafter provided. The circuit court shall, within 48 hours after application and written notice to the subscriber, hold a hearing to determine whether such service should be discontinued and the facilities removed. The 48-hour period prescribed herein shall commence to run from the time the written notice is served upon such subscriber by delivering the notice to the address at which the telephone service is furnished and the facilities are located.

History.-s. 8, ch. 25016, 1949; s. 3, ch. 26820, 1951; s. 1, ch. 29805, 1955; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 1, 2, ch. 78-178; ss. 1, 4, ch. 80.275. , 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


'365.09 Unlawful to use for purpose not in contract.-It is unlawful for any person who has been furnished a private wire by any public utility in accordance with the provisions ofss. 365.01-365.14 to use such private wire for any purpose other than

that specified in the contract provided for in s. 365.04.

History.-s. 9, ch. 25016, 1949; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. I, 4, ch. 80.275.


365.10 Horserace, etc., information prima facie unlawful.-[Repealed by s. 4, ch. 80-275.]

365.11 Burden of proof.-[Repealed by s. 4, ch. 80-275.]

365.12 Florida Public Service Commission; powers; review of orders.-[Repealed by s. 4, ch. 80-275.]

'365.13 Penalties.-Any person or public utility who violates any of the provisions of ss. 365.01-365.14 is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083; however, no public utility shall be liable at law or in equity for any damages or penalties, either civil or criminal, for failure to provide service or delay in providing service, or for any discontinuance or disconnection of service, resulting from its compliance with the provisions of ss. 365.01-365.14 or of any order or action of the state attorney by virtue of the authority vested in him by ss. 365.01-365.14.



'365.14 Construction.-Sections 365.01-365.14 shall be deemed an exercise of the police power of the state for the protection of the public welfare, health, peace, safety, and morals of the people of the state; and all ofthe provisions ofss. 365.01-365.14 shall be liberally construed for the accomplishment of this purpose.

History.-s. 15, ch. 25016, 1949; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 4, ch. 80-275.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 4, ch .. 80.275.

1365.15 Party lines, emergency calls.-(1) Any person who shall willfully refuse to im

mediately relinquish a party line when informed that such line is needed for a~emergency call, and in fact such line is needed for an emergency call, to a fire department or police depart'ment or for medical aid or ambulance ~ervice, or any person who shall secure the use of a party line by falsely stating that such line is needed for an emergency call, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2)(a) "Party line" as used in this section means a subscriber's line telephone circuit, consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number.

(b) "Emergency" as used in this section means a situation in which property or human life is in jeopardy and in which the prompt summoning of aid is essential.

(3) Every telephone directory hereafter published and distributed to the members of the general public in this state or in any portion thereof which lists the calling numbers of telephones of any tele-

418


phone exchange located in this state shall contain a notice which explains the offense provided for in this section; such notice shall be printed in type which is not smaller than the smallest type appearing on the same page and shall be preceded by the word "warning" printed in boldfaced type. However, such notice is not required to be printed in those directories distributed solely for business advertising purposes, commonly known as classified directories, or in any telephone directory heretofore distributed to the general public. Any person, firm, or corporation providing telephone service which distributes or causes to be distributed in this state copies of a telephone directory which is subject to the provisions of this section and which does not contain the notice herein provided for is guilty of a misdemeanor ofthe second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 1, ch. 63-54; s. 275, ch. 71-136; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 4, ch. 80-275. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


1365.16 Obscene or harassing telephone calls.-

(1) Whoever: (a) Makes a telephone call to a location at which

the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, vulgar, or indecent; and by such call or such language intends to offend, annoy, abuse, threaten, or harass any person at the called number;

(b) Makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number;

(c) Makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or

(d) Makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number,

is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Whoever knowingly permits any telephone under his control to be used for any purpose prohibited by this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3) Each telephone directory hereafter published for distribution to the members of the general public shall contain a notice which explains this law; such notice shall be printed in type which is no smaller than the smallest type on the same page and shall be preceded by the word "warning." The provisions of this section shall not apply to directories solely for business advertising purposes, commonly known as classified directories.

(4) Each telephone company in this state shall cooperate with the law enforcement agencies of this state in using its facilities and personnel to detect and prevent violations of this section.

(5) Nothing contained in this section shall apply

to telephone calls made in good faith in the ordinary course of business or commerce.

Hi!ltory.-ss. 1, 2, ch. 63-51; s. 1, ch. 69-25; s. 276, ch. 71-136; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 2, ch. 79-270; ss. 2, 4, ch. 80-275.


365.165 Automated telephone solicitation.(1) No person shall use a telephone or knowingly

allow a telephone to be used for the purpose of offering any goods or services for sale or conveying information regarding any goods or services when such use involves an automated system for the selection and dialing of telephone numbers and the playing of a recorded message when a connection is completed to the called number.

(2) Nothing herein shall prohibit the use of automated telephone systems with recorded messages when the calls are made or messages given solely in response to calls initiated by the person to which the automatic call or recorded message is directed.

(3) Any person who violates any provision of this section is guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

(4) The Attorney General or any telephone company servicing an area to which or from which automated calls are made may seek injunctive relief to enforce this section. In the event that a civil action is filed pursuant to this subsection, the prevailing party shall be entitled to a reasonable attorney's fee.

Hi!ltory.-s. 3, ch. 78-178; s. 2, ch. 80-275.

1365.171 Emergency telephone "911."-

(1) SHORT TITLE.-This section shall be known and cited as the "Florida Emergency Telephone Act."

(2) LEGISLATIVE INTENT.-The Legislature hereby finds and declares that it is in the public interest to shorten the time required for a citizen to request and receive emergency aid. There currently exist thousands of different emergency phone numbers throughout the state. Provision for a single, primary three-digit emergency number through which emergency services can be quickly and efficiently obtained would provide a significant contribution to law enforcement and other public service efforts by making it easier to notify public safety personnel. Such a simplified means of procuring emergency services will result in the saving of life, a reduction in the destruction of property, and quicker apprehension of criminals. It is the intent -of the Legislature to establish and implement a cohesive statewide emergency telephone number "911" plan which will provide citizens with rapid direct access to public safety agencies by dialing the ·telephone number "911" with the objective of reducing the response time to situations requiring law enforcement, fire, medical, rescue, and other emergency services.

(3) DEFINITIONS.-As used in this section: (a) "Department" means the Department of Gen

eral Services. (b) "Division" means the Division of Communi

cations of the Department of General Services. (c) "Local government" means any city, county,

or political subdivision of the state and its agencies. (d) "Public agency" means the state and any city,

419


county, city and county, municipal corporation, chartered organization, public district, or public authority located in whole or in part within this state which provides, 'or has authority to. provide, firefighting, law enforcement, ambulance, medical, or other emergency services,

(e) "Public safety agency" means a functional division of a public agency which provides firefighting, law enforcement, medical, or other emergency services.

(4) STATE PLAN.-The division shall develop a statewide emergency telephone number "911" system plan. The plan shall provide for:

(a) The establishment of the public agency emergency telephone communications requirements for each entity of local government in the' state.

(b) A system to meet specific local government requirements. Such system shall include law en-' forcement, firefighting, and emergency medical services and may include other emergency services such as poison control, suicide prevention, and civil defense services.

(c) Identification of the mutual aid agreements necessary to obtain an effective "911" system.

(d) A funding provision which shall identify the cost necessary to implement the "911" system.

(e) A firm implementation schedule, which shall include the installation of the "911" system in a local community within 24 months after the designated agency of the local government gives a firm order to the telephone utility for ·a "911" system.

The division shall be responsible for the implementation and coordination of such plan. The division shall adopt any necessary rules and schedules related to public agencies for implementing and coordinating such plan, pursuant to chapter 120. The public agency designated in the plan shall order such system within 6 months after publication date of the plan if the public agency is in receipt offunds appropriated by the Legislature for the implementation and maintenance of the "911" system. Any jurisdiction which has utilized local funding as of July 1, 1976, to begin the implementation of the state plan as set forth in this section shall be eligible for at least a partial reimbursement of its direct cost when, and if, state funds are available for such reimbursement.

(5) SYSTEM DIRECTOR.-The director of the division is designated as the director of the statewide emergency telephone number "911" system a:qd, for the purpose of carrying out the provisions of this section, is authorized to coordinate the activities of the system with state, county, local, and private agencies, The director is authorized to employ not less than five persons, three of whom will be at the professional level, one at the secretarial level; and one to fill a fiscal position, for the purpose _of carrying out the provisions-of this section. The director in implementing the system shall consult, cooperate, and coordinate with local law enforcement agencies.

(6) REGIONAL SYSTEMS.-Nothing in this section shall be construed to prohibit or discourage the formation ofmultijurisdictional or regional systems; and any system established pursuant to this section may-include the jurisdiction, or any portion thereof, of more than one public agency.

(7) TELEPHONE INDUSTRY COORDINATION.-The division shall coordinate with the Florida Public Service Commission which shall encourage the Florida telephone industry to activate facility modification plans for a ·timely "911" implementation.

(8) COIN TELEPHONES.-The Florida Public Service Commission shall establish rules to be followed by the telephone utilities in this state designed toward encouraging the provision of coin-free dialing of"911" calls wherever economically practicable and in the public interest.

(9) SYSTEM APPROV AL.-No emergency telephone number "911" system shall be established and no present system shall be expanged, without prior approval of the Division of Communications.

(10) COMPLIANCE.-All public agencies shall assist the division in their efforts to carry out the intent of this section, and such agencies shall comply with the developed plan.

(11) EXISTING EMERGENCY TELEPHONE SERVICE.-Any emergency telephone number established by any local government or state agency prior to July 1, 1974, using a number other than "911" shall be changed to "911" on the same implementation schedule provided in paragraph (4)(e).·

(12) FEDERAL ASSISTANCE.-The director of the division is authorized to apply for and accept federal funding assistance in the development and implementation of a statewide emergency telephone number "911" system.

History.-ss. 1·12, ch. 74-357; s. 3, ch. 76-168; sa. 1, 2, ch. 76-272; s. 1, ch. 77457; ss. 3, 4, ch. 80.275. · 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77~57, was nullified by s. 4, ch. 80.275.

366.01 366.015 366.02 366.03 366.04 366.041

366.05 366.055

366.056

366.06 366.065

366.07 366.071 366.072 366.075 366.08

366.09 366.10

CHAPTER 366

PUBLIC UTILITIES

Legislative declaration. Interagency liaison. Definitions. General duties of public utility. Jurisdiction. Rate fixing; adequacy of facilities as crite

rion. Powers: · Availability of, and payment for, energy

reserves. Annual tax on gross revenues of municipal

electric utilities and rural electric coop-eratives. '

Rates; procedure for fixing and changing. Prevention of discrimination or unreason-

ably high profits. Rates; adjustment. Interim rates; procedure. Rate adjustment orders. Experimental and transitional · rates. Investigations, inspections; power of com-

mission. Incrimination at hearing of commission. Judicial review.

420

1980 ~UPPLEMENT TO FLORIDA STA'fUTES 1979 s. 366.04

366.11 366.12 366.13 366.135 a66.so 366.8l 366.82

366.83

366.84 366.85

Certain exemptions. Penalty. Taxes, not affected. Existing rates; pending proceedings. Short title. Legislative findings and intent. Definition; goals; plans; annual reports;

energy audits. Certain laws not applicable; savings

clause. Trust fund created; uses. Responsibilities of Division of Consumer

Services.

366.01 Legislative declaration.-{The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 16, ch. 80-35.]

1366.015 Interagency liaison.-The commission is directed to provide for, and assume primary responsibility for, establishing and maintaining continuous liaison with all other appropriate state and federal agencies whose policy decisions and rulema~ing authority affect t~ose utilities over which the' commission has primary regulatory jurisdiction: This liaison shall be conducteQ at the policymaking levels as well as the department, division, or bur~au levels: Active participation in other agencies' public hearings is encourag~d to transmit the commis~ion's policy positions and information requirements, in order to provide for more efficient regulation.

History.-s. 6, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; 88. 1, 16, ch. 80-35. 'Note.-The repeal of this section by s. 3. ch. 76-168, as amended by s. 1, ch.


1366.02 Definitions.-As used in this chapter: (1) "Public util~ty" means every person, corpora

tion, partnership·, association, or other legal entity and their 'lessees, trustees, or receivers supplying elel!tr~city or gas (natural, manufactl!red, or similar gaseous substance) to or for the· public within this state; but the term "public utility" as used herein does not include either a cooperative now or hereaf. ter organized and existing under the Rural Electrification Cooperative Law of.tl)e state; a municipality or any agency thereof; any natural gas pipeli11e transmission company making only sales of natural gas at whoJes{ile and to direct industria.! consumers; or a person supplying liquefied petroleum gas, in either liquid or ·gaseous form, irrespective 'of the method of distribution or delivery, unless such person also supplies electricity or manufactured or natural gas. .

(2) "Commission" means the Public Service Com-mission.

Hlstory.-s. 2, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; 88. 2, 16, ch. 80-35. . . ''Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


366.03 General «l,uties of public utility.-{The repeal ofthis section by s. 3, ch. 76-168, ·~ amended by s. 1, ch. 77-457; was nullified by s. 16, ch. 80-35.]

1366.04 Jurisdiction.-W In addition to its existing functions, the com

mission shall have jurisdiction to regulate and supervise each pu~lic utility with respect to its rates

and service and the issuance and sale of its securities, except a security which is a note or draft maturing not rriore than 1 year after the date of such issuance and sale and aggregating (together with all other then-o'!ltstanding notes and drafts of a maturity of 1 year or less on . whl.ch such public utility is liable) not more than 5 percent of the par value of the other securities of the public utility then outstanding. In the case of securities having no par value, the par value for the purpose of this section shall be the fair market value as of the date of issue. The commission, upbn application by a public utility, may authorize the ·utility to issue anq sell securities of one or more offering~, or of one or more types, over a period of up to 12 months. Th~ commission may take final action to grant an application by a public utility to issue and sell securities after having given notice in the Florida Administrative Weekly published at least 7 days in advance of final agency action. Securities issueq by a public utility pursuant to an order of the commission, which order is certified by the clerk of the commiss~on and which order approves or authorizes the issuance and sale of such securities, shall not be invalidated by a modification, repeal, or amendment to that order or by a supplemental order; however, the commiS&ion's approval of the issuance of securities shall constitute approval only as to the legality of the is!lue, and in no way shall it be considered commission approval of the rates, service, accounts, valuation, ·e1>timates, or determinations of cost or any other such matter. The jurisdiction conferred upon the commission shall be exclusive and superior to that of all other boards, agencies, political subdivisions, municipalities, towns, villages, or cotmties, and, in case of conflict therewith, all lawful acts, orders, rules, and regulations of the commission shall ih each instance prevail.

(2) In the exercise of its jurisdiction, the commis: sion shall pave power over rural electric cooperatives and municipal electric utilities for the fol_lowing purpose!l:

(a) To prescribe uniform systems and classifica-tions of accounts. ·

(b) To prescribe a rate structure for all electric utilities.

(c) To require electric power conservation and r.eliability within ~ coordinated grid, for operational as well as emergency purposes.

(d) To approve territorial agreements between and among rural electric cooperatives, municipal electric utilities, and other electric utilities under its jurisdiction. However, nothing in this chapter shall be construed to alter existing territorial agreements as between the parties to such agreements.

(e) To resolve any territorial dispute involving service areas between and among rural electric cooperatives, municipal electric utilities, and other electric utilities under its jurisdiction. In resolving territorial disputes, the commission may consider, but not be limited to consideration of, the ability of the utilities to expand services within their own capabilities and the nature of the area involved, including population, the degree of urbanization of the area, its proximity to OFher urban areas, and the pre~ent and reasonably foreseeable future requirements of the area for other utility services.

421


CO To prescribe and require the filing of periodic reports and other data as may be reasonably available and as necessary to exercise its jurisdiction hereunder.

No provision of this chapter shall be construed or applied to impede, prevent, or prohibit any municipally owned electric utility system from distributing at retail electrical energy within its corporate limits, as such corporate limits exist on July 1, 197 4; however, existing territorial agreements shall not be altered or abridged hereby.

(3) The commission shall further have jurisdiction over the planning, development, and maintenance of a coordinated electric power grid throughout Florida to assure an adequate and reliable source of energy for operational and emergency purposes in Florida and the avoidance of further uneconomic duplication of generation, transmission, and distribution facilities.

History.-s. 4, ch. 26545, 1951; s. 1, ch. 63-288; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 1, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 3, 16, ch. 80-35.


1366.041 Rate il.xing; adequacy of facilities as criterion.-

(1) In fixing the just, reasonable, and compensatory rates, charges, fares, tolls, or rentals to be observed and charged for service within the state by any and all public utilities under its jurisdiction, the commission is authorized to give consideration, among other things, to the efficiency, sufficiency, and adequacy of the facilities provided and the services rendered; the cost of providing such service and the value of such service to the public; the ability of the utility to improve such service and facilities; and energy conservation and the efficient use of alternative energy resources; provided that no public utility shall be denied· a reasonable rate of return upon its rate base in any order entered pursuant to such proceedings. In its consideration thereof, the commission shall have authority, and it shall be the commission's duty, to hear service complaints, if any, that may be presented by subscribers and the public during any proceedings involving such rates, charges, fares, tolls, or rentals; however, no service complaints shall be taken up or considered by the commission at any proceedings involving rates, charges, fares, tolls, or rentals unless the utility has been given at least 30 days' written notice thereof, · and any proceeding may be extended, prior to final determination, for such period; further, no order hereunder shall be made effective until a reasonable time has been given the utility involved to correct the cause of service complaints, considering the factor of growth in the community and availability of necessary equipment.

(2) The power and authority herein conferred upon the commission shall not cancel or amend any existing punitive powers of the commission but shall be supplementary thereto and shall be construed liberally to further the legislative intent that adequate service be rendered by public utilities in the state in consideration for the rates, charges, fares, tolls, and rentals fixed by said commission and observed by said utilities under its jurisdiction.

(3) The term "public utility" as used herein

means all persons or corporations which the commission has the authority, power, and duty to regulate for the purpose of fixing rates and charges for services rendered and requiring the rendition of adequate service.

History.-ss. 1-4, ch. 67-326; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 4, 16, ch. 80-35.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 16, ch. 80-35·.

1366.05 Powers.-(1) In the exercise of such jurisdiction, the com

mission shall have power to prescribe fair and reasonable rates and charges, classifications, standards of quality and measurements, and service rules and regulations to be observed by each public utility; to require repairs, improvements, additions, and extensions to the plant and equipment of any public utility when reasonably necessary to promote the convenience and welfare of the public and secure adequate service or facilities for those reasonably entitled thereto; to employ and fix the compensation for such examiners and technical, legal, and clerical employees as it deems necessary to carry out the provisions of this chapter; and to prescribe all rules and regulations reasonably necessary and appropriate for the administration and enforcement of this chapter.

(2) Every public utility, as defined in s. 366.02, which in addition to the production, transmission, delivery or furnishing of heat, light, or power also sells appliances or other merchandise shall keep separate and individual accounts for the sale and profit deriving from such sales. No profit or loss shall be taken into consideration by the commission from the sale of such items in arriving at any rate to be charged for service by any public utility.

(3) The commission shall provide for the examination and testing of all meters used for measuring any product or service of a public utility.

(4) Any consumer or-user may have any such meter tested upon payment of the fees fixed by the commission.

(5) The commission shall establish reasonable fees to be paid for testing such meters on the request of the consumers or users, the fee to be paid by the consumer or user at the time of his request, but to be paid by the public utility and repaid to the consumer or user if the meter is found defective or incorrect to the disadvantage of the consumer or user, in excess of the degree · or amount of tolerance customarily allowed for such meters, or as may be provided for in rules and regulations of the commission.

(6) The commission may purchase materials, apparatus, and standard measuring instruments for such examination and tests.

(7) The commission shall have the power to require reports from all electric utilities to assure the development of adequate and reliable energy grids.

(8) If the commission determines that there is probable cause to believe that inadequacies exist with respect to the energy grids developed by the electric utility industry, it shall have the power, after pro~eedings as provided by law, and after a finding that mutual benefits will accrue to the public utilities involved, to require installation or repair of necessary facilities, including genE;lrating plants and transmission facilities, with the costs to be distribut-

422


ed in proportion to the benefits received, and to take all necessary steps to insure compliance. The electric utilities involved in any action taken or orders issued pursuant to this subsection shall have full power and authority, notwithstanding any general or special laws to the contrary, to jointly plan, finance, build, operate, or lease generating and transmission facilities and shall be further authorized to exercise the powers granted to corporations in chapter 361. This subsection shall not supersede or control any provision of the Electric Power Plant Siting Act, ss. 403.501-403.515.

History.-s. 5, ch. 26545, 1951; s. 2, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 5, 16, ch. 80-35.


'366.055 Availability of, and payment for, energy reserves.-

(!) Energy reserves of all utilities in the Florida energy grid shall be available at ,all times to ensure that grid reliability and integrity are maintained. The commission is authorized to take such action as is necessary to assure compliance. However, prior commitments as to energy use:

(a) In interstate commerce, as approved by the Federal Energy Regulatory Commission;

(b) Between one electric utility and another, which have been approved by the Federal Energy Regulatory Commission; or

(c) Between an electric utility which is a part of the energy grid created herein and another energy grid

shall not be abridged or altered except during an energy emergency as declared by the Governor and Cabinet.

(2)(a) When the energy produced by one electric utility is transferred to another or others through the energy grid and under the powers granted by this section, the commission shall direct the appropriate recipient utility or utilities to reimburse the producing utility in accordance with the latest wholesale electric rates approved for the producing utility by the Federal Energy Regulatory Commission for such purposes.

(b) Any utility which provides a portion of those transmission facilities involved in the transfer of energy fro_m a producing utility to a recipient utility or utilities shall be entitled to receive an appropriate reimbursement commensurate with the transmission facilities and services provided. However, no utility shall be required to sell purchased power to a recipient utility or utilities at a rate lower than the rate at which the power is purchased from a producing utility.

(3) To assure efficient and reliable operation of a state energy grid, the commission shall have the power to require any electric utility to transmit electrical energy over its transmission lines from one utility to another or as a part of the total energy supply of the entire grid, subject to the provisions hereof.

History.-s. 3, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 6, 16, ch. 80-35. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.


366.056 Annual tax on gross revenues of municipal electric utilities and rural electric cooperatives.-[Repealed by s. 15, ch. 80-35.]

'366.06 Rates; procedure for fixing and changing.-

( I) A public utility shall not, directly or indirectly, charge or receive any rate not on file with the commission for the particular class of service involved, and no change shall be made in any schedule. All applications for changes in rates shall be made to the commission in writing under rules and regulations prescribed, and the commission shall have the authority to determine and fix fair, just, and reasonable rates that may be requested, demanded, charged, or collected by any public utility for its service. The commission shall investigate and determine the actual legitimate costs of the property of each utility company, actually used and useful in the public service, and shall keep a current record of the net investment of each public utility company in such property which value, as determined by the commission, shall be used for ratemaking purposes and shall be the money honestly and prudently invested by the public utility company in such property used and useful in serving the public, less accrued depreciation, and shall not include any goodwill or going-concern value or franchise value in excess of payment made therefor. In fixing fair, just, and reasonable rates for each customer class, the commission shall, to the extent practicable, consider the cost of providing service to the· class, as well as the rate history, value of service, and experience ofthe utility; the consumption and load characteristics of the various classes of customers; and public acceptance of rate structures.

(2) Whenever the commission shall find, upon request made or upon its own motion, that the rates demanded, charged, or collected by any public utility company for public utility service, or that the rules, regulations, or practices of any public utility company affecting such rates, are unjust, unreasonable, unjustly discriminatory, or in violation of law; or that such rates are insufficient to yield reasonable compensation for the services rendered; or that such service is inadequate or cannot be obtained, the commission shall order and hold a public hearing, giving notice to the public and to the utility company, and shall thereafter determine just and reasonable rates to be thereafter charged for such service and promulgate rules and regulations affecting equipment, facilities, and service to be thereafter installed, furnished, and used.

(3) Periding a final order by the commission in any rate proceeding under this section, the commission may withhold consent to the operation of aU or any portion of the new rate schedules, delivering to the utility requesting such increase, within 60 days, a reason or written statement of good cause for withholding its consent. Such consent shall not be withheld for a period longer than 8 months from the date of filing the new schedules. The new rates or any portion not consented to shall go into effect under bond ·or corporate undertaking at the end of such period, but the commission shall, by order, require such utility to keep accurate account in detail of all

423


amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid and, upon completion of hearing and final decision in such proceeding, shall by further order require such utility" to refund with interest at a fair rate, to be determined by the commission in such manner. as it may direct, . such portion of the increased rate or , charge as by its decision shall be found not justified. Any portion of such refund not thus refunded to patrons or custm.ners of the utility shall be refunded or disposed of by the utility as the commission may direct; however, no such funds shall ac·crue to the benefit of the utility. The commission shall take final commission action in the docket and enter its final order within 12 months of the commencement date for final agency action. As used in this subsection, the "commencement date for final agency action" means the date upon which it has been determined by the commission or its designee that the utility has flled with the clerk the minimum flling requirements as established by rule of the commission. Within 30 days after receipt of the application, rate request, or other written document for which the commencement date for final agency action is to be established, the commission or its designee shall either determine the commencement date for final agency action or issue a statement of deficiencies to the applicant, specifically listing why said applicant has failed to meet the minimum flling requirements. Such statement of deficiencies shall be binding upon the commission to the extent that, once the deficiencies in the statement are satisfied, the commencement date for final agency action shall be promptly established as provided herein. Thereafter, within 15 days after the applicant indicates to the commission that it believes that it has met the minimum flling requirements, the commission or its designee shall either determine the commencement date for final agency action or specifically enumerate in writing why the requirements have not been met, in which case this procedure shall be repeated until the commencement date for final agency action is established. When the commission initiates a proceeding, the commencement date for final agency action shall be the date upon which the order initiating the proceeding is issued.

History.-s. 6, ch. 26545, 1951; s. 4, ch. 74-19~; s. 3, ch. 76-168; s. 1, ch. 77457; ss. 7, 16, ch. 80-35.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77457, was nullified by s. 16, ch. 80-35. cf.-s. 367.081 Rates; procedure for fixing and changing.

s. 364.05' Changing rates, tolls, rentals, etc.

366.065 Prevention of discrimination or unreasonably high profits.-[Repealed by s. 15, ch. 80-35.]

366.07 Rates; adjustment.-[The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 16, ch. 80-35.]

366.071 . Interim rates; procedure.-(!) The commission may, during any proceeding

for a .change of rates, upon its own motion, or upon petition from any· party, or by a tariff flling of a public utility, authorize the collection of interim rates until the effective date of the final order. Such interim rates may be based upon a test period differ-

ent from the test period used in the request for permanent rate relief. To establish a prima facie entitlement for interim relief, the commission, the petitioning party, or the public utility shall demonstrate that the public utility, is earning outside the range of reasonableness on rate of return previously authorized by the commissi9n. This determination shall be based upon the rate of return calculated in accordance with paragraph (5)(a) or paragraph (5)(b).

(2)(a) In a proceeding for an interim increase in rates, the commission shall authorize, within 60 days of the filing for such relief, the c9llection of rates sufficient to earn a rate of return at the minimum of the range of the last authorized rate of return. The difference between the interim rates and the previously authorized rates shall be collected under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.

(b) In a proceeding for an interim decrease in rates, the commission shall authorize, within 60 days of the filing for such relief, the continued collection of the previously authorized rates; however, revenues collected under those rates sufficient to reduce the achieved rate of return to the maximum of the last authorized rate of return shall be placed under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.

(c) The commission shall determine whether a corporate undertaking may be filed in lieu of the bond. ·

(3) In granting such relief, the commission may, in an expedited hearing but within 60 days of the commencement of the proceeding, upon petition or upon its own motion, preclude the recovery of any extraordinary or imprudently incurred expenditures-or, for good cause shown, increase the amount of the bond or corporate undertaking.

( 4) Any refund ordered by the commission shall be calculated to reduce the public utility's rate of return during the peQdency of the proceeding to the same. level within the range of the newly authorized rate of return which is found fair and reasonable on a prospective basis, but the refund shall not be in excess of the amount of the revenues collected subject to refund and in accordance with paragraph (2)(b). In addition, the commission may require interest on the refund at a rate established by the commission.

(5) . The commission, in setting interim rates or setting revenues subject to refund, shall determine the deficiency or excess by applying:

(a) The rate of return for the public utility for the most recent 12-month period, which shall be calculated by applying appropriate adjustments consistent with those which were used in the public utility's most recent rate case · and annualizing any rate changes occurring during such period but based upon an average investment rate base; or



366.072 Rate adjustment orders.-Any order issued by the commission adjusting general increases or reductions of the rates of an electric or gas company shall be reduced to writing including any

424


dissenting or concurring opinions within 20 days of the official vote of the commission. Within said 20 days, the commission shall also mail a copy of the order to the clerk of the circuit court of each county in which customers are served who are affected by the rate adjustment, which copy shall be kept on file and made available to the public. The commission shall notify all parties of record in the proceeding of the date of such mailing. Such an order shall not be considered rendered for purposes of appeal, rehearing, or judicial review until the date the copies are mailed as required by this section. This provision shall not delay the effective date of the order. Such an order shall be considered rendered on the date of the official vote for the purposes ofss. 364.05(4) and 366.06(4).

Hlstory.-s. 1, ch. 78-137; s. 10, ch. 80-35. Note.-Also published at s. 364.063.

366.075 Experimental and transitional rates.-

(1) The commission is authorized to approve rates on an experimental or transitional basis for any public utility to encourage energy conservation or to encourage efficiency. The application of such rates may be for limited geographic areas and for a limited period.

(2) The commission is authorized to approve the geographic area used in testing experimental rates and shall specify in the order setting those rates the area affected. The commission may extend the period designated for the test if it determines that further testing is necessary to fully evaluate the effectiveness of such experimental rates.

Hlstory.-s. 9, ch. 80-35.

366.08 Investigations, inspections; power of commission.-[The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 16, ch. 80-35.]

366.09 Incrimination at hearing of commission.-[The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 16, ch. 80-35.]

'366.10 Judicial review.-As authorized by s. 3(b)(2), Art. V of the State Constitution, the Supreme Court shall review, upon petition, any action of the commission relating to rates or service of utilities providing electric or gas service.

History.-s. 10, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 11 , 16, ch. 80-35.


entered into in the future, when such municipality or cooperative is engaged in the sale and distribution of electricity or manufactured or natural gas, or to the rates provided for in such contracts.

(2) Nothing herein shall restrict the police power of municipalities over their streets, highways, and public places or the power to maintain or require the maintenance thereof or the right of a municipality to levy taxes on public services under s. 166.231 or affect the right of any municipality to continue to receive revenue from any public utility as is now provided or as may be hereafter provided in any franchise.

Hlstory.-s. 11, ch. 26545, 1951; s. 5, ch. 74-196; s. 3, ch. 76-168; s. 7, ch. 76-265; s. 108, ch. 77-104; s . 1, ch. 77-457; ss. 12, 16, ch. 80-35. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 16, ch. 80-35. · 2Note.-This cross-reference is erroneous; there is no s. 366.05(9).

366.12 Penalty.-[Repealed by s. 15, ch. 80-35.]

366.13 Taxes, not affected.-[The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 16, ch. 80-35.]

366.135 Existing rates; pending proceedings.-

(1) This act shall not be construed to cause to be unlawful any rate which has been previously approved and which is lawfully being charged and collected immediately prior to July 1, 1980. However, no such rate may be changed on or after July 1, 1980, except in accordance with the provisions of this act.

(2) Proceedings including judicial review pending on July 1, 1980, shall be governed by the law as it existed immediately prior to July 1, 1980. Administrative adjudicatory proceedings, however, which have not progressed to the stage of a hearing may, with the consent of all parties and the commission, be conducted in accordance with the provisions of this act.

Hlstory.-s. 13, ch. 80-35.

366.80 Short title.-Sections 366.80-366.85 and 403.519 shall be known and may be cited as the "Florida Energy Efficiency and Conservation Act."

Hlstory.-s. 5, ch. 80-65.

366.81 Legislative findings and intent.-The Legislature finds and declares that it is;critical to utilize the most efficient and cost-effective energy conservation systems in order to protect the health, prosperity, and general welfare of the state and its citizens. Reduction in the growth rates of electric consumption and of weather-sensitive peak demand are of particular importance. The Legislature fur-

'366.11 Certain exemptions.- ther finds that the Florida Public Service Commis(1) No provision of this chapter shall apply in sion is the appropriate agency to adopt goals and

any manner, other than as specified in ss. 366.04(2) approve plans related to the conservation of electric and (3), 366.05(8) and 2(9), and 366.055, to utilities energy and natural gas usage. The Legislature diowned and operated by municipalities, whether rects the commission to develop and adopt overall within or without any municipality, or by coopera- g0als and authorizes the commission to require each tives organized and existing under the Rural Electri- utility to develop a plan for increasing energy effification Cooperative Law ofthe state, or to the sale ciency and conservation within its service area, subof electricity, manufactured gas, or natural gas at ject to the approval· of the commission. Since soluwholesale by any public utility to, and the purchase tions to our energy problems are complex, the Legisby, any municipality or cooperative under and pur- lature intends that the use of solar energy, renewasuant to any contracts now in effect or which may be ble energy sources, highly efficient systems, and

425


January 1, 1981. Prior approval by the commission shall be required to modify or discontinue a plan, or part thereof, which has been approved. If any utility has not implemented its plan and is not substantially in compliance with the provisions of its approved plan at any time after January 1, 1982, then the commission shall adopt a program which will be required for that utility to achieve the overall goals, which may include variations in rate design, load control, residential energy conservation subsidy, or any other measure within the jurisdiction of the commission which the commission finds likely to be effective; this provision shall not be construed to preclude these measures in any plan.

load-control systems be encouraged. Accordingly, in exercising its jurisdiction, the commission shall not approve any rate or rate structure which discriminates against any class of customers on account of the use of such systems or devices. This expression of legislative intent shall not be construed to preclude experimental rates, rate structures, or programs. The Legislature further finds and declares that ss. 366.80-366.85 and 403.519 are to be liberally construed in order to meet the complex problems of reducing the growth rates of electric consumption and weather-sensitive peak demand; increasing the overall efficiency and cost-effectiveness of electricity and natural gas production and use; and conserving expensive resources, particularly petroleum fuels.

History.-s. 5, ch. 80-65. (4) The commission shall require periodic reports

from each utility and shall provide the Legislature and the Governor with an annual report by Febru- .

366.82 Definition; goals; plans; annual re· ary 1 of the goals it has adopted and its progress ports; energy audits.- toward meeting those goals. The commission shall

(1) For the purposes of ss. 366.80-366.85 and also consider the performance of each utility pursu-403.519, "utility" means any person or entity of ant to ss. 366.80-366.85 and 403.519 when establishwhatever form which provides electricity or natural ing rates for those utilities over which the commisgas at retail to the public, specifically including mu- sion has rate-setting authority. nicipalities or instrumentalities thereof and cooper- (5) By January 1, 1981, the commission shall reatives organized under the Rural Electric Coopera- quire each utility to offer, or to contract to offer, tive Law and specifically excluding any person or entity providing natural gas at retail to the public energy audits to its residential customers. This re-whose annual sales volume is less than IOO million quirement need not be uniform, but may be based on therms. such factors as level of usage, geographic location, or

(2) The commission shall adopt appropriate goals any other reasonable criterion, so long as all eligible for increasing the efficiency of energy consumption, customers are notified by April I, 1981. The commisspecifically including goals designed to increase the sion may extend this requirement to some or all comconservation of expensive resources, such as petro- mercial customers if such audits are required pursuleum fuels, and to reduce the growth rates of electric ant to federal law. The commission shall set the consumption, especially of weather-sensitive peak charge for audits by rule, not to exceed the actual demand. The Executive Office of the Governor shall cost, and may describe by rule the general form and be a party in the proceedings to adopt goals. The content of an audit. In the event one utility contracts initial goals shall be adopted no later than Septem- with another utility to perform audits for it, the utilber 1, 1980, for the succeeding 5-year period. After ity for which the audits are performed shall pay the the programs and plans to meet those goals are com- contracting utility the reasonable cost of performing pleted, the commission shall determine whether fur- the audits. Each utility over which the commission ther goals, programs, or plans are warranted and, if has rate-setting authority shall estimate its costs so, shall adopt them. and revenues for audits,. conservation programs, and

(3) Following adoption of goals pursuant to sub- implementation of its plan for the immediately folsection (2), the commission shall require each utility lowing 6-month period. Reasonable and prudent unto develop a plan to meet the overall goals within its reimbursed costs projected to be incurred, or any service area. If any plan includes loans, collection of portion of such costs, may be added to the rates loans, or similar banking functions by a utility and which would otherwise be charged by a utility upon the plan is approved by the commission, the utility approval by the commission. Following each 6-shall perform such functions, notwithstanding any month period, each utility shall report the actual other provision of the law. The commission may results for that period to the commission, and the pledge up to $5,000,000 of the Florida Public Service difference, if any, between actual and projected reRegulatory Trust Fund to guarantee such loans. sults shall be taken into account in succeeding periHowever, no utility shall be required to loan its ods. The state plan as submitted for consideration funds for the purpose of purchasing or otherwise under the National Energy Conservation Policy Act acquiring conservation measures or .devices, but shall not be in conflict with any state law or regulanothing herein shall prohibit or impair the adminis- tion. tration or implementation of a utility plan as sub- (6) Notwithstanding the provisions ofs. 377.703, mitted by a utility and approved by the commission the commission shall be the responsible state agency under this subsection. Plans to meet the initial goals for performing, ·coordinating, implementing, or admust be submitted to the commission no later than ministering the functions of the state plan submitted November 1, 1980. The commission shall approve or for consideration under the National Energy Conserdisapprove each plan no later than December 1, vation Policy Act and any acts amendatory thereof 1980. If the commission disapproves a plan, it shall or supplemental thereto and for performing, coordispecify the reasons for disapproval, and the utility nating, implementing, or administering the funcwhose plan is disapproved shall resubmit its modi- tions of any future federal program delegated to the fied plan within 30 days. Each plan shall commence state which relates to consumption, utilization, or

426


conservation of electricity or natural gas; and the commission shall have exclusive responsibility for preparing all reports, information, analyses, recommendations, and materials related to consumption, utilization, or conservation of electrical energy which are required or authorized by s. 377.703.

(7) The commission shall establish all minimum requirements for energy auditors used by each utility._ The commission is authorized to contract with any public agency or other person to provide any training, testing, evaluation, or other step necessary to fulfill the provisions of this subsection.


366.83 Certain laws not applicable; savings clause.-No utility shall be held liable for the acts or omissions of any person in implementing or attempting to implement those measures found costeffective by, or recommended as a result of, an energy audit. The findings and recommendations of an energy audit shall not be construed to be a warranty or guarantee of any kind, nor shall such findings or recommendations subject the utility to liability of any kind. Nothing in ss. 366.80-366.85 and 403.519 shall preempt or affect litigation pending on June 5, 1980, nor shall ss. 366.80-366.86 and 403.519 preempt federal law unless such preemption is expressly authorized by federal statute.


366.84 Trust fund created; uses.-There is created the Florida Energy Trust Fund. The commission may develop a test program which shall be conducted in the service area of one or more utilities to improve the efficiency of energy usage by retrofitting existing housing, and the commission may subsidize loans for this purpose. The commission may also provide moneys from the fund for educational projects designed to increase public awareness of the need for efficient utilization of electricity and natural gas or to develop and demonstrate appropriate technology for such purposes. ·


366.85 Responsibilities of Division of Consumer Services.-The Division of Consumer Services of the Department of Agriculture and Consumer Services shall be the agency responsible for consumer conciliatory conferences, if such conferences are required pursuant to federal law. The division shall also be the agency responsible for preparing lists of sources for energy conservation products or services and of financial institutions offering energy conservation loans, if such lists are required pursuant to federal law. Notwithstanding any provision of federal law to the contrary, the division shall not require any manufacturer's warranty exceeding 1 year in order for a source of conservation products or services to be included on the appropriate list. The lists shall be prepared for the service area of each utility and shall be furnished to each utility for distribution to its customers. The division shall update the lists on a systematic basis and shall remove from any list any person who has been disciplined by any state agency or who has otherwise exhibited a pattern of unsatisfactory work and any person who requests removal from such lists. The division is au-

thorized to adopt rules to implement the provisions of this section.


CHAPTER 367

WATER AND SEWER SYSTEMS

367.011 Jurisdiction; legislative intent. · 367.021 Definitions. 367.022 Exemptions. 367.031 Certificate. 367.041 Application. 367.051 Issuance of certificate. 367.061 Extension of certificate. 367.071 Transfer. 367.081 Rates; procedure for fixing and changing. 367.082 Interim rates; procedure. 367.083 Determination of official date of filing. 367.091 Rates; new class of service. 367.101 Charges for service availability. 367.111 Service. 367.121 Powers of commission. 367.122 Examination and testing of meters. 367.123 Service for resale. 367.131 Review of commission's orders. 367.141 Fees. 367.151 Gross receipts tax. 367.161 Penalties. 367.165 Abandonment. 367.171 Effectiveness of this chapter. 367.182 Saving clause.

1367.011 Jurisdiction; legislative intent.-(1) This chapter may be cited as the "Water and

Sewer System Regulatory Law." (2) The Florida Public Service Commission shall

have exclusive jurisdiction over each utility with respect to its authority, service, and rates and the issuance and sale of its securities maturing more than 12 months after date of issue, except as provided in this chapter.

(3) The regulation of utilities is declared to be in the public interest, and this law is an exercise of the police power of the state for the protection of the public health, safety, and welfare. The provisions of this chapter shall be liberally construed for the accomplishment of this purpose.

(4) This chapter shall supersede all other laws on the same subject, and subsequent inconsistent laws shall supersede this chapter only to the extent that they do so by express reference. This chapter shall not impair or take away vested rights ·other than procedural rights or benefits.

History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 25, 26, ch. 80-99.

'Note.- The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

1367.021 Definitions._:_As used in this chapter, the following words or terms shall have the meanings indicated:

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(1) "Commission" means the Florida Public Service Commission.

(2) "Certificate" means a document issued by the commission authorizing a utility to provide service in a specific territory.

(3) "Utility" means a water or sewer utility and, except as provided ins. ·367.022, includes every person, lessee, trustee, or receiver owning, operating, managing, or controlling a system, or proposing construction of a system, who is providing, or proposes to provide, water or sewer service to the public for compensation.

(4) "System" means facilities and property used or useful in providing service and, upon a finding by the commission, may include a combination of functionally related facilities and property.

(5) "Governmental agency" means a political subdivision authorized to provide water or sewer service.

(6) "Territory" means the geographical area described in a certificate, which may be within or without the boundaries of an incorporated municipality and may include areas in more than one county.

(7) "Official date of filing" means the date upon which it has been determined, pursuant to s. 367.083, by the commission or its designee that the utility has filed ~ith the clerk the minimum filing requirements as established by rule of the commis-sion. .

(8) . "Corporate undertaking" means the unqualified guarantee of a utility to pay a refund and any interest connected therewith which may be ordered by the commission at such time as the obligation becomes fixed and final. History.-<~. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77457; ss. 2, 25, 26, ch.

80-99. 'Note.- The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides. that this section shall stend repealed effective July 1, 1986, and shall be rev1ewed by the Legislature pursuant to the Regulatory Refonn Act of 1976, as amended.

1367.022 _ Exemptions.-The following are not subject to regulation by the commission as a utility nor are they subject to the provisions of this chapter, except as expressly provided:

(1) The sale, distribution, or furnishing of bottled water;

(2) Systems owned, operated, managed, or controlled by governmental agenc~es;

(3) Manufacturers providing service solely in connection with their operations;

but such person is subject to the provisions of s. 367.122. History.-<~. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77457; ss. 3, 25, 26, ch.

80-99. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stend repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulat9ry Refonn Act of 1976, as amended.

1367.031 Certificate.-Prior to the issuance to a utility of a permit by the Department of Environmental Regulation for the construction of a new water or sewer facility, the utility shall obtain a certificate authorizing it to provide service.

History.-<~. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77457; ss. 5, 25, 26, ch. 80-99.

'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stend repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

1367.041 Application.-Each applicant for a certificate shall:

(1) Provide information required by rule or order ofthe commission, which may include a detailed inquiry into the ability of the applicant to provide service; the territory and facilities involved, the need for service in the territory involved, and the existence or nonexistence of service from other sources within geographical proximity to the territory ap-plied for; .

(2) File with the com~ission schedules showing all rates, classifications, and charges for service of every kind furnished by it and all rules, regulations, and contracts relating thereto;

(3) File the application fee required by s. 367.141; and

(4) Submit an affidavit that the applicant has caused notice of its intention to file an application to be given:

(a) By mail or personal delivery to the governing body of the county or city affected, to the public counsel, and to the commission; and

(b) To such other persons and in such other manner as may be prescribed by commission rule.

Notice shall be given no later than 30 days prior to tile filing of the application.

Hlstory.--<1. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77457; ss. 6, 25, 26, ch. 80-99. . 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stend repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

(4) Public lodging establishments providing ser- 1367.051 Issuance of certificate.-vice solely in connection with service to their guests; (1) If, within 20 days following the official date of

(5) Landlords providing service to their tenants filing of the application, the commission does not without specific compensation for the service; receive written objection to the application, the com-

(6) Systems with the capacity or proposed capaci- mission may dispose of the application without hear-ty to serve 100 or fewer persons; ing. If the applicant is dissatisfied with the disposi-

(7) Nonprofit corporations, associations, or coop- tion, he shall be entitled to a proceeding under s. eratives providing service solely to members who 120.57. own and control such nonprofit corporations, associ- (2) If, within 20 days following the official date of ations, or cooperatives; and filing, the commission receives from the public coun-

(8) Any person who resells water or sewer service sel or a governmental agency, or from a utility or at a rate or charge which does not exceed the actual consumer who would be substantially affected by the purchase price thereof, if such person files at least requested certification, a written objection requestannually with the comm~ssion a list of charges and ing a proceeding pursuant to s. 120.57, the commisrates for all water service sold, the source and actual sion shall order such proceeding conducted in or purchase price thereof, and any other information near the territory applied for, if feasible. If any conrequired by the commission to justify the exemption; sumer, utility, or governmental agency or the public

428

s. 367..051 1980 SUPPLEMENT TO FLORIDA STATUTES 1979 s. 367.081

counsel requests a public hearing on the application, such hearing shall, if feasible, be held in or near the territory applied for; and the transcript' thereof and any material submitted at or prior to the hearing shall be considered as part of the ·record of the application and any proceeding related thereto.

(3) The commission may grant a certificate, in whole or in part or with ·modifications in the public interest, but may in no event grant authority greater than that requested in the application or amendments thereto and noticed under s. 367.041, or it may deny a certificate. The commission shall not grant a certificate for a proposed system, or for the extension of an existing system, which will be in competition with, or a duplication of, any other system or portion of a system, unless it shall first determine that such other system or portion thereof is inadequate to meet the reasonable needs of the public or that the person operating ~he system is unable, refuses, or neglects to provide reasonably adequate service.

(4) Revocation, suspension, transfer, or amendment of a certificate shall be subject to the provisions of this section and s. 367.041, except that the commission shall give notice as required in s. 367.041 when it initiates such action.

History.-<!. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 7, 25, 26, ch. 80-99.


1367.061 Extension of certificate.-(!) A utility may extend its service outside of the

territory described in its certificate, if the extension does not involve territory described in an organizationally unrelated utility's certificate, served by a governmental agency, or receiving similar service from any other· utility or governmental agency.

(2) Proposed extensions of service other than as authorized in subsection (1) shall not be commenced until the utility first obtains for such extensions an amended certificate. · '

(3) A utility proposing to extend service in accordance with subsection (1) shall cause notice to be given at least 30 days prior to commencing of construction of the proposed extension, in the manner provided by s. 367.041(4). ·

(a) If within 50 days following the date notice was first given the commission does not receive written objection to the extension, t~e utility may provide service in the territory for which notice was given.

(b) If objection is received, the matter will be disposed of in accordance with s. 367.051(2) and (3).

(4) An application to amend a certificate may be made at any time within 1 year following notice as required in subsection (3), unless for good cause the commission extends such time for application. The application shall contain a description of all additional territory served. The commission shall issue an amended certificate describing all territory which it had theretofore been authorized to serve, together with the additional territory served by such extension.

(5) Applications-made pursuant to this section

shall be accompanied by a fee as provided by s. 367.141.

History.-s .. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 8, 25, 26, ch. 80-99.


1367.071 Transfer.-(!) No utility shall sell, assign, or transfer its

certificate, facilities or any portion thereof, or majority organizational control without determination and approval ofthe commission that the propose9. sale, assignment, or transfer is in the public interest.

(2) Application!? for proposed sale, assignment, or transfer shall be accompanied by a fee as provided by s. 367.141. No fee is required to be paid by a governmental agency that is the buyer, assign,ee, or transferee.

(3) Applications shall be disposed of as provided in s. 367.051, except that:

(a) The sale or transfer of certificates or facilities to a governmental agency shall be approved as a matter of right; however, the governmental agency shall, prior to taking any official action, obtain from the commission with respect to the authority or facilities to be sold or transferred the most recent available income and expense statement, balance sheet, and statement of rate ·base for regulatory purposes and contributions-in-aid-of-construction.

(b) When paragraph (a) does not apply, the commission shall amend the certificates as necessary to reflect the change resulting from the sale, assignment, or transfer.

(4) The commission, by order, shall establish the rate base for a utility or its facilities or ·property when the commission approves a sale, assignment, or transfer thereof; except for any sale, assignment, or transfer to a governmental agency.

History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; as. 9, 25, 26, ch. 80-99. 'Note.~ The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stand repealed ,effective July 1, 1986, and shall be reviewed by the Legislature pursuant to' the Regulatory Reform Act of 1976, as amended.

1367.081 Rates; procedure for fixing and changing.-

(!) Except as provided in subsection (4), rates and charges being charged and collected by a utility shall be changed only by approval of the commission.

(2) The commission shall, either upon request or upon its own motion, fix rates which are just, reasonable, compensator.y, and not unfairly discriminatory. In all such proceedings, the commission shall consider the value and quality of the service and the cost of providing the service, which shall include, but not be limited to, debt interest; the utility's requirements for working capital; maintenance, depreciation, tax, and operating expenses incurred in the operation of all property used and useful in the public service; and a fair return on the utility's investment in property used and useful in the public service. However, the commission shall not allow the inclusion· of contributions-in-aid-of-construction in the rate base of any utility during a rate proceeding; and accumulated depreciation on such contributions-in-aid-of-construction shall not be used to reduce the rate base, nor shall depreciation on such

429


contributed assets be considered a cost of providing that the rates charged by the supplier of the electric utility service. Contributions-in-aid-of-construction power or the taxes imposed by the governmental shall include any amount or item of money, services, body have changed. The new rates authorized shall or property received by a utility, from any person or reflect the amount of the change of the ad valorem governmental agency, any portion of which is pro- taxes or rates imposed upon the utility by the govvided at no cost to the utility, which represents a ernmental agency, other utility, or supplier of elecdonation or contribution to the capital of the utility, tric power. Provisions of this subsection shall not and which is utilized to offset the acquisition, im- prevent a utility from seeking changes in rates purprovement, or construction costs of the utility's prop- suant to the provisions of subsection (2). erty, facilities, or equipment used to provide utility (c) Before implementing a change in rates under services to the public. The commission shall also con- this subsection, the utility shall file an affirmation sider the utility's investment in property required by under oath as to the accuracy of the figures and duly authorized governmental authority to be con- calculations upon which the change in rates is based, structed in the public interest within a reasonable stating that the change will not cause the utility to time in the future, not to exceed 24 months. exceed the range of its last authorized rate of return.

(3) The commission, in fixing rates, may deter- Whoever makes a false statement in the affirmation mine the prudent cost of providing service during required hereunder, which he does not believe to be the period of time the rates will be in effect following true in regard to any material matter, is guilty of a the entry of a final order relating to the utility's rate felony of the third degree, punishable as provided in request and may use such costs to determine the s. 775.082, s. 775.083, or s. 775.084. revenue requirements that will allow the utility to (d) If, within 24 months of an adjustment in the earn a fair rate of return on its rate base. rates as authorized by this subsection, the commis-

(4)(a) On or before March 31 of each year, the sion shall find that a utility did thereby exceed the commission by order shall establish a price increase range of its last authorized rate of return, it may or decrease index for major categories of,operating order the utility to refund the difference to the rate costs incurred by utilities subject to its jurisdiction payers. This provision shall not be construed to rereflecting the percentage of increase or decrease in quire a bond or corporate undertaking not otherwise such costs from the most recent 12-month historical required. data available. The commission by rule shall estab- (e) Notwithstanding anything herein to the conlish the procedure to be used in determining such trary, no utility may adjust its rates under this subindices and a procedure by which a utility, without section more than two times in any 12-month period. further action by the commission, or the commission (0 The commission shall by order each year eson its own motion, may implement an increase or tablish a minimal authorized rate of return on comdecrease in its rates based upon the application of mon equity which shall reasonably reflect the minithe indices to the amount of the utility's major cate- mum return on equity for an average water or sewer gories of operating costs incurred during the imme- utility and which, for purposes of this section, shall diately preceding calendar year, except to the extent be the last authorized rate of return for any utility of any disallowances or adjustm,ents for those ex- which otherwise would have no established rate of penses of that utility in its most recent rate proceed- return. Said minimal return on common equity shall ing before the commission. The rules shall provide not apply to any utility once an overall rate of return that, upon a finding of good cause, including inade- has been established for that utility in a proceeding quate service, the commission may order a utility to before the commission, nor shall it apply in any prorefrain from implementing a rate increase hereun- ceeding which will result in the establishment of an der unless implemented under a bond or corporate authorized rate of return. undertaking in the same manner as interim rates (5) Applications for rate changes shall be accommay be implemented under s. 367.082. No utility panied by a fee as provided by s. 367.141, except that may use this procedure to increase any operating no fee shall be required for applications for rate cost for which an adjustment has been or could be changes made pursuant to subsection (4). made under paragraph (b). (6) The commission may withhold consent to the

(b) The approved rates of any utility which re- operation of any rate request or any portion thereof ceives all or any portion of its utility service from a by filing an order to that effect with the commission governmental agency or from a water or sewer utili- clerk within 60 days after the date of filing of the ty regulated by the commission and which redistrib- rate request, or within a shorter period established utes that service to its utility customers shall be by rule of the commission. The order shall state a automatically increased or decreased without hear- reason or statement of good cause for the withholding, upon verified notice to the commission 30 days ing of consent. The commission shall provide a copy prior to its implementation of the increase or de- of the order to the utility and all interested persons crease that the rates charged by the governmental who have requested notice. Such consent shall not be agency or other utility have changed. The approved withheld for a period longer than 8 months following rates of any utility which is subject to an increase or the date of filing. The new rates or any portion not decrease in the rates that it is charged for electric consented to shall go into effect under a bond or power or the amount of ad valorem taxes assessed corporate undertaking subject to refund at the expiagainst its property shall be increased or decreased ration of such period upon notice to the commission. by the utility, without action by the commission, The commission shall determine whether the corpoupon verified notice to the commission 30 days prior rate undertaking may be filed in lieu of the bond. to. its implementation of the increase or decrease The utility shall keep accurate, detailed accounts of

430


all amounts received because of such rates becoming effective under bond or corporate undertaking subject to refund, specifying by whom and in whose behalf such amounts were paid. In its final order relating to such rate request, the commission shall direct the utility to refund such portion of the increased rates which are found not"to be justified and which are collected during the periods specified. The commission shall provide for the disposition of any funds not refunded, but in no event shall such funds accrue to the benefit of the utility. The commission shall take final action on the docket and enter its final order within 12 months ofthe official date of filing.

History.-s. 1, ch. 71-278; s. 5, ch. 74-195; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 10, 25, 26, ch. 80-99. · 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the' Regulatory Reform Act of 1976, as amended. cf.-s. 364.05 Changing rates, tolls, rentals, etc.

s. 366.06 Rates; procedure for fixing and changing.

1367.082 Interim rates; procedure.-(1) The commission may, during any proceeding

for a change of rates, upon its own motion, upon petition from any party, or by a tariff filing of a utility or a regulated company, authorize the collection of interim rates until the effective date of the final order. Such interim rates may be based upon a test period different from the test period used in the request for permanent rate relief. To establish a prima facie entitlement for interim relief, the commission, the petitioning party, the utility, or the regulated company shall demonstrate that the utility or the regulated company is earning outside the range of reasonableness on rate of return previously authorized by the commission. This determination shall be based upon the rate of return calculated in accordance with paragraph (5)(a) or paragraph (5)(b).

(2)(a) In a proceeding for an interim increase in rates, the commission shall authorize, within 60 days of the filing for such relief, the collection of rates sufficient to earn a rate of return at the minimum of the range of the last authorized rate of return. The difference between the interim rates and the previously authorized rates shall be collected under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.

(b) In a proceeding for an interim decrease in rates, the commission shall authorize, within 60 days of the filing for such relief, the continued collection of the previously authorized rates; however, revenues collected under those rates sufficient to reduce the achieved rate of return to the maximum of the last authorized rate of return shall be placed under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.


(3) In granting such relief, the commission may, in an expedited · hearing but within 60 days of the commencement of the proceeding, upon petition or upon its own motion, preclude the recovery of any extraordinary or imprudently incurred expenditures or, for good cause shown, increase the amount of the bond or corporate undertaking.

( 4) Any refund ordered by the commission shall be calculated to reduce the utility's or the regulated company's rate of return during the pendency of the

proceeding to the same level within the range of the newly authorized rate of return which is found fair and reasonable on a prospective basis, but the refund shall not be in excess of the amount of the revenues collected subject to refund and in accordance with paragraph (2)(b). In addition, the commission may require interest on the refund at a rate established by the commission.

(5) The commission in setting interim rates or setting revenues subject to refund shall determine the deficiency or excess by applying:

(a) The rate of return for the utility or the regulated company for the most recent 12-month period, which shall be calculated by applying appropriate adjustments consistent with those which were used in the utility's or the regulated company's most recent rate case and annualizing any rate changes occurring during such period but based upon an average investment rate base; or


(6) Nothing in this section shall be construed to prohibit the commission from authorizing interim rates for a utility which does not have an authorized rate of return previously established by the commission.

History.-ss. 11, 26, ch. 80-99. 'Note.-Section 26, ch. 80-99, provides, in ·effect, that this section as created

by ch. 80-99 shall stand repealed (expires) on July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

1367.083 Determination of official date of filing.-Within 30 days after receipt of an application, rate request, or other written document for which an official date of filing is to be established, the commission or its designee shall either determine the offi: cial date of filing or issue a statement of deficiencies to the applicant, specifically listing why said applicant has failed to meet the minimum filing requirements. Such statement of deficiencies shall be binding upon the commission to the extent that, once the deficiencies in the statement are satisfied, the official date of filing shall be promptly established as provided herein. Thereafter, within 15 days after the applicant indicates to the commission that it believes that it has met the minimum filing requirements, the commission or its designee shall either determine the official date of .filing or issue another statement of deficiencies, specifically listing why the requirements have not been met, in which case this procedure shall be repeated until the applicant meets the minimum filing requirements and the official date of filing is established. When the commission initiates a proceeding, the official date of filing shall be the date upon which the order initiating the proceeding is issued.


by ch. 80-99 shall stand repealed (expires) on July 1, 1986, and shall be reviewed by the Legis1ature pursuant to the Regulatory Reform Act of 1976, as amended.

1367.091 Rates; new class of service.-If any request for service of a utility shall be for a new class of service not previously approved, the utility may furnish the new class of service and fix and charge just, reasonable, and compensatory rates or charges

431


therefor. A schedule of rates or charges so fixed shall be filed with the commission within 10 qays after the service is furnisheq. TP.e commission may approve such rates or charges as fJJ.ed or may approve such other rates or charges for t~e new class of service which it finds are just, reasonable, and compensato-ry. '

History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ~- 5~, ch. 78-95; ss. 12, 2q, 26, ch. 8().99. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 80.99. Section 26, ch. 8().99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature purSuant to the Regulatory Reform Act of 1976, as amended.

1367.101 Charges for service availability.(!) The commission, by rule, may set standards

for service-availability charges and service-availability conditions. Charges and conditions made by a utility shall be just and reasonable. The commission shall, upon request or upon its own motion, investigate agreements or proposals for charges and conditions to be made by a utility for service availability. The commission shall set just and reasonable charges and conditions for service avail~bil~ty.

(2) An application for approval of charges and conditions for service availability shall be accompanied by a fee as provided by s. 367.141.

Hlstory.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 13, 25, 26, ch. 80-99. · 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 8().99. Section 26, ch. 8().99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as am~nded .

1367.111 Service.-(! ) Each utility shall provide serVice to the terri

tory described ~n ~ts certificate within a reasonable timf;l. If the commission finds tl).at any utility has failed to provide service to any person reasonably entitled thereto, or finds that extension of service to any such person could be accomplished only at an unreasonable cost and that addition of the deleted territory to 'that of another utility company is economical and feasible, it may amend the certificate to delete the territory not senred or not properly served by the utility, o·r it may rescind the certificate. If utility service has not been provided to any part of the territory which a utility is authorized to serve, whether or not there has been a demand for such service, within 5 years after the date of authorization for service to such part, such authorization may be reviewed and· amended or revoked by the commission.

(2) Each utility shall provide to each person reasonably entitled thereto such safe, efficient, and sufficient service as is prescribed by the Florida Safe Drinking W;1ter Act and the Florida Air and Water Pollution Control Act, or rules adopted pursuant thereto, or, if applicable, chapter 17-22, Florida Aqministrative Code; but such service shall not be less safe, less efficient, or less sufficient than is consistent with the approved engineering design of the system and the reasonable and proper operation of the utility in the public interest.

History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 1, 2, ch. 79-49; ss. 14, 25, 26, ch. 80-99. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 8().99. Section 26, ch. 80-99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended. cf.-Ch. 403, part VI Florida Safe Drinking Water Act.

Ch. 403, part I Florida Air and Water Pollution Con_trol Act.

1367.121 Powers of commission.~ (1) In the eiercise ofitsjurisdiction, the commis

sion shall have power: (a) To prescribe fair and reasonable rates and

charges, classifications, standards of quality and measuremen~, and to prescribe service rules to be observed by each utility, except to the extent such authority is expressly given to another state agency;

(b) To prescribe, by rule, a uniform system and classification of accounts for all utilities, which rules, among other things, shall establish adequate, fair, and reasonable depreciation rates and charges;

(c) To require such regular or emergency reports from a utility, including, but not limited to, financial reports, as the commission deems necessary and, if the commission finds a financial report to be incom• plete, incorrect, or inconsistent with the uniform system and classification of accounts, to require a new report or a supplemental report, either of which the commission may require to be certified by an independent certified public accountant licensed under chapter 473;

(d) To require repairs, improvements, additions, and extensions to any facility, or to require the construction of a new facility, if reasonably necessary to · provide adequate and proper service to any person entitled to service or if reasonably necessary to provide any prescribed quality of service, except that no utility shall be required to extend its service outside the geographic territory described in its certificate, or make additions to its plant or equipment to serve outside such territory, unless the commission first find~:? that .the utility is financially able to make such additional investment without impairing its capaCity to serve its existing customers;

(e) To employ and fix the compensation for such examiners and technical, legal, and clerical employees as it deems necessary to carry out the provisions of this chapter;

(f) To adopt, by affirmative vote of a majority of the commission, rules reasonably necessary and ap. propriate for the administration and enforcement of thi~ chapter;

(g) To exercise all judicial powers, issue all writs, and do all things necessary or convenient to the full and complete exercise of its jurisdiction and the enforcement of its orders and requirements; and

(h) To order interconnections of service or facilities between utilities, and to approve any plant capacity charges or wholesale service charges or rates related thereto, provided the commission first finds thl:lt the utility is financially able to make such additional investment as is required without impairing its capacity to serve its existing customers.

(2) The commission or its duly authorized representatives may, during all reasonable hours, enter upon any' premises occupied by any utility and set up and use thereon a_ny necessary apparatus and appliance for the purpose of making investigations, inspections, examinations, and tests and exercising any power conferred by this chapter. Such utility shall have the right to -be notified of and be repre-

432


sen ted at the making of such investigations, inspections, examinations, and tests.

History.,.. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; 88.

15, 25, 26, ch. 80.99. · • 'Note.~ The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch. 77-457, was nullified by s. 25, ch. 80.99. Section 26, ch. 80-99, .prgvides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

1367.122 Examination and testing of meters.-

(1) The commission may provide for the examination and testing of all meters used for measuring any product or service 'of a utility.

(2) Any customer or user may have any such meter tested by the utility upon payment of the fee fixed by the commission. · ·

(3) The commission shall establish reasonable fees to be paid for testing such meters on the request of the customers. The fee shall be paid by the customer or user at the time of his request. However, the fee shall be paid by the utility and repaid to the cust.omer or user if the meter is found defective or incorrect to the disadvantage of the customer or user in excess of the degree or amount of tolerance customarily allowed for such meters, or as may be provided for in rules and regulations of the commission. No fee may be charged for any such testing done by the commission or its representatives.

(4) The commission may purchase materials, apparatus, and standard measuring instruments for such examinations and tests.

Hlstory.-s. 1, ch. 71-278; s. 100, ch. 73-333; s. 3, ch. 76-168; s. 1, ch. 77-457; 88. 16, 25, 26, ch. 80.99. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullifi~d by s. 25, ch. 80-99. Section 26, ch, 80.99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

.1367.123 Service for resale.-The commission

may require a utility to provide service for -resale. However, before requiring the •provision of service, the commission shall first find that the utility is financially able to make such additional investment as is required without impairing its capacity to serve its existing customers. Any utility which provides service for resale shall -provide· such service upon terms arid conditions established by the commission, and no utility shall discontinue such service without the approval of the commission. In the event a governmental agency voluntarily enters into an agreement for resale, such agreement shall provide that the service will not be discontinued without 90 days' notice being given to the purchaser prior to discontinuing such service. Nothing contained herein shall be construed to prohibit the governmental agency from requiring adequate security being given to such agency to ensure payments required in the agreement. History.~s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 17, 25, 26, ch.

80-99. 'Note.- The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 80-99. Section 26, ch: 80-99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

51Note.-The word uprovision" was substituted for "performance" by the editors to conform to the terminology used in this section. ·

367.131 Review of commission's orders.--{Re-

pealed by s. 18, ch. 80-99,]

1367.141 Fees.-Applications by utilities, made pursuant to the provisions ofs. 367.041, s. 367.061, s. 367.071, s. 367.081, s. 367.101, or s. 367.171, shall be accompanied by a fee, to be set by commission rule and to be based upon the existing or proposed capacity of the system or extension, with the following limitations:

(1) From 1 to 999 persons, not more than $150; (2) From 1,000 to 4,999 persons, not more than

$900; (3) From 5,000 to 9,999 persons, not more than

$11500; (4) Ten thousand or more persons, not more than

$2,250.

Such fees shall be placed in the Public Service Regulatory Trust Fund under the provisions of chapter 350. . '

History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 3, ch. 76-265; s. 1, ch. 77-457; s. 75, ch. 79-164; 88. 19, 25, 26, ch. 80-99. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80.99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

1367.151 Gross receipts tax.-Each utility shall pay to the commission a regulatory fee in the amount of2.5 percent of its gross operating revenues derived from intrastat~ business P!lrsuant to s. 350.78. Each governmental agency to which ownership or control of a utility is transferred shall not be liable for any fees owed the commission by the utility as of the date of transfer. However, whenever a purchase at wholesale is made of any water or sewer service and a tax is paid or payable thereon by the selling utility and the utility purchasing such water or sewer service resells the same directly to customers, the purchasing utility shall be entitled to, and shall receive, credit on such taxes as may be due by it under this section to the extent of the tax paid or payable upon such water or sewer service by the utility from whom such purchase was made. If any utility fails to make such report and pay such tax, the commission, after giving at least 5 days' written notice to the utility, shall estimate the amount of such gross receipts from such information as it may be able to obtain from any source, add 10 percent of the amount of such tax as a penalty, and proceed to collect such tax and penalty, together with all costs of collection thereof, in the same manner as other delinquent taxes are collected. However, no penalty shall be added to the tax in the event a return is made and the amount of the tax is paid before the expiration of the time fixed in the notice given by the commission. All such tax payments and penalties shall be placed in the Florida Public Service Regulatory Trust Fund, as established under the provisions of chapter 350. The -commission may audit such reports, and, upon demand, every ·utility shall submit all of its records, papers, books, and accounts to the commission or its representatives for audit.

· History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 3, ch. 76-265; s. 1, ch. 77-457; sa. 20, 25, 26, ch. 80-99.

'Note.- The repeal of this section by s. 3, ch. 76-168, -as amended by s. 1, ch. 77-457, was nullified by s. 25, ch. 80.99. Section 26, ch. 80.99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

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'367.161 Penalties.-If any utility, by any authorized officer, agent, or employee, knowingly refuses to comply with, or willfully violates, any provision of this chapter or any lawful rule or order of the commission, such utility shall incur- a penalty for each such offense of not more than $5,000, to be fixed, imposed, and collected by the commission. However, any penalty assessed by the commission for violation ofs. 367.111(2) shall be reduced by any penalty assessed by any other state agency for the same violation. Each day that such refusal or violation continues shall constitute a separate offense. Each penalty shall be a lien upon the real and personal property of the utility, enforceable by the commission as statutory liens under chapter 85. The proceeds from the enforcement of any such lien shall be deposited into the General Revenue Fund.

History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 21, 25, 26, ch. 80-99. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended.

1367.165 Abandonment.-It is the intent of the Legislature that water or sewer service to the customers of a utility shall not be interrupted by the abandonment or placement into receivership of the utility. To that end:

(1) No person, lessee, truste~, or receiver owning, operating, managing, or controlling a utility shall abandon the utility without giving 30 days' prior notice to the county or counties in which the utility is located and to the commission. Anyone who violates the provisions of this subsection is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084. Each day of such abandonment shall constitute a separate offense. In addition, such act is a violation of this chapter, and the commission may impose upon the utility a penalty for each such offense of not more than $5,000 or may amend, suspend, or revoke its certificate; each day of such abandonment without prior notice constitutes a separate offense.

(2) After receiving such notice, the county, or counties acting jointly if more than one county is affected, shall petition the circuit court of the judicial circuit in which such utility is domiciled to appoint a receiver, which may be the governing body of a political subdivision or any other person deemed appropriate. The receiver shall operate the utility from the date of abandonment until such time as the receiver disposes of the property of the utility in a manner designed to continue the efficient and effective operation of utility service.

(3) The notification to the commission under subsection (1) shall be sufficient cause for revocation, suspension, or amendment of the certificate of the utility as of the date of abandonment. The receiver operating such utility shall be considered to hold a temporary authorization from the commission, and the approved rates of the utility shall be deemed to be the interim rates of the receiver until modified by the commission.


by ch. 80-99 shall stand repealed (expires) on July 1, 1986, and shall be review-

ed by the Legislature pursuant to the Regulatory Reform Act of 1976, as amended. ·

'367.171 Effectiveness of this chapter.-(1) The provisions of this chapter shall become

effective in a county of this state upon the adoption of a resolution by the board of county commissioners of such county, or, in counties operating under a countywide charter, by the appropriate board, declaring that such county is subject to the provisions of this chapter. Any board of county commissioners adopting such resolution shall immediately notify the commission of its adoption and submit the resolution to the commission. A county, after 4 continuous years under the jurisdiction of the commission, may by resolution or ordinance rescind any prior resolution or ordinance imposing commission jurisdiction and thereby exclude itself from the provisions of this chapter, except that the county may not exclude itself from the provisions of this section.

(2)(a) Within 30 days after this chapter becomes applicable to a county, each utility shall register by filing with the commission a written statement setting forth the full legal name of. the utility, its mailing address, and a brief description of its area of service.

(b) On the day this chapter becomes applicable to any county, any utility engaged in the operation or construction of a system shall be entitled to receive a certificate for the area served by such utility on the day this chapter becomes applicable to it if, within 90 days, the utility will make application by filing with the commission:

1. A map of its existing system or system under construction;

2. A description of the area served by the system; and

3. A tariff listing all rates and charges and such other financial information as may be required by the commission.

Such application shall be accompanied by a fee as provided by s. 367.141.

(c) Before the commission issues a certificate under paragraph (b), it shall establish the amount of money prudently invested in property of the utility which property is used and useful in the public service; shall establish other elements of the rate base; and shall set and approve rates pursuant to s. 367.081.

(3) In consideration of the variance of powers, duties, responsibilities, population, and size of municipalities of the several counties and in consideration of the fact that every county varies from every other county and thereby affects the functions, duties, and responsibilities required of its county officers and the scope of responsibilities which each county may, at this time, undertake, the Counties of Alachua, Baker, Bradford, Calhoun, Charlotte, Collier, Columbia, Dade, DeSoto, Dixie, Escambia, Gadsden, Gilchrist, Glades, Gulf, Hamilton, Hardee, Hendry, Highlands, Hillsborough, Holmes, Indian River, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Manatee, Marion, Martin, Okaloosa, Okeechobee, Polk, St. Johns, Sarasota, Sumter, Suwannee, Taylor, Union, Wakulla, and Washington are excluded from the provisions of this chapter until such time as

434


the board of county commissioners of any such county, acting pursuant to the provisions of subsection (1), shall make this chapter applicable to such county or until the Legislature shall, by appropriate act, remove one or more such counties from this exclusion.

(4) As of the day a utility is no longer regulated by the commission under this chapter, each such utility which is engaged in the operation or construction of a system shall be entitled to receive from the county in which it is located and operating a certificate for each area for which such utility held a certificate from the. commission on the day the utility became subject to regulation by the county. The utility will make application by filing with the governing body of the county:

(a) A map of its existing system or system under construction;

(b) A certified copy of the certificate issued by the commission, including a legal description of the area for which the certificate was issued; · (c) A tariff, listing all rates and charges then in effect, which shall remain in effect until thereafter lawfully changed;

(d) A copy of the utility's operating regulations and procedures then in effect, which shall remain in effect until thereafter lawfully changed; and

(e) The utility's then-current rate base, which shall then continue to be that utility's rate base until thereafter lawfully changed.

(5) When a utility becomes subject to regulation by a county, all cases in which the utility is a party then pending before the commission, or in any court by appeal from any order of the commission, shall remain within the jurisdiction of the commission or court until disposed of in accordance with the law in effect on the day such case was filed by any party with the commission or initiated by the commission, whether or not the parties or the subject of any such case relates to a utility in a county wherein this chapter no longer applies.

(6) Any county in which utilities as herein defined were regulated by the commission on or after January 1, 1980, which subsequently cease to be so regulated, shall, within 90 days of the cessation of commission regulation, adopt and follow as minimum standards ·of regulation the provisions of s. 367.081, except for paragraph (4)(a), and s. 367.082, except that the word "commission" shall be read as "the governing body of such county" when the context implies or admits. The authorized rate of return shall be no less than the weighted cost of the capital of the utility, including debt and equity.

History.-s. 1, ch. 71-278; s. 1, ch. 73-193; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 22, 25, 26, ch. 80-99. 'Note.-The repeal of this section by s. 3, ch. 76-168, as amended by s. 1, ch.

77-457, was nullified by s. 25, ch. 80-99. Section 26, ch. 80-99, provides that this section shall stand repealed effective July 1, 1986, and shall be reviewed by the Legisla.ture pursuant to the Regulatory Reform Act of 1976, as amended.

367.182 Saving clause.-All certificates and authorizations valid on the effective date of chapter 80-99, Laws of Florida, shall remain in full force and effect. Henceforth, all certificates and authorizations shall be applied for and renewed in accordance

with this act. History.-s. 24, ch. 80-99.

370.021 370.07 370.082

370.10

370.1105 370.13 370.135 370.16

370.021 etc.-

CHAPTER 370

SALTWATER FISHERIES

Administration, rules, regulations, etc. Seafood dealers; regulation. Use of gill nets, wing nets, and similar

devices regulated; penalties; confiscation of equipment.

Crustacea, marine animals, fish; regula-tions; general provisions.

Saltwater finfish; fishing traps regulated. Stone crabs; regulation. Blue crab; regulation. Oysters and shellfish; regulation.

Administration, rules, regulations,

(1) RULES AND REGULATIONS.-The Department of Natural Resources shall make, adopt, promulgate, amend, and repeal all rules and regulations necessary or convenient for the carrying out of the duties, obligations, powers, and responsibilities conferred on the department or any of its divisions. The director of each division shall submit to the department suggested rules and regulations for that division. Any person violating or otherwise failing to comply with any of the rules and regulations adopted as aforesaid is guilty of a misdemeanor of the second deg:ree, punishable as provided in s. 775.082 or s. 775.083, unless otherwise provided by law.

(2) PENALTY FOR VIOLATION.-Any person violating any provisions of this chapter, unless otherwise provided, is guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083.

(3) RULES; ADMISSIBILITY AS EVIDENCE.Rules and regulations shall be admitted as evidence in the courts of the state when accompanied by an affidavit from the executive director of the department certifying that the rule or regulation has been lawfully adopted, promulgated, and published; and such affidavit shall be prima facie evidence of proper adoption, promulgation, and publication of the rule or regulation.

(4) PUBLICATIONS BY DEPARTMENT.-The department through the 'Division of Administrative Services is given authority, from time to time in its discretion, to cause the statutory laws under its jurisdiction, together with any rules and regulations promulgated by it, to be published in pamphlet form for free distribution in this state. The department is authorized to make charges for technical and educational publications and mimeographed material of use for educational or reference purposes. Such charges shall be made at the discretion of the 'Division of Administrative Services. Such charges may be sufficient to cover cost of preparation, printing, publishing, and distribution. All moneys received for publications shall be deposited in the Gen-

435

s. 370.021 1980 SUPPLEMENT TO FLORIDA STATUTES 1979 s. 370~021

eral Revenue Fund. The department is further authorized to enter into agreements with persons, firms, corporations, governmental agencies, and other institutions whereby publications may be exchanged reciprocally in lieu of payments for said publications.

(5) POWERS OF OFFICERS.-The department may designate such employees of the several divisions, as it may deem necessary in its discretion, as law enforcement officers, who shall meet the provisions of s. 943.13 and s. 943.12(1) and have the powers and duties conferred in this subsection, except that such employees shall comply with the provisions of chapter 943. Such officers, together with the executive director and the director of the Division of Law Enforcement, are constituted law enforcement officers of this state with full power to investigate and arrest for any violation of the laws of this state and the rules and regulations of the department under their jurisdiction and for violations of chapter 253 and the rules and regulations promulgated thereunder. The general laws applicable to arrests by peace officers of this state shall also be applicable to such law enforcement officers. Such law enforcement officers rriay enter upon any land or waters of the state for performance of their lawful duties and may take with them any necessary equipment, and such entry shall not constitute a trespass. It shall be lawful for any boat, motor vehicle, or aircraft owned or chartered by the department or its agents or employees to land on and depart from any of the beaches or waters of the state. Such law enforcement officers shall have the authority, without warrant, to board, inspect, and search any boat, fishing appliance, storage or processing plant, fishhouse, spongehouse, oysterhouse, or any other warehouse, building, or vehicle engaged in transporting or storing any fish or fishery products. Such authority to search and inspect without a search warrant is limited to those cases in which such law enforcement officers have reason to believe that fish or any saltwater products are taken or kept for sale, barter, transportation, or other purposes in violation oflaws or rules promulgated under this law. Any such law enforcement officer may at any time seize or take possession of any saltwater products or contraband which have been unlawfully caught, taken, or processed or which are unlawfully possessed or transported in violation of any of the laws of this state or any rule or regulation of the department. Such law enforcement officers may arrest any person in the act of violating any of the provisions of this law, rules or regulations of the department, the provisions of chapter 253 and the rules and regulations promulgated thereunder, or any of the laws of this state. It is hereby declared unlawful for any person to resist such arrest or in any manner interfere, either by abetting or assisting such resistance or otherwise interfering, with any such law enforcement officer while engaged in the performance of the duties imposed upon him by law or regulation of the department. .

(6) DUTIES OF DEPARTMENT OF LEGAL AFFAIRS.-The Department of Legal Affairs shall attend to the legal business ofthe Department ofNatural Resources and its divisions but if at any time any

question of law or any litigation arises, and the Department of Legal Affairs is otherwise occupied and cannot give the time and attention necessary to such question of law or litigation as the occasion demands, the several state attorneys shall attend to any such question of law or litigation arising within their respective circuits, and if such state attorney is otherwise occupied and cannot give the time and attention necessary to such question oflaw or litigation as the case may demand, the said Department ofN at ural Resources may employ additional counsel for that particular cause, with the advice and consent of the Department of Legal Affairs. Such additional counsel's fees shall 'be paid from the moneys appropriated to the Department of Natural Resources.

(7) RETENTION, DESTRUCTION, AND REPRODUCTION OF RECORDS.-Records and documents of the Department of Natural Resources which are created in compliance with and in the implementation of chapters 370 and 371, shall be retained by the department as specified in record retention schedules established under the general provisions of chapters 119 and 267. Further, the de-partment is authorized to: .

(a) Destroy, or otherwise dispose of, those records and documents, in. conformity with the approved re-tention schedules. ·

(b) Photograph, microphotograph, or reproduce such records and documents on film, as authorized and directed by the approved retention schedules, whereby each page will be exposed in exact conformity with the original records and documents retained in compliance with the provisions of this section. Photographs or microphotographs in the form of film or print of any records, made in compliance with the provisions of this section, shall have the same force and effect as the originals thereofwould have and shall be treated as originals for the purpose of their admissibility in evidence. Duly certified or authenticated reproductions of such photographs or microphotographs shall be admitted in evidence equally with the original photographs or microphotographs. The impression of the seal of the Department of Natural Resources on a certificate made pursuant to the provisions hereof, and signed by the Executive Director of the Department of Natural Resources, shall entitle the same to be received in evidence in all courts and in all proceedings in this state and shall be prima facie evidence of all factual matters set forth in the c13rtificate. A certificate may relate to one or more records, as set forth in the certificate, or in a schedule continued on an attachment to the certificate.

(c) Furnish certified copies of such records for a fee of $1 which shall be deposited in the Motorboat Revolving Trust Fund.

(8) COURTS OF EQUITY MAY ENJOIN.Courts of equity in this state shall have jurisdiction to enforce the conservation laws of this state by injunction.

(9) BOND OF EMPLOYEES.-The department may require, as it determines, that bond be given by any employee of the department or divisions thereof, payable to the Governor of the state, and his successor in office, for the use and benefit of those whom

436


it may concern, in such penal sums with good and sufficient surety or sureties approved by the department conditioned for the faithful performance of the duties of such employee.

History.-<~. 2, ch. 61-231; s. 1, ch. 61-22; ss. 11, 25, 35, ch. 69-106; s. 1, ch. 70-378; s. 1, ch. 70439; s. 277, ch. 71-136; s. 1, ch. 75-180; s. 23, ch. 78-95; s. 31, cht 79-65; s. 1, ch. 80-356.

':r,tlote.-See s. 2, ch. 79-255, which changed the name of "Division of Administrative Services" of the Department of Natural Resources to "Division of Administration.''

370.07 Seafood dealers; regulation.-(!) DEFINITIONS; LICENSES AUTHORIZED.

-License or privilege taxes as hereinafter set forth to be paid annually, are hereby levied and imposed upon dealers in the state in seafoods and saltwater products as defined hereafter; and it shall be unlawful for any person, firm, or corporation to deal in any such products without first pay'ing for and procuring the -license required by this section. Application for all licenses shall be made to the Division of Marine Resources on blanks to be furnished by it, and all licenses shall be issued by the division upon payment to it of the license tax therefor and the proce~ds thereof deposited in the State Treasury to the ci·edit of the Gerieral Revenue Fund. The licenses are defined as: . (a)l. "Wholesale seafood dealer"; any person,

firm, or corporation which sells saltwater fish or other saltwater products excluding novelty shells and sponges to any person, firm, or corporation except to the consumer; provided that those persons so excluded shall make those reports required of such wholesale dealers.

2. Whenever a person, firm, or corporation, already in possession of a wholesale seafood dealer license, shall find it useful and expedient to have more than one establishment, and the function of such additional establishments shall be the loading and preparation of products for later transshipment to the central place ofbusiness, it shall not be necessary for that person, firm, or corporation to obtain an additional wholesale dealer license.

3. In order for such subordinate establishments or structures to be exempt from the requirement to have a wholesale dealer license, all products passing through must have the licensed wholesale dealer's establishment under whose license the branch functions as their immediate destination.

4. If any products leave the branch or subordinate station for shipment or delivery to any destination other than the wholesale dealer under whose license the branch functions, the loading or subordinate location will also require a wholesale dealer license. · 5. All provisions of this act shall apply to estab

lishments and feeder stations when both categories are located within a single county. Whenever intercounty transportation becomes involved, points of origin and points of destination shall both be li-censed. ·

(b) A "retail seafood dealer"; any person, firm, or corporation who sells saltwater fish or other saltwater products directly to the qmsumer as seafood, but no license shall be required of dealers in merchandise who deal in or sell only salted, cured, canned, or smoked seafood.

(c) Any person, firm, or corporation which is un-

der the foregoing definitions, both a wholesale and retail seafood dealer, shall obtain both a wholesale and a retail seafood dealer's license.

(2) LICENSES; AMO'!JNT, TRUST FUND.(a) Resident wholesale seafood dealers are re

quired to pay an annual license tax of $100. (b) Nonresident wholesale seafood dealers are re

quired to pay an annual license tax of $150. (c) Alien wholesale seafood dealers are required

to pay an annual license tax of $500. (d) Resident retail seafood dealers are required

to pay an annual license tax of $10. (e) Nonresident retail seafood dealers are re

quired to pay a license tax of$25 pet annum in each county in which they do business for each place of business.

(0 AliEm retail seafood dealers are required to pay a license tax of$50 per annum in each county in which they do business, for each place they do business.

(g) One-half of all the foregoing funds hereafter collected from resident wholesale seafood dealers and one-third. of all such funds collected from nonresident wholesale seafood dealers by the division, together with any other funds derived from the Federal Go.vernq1ent or otherwise, shall be deposited ih a Florida Saltwater Products Promotion Trust Fund to be administer~d by the division for the promotion of all saltwater products produced in tqis state.

(h) All deposits heretofore made by the division into the Florida Saltwater Products Promotion Trust Fund are hereby ratified and confirmed.

(3) WHOLESALE PERMIT; PENALTY.- . (a)l. Saltwater products produced outside Floi-i

da, and transported to Florida for processing, freezing, and storage shall not be required to display a wholesale permit number on the individual packages, boxes, or containers when they leave the freezer for shipment out of state. Truckdrivers, in above instances, shall, however, have in their possession invoices, bills of lading, and other similar instruments, printed or stamped with a special permit stamp giving the name of the freezer, the location of the freezer, and stating that items on manifest are produced outside Florida. Invoices, bills of lading, and other similar instruments shall show the number of packages, boxes, or containers and the number of pounds of each species to cover and identify all saltwater pr.oducts in the shipment.

2. The above stamp shall be requested by the freezer owner and shall be furnished, at cost, by the division, or the freezer owner may exercise the option, at his own expense, of having the information required in subparagraph 1. printed on his invoices, bills of lading, and other similar instruments.

(b)l. Saltwater products produced in Florida and processed, frozen, and stored by Florida wholesale dealers shall not be required to display the wholesale permit number of the individual owner on individual packages, boxes, or containers when they are removed from freezer for shipment or delivery in or out of Florida. Truckdrivers, in above instances, shall, however, have in their possession invoices, bills ofladihg, and other similar instruments printed or stamped with a special permit stamp giving the name of the freezer, its location, and the number of

437


the licensed wholesale dealer written in a blank space provided in the stamp. Invoices, bills oflading, and other similar instruments shall show the number of packages, boxes, or containers and the number of pounds of each species to cover and identify all saltwater products in the shipment.

2. The above stamp shall be requested by the freezer owner and shall be furnished, at cost, by the division, or the wholesale dealer may, at his option and at his own expense, have printed on his invoices, bills of lading, and other similar instruments the information required in subparagraph 1. The freezer owner shall be furnished free of charge a complete list of Florida wholesale seafood dealers and their permit numbers. .

(c) I. Saltwater products produced in Florida may be transported within or without the state without each individual box or container displaying the wholesale permit stamp or permit number.

2. Provided that the truckdrivers shall have in their possession invoices, bills of lading, and other similar instruments showing the number ofboxes or containers and pounds of each species, displayed with the permit stamp or permit number of the wholesaler, distributor, or producer from whom the shipment was received.

3. Provided further, that in the event that the seafood products in transit came from more than one dealer, distributor, or producer, each lot from each dealer shall be covered by invoices, bills of lading, and other similar instruments, showing the number ofboxes or containers and the number of pounds of each species and said instruments shall be stamped or printed with that dealer's, distributor's, or producer's wholesale permit stamp or permit number.

4. It shall be unlawful to sell, deliver, ship, or transport, or to possess for the purpose of selling, delivering, shipping, or transporting any fish, seafoods, or other products of the salt waters of Florida, without all invoices and containers of such products having thereon the wholesaler's permit number in such form as may be prescribed under the provisions of this section, and the rules and regulations of the department and any such products found in the possession of any person whosoever in violation of this provision may be seized by the division and disposed of in the manner provided by law.

(d) Nothing contained in this section shall be construed to apply to the sale and delivery to consumers of such products in ordinary retail transactions by licensed retail dealers who have purchased such products from a licensed wholesale dealer, or to the sale and delivery of his own catch or products, to a Florida licensed wholesale dealer, by any person catching or gathering the same. ·Wholesale seafood dealers' permits and licenses shall be issued only to applicants who shall furnish to the division satisfactory evidence of law-abiding reputation and who shall pledge themselves to the faithful observance of all of the laws and lawful regulations of this state regulating the conservation, dealing in, taking, selling, transporting, or possession offish, seafoods, and other saltwater products, and cooperation in the enforcement of all such laws, to every reasonable extent, which pledge may be included in the application for permit and license. Any person violating the

provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(4) LABELING.-(a) No seafood dealer, as defined herein, shall sell

any oysters produced outside Florida unless they be labeled as such, or unless it is otherwise reasonably made known to the purchaser that the oysters were not produced in Florida.

(b) The Department of Natural Resources shall promulgate rules whereby oysters produced in Florida waters can be traced to the location from which they were harvested. No seafood dealer, as defined herein, shall sell any oysters produced in Florida unless they are labeled so that they may be traced to the point of harvesting.

(5) LICENSE REVOCATION; PENALTY.-(a) Permits and licenses issued to seafood deal

ers, under the provisions of this chapter, are good only to the person to whom issued, and named therein, and are not transferable. Such permit and licenses may be revoked:

1. By the division upon the conviction of the person, to whom issued, of any violation of the laws or regulations designed for the conservation of fish, seafoods, or other products of the fresh or salt waters of this state;

2. Upon conviction of the said person, to whom issued, or knowingly dealing in, buying, selling, transporting, possessing, or taking any fish, seafood, or saltwater product, at any time and from any waters, in violation of the laws of this state; or

3. By the division upon satisfactory evidence of any violation of the laws or any regulations of this state designed for the conservation offish, seafoods, or other products of the fresh or salt waters of this state or of any of the laws of this state relating to dealing in, buying, selling, transporting, possession, or taking of fish, seafoods, or saltwater products.

(b) Upon revocation of such permit or license, no other or further permit or license may be issued to the holder of the one revoked within 3 years from the date of revocation, except upon special order of the division. After revocation as aforesaid it shall be unlawful for such seafood dealer to exercise any of the privileges of a licensed seafood dealer.

(c) Any person violating the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided . in s. 775.082, s. 775.083, or s. 775.084.

(6) RECORDS TO BE KEPT; PENALTY.-Seafood dealers shall be required by the division to' make and preserve a record of the names and addresses of · persons from whom or to whom fish, seafoods, or other products of the salt waters of the state are purchased or sold; the quantity so p1J,rchased or sold from or to each vendor or purchaser; and the date of each such transaction, and such record shall be open to inspection at all times by the division. A monthly report shall be made to the division covering the sale or sales of products of salt waters of the state. The permit or license of any dealer shall be revoked for failure or refusal to make and keep such records and make such reports, or for failure or refusal to permit the examination thereof as required, or for falsifying any such record; however, this section shall not ap-

438


ply to sales by retail dealers in retail quantities to consumers. Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 2, ch. 28145, 1953; s. 1, ch. 29990, 1955; s. 1, ch. 57-387; ss. 1, 2, ch. 57-335; s. 2, ch. 61-22; s. 1, ch. 61-376; s. 1, ch. 65-537; s. 1, ch. 67-212; s. 1, ch. 67-262; ss. 25, 35, ch. 69-106; s. 282, ch. 71-136; s. 1, ch. 75-95; s. 23, ch. 78-95; s. 1, ch. 80-115.

370.082 Use of gill nets, wing nets, and similar devices regulated; penalties; confiscation of equipment.~

(1) It is unlawful for any person, firm, or corporation to set, lay out, or fish, or cause to be set, laid out, or fished, any gill net, wing net, or similar device, unattended, in any of the inland salt waters of the Counties ofWalton, Santa Rosa, Okaloosa, Franklin, Escambia, Volusia, Brevard, Indian River, Pinellas, or Duval. However, the Depar.tment of Natural Resources may issue permits for the use ofsl.l-ch nets or similar devices used for research contrary to the provisions of this section, with respect to Franklin County and Volusia County only, and the department may limit the use of such permits to such times and places in Franklin County and Volusia County as the department deems advisable. Any such net or device, while being fished between sunset and sunrise, shall, in addition to being attended, be marked by a light or lights in a manner causing the net or device to be visible to any approaching vessel.

(2) Gill nets, wing nets, or similar devices shall be clearly marked in such a manner that the identity of the fisherman's boat registration number may be readily determined.

(3) Any person vio~ating the provisions of this section is guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082, s. 775.083, or s. 775.084.

( 4) Any gill net, wing net, or similar device found unattended or unlighted in or on the waters of the Counties of Walton, Santa Rosa, Okaloosa, Franklin, Escambia, Volusia, Brevard, Indian River, Pinellas, and Duval, in violation of the provisions of this act, may be summarily seized and destroyed by the Division of Marine Resources of the Department of Natural Resourc~s.

History.-s. 1, ch. 75-272; s. 1, ch. 77-208; s. 1, ch. 78-404; s. 1, ch. 79-162; s. 1, ch. 80-372.

370.10 Crustacea, marine animals, fish; regulations; general provisions.-

(!) OWNERSHIP OF FISH, SPONGES, ETC.All fish, shellfish, sponges, oysters, clams, and crustacea found within the rivers, creeks, canals, lakes, bayous, lagoons, bays, sounds, inlets, and other bodies of water within the jurisdiction of the state, and within the Gulf of Mexico and the Atlantic Ocean within the jurisdiction of the state, excluding all privately owned enclosed fishponds not exceeding 150 acres, are the property of the state and may be taken and used by its citizens and persons not citizens, subject to the reservations and restrictions imposed by these statutes. No water bottoms owned by the state shall ever be sold, transferred, dedicated, or otherwise conveyed without reserving in the people the absolute right to fish thereon, except as otherwise provided in these statutes.

(2) TAKING SALTWATER ANIMALS FOR EXPERIMENTAL, SCIENTIFIC, AND EXHIBITIONAL PURPOSES.-Notwithstanding any other provisions of general or special law to the contrary, the department may issue permits, upon such terms, conditions, and restrictions as it may prescribe by rule, to any properly accredited person permitting him to collect and possess saltwater animals for experimental, scientific, and exhibitional purposes. Such permits may allow collection of specimens without regard to, 1and not limited to, size, seasonal closure, collection method, reproductive state, or bag limit. Permits issued under the provisions of this section may be suspended or revoked by the department if it finds that the permitholder has violated this section, department rules or orders, or terms or conditions of the permit or has submitted false or inaccurate information in his application; and the holder shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 2, ch. 28145, 1953; ss. 25, 35, ch. 69-106; s. 284, ch. 71-136; s. 1, ch. 78-70; s. 1, ch. 80-90. 'Note.-The word "and" was substituted for "but" by the editors.

370.1105 Saltwater finfish; fishing traps regulated.-

(1) It is unlawful for any person, firm, or corporation to set, lay, place, or otherwise attempt to fish for saltwater finfish with any trap other than:

(a) A crab, crawfish, or shrimp trap specifically permitted under s. 370.13, s. 370.135, s. 370.14, or s. 370.15;

(b) A pinfish trap not exceeding 2 feet in any dimension, with a throat or entrance not exceeding 3 inches in height by three-quarters of an inch in width· or ·

(c) 'A black sea bass trap which has a biodegradable panel and a throat or entrance, the narrowest point of which is not more than 5 inches in height by 2 inches in width and the outer dimensions of which do not exceed 2 feet in height, 2 feet in width, and 2 feet in depth. However, such traps may be used only north of latitude 27• N.

(2) It is unlawful for any person, firm, or corporation to possess any fish trap other than a trap specified in paragraph (a), paragraph (b), or paragraph (c) of subsection (1) or to land, take, sell, or offer to sell any saltwater finfish caught by any trap other than a trap specified in paragraph (a), paragraph (b), or paragraph (c) of subsection (1).

(3) Any person who violates any provision of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) Any vessel, vehicle, or equipment used in violation of this section, and any fish caught with a trap in violation of this section, shall be seized and may be forfeited.


370.13 Stone crabs; regulation.(!) SEASON, SIZE, SEX.-(a) It is unlawful for any person, firm, or corpora

tion to catch or have in his possession, regardless of where taken, for his own use or to sell or offer for sale, any stone crab, or parts thereof, of any size

439


between May 15 and October 15 of each year, except as provided by s. 370.141 for storage and distribution

. of inventory stocks. ·(b) It is unlawful to possess, s~ll, or offer for sale

any stone crab claw at any time which has a forearm (propodus) of less than 2% inches in length, measured by a straight line from the elbow to the tip of the lower immovable finger. The forearm shall be deemed to be the largest section of the claw assembly that has both a movable and immovable finger and is located farthest from the body of the crab.

(c) It is unlawful for any person, firm, or corporation to possess or transport by boat, land vehicle, airplane, or other conveyance any intact stone crab or stone crab body, whether dead or alive. Only the claws of stone crabs shall be removed, and the live animals shall be returned to the water in the same area where taken. Whole stone crabs, dead or alive, may be possessed .or transported solely for educational, exhibitional, or scientific purposes and only when a permit for such possession has been issued by the Division of Marine Resources of the department.

(2) GEAR, TRAPS, BUOYS, PERMIT NUMBERS, SUSPENSION OR REVOCATION OF PERMITS.-

(a) No person, · firm, or corporation shall transport on the water, fish with, or cause to be fished with, set, or placed, in taking stone crabs, any trap with a throat or entrance to the trap exceeding 4 inches in width and 61h inches in length or any trap which does not have a biodegradable section.

(b) It shall be unlawful to transport on the water, flsh with, set, place, or cause to be fished with, set, or placed, any trap or part thereof during the closed stone crab season, except that traps may be placed in the water and baited 10 days prior to the opening of the stone crab season and shall be removed within 5 days after the close of the stone crab season. However, .nothing herein shall authorize the landing or sale of any stone crab or stone crab claw during the closed season. Any traps in the water more than 10 days prior to the opening of the stone crab season or more than 5 days after the close of the stone crab season shall be conclusively presumed to be used in the attempted taking of stone crabs out of season and shall be seized and destroyed by the duly appointed officers of. the Department of Natural Resources. This provision shall be in addition to any penalty imposed by law.

(c) It is unlawful to use grains, spears, grabs, hooks, or similar devices-in the taking of stone crabs.

(d) . A buoy or time release buoy shall be attached to each trap or· at each end of a trap trotline and must be of sufficient strength and buoyancy to float and of such color, hue, and brilliancy as to be easily distinguished, seen, and located. The color and permit number shall also be permanently and conspicuously displayed on the boat used for setting and collecting said traps and buoys, in a manner prescribed by the Division of Marine Resources, so as to be readily identifiable from the air and the water.

(e) Each trap used must have a number permanently attached. No numbers shall be permitted other than the current permitholder's numbers except numbers designating federal permits. This permit number may be issued by. the Division of Marine

Resources of the Department of Natural Resources upon receipt of the application by the owner of the traps. The design of the application and permit shall be determined by the division. The trap permit number shall be affixed in legible figures at least 3 inches high on each buoy used. The stone crab permit must be on board the boat and the permit and stone crab claws shall be subject to inspection at all times. Only one permit shall be issued for each boat.

(f) It is unlawful for any person to place traps in the navigation channels of the intracoastal waterways or navigation channels maintained by the Corps of Engineers or any county or municipal government. Traps may ·be worked during daylight hours only, and the pulling of traps from 1 hour after official sunset until! hour before official sunrise is prohibited.

(g) Any traps or devices other than the ones described in this subsection used in the taking or attempted taking of stone crabs shall be seized and destroyed by the duly appointed officers of the Department of Natural Resources.

(h) Upon the arrest and conviction·for violation of any of the stone crab regulations or laws other than the provisions of paragraph (l)(a), the permitholder must show just cause why his permit should not be suspended or revoked.

(i) Any law, general or special, in conflict with provisions of this section is hereby expressly re-· pealed to the extent of such conflict.

(j) A person acquiring ownership of stone crab traps must notify the Division of Mariil.e Resources within 5 days of acquiring ownership and request a transfer of the stone crab permit.

(k) It is unlawful for any person to willfully molest any trap, line, or buoy, as referred to in this section, which is the property of any permitholder, without the permission of that permitholder.

(3) PENALTY.-Any person violating any provision of this section other than paragraph (2)(k) is guilty of a misdemeanor of the second degree upon the first conviction and of a misdemeanor of the first degree upon the second or subsequent conviction, punishable as provided in s. 775.082 or s. 775.083. Any person violating paragraph (2)(k) is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. Further, any gear, equipment, boats, vehicles, or item used in the violation of any provision of this section shall be subject to confiscation. In addition, the Department of Natural Resources sha~l revoke the permit of any permitholder convicted of a violation of paragraph (l)(a) for a period ofl year from the date of the conviction, and he shall be prohibited during that period from catching or having in his possession any stone crab for his own use or to sell or offer to sell, whether or not he is accompanied by the holder of a valid permit and regardless of where taken.

History.-s. 2, ch. 28145, 1953; s. 1, ch. 61-482; s. 1, ch. 63-3; s. 290, ch. 71-136; s. 1, ch. 71-335; s. 1, ch. 73-28; ss. 1, 2, ch. 74-141; s. 1, ch. 76-26; s. 1, ch. 77-142; s. 1, ch. 77-207; s. 1, ch. 80-299.

370.135 Blue crab; regulation.-(!) No person, firm, or corporation shaH trans

port on the water, fish with or cause to be fished with, set, or place any trap designed for taking blue crabs unless the trap has a current state permit

440


number permanently attached to the buoy. The permit number shall be affixed in legible figures at least 1.inch high on each buoy used. The blue crab permit shall be on board the boat, and both the permit and the crabs shall be subject to inspection at all times. Only one permit shall be issued for each boat by the department upon receipt of an application on forms prescribed by it. This subsection shall not apply to an individual fishing with no more than five traps. It is a felony of the third degree, punishable as provided in s .. 775.082, s. 775.083, or s. 775.084, for any person willfully to molest any traps, lines, or buoys, as defined herein, belonging to another without permission of the permitholder.

(2) A buoy or a time release buoy shall be attached to each trap or at each end of a weighted trot line and shall be of sufficient strength and buoyancy to float and of such color, hue, and brilliancy to be easily distinguished, seen, and located. Such color and permit number shall also be permanently and conspicuously displayed on the boat used for setting and collecting said traps and buoys, in the manner prescribed by the Division of Marine Resources, so as to be readily identifiable from the air and water. This subsection shall not apply to an individual fish-ing with no more than five traps. .

(3) It is unlawful for any person to sell or offer for sale any egg-bearing blue crabs. Except when authorized by special permit issued by the department for the soft-shelled crab or bait trade, it is unlawful for any person to possess for, sale blue crabs measuring less than 5 inches from point to point across the carapace in an amount greater than 10 percent of the total number of blue crabs in that person's possession. Traps may be worked during daylight hours only, and the pulling of traps from 1 hour after offi.cial sunset until1 hour before official sunrise is prohibited.

(4) Upon the arrest and conviction for violation of any of the blue crab regulations or laws, the permitholder shall show just cause why his permit should not be suspended or revoked. This subsection shall not apply to an individual fishing with no more than five traps.

(5) Any person violating the provisions of this section, unless otherwise provided, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 73·26; s. 1, ch. 76-105; s. 2, ch. 77·142; ss. 1, 2, ch. 78-143; s. 2, ch. 80·299.

370.16 Oysters and shellfish; regulation.- . (1) LEASE, APPLICATION FORM; NOTICE TO

RIPARIAN OWNER; LANDS LEASED TO BE COMPACT.-When any qualified person desires to lease a part of the bottom or bed of any ofthe water of this state, for the purpose of growing oysters or clams, as provided for in this section, he shall present to the Division of Marine Resources a written application setting forth the name and address of the applicant, a reasonably definite description of the location and amount of land covered by water desired, and shall pray that the application be filed; that the water bottoms be surveyed and a plat or map of the survey thereof be made if no plat or map of such bottoms should have been so made thereto; and that the water bottoms described be leased to

the applicant under the provisions of this section. Such applicant shall accompany with his written application a sufficient sum to defray the estimated expenses of the survey; thereupon the division shall file such application and shall direct the same surveyed and platted forthwith at the expense of the applicant. When applications are made by two or more persons for the same lands, they shall be leased to the applicant who first filed application for same; b).lt to all applications for leases of any ofthe bottoms of said waters owned under the riparian acts of the laws of Florida, heretofore enacted, notice of such application shall be given the riparian owner, when known, and, when not known, notice of such application shall be given by publication for 4 weeks in some newspaper published in the county in which the water bottoms lie; and when there is no newspaper published in such county, then by posting the notice for 4 weeks at the courthouse door of the county, and preference shall be given to the riparian owners under the terms and conditions herein created, when the riparian owner makes application for such water bottoms for the purpose of planting oysters or clams before the same are le·ased to another. The lands leased shall be as compact as possible, taking into consideration the shape of the body ofwater and the condition of the bottom as to hardness, or soft mud c;>r sand, or other conditions which would render the bottoms desirable or undesirable for the purpose of oyster or clam cultivation.

(2) SURVEYS, PLATS, AND MAPS OF RE~FS. -The Division of Marine Resources shall accept, adopt, and use official reports, surveys, and maps of oyster, clam, or other shellfish grounds made under the direction of any authority of the United States as prima facie evidence of the natural oyster and clam reefs, for the purpose and intent of this chapter. The said division may also make surveys of any natural oyster or clam reefs when it deems such surveys necessary and where such surveys are made pursuant to an application for a lease, the cost thereof may be charged to the applicant as a part of the cost of his application.

(3) EXECUTION OF LEASES; LESSEE TO STAKE OFF BOUNDARIES; PENALTY FOR FAILURE TO COMPLY WITH REGULATIONS.As soon as the survey has been made and the plat or map thereof filed with the Division of Marine Resources and the cost thereof paid by the applicant, the division may execute in duplicate a lease of the water bottoms to the applicant. One duplicate, with a plat or map of the water bottoms so leased, shall be delivered to the applicant, and the other, with a plat or map of the bottom so leased, shall be retained by the division and registered in a lease book which shall be kept exclusively for that purpose by the division; thereafter the lessees shall enjoy the exclusive use of the lands and all oysters and clams, shell, and cultch grown·or placed thereon shall be the exclusive property of such lessee as long as he shall comply with the provisions of this chapter. The division shall require the lessee to stake off and mark the water bottoms leased, by such ranges; monuments, stakes, buoys, etc., so placed and made as not to interfere with the navigation, as it may deem necessary to locate the same to the end that the location

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and limits of the lands embraced in such lease be easily and accurately found and fixed, and such lessee shall keep the same in good condition during the open and closed oyster or clam season. All leases shall be marked acco:r:ding to the standards derived from the uniform waterway markers for safety and navigation as described in s. 371.521. The division may stipulate in each individual lease contract the types, shape, depth, size, and height of marker or corner posts. Failure on the part of the lessee to comply with the orders of the division to this effect within the time fixed by it, and to keep the markers, etc., in good condition during the open and closed oyster or clam season, shall subject such lessee to a fine not exceeding $100 for each and every such offense. All lessees shall cause the area of the leased water bottoms and the names of the lessees to be shown by signs as may be determined by the division, if so required.

(4) LEASES IN PERPETUITY; RENT; STIPULATIONS; TAXES; CULTIVATION, ETC.~

(a) All leases made under the provisions of this chapter shall begin on the day executed and continue in perpetuity under such restrictions as shall herein be stated. The rent for the first 10 years shall be $5 per acre, or any fraction of an acre, per year. However, the rent for any lease currently in effect shall not be increased during the first 10 years of said lease. This rent shall be paid in advance at the time of signing the lease up to January 1 following, and annually thereafter in advance on or before January 1, whether the lease be held by the original lessee or by an heir, assignee, or transferee. No taxes, assessments, or other licenses other than those imposed in this chapter shall be levied or imposed on the leases or leased lands, but the annual rental exacted and paid shall be held and considered all that can or shall be exacted by the state or county, subordinate political corporations, or municipalities.

(b) Efl:ective cultivation shall consist of the growing of the oysters or clams in a density suitable for commercial harvesting over the amount of bottom prescribed by law. This commercial density shall be accomplished by the planting of seed oysters, shell, and cultch of various descriptions. The Division of Marine Resources may stipulate in each individual lease contract the types, shape, depth, size, and height of cultch materials on lease bottoms according to the individual shape, depth, location, and type ofbottom of the proposed lease. Each tenant leasing from the state water bottoms under the provisions of this section shall have begun, within 1 year from the date of such lease, bona fide cultivation ofthe same, and shall, by th~ end of the second year from the commencement of his lease, have placed under cultivation at least one-fourth of the water bottom leased and shall each year thereafter place in cultivation at least one-fourth of the water bottom leased until the whole, suitable for bedding of oysters or clams, shall have been put in cultivation by the planting thereon of not less than 200 barrels of oysters, shell, or its equivalent in cultch to the acre. When leases are granted, or when grants have heretofore been made under existing laws for the planting of oysters or clams, such lessee or grantee is authorized to plant

the leased or granted bottoms both in oysters and clams.

(c) These stipulations will apply to all leases granted after the passing of this section. All leases existing prior to the passing of this section will operate under the law which was in effect when the leases were granted.

(d) When evidence is gathered by the division and such evidence conclusively shows a lack of effective cultivation, the division may revoke leases and return the bottoms in question to the public domain.

(e) When evidence obtained by qualified marine biologists is available to the division which indicates that relatively temporary or transient hydrographic or biological conditions preclude the successful cultivation of oysters, lessees may apply to the division for a permit to suspend planting operations. Such permits shall be revocable upon 30 days' notice from the division that growing conditions are again suitable and, upon the revocation of such permits, cultivation will again be mandatory as required by law.

(f) The department has the authority to adopt rules and regulations pertaining to the water column over shellfish leases. All cultch materials in place 6 months after the formal adoption and publication of rules and regulations establishing standards for cultch materials on shellfish leases which do not comply with such rules and regulations may be declared a nuisance by the division. The division shall have the authority to direct the lessee to remove such cultch in violation of this section. The division may cancel a lease upon the refusal by the lessee violating such rules and regulations to remove unlawful cultch materials, and all improvements, cultch, marketable oysters, and shell shall become the property of the state. The division shall have the authority to retain, dispose of, or remove such materials in the best interest of the state.

(5) INCREASE OF RENTALS AFTER 10 YEARS.-After 10 years from the execution of the lease, the rentals shall be increased to a minimum of $1 per acre per annum. The Division of Marine Resources shall assess rental value on the leased water bottoms, taking into consideration their value as oyster-growing or clam-growing water bottoms, their nearness to factories, transportation, and other conditions adding value thereto and placing such valuation upon them in shape of annual rental to be paid thereunder as said condition shall warrant.

(6) LEASES TRANSFERABLE, ETC.-The leases shall be inheritable and transferable, in whole or in part, and shall also be subject to mortgage, pledge, or hypothecation and shall be subject to seizure and sale for debts as any other property, rights, and credits in this state, and this provision shall also apply to all buildings, betterments, and improvements thereon. Leases granted under this section cannot be transferred, by sale or barter, in whole or in part, without the written, express acquiescence of the Division of Marine Resources, and such a transferee shall pay a $50 transfer fee before division acquiescence may be given. No lease or part of a lease may be transferred by sale or barter until the lease has been in existence at least 2 years and has been cultivated according to the statutory standards found in paragraph (4)(b), except as otherwise pro-

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vided by regulation adopted by the Division of Marine Resources. No such inheritance or transfer shall be valid or of any force or effect whatever unless evidenced by an authentic act, judgment, or proper judicial deed, registered in the office of the division in a book to be provided for said purpose. The division shall keep proper indexes so that all original leases and all subsequent changes and transfers can be easily and accurately ascertained.

(7) PAYMENT OF RENT; FORFEITURE FOR NONPAYMENT; NOTICE, ETC.-All leases shall stipulate for the payment of the annual rent in advance on or before January 1 of each year, and the further stipulation that the failure of the tenant to pay the rent punctually on or before that day, or within 30 days thereafter shall ipso facto, and upon demand, terminate and cancel said lease and forfeit to the state all the works; improvements, betterments, oysters, and clams on the leased water bottoms, and authorize the Division of Marine Resources to at once enter on said water bottom and take possession thereof, and such water bottom shall then be open for lease as· herein provided; and the division shall within 10 days ther~after enter such termination, cancellation, and forfeiture on its books and shall give such public notice thereof, and of the fact tnat the water bottoms are open to lease, as it shall deem proper; provided, that the division may, in its discretion, waive such termination, cancellation, and forfeiture when the rent due, with 10 per~ cent additional, and all costs and expenses growing out of such failure to pay, be tendered to it within 60 days after the same became due; provided, that in all cases of cancellation oflease, the division shall, after 60 days' notice by publication in some newspaper published in the state, having a general statewide circulation, which notice shall contain a full description of the leased waters and beds and any parts thereof, sell such lease to the highest and best bidder; and all moneys received over and above the rents due to the state, under the terms of the lease and provisions herein, and costs and expenses growing out of such failure to pay, shall be paid to the lessee forfeiting his rights therein. No leased water bottoms shall be forfeited for nonpayment of rent under the provisions of this section, unless there shall previously have been mailed by the said division to the last-known address of such tenant according to the books of said division, 30 days' notice ofthe maturity of such lease. Whenever any leased water bottoms are forfeited for nonpayment of rent, and there is a plat or survey thereof in the archives of the division, when such bedding grounds are re-leased, ho new survey thereof shall be made, but the original stakes, monuments, and bounds shall be preserved, and the new lease shall be based upon the original survey. This subsection shall also apply to all costs and expenses taxed against a lessee by the division under this section.

(8) CANCELLATION OF LEASES TO NATURAL REEFS.-Any person, within 6 months from and after the execution of any lease to water bottoms, may file a petition with the Division of Marine Resources for the purpose of determining whether a natural oyster or clam reef having an area of not less than 100 square yards existed within the leased area

on the date of the lease, with sufficient natural or maternal oysters or clams thereon (not including coon oysters) to have constituted a stratum sufficient to have been resorted to by the public generally for the purpose of gathering the same to sell for a livelihood. The petition shall be in writing addressed to the Division of Marine Resources of the Department of Natural Resources, verified under oath, stating the location and approximate area of the natural reef and the claim or interest of the petitioner therein and requesting the cancellation of the lease to the said natural reef. No petition may be considered unless it be accompanied by a deposit· of $10 to defray the expense of examining in~o the matter. The petition may include several contemporaneous natural reefs of oysters or clams. Upon receipt of such petition,. the division shall cause an investigation to be made into the truth of the allegations of the petition, and, if found untrue, the $10 deposit shaH be retained by the division to defray the ·expense of the investigation, but should the allegations of the petition be found true and the leased premises to contain a natural oyster or clam reef, as above described, the said $10 shall be returned to the petitioner and the costs and expenses of the investigation taxed against · the lessee and the lease canceled to the extent of the natural reef and the same shall be marked with buoys and stakes and notices placed thereon showing the same to be a public reef, the cost of the markers and notices to be taxed against the lessee.

(9) WHEN NATURAL REEFS MAY BE INCLUDED IN LEASE.-When an application for oyster or clam bedding grounds is filed and upon survey of such bedding ground, it should develop that the area applied for contains natural oyster or clam reefs or beds less in size thah 100 square yards, or oyster or clam reefs or bars of greater size, but not of sufficient quantity to constitute a stratum, and it should further be made to appear to the Division of Marine Resources by the affidavit of the applicant, together with such other proof as the division may require, that the natural reef, bed, or bar could not be excluded, and the territory applied for · properly protected or policed, the division may, if it deems it for the best interest of the state and the oyster industry so to do, permit the including of such natural reefs, beds, or bars; and it shall fix a reasonable value on the same, to be paid by the applicant for such bedding ground; provided; that no such natural reefs shall be included in any lease hereafter granted to the bottom or bed of waters of this state contiguous to Franklin County. There shall be no future oyster leases issued in Franklin County.

(10) SETTLEMENT OF BOUNDARY DISPUTES; REVIEW.-The Division of Marine Resources shall determine and settle all disputes as to boundaries between lessees of bedding grounds. The division shall, in all cases, be the judge as to whether any particular bottom is or is not a natural reef or whether it is suitable for bedding oysters or clams.

(11) TRESPASS ON LEASED BEDS; GATHERING OYSTERS AND CLAMS BETWEEN SUNSET AND SUNRISE FROM NATURAL REEFS, ETC.Any person who shall willfully take oysters, shells, cultch, or clams bedded or planted by a licensee under this chapter, or grantee under the provisions of

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heretofore existing laws, or riparian owner who may have heretofore planted the same on his riparian bottoms, or any oysters or clams deposited by anyone making up a cargo for market, or who shall willfully carry or attempt to carry away the same without permission of the owner thereof, or who shall willfully or knowingly remove, break off, destroy, or otherwise injure or alter any stakes, bounds, monuments, buoys, notices, or other designations of any natural oyster or clam reefs or beds or private bedding or propagating grdunds, or who shall willfully injure, destroy, or remove any other protection around any oyster or clam beds, or who shall willfully move any bedding ground stake~, buoys, marks or designations, placed by the division, or who shall gather oysters or clams between sunset and sunrise from the natural reefs or from private bedding grounds, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(12) PROTECTION OF OYSTER AND CLAM REEFS.-The Division of Marine Resources shall improve, enlarge, and protect the natural oyster and clam reefs of this state to the extent it may deem advisable and the means at its disposal will permit. The division shall also, to the same extent, assist in protecting the leased or granted reefs in the hands of lessees or grantees from the state. The division shall also make a detailed report, to the Legislature at each session, of its efforts in relation to the oyster and clam business, together with recommendations for their development and the proper protection of the rights of the state and private holders therein.

(13) STAKING OFF WATER BOTTOMS OR BEDDING OYSTERS WITHOUT OBTAINING LEASE; PENALTY.-Any person staking off the water bottoms of this state, or bedding oysters on the bottoms of the waters of this state, without previously leasing same as required by law shall be guilty of a misdemeanor of the second degree, punishable as provided ins. 775.082 or s. 775.083, and shall acquire no rights by reason of such staking off. This provision does not apply to grants heretofore made under the provisions of any heretofore existing laws or to artificial beds made heretofore by a riparian owner or his grantees on his riparian bottoms.

(14) CLOSED SEASON FOR OYSTERS; RULES OF EVIDENCE; SPECIAL PROVISIONS RELATING TO FRANKLIN COUNTY.-No person may take, gather, or catch oysters on the natural reefs of this state, or have such oysters in his possession, between June 1 and September 1 of each year,'except from private leased or granted grounds, or artificial beds of riparian owners and except as otherwise provided in this section. The possession of oysters during said closed season shall be prima facie a violation ofthis section, and the burden shall be on the possessor of such oysters to prove that they were fished or gathered beyond the jurisdiction ofthe state or from private oyster beds. The Division of Marine Res.ources shall, however, have authority to permit the fishing of unculled oysters from the natural oyster reefs as herein provided, from April 1 until October 1, but only for bedding purposes, and then only tinder such rules as the ditision may adopt to carry out the provisions of law. The provision prohibiting the harvesting of oysters shall not apply between June

1 and September 1 of each year in three areas of Franklin County, described as follows: in that area of East Bay, Franklin County, and located north of the John Gorrie Bridge classified as conditionally approved for the harvesting of shellfish by the Division of Marine Resources; in that area of Apalachicola Bay, Franklin County, and located south of the John Gorrie Bridge, east and north of the Gulf Intracoastal Waterway, and west ofthe Bryant Patton Bridge classified as conditionally approved for the harvesting Qfshellfish by the Division of Marine Resources; and in that area of St. George Sound, Franklin County, and located west of a line from the east end of St. George Island due north to the mainland, and located east of a line described as follows: begin at the tip of Shell Point on St. George Island, thence run northwest to Channel Marker No. 31, thence westerly along the Intracoastal Waterway to Channel Marker No. 41, thence north through Marker No.5 to the mainland, which area is classified as approved for the harvesting of shellfish by the Division of Marine Resources. Provided further, that no person may take, gather, or catch oysters from these three designated areas between September 2 and May 31 of each year. Provided further, that the provisions of this subsection regarding possession of oysters shall not apply to oysters harvested from Franklin County except that possession of unculled 9ysters between June 1 and September 1 outside of the three areas of Franklin County designated herein or possession ofunculled oysters between September 2 and May 31 inside of these three designated areas shall be prima facie a violation of this section and the burden of proof shall be upon the possessor of. such oysters to prove that they were fished or gathered within a lawful area. Provided further, that all oysters shipped out of Franklin County between June 1 and September 1 shall be accompanied by invoices, bills of lading, or other similar instruments showing the oysters were produced in Franklin County and the burden of proof shall be on the possessor of the oysters, except that this summer oyster season and its respective provisions shall be postponed in 1980 until 10 days after such time as the approved shellfish harvesting areas of Apalachicola Bay shall be reopened following satisfactory bacterial sampling results. This 10-day period shall be considered an extension of the regular harvesting season. Any other provision of this section to the contrary notwithstanding, any person who violates any of the special provisions of this subsection with respect to Franklin County shall be guilty of a misdemeanor and, for the first offense, shall be subject to a fine of not less than $200 and,. for the second or subsequent offense, a fine of not less than $500 and a term of imprisonment of not less than 7 days in jail. Furthermore, notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld with respect to any violation of the special provisions of this subsection relating to Franklin County.

(15) REMOVING OYSTERS FROM NATURAL REEFS; LICENSES, ETC., PENALTY.-

(a) It is unlawful to use a dredge or any means or implement other than hand tongs in removing oysters from the natural or artificial state reefs, except

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in bodies of water over a general depth of12 feet, or where in the opinion of the Division of Marine Resources, the body of water regardless of its depth, is too open and exposed to be ordinarily fished with hand tongs, in which event the division shall be authorized to issue a license for the use of scrapers or dredges; provided, the applicant shall pay an annual police license fee of $25 for each sailing or power vessel using scrapers or dredges, in addition to its other license, and shall give bond in favor of the Governor of the State of Florida, with good security, to be approved by the division in the sum of $3,000, conditioned that said implements shall not be used on the state reefs contrary to law. Upon the payment of $25 annually, for each vessel or boat using a dredge or machinery in the gathering of clams, a license may be issued by the division for such use to such person.

(b) Lessees of bedding grounds shall have the right to use in such bedding grounds any implements or appliances that they may desire. The division shall require that such lessees procure a permit from it to use such implements, and shall require of the lessees that they shall furnish a bond payable to the Governor of the State of Florida, to be approved ·by the division, in the sum of $3,000, that such implements or appliances shall not be used on the natural oyster reefs contrary to law. When such implements or appliances are used exclusively on private propagating or bedding grounds, no charge shall be made for the permit. Anyone violating the provisions of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) Oysters may be harvested from natural or public grounds by common hand tongs or by hand without a harvesting method license being required. Oysters may be harvested by hand, by scuba diving, free diving, leaning from vessels, or wading.

(16) CULLING OYSTERS; POSSESSION OF UNDERSIZED OYSTERS REGARDLESS OF SOURCE; SPECIAL PROVISIONS RELATING TO FRANKLIN COUNTY.-

(a) All oysters taken from the waters of this state shall be culled, unless otherwise provided in this section.

(b) In the case of oysters emanating from natural, publicly owned beds, all oysters which measure less than 3 inches in greatest dimensions and all bedding shells shall be immediately replaced and scattered broadcast upon the natural reefs from which they were taken.

(c) In the case of oysters emanating from privately owned or privately controlled beds, all oysters which measure less than 3 inches in greatest dimensions, and all bedding shells may be returned to lease or privately managed area or may be spread broadcast over natural, publicly owned reefs.

(d) No person shall be in possession while on the waters ofthis state of oysters which are less than the prescribed legal size, regardless of their source, except that oysters which are less than the prescribed legal size may be placed upon the culling board of a vessel while on the bar for the purpose of culling out illegal-sized oysters.

(e) In determining what oysters shall be removed

from marketable oysters, no oysters under 3 inches in greatest dimension shall be included in the percentage of oysters undersized when they adhere to the marketable oysters so closely that to remove the same would destroy either the undersized· oysters or the marketable oysters. No person in any vessel shall have in his possession oysters not culled according to law, unless permitted by the Division of Marine Resources for the purpose of planting or relaying as provided by law. An excess of over 15 percent of small oysters, estimated as above provided for, in any cargo or lot of oysters shall be considered a violation of this section. Any oysters under 3 inches in greatest dimension in any cargo or lot of oysters shall be a violation of this section during the special oyster harvesting season, June 1 to September 1, in Franklin County. The Division of Law Enforcement, any marine patrol officer, or any police officer of the state shall cause to be measured, to determine the percentage of undersized oysters, 1 sample bushel to be taken at random from the cargo of oysters, while such oysters are in the county from which they were harvested and before the oysters are deposited in an oyster house certified under the rules of the Department of Natural Resources. If a total of undersized oysters from the 1 bushel · shall be more than 15 percent of the amount of oysters contained in the 1 bushel, it shall constitute a violation of this section, any other law to the contrary notwithstanding.

(17) FISHING FOR BEDDING PURPOSES, ETC.-

(a) Designation of areas for the taking of oysters and clams to be planted on leases, grants, and public areas is to be made by qualified personnel of the Division of Marine Resources. Oysters and clams may be taken for relaying at any time during the year so long as, in the opinion of the division, the public health will not be endangered. The amount of oysters and clams to be obtained for relaying, the area relayed to, and relaying time periods will be established in each case by the division.

(b) Application for a permit for obtaining oysters and clams must be made to the division. In return, the division may assign an area and a period of time for the oysters and clams to be relayed to be taken. All planting and relaying operations shall take place under the surveillance of the division.

(c) Relayed oysters or clams shall not be subsequently harvested for any reason without written permission or public notice from the division, if oysters or clams were relayed from areas not approved by the division as shellfish harvesting areas.

(18) SEVERANCE TAX ON OYSTERS AND CLAMS; DISPOSITION.-No severance or privilege taxes on oysters and clams shall be collected after June 17, 1959, provided, all moneys in the "oyster severance tax fund" shall be transferred to the "Oyster and Clam Rehabilitation Trust Fund."

(19) LICENSES; OYSTER AND CLAM CANNERIES.-Every person, as a condition precedent to the operation of any oyster or clam canning factory in this state, shall obtain a license therefor and pay a license fee of$50. The license shall be issued by the Division of Marine Resources upon proper written application on forms to be furnished by it. The moneys paid for licenses under this section shall be de-

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posited in the State Treasury to the credit of the General Revenue Fund. .

(20) FALSE RETURNS AS TO OYSTERS OR CLAMS HANDLED.-Each packer, canner, corporation, firm, commission man, or dealer in fish shall, on the first day of each month, make.a return under oath to the Division of Marine Resources, as to the number of oysters, clams, and shellfish purchased, caught, or handled during the preceding month. All severance tax as provided for in subsection (18) shall be paid to the division with this report. Whoever is found guilty of making any false affidavit to any such report shall be guilty of perjury and punished as provided by law, and any person who fails to make such report shall be punished by a fine not exceeding $500, or by imprisonment in the county jail not exceeding 6 months.

(21) COLLECTION OF LICENSES AND TAXES. -All taxes and licenses shall be collected by the Division of Marine Resources under such rules and regulations as may be adopted by the division, and by it deposited in the State Treasury to the credit of the General Revenue Fund. The division shall keep a detailed account of all funds passing through its hands.

(22) WATER PATROL FOR COLLECTION OF TAX.-

(a) The Division of Law Enforcement may establish and maintain necessary patrols of the salt waters of Florida, with authority to use such force as may be necessary to capture any vessel or person violating the provisions of the laws relating to oysters and clams, and may establish ports of entry at convenient locations where the severance or privilege tax levied on oysters and clams may be collected or paid and may make such· rules and regulations as it may deem necessary for the enforcement of such tax.

(b) Each person in any way dealing in shellfish shall keep a record, on blanks or forms prescribed by the Division of Marine Resources, of all oysters, clams, and shellfish taken, purchased, used, or handled by him, with the name of the persons from whom purchased, if purchased, together with the quantity and the date taken or purchased, and shall exhibit this account at all times when requested so to do by the division or any conservation agent; and he shall, on the first day of each month, make a return under oath to the division as to the number of oysters, clams, and shellfish purchased, caught, or handled during the preceding month. The division may require detailed returns whenever it deems them necessary.

(23) SEIZURE OF VESSELS AND CARGOES VIOLATING OYSTER AND CLAM LAWS, ETC.Vessels, with their cargoes, violating the provisions of the laws relating to oysters and clams .may be seized by anyone duly and lawfully authorized to make arrests under this section or by any sheriff or his deputies, and taken into custody, and when not arrested by the sheriff or his deputies, delivered to the sheriff of the county in which the seizure is made, and shall be liable to forfeiture, on appropriate proceedings being instituted by the Division of Marine Resources, before the courts of that county. In such case the cargo shall at once lie disposed of by

the sheriff, for account of whom it may concern. Should the master or any of the crew of said vessel be found guilty of using dredges or other instruments in fishing oysters on natural reefs contrary to law, or fishing on the natural oyster or clam reefs out of season, or unlawfully taking oysters or clams belonging to a lessee, such vessel shall be declared forfeited by the court, and ordered sold and the proceeds of the sale shall be deposited with the Treasurer to the credit of the General Revenue Fund; any person guilty of such violations shall not be permitted to have· any license provided for in this chapter within a period ofl year from the date of conviction. Pending proceedings such vessel may be released upon the owner furnishing bond, with good and solvent security in double the value of the vessel, conditioned upon its being returned in good condition to the sheriff to abide the judgment of the court.

(24) OYSTER REHABILITATION COMMISSION.-The Governor of this state may appoint in any county, where natural oyster reefs exist, an oyster rehabilitation commission for such county, the same to be composed of three good and lawful citizens of that county. The commission shall serve

. without compensation. (25) COMMISSION ADVISORY ONLY.-The

oyster rehabilitation commission in any county shall constitute an advisory commission to the Division of Marine Resources with reference to all matters pertaining to the replanting and rehabilitation of natural oyster bars in such county and shall have no other power than to advise the division concerning the administration of the shellfish laws in the county in which its members are appointed; and to recommend to the division the manner and method of the expenditure of funds provided for the rehabilitation of natural oyster beds in the county so that the fullest benefit of such oyster beds may be received from the expenditure. The recommendation of the coinmission shall not be binding upon the division but is advisory only.

(26). DUTIES OF COMMISSION.-The members of the oyster rehabilitation commission shall acquaint themselves with all conditions affecting the natural beds in the county for which appointed and shall locate, select, and recommend to the Division of Marine Resources the natural oyster beds in their respective counties in . greatest need of rehabilitation; they shall recommend to the division the ways and means of replanting and rehabilitating the beds, having regard to local conditions, and make such other recommendations concerning the opening and closing of the natural reefs and beds and propagation and care of oysters thereon as may appear to them to be advisable.

(27) CONFERENCE WITH DIVISION OF MARINE RESOURCES.-The Division of Marine Resources shall confer with, receive, and consider the recommendations of the several county oyster rehabilitation commissions concerning the shellfish industry of their respective counties and shall be governed thereby only to the extent that the same may be to the best interest of the shellfish industry of the state.

(28) REMOVAL OF COMMISSIONERS.-The Governor may remove any commissioner appointed

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to any county oyster rehabilitation commission, who shall fail or neglect to diligently perform the duties of such office, and shall fill the vacancy so created by the removal so that there shall be a complete commission of three members in each county, having natural oyster reefs or beds, at all times.

(29) OYSTER AND CLAM REHABILITATION. -The board of county commissioners of the several counties may appropriate and expend such sums as it may deem proper for the purpose of planting or transplanting oysters, clams, oyster shell, clam shell, or cultch or' to perform such other acts for the enhancement of the oyster and clam industries of the state, out of any sum in the county treasury not otherwise appropriated.

(30) OYSTER CONSERVATION DISTRICTS.Whenever it shall appear to the Division of Marine Resources, that any area in the state is in need of special protection, development or encouragement in the planting, propagation, within such area, except private leased or granted oyster grounds. The area shall be readily identifiable by reference to geographical location or recognized landmarks, or by survey made by the division. Notice of the designation of the area or areas as oyster conservation district or districts shall be published once each week for 2 consecutive weeks, and such additional publicity of the creation of such district may be circulated as the division may deem necessary.

(31) REVENUE FROM SALE OF DEAD SHELLS AND LEASE BOTTOMS.-Any and all moneys hereafter received or collected by the Board ofTrustees of the Internal Improvement Trust Fund under the provisions ofs. 253.45, or any amendments thereoffor or on the account of the sale of dead shell or for the right or privilege to take shell or shell deposits from the sovereign lands of the state shall be deposited in the State Treasury in the General Revenue Fund. These moneys shall be appropriated for use in financing biological, marketing, transportation, processing, and promotional research for fisheries, oyster, clams, and shrimp within the jurisdiction of this state. The Department of Natural Resources is authorized and directed to spend up to 20 percent of the moneys collected from the sale of dead oyster shell dredged from that county's waters for the sole purpose of oyster and clam rehabilitation.

(32) DREDGING OF DEAD SHELLS FROM LIVE GROUND PROHIBITED.-The dredging of dead shell deposits from living oyster grounds is prohibited in the state. The Division of Marine Resources is empowered to prohibit all dredging of dead oyster shell deposits when in its judgment and discretion the same will adversely affect the oyster·industry. The division, however, may authorize the dredging of dead oyster shell deposits by permit when in its judgment and discretion the same will not adversely affect the oyster industry of the state.

(33) OYSTER CONSERVATION COMMISSION WITHIN CONSERVATION DISTRICTS.-The Governor of this state shall appoint in any oyster conservation district which may be created under the provisions of subsection (30) an oyster conservation commission for the district, the same to be composed of seven outstanding citizens of the district, two of whom shall be experienced oyster gatherers, two of

whom shall be experienced oyster dealers, and two of whom shall be experienced businessmen, not directly connected with the industry, and one of whom shall be the chief conservation agent in the oyster conservation district. The members of the commission shall serve without compensation and shall be vested with the duties, and subject to the limitations, prescribed by subsections (24) through (28) authorizing the creation of oyster rehabilitation commissions.

(34) COOPERATION WITH U.S. FISH AND WILDLIFE SERVICE.-The Division of Marine Resources shall cooperate with the United States Fish and Wildlife Service, under existing federal laws, rules, and regulations, and is authorized to accept donations, grants, and matching funds from the Federal Government under such conditions as are reasonable and proper for the purpose of carrying out subsections (29) through (34); and the division is further authorized to accept any and all donations including funds, oysters, or oyster shells.

(35) OYSTER AND CLAM SHELLS PROPERTY OF DIVISION.-

(a) Except for oysters used directly in the halfshell trade, all shells from oysters and clams shucked commercially in the state shall be and remain the property of the Division of Marine Resources when such shells are needed and required for rehabilitation projects and planting operations, when sufficient resources and facilities exist for handling and planting said shell, and when the collection and handling of such shell is practical and useful, except that bona fide holders ofleases and grants who desire to retain such shell as they produce for planting purposes may do so by obtaining a permit from the division. Such storage, transportation, and planting of shells so retained by lessees and grantees shall be carried out under the surveillance of agents of the division and be subject to such reasonable time limits as the division may fix. In the event of an accumulation of an excess of shells, the division is authorized to sell shells only to private growers for use in oyster or clam cultivation on bona fide leases and grants. No profit shall accrue to the division in these transactions, and shells are to be sold for the estim,ated moneys spent by the division to gather and stockpile the shells. Planting of shells obtained from the division by purchase shall be subject to the surveillance of the division if the division chooses to exercise its right of supervision. Any shells not claimed and used by private oyster cultivators 10 years after shells are gathered and stockpiled, may be sold at auction to the highest bidder for any private use . . (b) Whenever the division determines that it is

unfeasible to collect oyster or clam shells, the shells become the property of the producer.

(c) Whenever oyster or clam shells are owned by the division and it is not useful, or feasible to use them in the rehabilitation projects, and when no leaseholder has exercised his option to acquire them, the division may sell such shells for the highest price obtainable. The shells thus sold may be used in any manner and for any purpose at the discretion of the purchaser.

(d) Moneys derived from the sale of shell shall be

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deposited in the State Treasury into the General Revenue Fund.

(e) The division shall annually publish notice, in a newspaper serving the county, of its intention to collect the oyster and clam shells and shall notify, by certified mail, each shucking establishment from which shells are to be collected. The notice shall contain the period of time the division intends to collect the shells in that county and the collection purpose.

(36) OYSTER CULTURE.-The Division of Marine Resources shall protect all oyster beds, oyster grounds, and oyster reefs from damage or destruction resulting from improper cultivation, propagation, planting, or harvesting and control the pollution of the waters over or surrounding oyster grounds, beds, or reefs, and to this end the Department of Health and Rehabilitative Services is authorized and directed to lend its cooperation to the division, to make available to it its laboratory testing facilities and apparatus. The division may also do and perform all acts and things within its power and author}ty necessary to the performance of its duties.

(37) HEALTH PERMITS.-(a) Any person engaged in harvesting, handling,

or processing oysters for commercial use shall be required to obtain a health permit from the county health department or from a private physician. .

(b) No person shall be employed or remain employed in a certified oyster house without the possession of the required health permit.

(c) For the purpose of this subsection, "commercial use" shall be a quantity of more than 4 bushels, or more than 2 gallons, of shucked oysters, per person or per boat, or any number or quantity of oysters if the oysters are to be sold.

(38) REQUIREMENTS FOR OYSTER VESSELS.-

(a) All vessels used for the harvesting, gathering, or transporting of oysters for commercial use shall be constructed and maintained to prevent contamination or deterioration of oysters. To this end, all such vessels shall be provided with false bottoms and bulkheads fore and aft to prevent oysters from coming in contact with any bilge water. No dogs or other animals shall be allowed at any time on vessels used to harvest or transport oysters. A violation of any provision of this subsection shall result in at least the revocation of the violator's license.

(b) For the purpose of this subsection, "commercial use" shall be a quantity of more than 4 bushels, or more than 2 gallons, of shucked oysters, per person or per boat, or any number or quantity of oysters if the oysters are to be sold.

History.- s. 2, ch. 28145, 1953; s. 1, ch. 57-256; s. 1, ch. 57-163; s. 1, ch . 59-346; s. 1, ch. 59-490; s. 1, ch. 61-99; s. 2, ch. 61-58; s. 3, ch. 61-22; s. 2, ch. 61-119; s. 1, ch. 61-100; s. 19, ch. 63-512; ss. 1, 2, ch. 63-120; s. 1, ch. 63-396; s. 3, ch . 65-140; s . 1, ch . 65-436; s. 1, ch. 67-234; ss. 19, 25, 35, ch . 69-106; s. 298, ch. 71-136; s. 1, ch . 71-244; s. 1, ch. 71-245; s. 1, ch. 71-246; s. 129, ch. 71-377; s. 1, ch. 72-204; s. 1, ch. 72-236; s. 102, ch. 73-333; s. 1, ch. 75-120; s. 1, ch. 76-106; s. 1, ch. 77-92; s. 111, ch. 77-104; s. 52, ch. 77-147; s. 1, ch. 77-197; s. 1, ch. 77-206; s. 23, ch . 78-95; s. 1, ch. 78-96; s. 33, ch. 79-65; s. 1, ch. 79-111; ss. 1, 2, ch . 80-52. cf.- s. 837.012 Perjury not in an official proceeding.

s. 837.02 Perjury in official proceedings.

CHAPTER 371

REGULATION OF BOATS; TITLE CERTIFICATES

PART I REGULATION OF BOATS

PART II BOATS; TITLE CERTIFICATES

PART I

371.051

371.053

371.65 371.68

REGULATION OF BOATS

Application, certificate, number, decal, duplicate certificate.

Crimes relating to registration decals; penalties.

Classification and license. Penalties.

371.051 Application, certificate, number, decal, duplicate certificate.-

(1)(a) The department shall issue all licenses. The tax collectors of the state shall be agents of the department for the purpose of issuing licenses and collecting the fee therefor. The owner of each boat required by this law to pay a registration license fee and secure an identification number shall file an application with the tax collector of the county or the department. The application shall be signed by the owner of the boat and shall be accompanied by a payment of the required fee.

(b) The owner may establish proof of ownership by submitting with his application a bill of sale of the boat, a builder's contract, a verification of ownership on a custom-built boat, or any other document acceptable by the department and presented at the time of registration to the agency issuing the registration certificate.

' (2) The annual certificates of registration and identification numbers for noncommercial vessels shall be issued in the county by the tax collector of each county or his agent. The certificate and registration shall be renewable on July 1 of each year upon payment of the registration license fee. Each tax collector shall be assigned a block of numbers, certificates, and annual decals which, upon issuance in conformity with this chapter and with any rules and regulations of the department,- shall be valid as if issued directly by the department. The county tax collector or agent authorized to issue a certificate of registration, decal, and number and the department shall be allowed a fee of$1 for each certificate issued or renewed. All moneys collected, except the $1 fee, shall be remitted to the department not later than 20 days following the last day of the month when the moneys were collected. The department shall transmit all moneys received to the Treasurer for deposit.

(3) The department shall issue certificates of registration and numbers to commercial boat owners.

(4) The department shall issue certificates of registration and numbers for city, county and stateowned boats at no charge.

(5) Each certificate of registration issued shall state among other items the numbers awarded to the boat, the hull identification number or hull serial

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number, the name and address of the owner, and a description of the boat, except that certificates of registration for boats constructed or assembled by the owner registered for the first time shall state all the foregoing information except the hull identification number or hull serial number. The numbers shall be placed on each side ofthe forward halfofthe vessel in such position as to provide clear legibility for identification. The numbers awarded to the boat shall read from left to right and shall be in block characters of good proportion not less than 3 inches in height. The numbers shall be of a solid color which will contrast with the color of the background and shall be so maintained as to be clearly visible and legible; i.e., dark numbers on a light background or light numbers on a dark background. The certificate of registration shall be pocket-sized and shall be available for inspection on the boat for which issued whenever such boat is in operation.

(6)(a) When the ownership of a registered vessel changes, an application for transfer of ownership shall be filed with the department within 15 days,

. with a tee of $1. (b) Vessels registered as commercial shall .file a

certificate within 15 days for a transfer of ownership with the agency issuing the original certificate and license and pay a fee of $1.

(c) In making application for a transfer of ownership of either noncommercial or commercial vessels, the registered owner shall sign his name and address and shall certify that the boat to be transferred is debt-free or is subject to a lien. Where a lien exists, the owner shall furnish to the new owner, on forms supplied by the department, the name and address of the lienholder and the amount due on the boat, together with a statement from the lienholder that the lienholder has knowledge of and consents to the transfer to the new owner.

(7) A decal signifying the year or years during which the certificate is valid shall be furnished by the department with each registration certificate issued. The decal shall be displayed by affixing it to the port (left) side of the boat either before or after the registration number. Any decal for a previous year shall be removed.

(8) Duplicate certificates to replace lost or misplaced certificates may be obtained by mailing $1 with a request for such a duplicate certificate to the department. No duplicate certificate shall be issued except upon written request of the registered owner or persons authorized by such owner to make such a request. The department shall supply application forms for such duplicate certificates and require such information or documents as are necessary to secure reasonable proof of authority of the person making the request. .

(9) Should the classification of a boat change from noncommercial to commercial, or from commercial to noncommercial, and a current certificate has been issued to a resident owner, the owner shall forward his certificate to the department with a fee of $1 and a new certificate shall be issued.

(10) Anyone guilty of falsely certifying any facts

relating to application, certificate, transfer, number, decal, duplicate certificates or any information required under this section shall be punished as provided under this part.

History.- s. 1, ch. 59-399; s. 1, ch. 61-511 ; s. 3, ch. 63-103; s. 1, ch. 65-361; ss. 25, 35, ch. 69-106; ss. 4, 15, ch. 74-327; s. 1, ch. 80-266; s. 50, ch. 80-274.

'Note.- As amended by ch. 80-274, effective J une 1, 1981.

371.053 Crimes relating to registration decals; penalties.-

(! ) It is unlawful for any person to make, alter, forge, counterfeit, or reproduce a Florida registration decal unless authorized by the department.

(2) It is unlawful for any person knowingly to have in his possession a forged, counterfeit, or imitation Florida registration decal, or reproduction of a decal, unles·s possession by such person has been duly authorized by the department.

(3) It is unlawful for any person to barter, trade, sell, supply, agree to supply, aid in supplying, or give away a Florida registration decal or to conspire to barter, trade, sell, supply, agree to supply, aid in supplying, Qr give away a registration decal, unless duly authorized to issue the decal by the department, as provided in this part or in rules of the department.

(4) Any person who violates any of the provisions of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 1, ch. 80-266.

371.65 Classification and license.-Vessels shall be classified for license purposes according to the following schedule, and the registration certificate license fee shall be in the following amounts:

(1) MOTORBOATS.-Class A-1-less than 12 feet in length, and

all canoes to which propulsion motors have been attached, re-gardless.of length .... .. ..... .

Class A-2-12 feet or' more and less than 16 feet in length .. ..... ..... .. . . (To county) ... ... . . ......... .

Class 1-16 feet or more and less than 26 feet in length . . ......... . .. . . (To county) ... . .. ... . ... .. .. .

Class 2-26 feet or more and less than 40 feet in length . .. ... .. .. .. ... . (To county) . ..... .. ... .. .. .. .

Class 3-40 feet or more and less than 65 feet in length . . ... .. ... .. .. . . (To county) ........... . ..... .

Class 4-65 feet or more and less than 110 feet in length .. . ... .. .. .. . (To county) . . ............... .

Class 5-110 feet or more in length .... . (To county) ....... .. .. .. .. .. . Dealer classification ... .. .. . . .

$ 2.00

6.00 1.50

11.00 6.50

31.00 26.50

51.00 46.50

61.00 56.50 76.00 71.50 10.00

1(2) SERVICE FEES.-In addition, the boat owner shall pay to the issuing agent a $1 service fee for

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each registration or reregistration as provided for in s. 371.051. There shall be no duplication of fees and boats registered under this law. Boats may travel in salt water or fresh water at will.

(3) DISTRIBUTION OF FEES.-Moneys deposited pursuant to s. 371.171 to be returned to the counties are appropriated to the department for grants to the county general governments for the sole purposes of providing recreational channel marking, public launching facilities, and other boating-related activities. The department shall ascertain, as a guideline in determining amounts of grants each county may receive, the number of noncommercial vessels registered in the county during the preceding license year according to the license fee schedule provided in subsection (1) and shall promulgate rules and regulations to effectuate this.

(4) FRACTIONAL REGISTRATION FEE.-Any boat registered for the first time between January 1 and June 30 shall be charged one-half the annual registration rate. The above fractional rate does not apply to boats subject to registration prior to December 31, provided that a boat shall not be considered subject to reregistration prior to December 31 if purchased by a new owner after December 31.

(5) REGISTRATION DATE.-The registration and reregistration of boats and payment of above fees for the ensuing year shall begin on June 1 and end on June 30 except that the Governor may extend the period of registration for an additional 30 days when such extension is desirable. All motorboats previously exempt from the registration requirements ofs. 371.041 shall be registered by January 1, 1975. The operation of any boat after July 1, unless the period is extended, without a current registration as provided under this law is a misdemeanor and shall subject the owner and operator thereof to arrest and punishment as provided by law.

(6) EXEMPTION.-Vessels and motorboats owned and operated by Sea Explorer or Sea Scout units of the Boy Scouts of America; the Girl Scouts of America, the Associated Marine Institutes, Inc., and its affiliates, live-aboard vessels assessed as tangible personal property, and any boat used exclusively for commercial fishing and not propelled or powered by machinery of any hDrsepower are exempt from the provisions of subsection (1). Such vessels or motorboats shall be issued certificates of registration and numbers upon application and payment of the service fee provided in subsection (2). However, for live-aboard vessels proof of assessment by the county property appraiser as tangible personal property must be shown upon application in order to qualify for said exemption. Vessels assessed as liveaboard vessels on the 1980 assessment rolls shall be eligible for exemption from the registration fees imposed by this section beginning June 1, 1980. Similarly, any live-aboard vessel deleted from an assessment roll shall be subject to said registration fees commencing in the year of deletion. .

(7) ALIEN OR NONRESIDENT FEE.-An additional license fee of $50 shall be required of all aliens or nonresidents of the state on all boats, vessels, schooners, or launches used for commercial purposes and owned in whole or in part by such alien or non-

resident in addition to the boat license fee required by this section.

2(8) MAIL SERVICE CHARGE.-A mail service charge shall be collected for each registration or reregistration mailed by the department or .any tax collector. All registrations and reregistrations shall be mailed by first-class mail unless otherwise requested by the purchaser. The amount of the mail service charge shall be the actual postage required rounded to the nearest 5 cents, plus a 25-cent handling charge. The mail service charge shall be in addition to the service charge provided in subsection (2) and shaH be used and accounted for in accordance with law.

History.-s. 1, ch. 65-361; s. 2, ch. 67-586; s. 1, ch. 69-300; s. 4, ch. 7().336; s. 1, ch. 73-146; ss. 9, 15, ch. 74-327; s. 1, ch. 77-174; s. 81, ch. 79-164; s. 1, ch. 79-307; ss. 26, 30, ch. 79-334; s. 1, ch. 79-364; s. 2, ch. 80.266; s. 51, ch. 80-274.

'Note.-As amended by ch. 80-274, effective June 1, 1981. 'Note.-Effective June 1, 1981. Note.-Similar provisions in former s. 371.0104.

371.68 Penalties.-. (1) Any violation of the provisions of s.

371.57(1)(a)l. and 2. shall be deemed a noncriminal violation, as defined in s. 775.08(3), punishable by a · fine of $25.

(2) Any person failing to comply with the provisions of this part not specified in subsection (1) or not paying the fine specified in subsection (1) within 10 days, except as otherwise provided in this part, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. .

History.-s. 1, ch. 65-361; s. 304, ch. 71-136; s. 1, ch. 78-181; s. 3, ch. 80.266.

371.75 371.76 371.763

371.77

371.791

371.81 371:82

PART· II

BOATS; TITLE CERTIFICATES

Application for certificate of title. Certificate of title required. Crimes relating to certificates of title, etc.;

penalties. Hull identification number or hull serial

number required. Manufacturer's certificate o( origin to be

furnished. Notice of lien on motorboats; recording. Penalty.

371.75 Application for certificate of title.(1) The owner of a motorboat required to pay the

boat registration certificate license fee under this chapter, except a federally documented vessel, shall apply to the department for .a certificate of title.

(2) The application shall include the true name of the owner, the residence or business address of the owner, and the description of the boat, including the hull identification number or hull serial number, except that an application for a certificate of title for a boat constructed or assembled by the owner shall state all the foregoing information except the hull identification number or hull serial number. The application shall be signed by the owner and shall be accompanied by the prescribed fee.

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Documents

Florida Statutes 1980 Supplement - Research Center · 2014. 10. 1. · s. 339.08 1980 SUPPLEMENT TO FLORIDA STATUTES 1979 s. 350.113 right-of-way acquisition, specifications, and