CHAPTER 337

337.015 Administration of public contracts.

(1) Time is an essential element of the contract, and to assure satisfactory work progress and timely contract completion, the department shall minimize the allowance of additional contract time.

(2) In order to increase competition and maximize the utilization of personnel, the department shall minimize the variances between contract lettings.

(3) To protect the public interest, the department shall vigorously pursue claims against contractors and consultants for time overruns and substandard work products.

(4) The department shall stabilize the work program, ensuring the timely and systematic completion of projects.

(5) To encourage increased competition and timely completion of construction projects, the department may allow flexible start and finish time limits when the commencement of work is not essential to the public health, safety, or welfare. When using flexible start and finish time limits, the department may withhold up to 10 percent retainage on completed work when the contractor either fails to timely commence work or falls behind in work progress at any point prior to completion of the contract.

(6) The department shall make payments for road and bridge construction and maintenance work throughout the month so that the cash balance fluctuates as little as practicable.

History. — s. 3, ch. 87-100; s. 11, ch. 89-301; s. 126, ch. 92-152; s. 12, ch. 94-237; s. 83, ch. 99-385.

337.02 Purchases by department subject to competitive bids; advertisement; emergency purchases; bid specifications.

(1) Except as provided herein, purchase by the Department of Transportation of commodities, including the advertising and awarding of competitive bids, shall be governed by chapters 283 and 287 and rules adopted by the Department of Management Services pursuant thereto.

However, the provisions of s. 287.057 notwithstanding, the department may purchase parts and repairs valued at up to the threshold amount provided in s. 287.017 for CATEGORY TWO for the repair of mobile road maintenance equipment, marine vessels, permanent vehicle scales, and mechanical and electrical equipment for movable bridges, toll facilities including the Florida Turnpike, and up to the threshold amount provided in s. 287.017 for CATEGORY THREE for treatment plants and lift stations for water and sewage, and major heating and cooling systems without receiving competitive bids.

(2) If the department determines that an emergency exists in regard to the purchase of materials, machinery, tools, equipment, or supplies, so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, the provisions for competitive bidding do not apply; and the department may authorize or purchase such materials, machinery, tools, equipment, or supplies without giving opportunity for competitive bidding thereon.

The department shall, within 10 days after such determination and purchase, file with the head of the Department of Management Services a written statement of the materials, machinery, tools, equipment, or supplies purchased and a certificate as to the conditions and circumstances constituting such emergency.

(3) When the department advertises for bids on a contract for supplies, materials, equipment, or other items needed by the department, specifications shall be drafted in such manner as will afford adequate protection to the state as to quality and performance, but specifications shall not be drafted in any manner which will preclude competition in bidding.

History. — s. 81, ch. 29965, 1955; s. 5, ch. 67-461; ss. 23, 35, ch. 69-106; s. 112, ch. 71-377; s. 134, ch. 84-309; s. 18, ch. 85-180; s. 29, ch. 90-268; s. 281, ch. 92-279; s. 55, ch. 92-326; s. 33, ch. 96-323.

337.023 Sale of building; acceptance of replacement building.

History. — s. 51, ch. 97-278; s. 121, ch. 99-13; s. 55, ch. 2000-371; s. 46, ch. 2005-152.

337.025 Innovative highway projects; department to establish program.

(1) The department is authorized to establish a program for highway projects demonstrating innovative techniques of highway construction, maintenance, and finance which have the intended effect of controlling time and cost increases on construction projects. Such techniques may include, but are not limited to, state-of-the-art technology for pavement, safety, and other aspects of highway construction and maintenance; innovative bidding and financing techniques; accelerated construction procedures; and those techniques that have the potential to reduce project life cycle costs.

To the maximum extent practical, the department must use the existing process to award and administer construction and maintenance contracts. When specific innovative techniques are to be used, the department is not required to adhere to those provisions of law that would prevent, preclude, or in any way prohibit the department from using the innovative technique.

However, prior to using an innovative technique that is inconsistent with another provision of law, the department must document in writing the need for the exception and identify what benefits the traveling public and the affected community are anticipated to receive. The department may enter into no more than $120 million in contracts annually for the purposes authorized by this section.

(2) The annual cap on contracts provided in subsection (1) shall not apply to:

History. — s. 34, ch. 96-323; s. 45, ch. 99-385; s. 10, ch. 2000-266; s. 9, ch. 2002-20; s. 2, ch. 2009-89.

337.026 Authority of department to enter into agreements for construction aggregate materials.

(1) The department may pursue procurement techniques that will provide the department with reliable and economic supplies of construction aggregate materials and control time and cost increases on construction projects.

(2) The department may enter into agreements with private or public entities. Such agreements may include, but are not limited to, department acquisition of materials or resources or long-term leases for a term not to exceed 99 years that will advance the state’s transportation needs.

(3) To the maximum extent practical, the department must use the existing process to award and administer such procurement techniques. When techniques authorized by this

section are to be used, the department is not required to adhere to provisions of law that would prevent, preclude, or prohibit it from using this procurement technique. However, prior to using this procurement technique, the department must document in writing the need for the exception and identify the benefits the traveling public and the affected community are anticipated to receive.

History. — s. 31, ch. 2007-196.

337.0261 Construction aggregate materials.

(1) DEFINITIONS. —

(2) LEGISLATIVE INTENT. —

(3) LOCAL GOVERNMENT DECISIONMAKING. —

(4) EXPEDITED PERMITTING. —

History. — s. 30, ch. 2007-196; s. 67, ch. 2008-4; s. 3, ch. 2009-89; s. 65, ch. 2010-5; s. 39, ch. 2016-239.

337.027 Authority to implement a business development program.

(1) The department may establish a program for highway projects which would assist small businesses. The purpose of this program is to increase competition, lower prices, and provide increased support to meet the department’s future work program. The program may include, but is not limited to, setting aside contracts, providing preference points for the use of small businesses, providing special assistance in bidding and contract completion, waiving bond requirements, and implementing other strategies that would increase competition.

(2) For purposes of this section, the term “small business” means a business with yearly average gross receipts of less than $15 million for road and bridge contracts and less than $6.5 million for professional and nonprofessional services contracts. A business’ average gross receipts is determined by averaging its annual gross receipts over the last 3 years, including the receipts of any affiliate as defined in s. 337.165.

(3) The department may adopt rules to implement this section.

History. — s. 12, ch. 2016-181.

337.03 Authority of department to purchase surplus properties from the Federal Government.

(1) The department is authorized to purchase from the Federal Government any supplies, material, equipment, appliances, or other property at such price and upon such terms as may in the judgment of the department be proper, without first advertising for bids, regardless of the value of, or the price paid for, such property; provided the price paid for such supplies, materials, equipment, appliances, or other property does not exceed the price for which such property may be purchased upon the open market.

(2) Payment of the cost of all supplies, material, equipment, appliances, or other property purchased pursuant to the authority given in subsection (1) shall be made upon vouchers issued and certified to by the department.

History. — s. 82, ch. 29965, 1955; s. 5, ch. 67-461; ss. 23, 35, ch. 69-106; s. 113, ch. 71-377; s. 100, ch. 77-104; s. 135, ch. 84-309.

337.105 Qualifications of professional consultants and other providers of contractual services; performance bonds; and audits of indirect costs.

(1) Before the employment of a professional consultant or other provider of service, the department shall make a finding that the person to be employed is fully qualified to render the desired service. Among the factors to be considered in making this finding are the professional reputation, past performance record, and experience of the candidate and the adequacy of the personnel making up his or her organization. The department may, for good cause, deny or suspend for a specified period of time a person or firm from consideration for award of a professional service contract for a particular type of work.

The department shall adopt rules to administer this section. As used in this subsection, the term “good cause” includes, but is not limited to, circumstances in which a consultant or other provider of service or its official representative:

(2) For any contractual service, except a contractual service provided to the department under s. 287.055, the department may require a performance bond equal to the full contract value if such requirement is deemed to be in the best interest of the state.

(3) The department may require providers of professional services acquired under s. 287.055 to submit annual audits of their indirect costs performed in accordance with department guidelines. The department may establish limits on the indirect cost rates it will accept.

History. — s. 1, ch. 70-64; s. 171, ch. 84-309; s. 4, ch. 87-100; s. 1, ch. 89-21; s. 494, ch. 95-148; s. 35, ch. 96-323; s. 2, ch. 98-105.

337.106 Professional service providers; requirement for professional liability insurance.

History. — s. 3, ch. 70-168; s. 138, ch. 84-309; s. 1, ch. 88-299; s. 51, ch. 90-136; s. 119, ch. 92-152; s. 2, ch. 92-318.

337.107 Contracts for right-of-way services.

History. — s. 111, ch. 92-152; s. 25, ch. 95-257; ss. 1, 3, ch. 2001-350; ss. 13, 14, ch. 2005-290.

337.1075 Contracts for planning services.

History. — s. 14, ch. 93-164.

337.108 Hazardous materials and pollutants; indemnification.

(1) For purposes of this section:

(2) The department may agree to hold harmless and indemnify a contractor for damages when the contractor discovers or encounters hazardous materials or pollutants during the performance of services for the department when the presence of such materials or pollutants was unknown or not reasonably discoverable. Such indemnification agreements shall only be effective if the contractor immediately stops work and notifies the department of the hazardous material or pollutant problem.

(3) Such an indemnification agreement may not indemnify the contractor for damages resulting from any willful, wanton, or intentional conduct of the contractor.

History. — s. 125, ch. 92-152; s. 164, ch. 94-356.

337.11 Contracting authority of department; bids; emergency repairs, supplemental agreements, and change orders; combined design and construction contracts; progress payments; records; requirements of vehicle registration.

(1) The department shall have authority to enter into contracts for the construction and maintenance of all roads designated as part of the State Highway System or the State Park Road System or of any roads placed under its supervision by law. The department shall also have authority to enter into contracts for the construction and maintenance of rest areas, weigh stations, and other structures, including roads, parking areas, supporting facilities and associated buildings used in connection with such facilities. However, no such contract shall create any third-party beneficiary rights in any person not a party to the contract.

(2) The department shall ensure that all project descriptions, including design plans, are complete, accurate, and up to date prior to the advertisement for bids on such projects.

(3)(

a) On all construction contracts of $250,000 or less, and any construction contract of less than $500,000 for which the department has waived prequalification under s. 337.14, the department shall advertise for bids in a newspaper having general circulation in the county where the proposed work is located. Publication shall be at least once a week for no less than 2 consecutive weeks, and the first publication shall be no less than 14 days prior to the date on which bids are to be received.

(4) The department may award the proposed construction and maintenance work to the lowest responsible bidder, or in the instance of a time-plus-money contract, the lowest evaluated responsible bidder, or it may reject all bids and proceed to rebid the work in accordance with subsection (2) or otherwise perform the work.

(5)(

a) Any person who files an action protesting a bid solicitation, a bid rejection, or an award pursuant to this

section shall post with the department, at the time of filing a notice of protest, a bond payable to the department in the following amounts:

(6)(

a) If the secretary determines that an emergency in regard to the restoration or repair of any state transportation facility exists such that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, the provisions for competitive bidding do not apply; and the department may enter into contracts for restoration or repair without giving opportunity for competitive bidding on such contracts. Within 30 days after such determination and contract execution, the head of the department shall file with the Executive Office of the Governor a written statement of the conditions and circumstances constituting such emergency.

(7)(

a) If the department determines that it is in the best interests of the public, the department may combine the design and construction phases of a building, a major bridge, a limited access facility, or a rail corridor project into a single contract. Such contract is referred to as a design-build contract. Design-build contracts may be advertised and awarded notwithstanding the requirements of paragraph (3)(c).

However, construction activities may not begin on any portion of such projects for which the department has not yet obtained title to the necessary rights-of-way and easements for the construction of that portion of the project has vested in the state or a local governmental entity and all railroad crossing and utility agreements have been executed. Title to rights-of-way shall be deemed to have vested in the state when the title has been dedicated to the public or acquired by prescription.

(8) If the department determines that it is in the best interest of the public, the department may pay a stipend to nonselected design-build firms that have submitted responsive proposals for construction contracts. The decision and amount of a stipend shall be based upon department analysis of the estimated proposal development costs and the anticipated degree of engineering design during the procurement process. The department retains the right to use those designs from responsive nonselected design-build firms that accept a stipend.

(9)(

a) The department shall permit the use of written supplemental agreements, written work orders pursuant to a contingency pay item or contingency supplemental agreement, and written change orders to any contract entered into by the department. Any supplemental agreement shall be reduced to written contract form and executed by the contractor and the department. Any supplemental agreement modifying any item in the original contract must be approved by the head of the department, or his or her designee, and executed by the appropriate person designated by him or her.

Any surety issuing a bond under s. 337.18 shall be fully liable under such surety bond to the full extent of any modified contract amount up to and including 25 percent over the original contract amount and without regard to the fact that the surety was not aware of or did not approve such modifications.

However, if modifications of the original contract amount cumulatively result in modifications of the contract amount in excess of 25 percent of the original contract amount, the surety’s approval shall be required to bind the surety under the bond on that portion in excess of 25 percent of the original contract amount.

(10) The department shall preserve all records which reflect the quantities of materials used in the construction of any road project supervised by the department for a period of 3 years after final acceptance. This requirement is equally binding when materials are purchased by prime contractors or subcontractors.

(11)(

a) Every contract let by the department for the performance of work shall contain a provision requiring the prime contractor, before receipt of any progress payment under the provisions of such contract, to certify that the prime contractor has disbursed to all subcontractors and suppliers having an interest in the contract their pro rata shares of the payment out of previous progress payments received by the prime contractor for all work completed and materials furnished in the previous period, less any retainage withheld by the prime contractor pursuant to an agreement with a subcontractor, as approved by the department for payment.

The department shall not make any such progress payment before receipt of such certification, unless the contractor demonstrates good cause for not making any such required payment and furnishes written notification of any such good cause to both the department and the affected subcontractors and suppliers.

(12) Notwithstanding any other provision of law to the contrary, the department has unilateral authority to pay the contractor the sums the department determines to be due to the contractor for work performed on a project. This unilateral authority to pay by the department does not preclude or limit the rights of the department and the contractor to negotiate and agree to the amounts to be paid to the contractor. By acceptance of any such unilateral payment, the contractor does not waive any rights the contractor may have against the department for payment of any additional sums the contractor claims are due for the work.

(13) Each contract let by the department for the performance of road or bridge construction or maintenance work shall require all motor vehicles that the contractor operates or causes to be operated in this state to be registered in compliance with

chapter 320.

(14) Each contract let by the department for performance of road or bridge construction or maintenance work must contain a traffic maintenance plan which shows the appropriate regulatory speed signs and traffic control devices for the work zone area as defined in s. 316.003.

(15) When the department determines that it is in the best interest of the public, the department may enter into a contract with an electric utility as defined in s. 366.02(2) for the construction or maintenance of lighting on poles owned by the electric utility and located within a road right-of-way without competitive bidding. In any contract entered into without competition, the individuals taking

part in the evaluation or award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.

(16) The department shall have the authority to develop procedures for the administration of maintenance contracts. In addition to the other contract administration matters, the procedures shall address advertising and bid solicitation for maintenance contracts and each bid solicitation notice shall contain specific requirements, if any are deemed necessary by the department for maintenance contractor eligibility.

History. — s. 90, ch. 29965, 1955; s. 1, ch. 61-432; s. 1, ch. 61-443; s. 1, ch. 61-222; s. 1, ch. 65-4; s. 5, ch. 67-461; s. 1, ch. 69-315; s. 1, ch. 69-392; ss. 23, 35, ch. 69-106; s. 1, ch. 70-325; s. 114, ch. 71-377; s. 1, ch. 72-88; s. 1, ch. 75-6; s. 3, ch. 76-85; s. 1, ch. 84-277; s. 139, ch. 84-309; s. 32, ch. 86-243; s. 1, ch. 87-93; s. 5, ch. 87-100; s. 1, ch. 87-104; s. 1, ch. 87-162; s. 6, ch. 88-91; s. 5, ch. 88-93; s. 14, ch. 88-168; s. 1, ch. 89-160; s. 12, ch. 89-301; s. 46, ch. 90-136; s. 120, ch. 92-152; s. 27, ch. 93-164; s. 14, ch. 94-237; s. 963, ch. 95-148; s. 35, ch. 95-196; s. 26, ch. 95-257; s. 36, ch. 96-323; s. 70, ch. 96-410; s. 1, ch. 99-345; s. 18, ch. 99-385; ss. 2, 4, ch. 2001-350; ss. 10, 11, 12, ch. 2002-20; s. 3, ch. 2005-281; ss. 15, 16, ch. 2005-290; s. 3, ch. 2007-66; s. 32, ch. 2007-196; s. 7, ch. 2009-85; s. 9, ch. 2014-223; s. 4, ch. 2017-42.

337.111 Contracting for monuments and memorials to military veterans at rest areas.

(1) Proposals for contracts must be approved by a committee composed of the Secretary of Transportation or the secretary’s designee, the executive director of the Department of Veterans’ Affairs or the executive director’s designee, and three members of the board of directors of the direct-support organization established under s. 292.055, appointed by the executive director of the Department of Veterans’ Affairs. The terms of the appointed members may not exceed 2 years and shall run concurrently with the members’ terms on the board of directors of the direct-support organization. Appointed members may be reappointed to the committee.

(2) Installations may consist of monuments or other memorials, plaques, markers, or retired military equipment that honor the accomplishments of military veterans and the sacrifices made by them and their families.

(3) The group or organization making the proposal shall be responsible for all costs of the monument and its installation.

(4) The group or organization making the proposal shall provide an annual renewable bond, an irrevocable letter of credit, or another form of security as approved by the department’s comptroller, for the purpose of securing the cost of removal of the monument and any modifications made to the site as part of the placement of the monument should the Department of Transportation determine it necessary to remove or relocate the monument. Such removal or relocation shall be approved by the committee described in subsection (1).

History. — s. 3, ch. 2005-43; s. 4, ch. 2008-84; s. 29, ch. 2012-174.

337.125 Socially and economically disadvantaged business enterprises; notice requirements.

(1) When contract goals are established, in order to document that a subcontract is with a certified socially and economically disadvantaged business enterprise, the prime contractor must either submit a disadvantaged business enterprise utilization form which has been signed by the socially and economically disadvantaged business enterprise and the prime contractor, or submit the written or oral quotation of the socially and economically disadvantaged business enterprise, and information contained in the quotation must be confirmed as determined by the department by rule.

(2) The department shall provide reasonable advance notice of the date of the preconstruction conference to each socially and economically disadvantaged business enterprise utilized by the prime contractor in meeting the socially and economically disadvantaged business enterprise contract goals.

(3) The department shall provide a socially and economically disadvantaged business enterprise with reasonable advance notice prior to removing such enterprise from any area of specialization of certified socially and economically disadvantaged business enterprises.

(4) The department shall promulgate rules for implementing the directives contained in this section.

History. — s. 2, ch. 87-93; s. 15, ch. 90-227; s. 30, ch. 2012-174.

337.135 Socially and economically disadvantaged business enterprises; punishment for false representation.

(1) It is unlawful for any individual to fraudulently represent an entity as a socially and economically disadvantaged business enterprise for purposes of qualifying for certification as such an enterprise under a program of the department designed to assist socially and economically disadvantaged business enterprises in the receipt of contracts with the department for the provision of goods or services. Any person who violates this

section is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) An individual found in violation of subsection (1) shall not create a new corporate structure for the purpose of circumventing this section.

History. — s. 3, ch. 87-93.

337.139 Efforts to encourage awarding contracts to disadvantaged business enterprises.

(1) Presolicitation or prebid meetings for the purpose of informing disadvantaged business enterprises of contracting opportunities.

(2) Written notice to disadvantaged business enterprises of contract opportunities for commodities or contractual and construction services which the disadvantaged business provides.

(3) Provision of adequate information to disadvantaged business enterprises about the plans, specifications, and requirements of contracts or the availability of jobs.

(4) Breaking large contracts into several single-purpose contracts of a size which may be obtained by certified disadvantaged business enterprises.

History. — s. 45, ch. 90-136; s. 84, ch. 99-385; s. 32, ch. 2012-174.

337.14 Application for qualification; certificate of qualification; restrictions; request for hearing.

(1) Any person desiring to bid for the performance of any construction contract in excess of $250,000 which the department proposes to let must first be certified by the department as qualified pursuant to this

section and rules of the department. The rules of the department shall address the qualification of persons to bid on construction contracts in excess of $250,000 and shall include requirements with respect to the equipment, past record, experience, financial resources, and organizational personnel of the applicant necessary to perform the specific class of work for which the person seeks certification. The department may limit the dollar amount of any contract upon which a person is qualified to bid or the aggregate total dollar volume of contracts such person is allowed to have under contract at any one time.

Each applicant seeking qualification to bid on construction contracts in excess of $250,000 shall furnish the department a statement under oath, on such forms as the department may prescribe, setting forth detailed information as required on the application. Each application for certification shall be accompanied by the latest annual financial statement of the applicant completed within the last 12 months.

If the application or the annual financial statement shows the financial condition of the applicant more than 4 months prior to the date on which the application is received by the department, then an interim financial statement must be submitted and be accompanied by an updated application. The interim financial statement must cover the period from the end date of the annual statement and must show the financial condition of the applicant no more than 4 months prior to the date the interim financial statement is received by the department.

However, upon request by the applicant, an application and accompanying annual or interim financial statement received by the department within 15 days after either 4-month period under this subsection shall be considered timely. Each required annual or interim financial statement must be audited and accompanied by the opinion of a certified public accountant. An applicant desiring to bid exclusively for the performance of construction contracts with proposed budget estimates of less than $1 million may submit reviewed annual or reviewed interim financial statements prepared by a certified public accountant.

The information required by this subsection is confidential and exempt from the provisions of s. 119.07(1). The department shall act upon the application for qualification within 30 days after the department determines that the application is complete. The department may waive the requirements of this subsection for projects having a contract price of $500,000 or less if the department determines that the project is of a noncritical nature and the waiver will not endanger public health, safety, or property.

(2) Certification shall be necessary in order to bid on a road, bridge, or public transportation construction contract of more than $250,000. However, the successful bidder on any construction contract must furnish a contract bond prior to the award of the contract. The department may waive the requirement for all or a portion of a contract bond for contracts of $150,000 or less under s. 337.18(1).

(3) Upon the receipt of an application for certification, the department shall examine it, verify its statements when necessary, and determine whether the applicant is competent, is responsible, and possesses the necessary financial resources to perform the desired work.

(4) If the applicant is found to possess the prescribed qualifications, the department shall issue to him or her a certificate of qualification that, unless thereafter revoked by the department for good cause, will be valid for a period of 18 months after the date of the applicant’s financial statement or such shorter period as the department prescribes. Submission of an application shall not affect expiration of the certificate of qualification.

If the department finds that an application is incomplete or contains inadequate information or information that cannot be verified, the department may request in writing that the applicant provide the necessary information to complete the application or provide the source from which any information in the application may be verified. If the applicant fails to comply with the initial written request within a reasonable period of time as specified therein, the department shall request the information a second time.

If the applicant fails to comply with the second request within a reasonable period of time as specified therein, the application shall be denied.

(5) The certificate of qualification shall contain a statement fixing the actual amount of work, in terms of estimated cost, which the applicant will be permitted to have on contract with the department and not completed at any one time, and the certificate may contain a statement by the department limiting such bidder to the submission of bids upon a certain class of work. Subject to such restrictions, the certificate of qualification shall authorize the holder to bid on all work on which bids are taken by the department during the period of time specified in the certificate.

(6) Any applicant for a certificate of qualification who is aggrieved by the action of the department may, within 10 days after receiving notification of such action, request a hearing pursuant to

chapter 120.

(7) A “contractor” as defined in s. 337.165(1)(

d) or his or her “affiliate” as defined in s. 337.165(1)(

a) qualified with the department under this

section may not also qualify under s. 287.055 or s. 337.105 to provide testing services, construction, engineering, and inspection services to the department. This limitation does not apply to any design-build prequalification under s. 337.11(7) and does not apply when the department otherwise determines by written order entered at least 30 days before advertisement that the limitation is not in the best interests of the public with respect to a particular contract for testing services, construction, engineering, and inspection services.

This subsection does not authorize a contractor to provide testing services, or provide construction, engineering, and inspection services, to the department in connection with a construction contract under which the contractor is performing any work.

(8) This

section does not apply to maintenance contracts.

(9)(

a) Notwithstanding any other law to the contrary, for contracts in excess of $250,000, an authority created pursuant to

chapter 348 or

chapter 349 may require that persons interested in performing work under contract first be certified or qualified to do the work. Any contractor may be considered ineligible to bid by the governmental entity or authority if the contractor is behind an approved progress

schedule for the governmental entity or authority by 10 percent or more at the time of advertisement of the work. Any contractor prequalified and considered eligible by the department to bid to perform the type of work described under the contract shall be presumed to be qualified to perform the work so described. The governmental entity or authority may provide an appeal process to overcome that presumption with de novo review based on the record below to the circuit court.

History. — s. 93, ch. 29965, 1955; s. 14, ch. 57-318; s. 1, ch. 61-501; s. 1, ch. 69-314; ss. 23, 35, ch. 69-106; s. 1, ch. 76-85; s. 1, ch. 78-316; s. 10, ch. 80-374; s. 1, ch. 83-18; s. 146, ch. 84-309; s. 33, ch. 86-243; s. 6, ch. 87-100; s. 2, ch. 89-21; s. 495, ch. 95-148; s. 37, ch. 95-257; s. 37, ch. 96-323; s. 161, ch. 96-406; s. 43, ch. 97-96; s. 80, ch. 2002-20; s. 43, ch. 2003-286; s. 4, ch. 2007-66; s. 33, ch. 2007-196; s. 21, ch. 2010-225; s. 33, ch. 2012-174; s. 10, ch. 2014-223.

337.141 Payment of construction or maintenance contracts.

(1) As used in this section, the terms “dispute” or “pending claim” refer to a dispute or pending claim between the prime contractor and the department.

(2) Each contract for construction or maintenance entered into pursuant to this

chapter shall provide for final payment within 75 days of final field acceptance, provided all documents which are required by the contract from the contractor, with the exception of the acceptance letter and a consent by the contractor’s surety for release of payment of the retained percentage and final estimate to the contractor, are received within 30 days of final field acceptance. If the contractor fails to provide the documents within 30 days after final field acceptance, payment shall be made within 45 days of receipt by the department of such documents.

The department shall notify the contractor within 20 days of receipt of the documents which are required for payment if such documents are incomplete and shall specifically list for the contractor which documents have not been submitted. Should the department fail to notify the contractor within 20 days, regardless of completeness of the documents, the time required for payment shall begin. The period of time from the offer of final payment to the receipt by the department of the acceptance letter and surety’s consent shall not count as part of the 75-day or 45-day time periods.

Final payment shall not be so made as to any amount which is in dispute or the subject of a pending claim, but shall be so made as to that portion of a contract or those amounts which are not in dispute or the subject of a pending claim. However, such partial payment shall not constitute any bar, admission, or estoppel or have any other effect as to those payments that are in dispute or the subject of a pending claim.

No payment may be made to a construction or maintenance contractor until the department has on file proof, in the form of a notarized affidavit from the contractor, that all motor vehicles that he or she operates in this state are registered in compliance with

chapter 320.

(3) For each day after 75 days, or 30 days after settlement of a claim, the department shall pay to the contractor interest at the rate set forth in s. 55.03.

(4) If a contractor fails to submit all documents required for final payment within 2 years after final acceptance of the work or within 1 year after the offer by the department of final payment, whichever occurs later, any amount owed as final payment shall be considered to be forfeited. The forfeiture will not apply to documents that are the subject of existing claims or pending legal proceedings. Written notice shall be given by the department at least 60 days prior to forfeiture.

History. — ss. 1, 2, ch. 70-168; s. 1, ch. 77-79; s. 147, ch. 84-309; s. 2, ch. 87-104; s. 1, ch. 88-281; s. 11, ch. 94-239; s. 964, ch. 95-148.

337.145 Offsetting payments.

(1) After settlement, arbitration, or final adjudication of any claim of the department for work done pursuant to a construction contract with any party, the department may offset such amount from payments due for work done on any construction contract, excluding amounts owed to subcontractors, suppliers, and laborers, which it has with the party owing such amount if, upon demand, payment of the amount is not made within 60 days to the department.

(2) Offsetting any amounts pursuant to subsection (1) shall not be considered a breach of contract by the department.

History. — s. 7, ch. 87-100; s. 39, ch. 91-221.

337.16 Disqualification of delinquent contractors from bidding; determination of contractor nonresponsibility; denial, suspension, and revocation of certificates of qualification; grounds; hearing.

(1) A contractor shall not be qualified to bid when an investigation by the department discloses that such contractor is delinquent on a previously awarded contract, and in such case the contractor’s certificate of qualification shall be suspended or revoked. Any contractor whose certificate of qualification is suspended or revoked for delinquency shall also be disapproved as a subcontractor during the period of suspension or revocation, except when a prime contractor’s bid has used prices of a subcontractor who becomes disqualified after the bid and before the request for authorization to sublet is presented.

(2) For reasons other than delinquency in progress, the department, for good cause, may determine any contractor not having a certificate of qualification nonresponsible for a specified period of time or may deny, suspend, or revoke any certificate of qualification. Good cause includes, but is not limited to, circumstances in which a contractor or the contractor’s official representative:

History. — s. 95, ch. 29965, 1955; ss. 23, 35, ch. 69-106; s. 56, ch. 78-95; s. 150, ch. 84-309; s. 27, ch. 85-180; s. 5, ch. 87-93; s. 8, ch. 87-100; s. 3, ch. 87-104; s. 47, ch. 90-136; s. 15, ch. 94-237; s. 965, ch. 95-148; s. 71, ch. 96-410; s. 19, ch. 99-385; s. 66, ch. 2010-5.

337.162 Professional services.

(1) If the department has knowledge or reason to believe that any person has violated the provisions of state professional licensing laws or rules, it shall submit a complaint about the violations to the Department of Business and Professional Regulation. The complaint submitted to the Department of Business and Professional Regulation and maintained by the department is confidential and exempt from s. 119.07(1).

(2) Any person who is employed by the department and who is licensed by the Department of Business and Professional Regulation and who, through the course of his or her employment, has knowledge or reason to believe that any person has violated the provisions of state professional licensing laws or rules shall submit a complaint about the violations to the Department of Business and Professional Regulation. Failure to submit a complaint about the violations may be grounds for disciplinary action pursuant to

chapter 455 and the state licensing law applicable to that licensee. However, licensees under

part II of

chapter 475 are exempt from the provisions of s. 455.227(1)(i). The complaint submitted to the Department of Business and Professional Regulation and maintained by the department is confidential and exempt from s. 119.07(1).

(3) Any complaints submitted to the Department of Business and Professional Regulation pursuant to subsections (1) and (2) are confidential and exempt from s. 119.07(1) pursuant to

chapter 455 and applicable state law.

(4) In order to inform licensed professionals of the requirements of this section, the department shall include the requirements of this

section in contracts with persons licensed by the Department of Business and Professional Regulation.

History. — s. 42, ch. 90-136; s. 35, ch. 94-218; s. 966, ch. 95-148; s. 1, ch. 95-255; s. 162, ch. 96-406; s. 18, ch. 98-166; s. 20, ch. 99-385; s. 8, ch. 2000-160.

337.164 Legislative intent with respect to integrity of public contracting process.

(1) The procedures of the department for bidding and qualification of bidders on department contracts exist to secure the public benefits of free and open competition and to secure the quality of public works.

(2) The opportunity to bid on department contracts or to supply goods or services to the department is a privilege, not a right.

(3) The privilege of transacting business with the department should be denied to persons or firms involved in contract crime in order to preserve the integrity of the public contracting process.

(4) Persons or firms involved in contract crime should be denied both the privilege of transacting business with the department and the opportunity of obtaining economic benefit through the transaction of business by their affiliates with the department.

History. — s. 1, ch. 83-4; s. 151, ch. 84-309.

337.165 Contract crime; denial or revocation of a certificate of qualification.

(1) The following words and phrases, when used in this section, have the following meanings:

(2)(

a) No contractor or his or her affiliate shall be qualified to bid on work let by the department when it is determined that he or she has, subsequent to January 1, 1978, been convicted of a contract crime within the jurisdiction of any state or federal court.

(3) A contractor or affiliate whose certificate is denied or revoked pursuant to this

section may not act as a prime contractor, a material supplier, a subcontractor, or a consultant on any department contract or project during the period of such denial or revocation.

(4) The denial or revocation of a contractor’s or affiliate’s certificate shall not affect the contractor’s or affiliate’s obligations under any preexisting contract.

(5) A contractor or the contractor’s affiliate who is currently qualified or seeking to be qualified by the department shall notify the department within 30 days after conviction of a contract crime applicable to him or her or to any of his or her affiliates, or to any of the contractor’s or the contractor’s affiliate’s officers, directors, executives, shareholders active in management, employees, or agents.

(6) Whenever the department has reason to believe that a contractor or the contractor’s affiliate who is currently qualified or seeking to be qualified by the department has been convicted of a contract crime, or may be affiliated with a person so convicted, the department may issue a written demand upon the contractor or affiliate, concerning any such conviction or affiliation, to appear and be examined under oath, to answer written interrogatories under oath, and to produce documents or other tangible evidence for inspection and copying.

History. — s. 2, ch. 83-4; s. 152, ch. 84-309; s. 120, ch. 92-279; s. 55, ch. 92-326; s. 496, ch. 95-148; s. 72, ch. 96-410.

337.166 Moneys recovered for violations of antitrust laws.

History. — s. 3, ch. 83-4; s. 15, ch. 94-316.

337.167 Administrative procedures; stays and injunctions.

(1) A certificate to bid on a department contract, or to supply services to the department, is intended to assist the department in determining in advance the performance capabilities of entities seeking to supply goods and services to the department and is not a “license” as defined in s. 120.52. The denial or revocation of a certificate is not subject to the provisions of s. 120.60 or s. 120.68(3). The provisions of ss. 120.569 and 120.57 are applicable to the denial or revocation of such certificate.

(2) For the purpose of promulgating emergency rules, the continuation of the bidding, contracting, or supplying privileges of a convicted contractor or its affiliate represents an immediate danger to the public health, safety, and welfare.

(3) The denial or revocation of a certificate for reasons of contract crime may not be stayed by the department or by the Division of Administrative Hearings during the pendency of any judicial review proceedings concerning a final order of denial or revocation.

(4) A court may grant a stay or injunction in an action relating to the denial or revocation of a certificate only upon the posting of a bond by the petitioner seeking a stay or injunction, and provided the court granting the stay or injunction finds that:

History. — s. 4, ch. 83-4; s. 40, ch. 91-221; s. 73, ch. 96-410.

337.168 Confidentiality of official estimates, identities of potential bidders, and bid analysis and monitoring system.

(1) A document or electronic file revealing the official cost estimate of the department of a project is confidential and exempt from the provisions of s. 119.07(1) until the contract for the project has been executed or until the project is no longer under active consideration.

(2) A document that reveals the identity of a person who has requested or obtained a bid package, plan, or specifications pertaining to any project to be let by the department is confidential and exempt from the provisions of s. 119.07(1) for the period that begins 2 working days before the deadline for obtaining bid packages, plans, or specifications and ends with the letting of the bid.

A document that reveals the identity of a person who has requested or obtained a bid package, plan, or specifications pertaining to any project to be let by the department before the 2 working days before the deadline for obtaining bid packages, plans, or specifications remains a public record subject to s. 119.07(1).

(3) The bid analysis and monitoring system of the department is confidential and exempt from the provisions of s. 119.07(1). This exemption applies to all system documentation, input, computer processes and programs, electronic data files, and output, but does not apply to the actual source documents, unless otherwise exempted under other provisions of law.

History. — s. 5, ch. 83-4; s. 3, ch. 89-21; s. 108, ch. 90-360; s. 163, ch. 96-406; s. 11, ch. 2014-223.

337.169 Effect of ch. 83-4 on existing remedies.

History. — s. 7, ch. 83-4.

337.17 Bid guaranty.

History. — s. 96, ch. 29965, 1955; s. 16, ch. 57-318; ss. 23, 35, ch. 69-106; s. 1, ch. 77-174; s. 157, ch. 84-309; s. 16, ch. 91-162; s. 127, ch. 92-152.

337.175 Retainage.

History. — s. 9, ch. 87-100; s. 48, ch. 90-136; s. 122, ch. 92-152; s. 497, ch. 95-148; s. 13, ch. 2000-266.

337.18 Surety bonds for construction or maintenance contracts; requirement with respect to contract award; bond requirements; defaults; damage assessments.

(1)(

a) A surety bond shall be required of the successful bidder in an amount equal to the awarded contract price. However, the department may choose, in its discretion and applicable only to multiyear maintenance contracts, to allow for incremental annual contract bonds that cumulatively total the full, awarded, multiyear contract price.

(2) The department shall provide in its contracts for the determination of default on the part of any contractor for cause attributable to such contractor. The department shall have no liability for anticipated profits for unfinished work on a contract which has been determined to be in default.

Every contract let by the department for the performance of work shall contain a provision for payment to the department by the contractor of liquidated damages due to failure of the contractor to complete the contract work within the time stipulated in the contract or within such additional time as may have been granted by the department. The contractual provision shall include a reasonable estimate of the damages that would be incurred by the department as a result of such failure. The department shall establish a

schedule of daily liquidated damage charges, based on original contract amounts, for construction contracts entered into by the department, which

schedule shall be incorporated by reference into the contract. The department shall update the

schedule of liquidated damages at least once every 2 years, but no more often than once a year. The

schedule shall, at a minimum, be based on the average construction, engineering, and inspection costs experienced by the department on contracts over the 2 preceding fiscal years. The

schedule shall also include anticipated costs of project-related delays and inconveniences to the department and traveling public. Anticipated costs may include, but are not limited to, road user costs, a portion of the projected revenues that will be lost due to failure to timely open a project to revenue-producing traffic, costs resulting from retaining detours for an extended time, and other similar costs. Any such liquidated damages paid to the department shall be deposited to the credit of the fund from which payment for the work contracted was authorized.

(3) In addition to the provision for payment to the department by the contractor of liquidated damages due to the failure of the contractor to complete the project within the time stipulated in the contract or within such additional time as may have been granted by the department, the department may also recover from the contractor amounts paid by the department for damages suffered by third parties as a result of the contractor’s failure to complete the project within the time stipulated in the contract or within such additional time as may have been granted by the department, unless the failure to timely complete the project was caused by the department’s act or omission.

However, nothing herein shall create a cause of action against the department, or against a contractor by an abutting property owner or business entity, where none has previously existed.

(4)(

a) If the department determines and adequately documents that the timely completion of any project will provide a substantial benefit to the public health, safety, or welfare; will limit the disruptive effect of construction on the community; or is cost beneficial on a revenue-producing project, the contract for such project may provide for an incentive payment payable to the contractor for early completion of the project or critical phases of the work and for additional damages to be assessed against the contractor for the completion of the project or critical phases of the work in excess of the time specified.

All contracts containing such provisions shall be approved by the head of the department or his or her designee. The amount of such incentive payment or such additional damages shall be established in the contract based on an analysis of the cost savings to the traveling public or revenue projections for a revenue-producing project.

Any liquidated damages provided for under subsection (2) and any additional damages provided for under this subsection shall be payable to the department because of the contractor’s failure to complete the contract work within the time stipulated in the contract or within such additional time as may have been granted by the department.

(5) Such bonds shall be subject to the additional obligation that the principal and surety executing the same shall be liable to the state in a civil action instituted by the department or any officer of the state authorized in such cases, for double any amount in money or property the state may lose or be overcharged or otherwise defrauded of, by reason of any wrongful or criminal act, if any, of the contractor, the contractor’s agent, or employees.

History. — s. 97, ch. 29965, 1955; s. 1, ch. 65-40; ss. 23, 35, ch. 69-106; s. 1, ch. 71-40; s. 2, ch. 78-316; s. 1, ch. 82-41; s. 23, ch. 83-218; s. 158, ch. 84-309; s. 29, ch. 85-180; s. 10, ch. 87-100; s. 2, ch. 88-281; s. 49, ch. 90-136; s. 121, ch. 92-152; s. 13, ch. 94-237; s. 967, ch. 95-148; s. 50, ch. 96-323; s. 3, ch. 98-105; s. 21, ch. 99-385; s. 14, ch. 2000-266; s. 44, ch. 2003-286; s. 5, ch. 2007-66; s. 34, ch. 2007-196; s. 8, ch. 2009-85; s. 40, ch. 2016-239.

337.185 State Arbitration Board.

(1) To facilitate the prompt settlement of claims for additional compensation arising out of construction and maintenance contracts between the department and the various contractors with whom it transacts business, the Legislature does hereby establish the State Arbitration Board, referred to in this

section as the “board.” For the purpose of this section, the term “claim” means the aggregate of all outstanding claims by a party arising out of a construction or maintenance contract. Every contractual claim in an amount up to $250,000 per contract or, at the claimant’s option, up to $500,000 per contract or, upon agreement of the parties, up to $1 million per contract that cannot be resolved by negotiation between the department and the contractor shall be arbitrated by the board after acceptance of the project by the department.

As an exception, either party to the dispute may request that the claim be submitted to binding private arbitration. A court of law may not consider the settlement of such a claim until the process established by this

section has been exhausted.

(2) The board shall be composed of three members. One member shall be appointed by the head of the department, and one member shall be elected by those construction or maintenance companies who are under contract with the department. The third member shall be chosen by agreement of the other two members. Whenever the third member has a conflict of interest regarding affiliation with one of the parties, the other two members shall select an alternate member for that hearing. The head of the department may select an alternative or substitute to serve as the department member for any hearing or term.

Each member shall serve a 2-year term. The board shall elect a chair, each term, who shall be the administrator of the board and custodian of its records.

(3) A hearing may be requested by the department or by a contractor who has a dispute with the department which, under the rules of the board, may be the subject of arbitration. The request is to be made to the board within 820 days after the final acceptance of the work for all contracts entered into after June 30, 1993. The board shall conduct the hearing within 45 days of the request. The party requesting the board’s consideration shall give notice of the hearing to each member. If the board finds that a third party is necessary to resolve the dispute, the board may vote to dismiss the claim, which may thereafter be pursued in accordance with the laws of the State of Florida.

(4) All members shall be necessary to conduct a meeting. Upon being called into session, the board shall promptly proceed to a determination of the issue or issues in dispute.

(5) When a valid contract is in effect defining the rights, duties, and liabilities of the parties with respect to any matter in dispute, the board shall have power only to determine the proper

interpretation and application of the contract provisions which are involved. Any investigation made by less than the whole membership of the board shall be by authority of a written directive by the chair, and such investigation shall be summarized in writing and considered by the board as part of the record of its proceedings.

(6) The board shall hand down its order within 60 days after it is called into session. If all three members of the board do not agree, the order of the majority will constitute the order of the board.

(7) The members of the board may receive compensation for the performance of their duties hereunder, from administrative fees received by the board, except that no employee of the department may receive compensation from the board. The compensation amount shall be determined by the board, but may not exceed $125 per hour, up to a maximum of $1,000 per day for each member authorized to receive compensation. This

section does not prevent the member elected by construction or maintenance companies from being an employee of an association affiliated with the industry, even if the sole responsibility of that member is service on the board. Travel expenses for the industry member may be paid by an industry association, if necessary. The board may allocate funds annually for clerical and other administrative services.

(8) The party requesting arbitration shall pay a fee to the board in accordance with a

schedule established by it, not to exceed $500 per claim which is $25,000 or less, not to exceed $1,000 per claim which is in excess of $25,000 but not exceeding $50,000, not to exceed $1,500 per claim which is in excess of $50,000 but not exceeding $100,000, not to exceed $2,000 per claim which is in excess of $100,000 but not exceeding $200,000, not to exceed $3,000 per claim which is in excess of $200,000 but not exceeding $300,000, not to exceed $4,000 per claim which is in excess of $300,000 but not exceeding $400,000, and not to exceed $5,000 per claim which is in excess of $400,000, to cover the cost of administration and compensation of the board.

(9) The board in its order may apportion the fee set out in subsection (8), and the cost of recording and preparing a transcript of the hearing, among the parties in accordance with the board’s finding of liability.

History. — s. 1, ch. 69-351; ss. 23, 35, ch. 69-106; s. 1, ch. 70-186; s. 56, ch. 78-95; s. 3, ch. 80-346; s. 170, ch. 84-309; s. 19, ch. 85-180; s. 11, ch. 87-100; s. 14, ch. 90-502; s. 123, ch. 92-152; s. 49, ch. 93-164; s. 498, ch. 95-148; s. 2, ch. 99-345; s. 22, ch. 99-385; s. 13, ch. 2002-20; s. 9, ch. 2009-85.

337.19 Suits by and against department; limitation of actions; forum.

(1) Suits at law and in equity may be brought and maintained by and against the department on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the department pursuant to the written agreement. In any such suit, the department and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.

Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies. Notwithstanding anything to the contrary contained in this section, no employee or agent of the department may be held personally liable to an extent greater than that pursuant to s. 768.28 provided that no suit sounding in tort shall be maintained against the department.

(2) Suits by and against the department under this

section shall be commenced within 820 days of the final acceptance of the work. This

section shall apply to all contracts entered into after June 30, 1993.

(3) Any action or suit brought against the department shall be brought in the county or counties where the cause of action accrued, or in the county of the department’s district headquarters responsible for the work, or in Leon County.

History. — s. 98, ch. 29965, 1955; ss. 1, 2, ch. 69-391; s. 1, ch. 84-206; s. 159, ch. 84-309; s. 28, ch. 93-164; s. 158, ch. 96-320; s. 66, ch. 96-323; s. 3, ch. 99-345.

337.195 Limits on liability.

(1) In a civil action for the death of or injury to a person, or for damage to property, against the Department of Transportation or its agents, consultants, or contractors for work performed on a highway, road, street, bridge, or other transportation facility when the death, injury, or damage resulted from a motor vehicle crash within a construction zone in which the driver of one of the vehicles was under the influence of alcoholic beverages as set forth in s. 316.193, under the influence of any chemical substance as set forth in s. 877.111, or illegally under the influence of any substance controlled under

chapter 893 to the extent that her or his normal faculties were impaired or that she or he operated a vehicle recklessly as defined in s. 316.192, it is presumed that the driver’s operation of the vehicle was the sole proximate cause of her or his own death, injury, or damage. This presumption can be overcome if the gross negligence or intentional misconduct of the Department of Transportation, or of its agents, consultants, or contractors, was a proximate cause of the driver’s death, injury, or damage.

(2) A contractor who constructs, maintains, or repairs a highway, road, street, bridge, or other transportation facility for the Department of Transportation is not liable to a claimant for personal injury, property damage, or death arising from the performance of the construction, maintenance, or repair if, at the time of the personal injury, property damage, or death, the contractor was in compliance with contract documents material to the condition that was the proximate cause of the personal injury, property damage, or death.

(3) In all cases involving personal injury, property damage, or death, a person or entity who contracts to prepare or provide engineering plans for the construction or repair of a highway, road, street, bridge, or other transportation facility for the Department of Transportation shall be presumed to have prepared such engineering plans using the degree of care and skill ordinarily exercised by other engineers in the field under similar conditions and in similar localities and with due regard for acceptable engineering standards and principles if the engineering plans conformed to the Department of Transportation’s design standards material to the condition or defect that was the proximate cause of the personal injury, property damage, or death.

This presumption can be overcome only upon a showing of the person’s or entity’s gross negligence in the preparation of the engineering plans and shall not be interpreted or construed to alter or affect any claim of the Department of Transportation against such person or entity. The limitation on liability contained in this subsection shall not apply to any hidden or undiscoverable condition created by the engineer.

This subsection does not affect any claim of any entity against such engineer or engineering firm, which claim is associated with such entity’s facilities on or in Department of Transportation roads or other transportation facilities.

(4) In any civil action for death, injury, or damages against the Department of Transportation or its agents, consultants, engineers, or contractors for work performed on a highway, road, street, bridge, or other transportation facility, if the department, its agents, consultants, engineers, or contractors are immune from liability pursuant to this

section or are not parties to the litigation, they may not be named on the jury verdict form or be found to be at fault or responsible for the injury, death, or damage that gave rise to the damages.

History. — s. 4, ch. 2005-281; s. 34, ch. 2006-1.

337.221 Claims settlement process.

(1) To implement this policy, the department shall establish a process to resolve claims for additional monetary compensation, time, or other adjustments to the contract.

(2) The department shall document its final decision on all claims, including reasonable support for its decision.

(3) On all claims resolutions resulting in increases of the contract by more than $500,000, a responsible department director, after reasonable inquiry, shall:

(4) The recovery for a claim not resolved through the department’s claim settlement process shall only be pursued through state arbitration board or circuit court proceedings, as provided by law.

History. — s. 13, ch. 87-100; s. 41, ch. 90-136; s. 124, ch. 92-152; s. 71, ch. 94-237; s. 38, ch. 95-257.

337.242 Acquisition of rail corridors.

(1) The Department of Transportation shall contact each railroad company operating in this state and express the department’s interest in acquiring rail corridors and shall request notification as specified in 49 C.F.R. s. 1152.22(a)(6).

(2) The department shall maintain a map of the rail system in this state.

(3) The department shall control or prohibit ingress to and egress from or through all rail transportation corridors under the department’s jurisdiction.

(4) The department shall, as part of the rail planning responsibilities under s. 341.302(3), identify and evaluate the potential for transportation uses for both operating rail corridors and corridors in which service has been discontinued. If the corridors evaluated have a transportation use potential, the department may purchase, manage, and maintain the corridor subject to appropriation by the Legislature. The movement of people and goods to and from Florida seaports and airports shall be considered a transportation use.

All rail transportation corridors in which service has been discontinued or in which service is scheduled for discontinuance shall be reported by the department to the Department of Environmental Protection as specified in s. 260.0161.

History. — s. 24, ch. 88-168; s. 77, ch. 90-136; s. 85, ch. 91-221; s. 165, ch. 94-356.

337.243 Notification of land use changes in designated transportation corridors.

(1) If a local government designates a transportation corridor that includes a facility on the State Highway System in its local government comprehensive plan and has adopted a transportation corridor management ordinance, the local governmental entity shall give reasonable notice by certified mail to the department prior to approving any substantial zoning change or subdivision plat changes or granting of a building permit or development permit, as defined in s. 380.031(4), for land use or the erection, alteration, or moving of a building for property within the designated transportation corridor which would substantially impair the viability of the corridor for future transportation uses.

This notification requirement shall not apply to any routine maintenance or emergency repairs to existing structures. Upon notification, the department shall determine whether to purchase the property affected or to initiate eminent domain proceedings. The department’s determination shall not affect the granting or denial of the permit by the local government. The local government shall not be liable to the department for failure to make notification to the department pursuant to this section.

(2) Any right-of-way located within a designated transportation corridor may be acquired at any time by the department when the acquisition is determined by the department to be in the public interest to protect the designated transportation corridor from development or when the transportation corridor designation creates an undue hardship on the affected property owner.

History. — s. 17, ch. 90-227; s. 40, ch. 95-143; s. 36, ch. 95-257.

337.25 Acquisition, lease, and disposal of real and personal property.

(1)(

a) The department may purchase, lease, exchange, or otherwise acquire any land, property interests, buildings, or other improvements, including personal property within such buildings or on such lands, necessary to secure or use transportation rights-of-way for existing, proposed, or anticipated transportation facilities on the State Highway System, on the State Park Road System, in a rail corridor, or in a transportation corridor designated by the department. Such property shall be held in the name of the state.

(2) A complete inventory shall be made of all real or personal property immediately upon possession or acquisition. Such inventory must include a statement of the location or site of each piece of realty, structure, or severable item. Copies of each inventory shall be filed in the district office in which the property is located. Such inventory shall be carried forward to show the final disposition of each item of property, both real and personal.

(3) The inventory of real property that was acquired by the state after December 31, 1988, that has been owned by the state for 10 or more years, and that is not within a transportation corridor or within the right-of-way of a transportation facility shall be evaluated to determine the necessity for retaining the property. If the property is not needed for the construction, operation, and maintenance of a transportation facility or is not located within a transportation corridor, the department may dispose of the property pursuant to subsection (4).

(4) The department may convey, in the name of the state, any land, building, or other property, real or personal, which was acquired under subsection (1) and which the department has determined is not needed for the construction, operation, and maintenance of a transportation facility. When such a determination has been made, property may be disposed of through negotiations, sealed competitive bids, auctions, or any other means the department deems to be in its best interest, with due advertisement for property valued by the department at greater than $10,000.

A sale may not occur at a price less than the department’s current estimate of value, except as provided in paragraphs (a)-(d). The department may afford a right of first refusal to the local government or other political subdivision in the jurisdiction in which the parcel is situated, except in a conveyance transacted under paragraph (a), paragraph (c), or paragraph (e).

(5) The department may convey a leasehold interest for commercial or other purposes, in the name of the state, to any land, building, or other property, real or personal, which was acquired under subsection (1). However, a lease may not be entered into at a price less than the department’s current estimate of value. The department’s estimate of value shall be prepared in accordance with department procedures, guidelines, and rules for valuation of real property, the cost of which shall be paid by the party seeking the lease of the property.

(6) This

chapter does not prevent the joint use of right-of-way for alternative modes of transportation if the joint use does not impair the integrity and safety of the transportation facility.

(7) The department shall prepare the estimate of value provided under subsection (4) in accordance with department procedures, guidelines, and rules for valuation of real property. If the value of the property is greater than $50,000, as determined by the department estimate, the sale must be at a negotiated price of at least the estimate of value as determined by an appraisal prepared in accordance with department procedures, guidelines, and rules for valuation of real property, the cost of which shall be paid by the party seeking the purchase of the property. If the estimated value is $50,000 or less, the department may use a department staff appraiser or obtain an independent appraisal.

(8) As used in this section, the term “due advertisement” means an advertisement in a newspaper of general circulation in the area of the improvements of at least 14 calendar days before the date of the receipt of bids or the date on which a public auction is to be held.

(9) The department, with the approval of the Chief Financial Officer, may disburse state funds for real estate closings in a manner consistent with good business practices and in a manner minimizing costs and risks to the state.

(10) The department may purchase title insurance if it determines that such insurance is necessary to protect the public’s investment in property being acquired for transportation purposes. The department shall adopt procedures to be followed in making the determination to purchase title insurance for a particular parcel or group of parcels which, at a minimum, shall specify criteria that the parcels must meet.

(11) This

section does not modify the requirements of s. 73.013.

History. — s. 104, ch. 29965, 1955; s. 1, ch. 61-430; s. 1, ch. 65-48; s. 1, ch. 65-33; ss. 23, 35, ch. 69-106; s. 2, ch. 77-44; s. 1, ch. 77-244; s. 1, ch. 78-282; s. 141, ch. 79-400; s. 2, ch. 82-36; s. 163, ch. 84-309; s. 16, ch. 88-168; s. 5, ch. 89-232; s. 78, ch. 90-136; s. 112, ch. 92-152; ss. 39, 40, ch. 93-164; s. 24, ch. 94-237; s. 968, ch. 95-148; s. 51, ch. 96-323; s. 15, ch. 97-280; s. 23, ch. 99-385; s. 54, ch. 2000-152; s. 373, ch. 2003-261; s. 12, ch. 2014-223.

337.2505 Donations for landscape projects.

(1) The department shall adopt rules for review and permitting of landscape donations. The rules must include, but are not limited to, an examination of the donation’s aesthetic value, feasibility of installation and maintenance, compliance with state and federal regulations, and requirements for a maintenance plan.

(2) The department may place signs at the site of donated landscaping where the donation encompasses materials and their installation and maintenance. Department rules shall provide for the type and size of such signs.

History. — s. 6, ch. 92-152.

337.251 Lease of property for joint public-private development and areas above or below department property.

(1) The department may lease to public agencies or private entities, for a term not to exceed 99 years, the use of department property, including rights-of-way, for joint public-private transportation purposes to further economic development in this state and generate revenue for transportation. The department may also lease the use of areas above or below state highways or other transportation facilities for commercial purposes. Leases under this

section are subject to any reservations, restrictions, or conditions necessary to ensure adequate protection for the safe and efficient operation and maintenance of all transportation and utility facilities, the adequacy of traffic flow, and the full use of existing and future state transportation facilities. Such joint public-private use or commercial use of property may not interfere with the primary state transportation needs or present or future utility needs for that property nor be contrary to the best interests of the public.

The department may not lease any such property if the proposed use conflicts with zoning or land development codes of any affected local government. The department shall, prior to entering into such lease, determine that the property subject to the lease has a permanent transportation use related to the responsibilities of the department, has the potential for such future transportation uses, or constitutes airspace or subsurface rights attached to property having such uses, and is therefore not available for sale as surplus property.

(2) The department may request proposals for the lease of such property or, if the department receives a proposal for a lease of a particular department property which it desires to consider, the department shall publish a notice in a newspaper of general circulation at least once a week for 2 weeks stating that it has received the proposal and will accept other proposals for lease of such property for 120 days after the date of publication. A copy of the notice must be mailed to each local government in the affected area.

The department shall establish by rule an application fee for the submission of proposals pursuant to this section. The fee must be sufficient to pay the anticipated costs of evaluating the proposals. The department may engage the services of private consultants to assist in the evaluations. Before approval, the department shall determine that the proposed lease:

(3) A proposal must be selected by the department based on competitive bidding, except that the department may consider other relevant factors specified in the request for proposals. The department may consider such factors as the value of property exchanges, the cost of construction, and other recurring costs for the benefit of the department by the lessee in lieu of direct revenue to the department if such other factors are of equal value including innovative proposals to involve minority businesses.

The department may name a board of advisers which may be composed of accountants, real estate appraisers, design engineers, or other experts experienced in the type of development proposed. The board of advisers shall review the feasibility of the proposals, recommend acceptance or rejection of each proposal, and rank each feasible proposal in the order of technical feasibility and benefit provided to the department.

The board of advisers shall be reasonably compensated for the services provided and all department costs for evaluating the proposals shall be reimbursed from a proposal application fee to be set by the department and paid by the applicants. The board of advisers shall not be subject to selection under the provisions of

chapter 287.

(4) The requirements of this

section apply to complex lease transactions involving extensive capital improvements by the lessee or provisions for exchange of goods or services by the lessee in lieu of cash and do not affect the requirements for other types of leases set forth in s. 337.25(5).

(5) The department may utilize leaseback or other joint public-private uses of property in lieu of full or partial compensation to a property owner for property acquired by eminent domain or to a landowner who donates property to the department, without competitive proposals and selection, if such use is acceptable to the property owner in lieu of other compensation and such use does not interfere with the public transportation purpose for which the property was acquired.

(6) This

section does not require right-of-way lease arrangements for facilities of utilities which provide water, sewer, gas, telecommunication, or electric services for which utilities may obtain permits from the department.

(7) The department shall be indemnified by a lessee for liability which arises from construction on or the use of department property by the lessee. Mortgages or other liens or encumbrances may not attach to department property as a result of the financing, construction, or use of the property by the lessee. Improvements constructed on the property by the lessee shall revert to the department upon expiration of the lease.

(8) Revenue derived from a joint public-private use shall be deposited in the State Transportation Trust Fund.

(9) A fixed-guideway transportation system authorized by the department to be wholly or partially within the department’s right-of-way pursuant to a lease granted under this

section may operate at any safe speed.

(10) The department may adopt rules to administer the provisions of this section.

History. — s. 7, ch. 90-227; s. 27, ch. 95-257; s. 38, ch. 96-323; s. 24, ch. 99-385; s. 53, ch. 2002-20; s. 9, ch. 2005-281; s. 13, ch. 2014-223.

337.26 Execution and effect of instruments of sale, lease, or conveyance executed by department.

(1) An instrument of sale, lease, or conveyance executed in the name of the department, and signed by the department’s chief administrative officer of the district in which the property is located, or, if the property is located on the turnpike system, by the chief administrative officer of the Office of Florida Turnpike, when such authority has been delegated by the head of the department, with the corporate seal of the department affixed thereto, is effective to pass the title or interest of the state in the property conveyed.

(2) No instrument of conveyance by the department shall warrant the title to any property sold, leased, or conveyed.

History. — s. 105, ch. 29965, 1955; s. 17, ch. 57-318; ss. 23, 35, ch. 69-106; s. 164, ch. 84-309; s. 17, ch. 88-168; s. 131, ch. 92-152.

337.27 Exercise of power of eminent domain by department; procedure; title; cost.

(1) The power of eminent domain is vested in the department to condemn all necessary lands and property, including rights of access, air, view, and light, whether public or private, for the purpose of securing and utilizing transportation rights-of-way, including, but not limited to, any lands reasonably necessary for securing applicable permits, areas necessary for management of access, borrow pits, drainage ditches, water retention areas, rest areas, replacement access for landowners whose access is impaired due to the construction of a facility, and replacement rights-of-way for relocated rail and utility facilities; for existing, proposed, or anticipated transportation facilities on the State Highway System or State Park Road System; or in a transportation corridor designated by the department; or for the purposes of screening, relocation, removal, or disposal of junkyards and scrap metal processing facilities.

The department shall also have the power to condemn any material and property necessary for such purposes. The secretary of the Department of Transportation may delegate the authority to execute eminent domain resolutions to the department’s chief administrative officer of the district in which the property is located, or to the chief administrative officer of the Office of Florida Turnpike if the property is to be acquired for a turnpike system project.

(2) Title to any land acquired in the name of the department vests in the state.

(3) The department is authorized to pay the judgment or compensation, including deposits required, awarded in any such proceedings out of any funds available to the department for the maintenance or construction of any transportation facility on the State Highway System, on the State Park Road System, or in a transportation corridor designated by the department.

(4) When the department acquires property for a transportation facility or in a transportation corridor through the exercise of eminent domain authority, or by purchase or donation, it is not subject to any liability imposed by

chapter 376 or

chapter 403 for preexisting soil or groundwater contamination due solely to its ownership. This

section does not affect the rights or liabilities of any past or future owners of the acquired property nor does it affect the liability of any governmental entity for the results of its actions which create or exacerbate a pollution source. The department and the Department of Environmental Protection may enter into interagency agreements for the performance, funding, and reimbursement of the investigative and remedial acts necessary for property acquired by the department.

History. — s. 106, ch. 29965, 1955; s. 18, ch. 57-318; ss. 23, 35, ch. 69-106; s. 1, ch. 80-312; s. 165, ch. 84-309; s. 2, ch. 84-319; s. 3, ch. 87-164; s. 1, ch. 87-242; s. 18, ch. 88-168; s. 6, ch. 89-232; s. 132, ch. 92-152; s. 166, ch. 94-356; s. 64, ch. 99-385.

337.273 Transportation corridors.

(1) It is hereby found and declared that:

(2) It is further found and declared that:

(3) It is the intent of the Legislature that governmental police powers be utilized to the greatest extent possible by each governmental entity, and by two or more entities through corridor management agreements, to manage land uses necessary for transportation corridors; that property acquisition by donation, purchase, or eminent domain occur as far in advance of construction need as possible; and that property, needed to manage transportation corridors, be acquired and retained for future use to avoid the public liabilities for health, safety, and welfare heretofore outlined.

(4) It is recognized by the Legislature that advance acquisition of property to manage land uses in transportation corridors for future use will, of necessity, require acquisition without design plans and profiles, project development, and construction information; and it is intended by the Legislature that such advance acquisition, including acquisition utilizing the power of eminent domain, must nevertheless occur to avoid the social, economic, health, safety, and welfare liabilities heretofore declared.

(5) When lands and property in a transportation corridor are acquired pursuant to the eminent domain powers granted by s. 337.27(1), public purpose and necessity may be demonstrated through the use of typical design, construction plans or profiles, and one or more of the following: anticipated trends in such areas as demographic and other growth patterns, land use and development patterns, traffic projections, expected utility needs, or future anticipated mass-transit requirements. Immediate availability of construction funds and applicable permits shall not be required to support such showing of public purpose and necessity.

(6) A local government may designate a transportation corridor by including the corridor in the entity’s comprehensive plan traffic circulation or transportation element. A transportation management ordinance may be adopted for designated transportation corridors.

The transportation corridor management ordinance should contain the criteria to manage the land uses within and adjacent to the transportation corridor, the types of restrictions on nonresidential and residential construction within the designated corridor, identification of permitted land uses within the designated corridor, a public notification process, a variance and appeal process, and an intergovernmental coordination process that provides for the coordinated management of transportation corridors that cross jurisdictional boundaries with the plans of adjacent jurisdictions.

Local governments may adopt such additional ordinances and regulations as necessary to manage designated transportation corridors.

History. — s. 20, ch. 88-168; s. 110, ch. 92-152; s. 41, ch. 95-257.

337.2735 Recording of municipal maps of reservation for transportation corridors and transportation facilities; establishment of building setback lines; restrictions on issuance of development permits; hearings.

(1) The governing body of a municipality may approve maps of reservation for any transportation facility or transportation corridor within the municipality’s jurisdiction. Any such maps shall delineate the limits of the transportation corridor or of the proposed rights-of-way for the eventual widening of an existing or proposed transportation facility.

Before recording such map, the municipality shall advertise and hold a public hearing and shall notify all property owners of record within the limits of the transportation corridor or rights-of-way of the transportation facility shown on the proposed map, as recorded in the property appraiser’s office, by mail at least 20 days prior to the date set for the hearing. After the public hearing, the municipality shall send the map to the clerk of the court of the county, who shall forthwith record the map in accordance with

chapter 177 in the public land records of the county. Minor amendments to such maps are not subject to the notice and public hearing provisions of this section, except that property owners directly affected by changes in a minor amendment must be notified by mail. Minor amendments are defined as those changes which affect less than 5 percent of the total area within the map.

(2) Upon recording, such map shall establish a building setback line from the centerline of any transportation facility and an area of proposed right-of-way and shall cite the ordinance which defines building restrictions for such maps.

(3) Prior to filing any map pursuant to this section, a municipality shall have adopted an ordinance defining the types of restrictions on nonresidential and residential construction within the proposed rights-of-way and building setback lines. In no case, however, shall said ordinance restrict the renovation of an existing residential structure when the renovation does not exceed 20 percent of the appraised value of the structure.

(4) Upon petition by any property owner of record within the limits of the map alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a substantial portion of the beneficial use of such property, the municipality shall hold a hearing. When such a hearing results in a finding in favor of the petitioning property owner, the municipality shall have 180 days from the date of such finding to acquire such property, to amend the map, to withdraw the map, to issue the permit, or to file appropriate proceedings. Either party may seek appellate review.

(5) This

section shall be regarded as supplemental and additional to the powers conferred upon municipalities by s. 2, Art. VIII of the State Constitution and by law and shall not be regarded as in derogation of any powers now existing.

History. — s. 6, ch. 88-168.

337.274 Authority of department agent or employee to enter lands, waters, and premises of another in the performance of duties.

History. — s. 2, ch. 84-319; s. 7, ch. 89-232; s. 113, ch. 92-152.

337.276 Issuance of bonds for right-of-way land acquisition and state bridge construction.

(1) The Division of Bond Finance of the State Board of Administration is authorized, in accordance with s. 215.605, to issue state bonds on behalf of the department to finance right-of-way land acquisition and to finance state bridge construction. The total amount of bonds to be issued under this

section shall be limited by the debt service requirements of the bonds issued, and such requirements shall not exceed 90 percent of the pledged revenue authorized to be transferred pursuant to s. 206.46(2).

(2) If right-of-way purchased from the proceeds of such bonds is used for a revenue-producing facility, the owner of that facility may reimburse the Right-of-Way Acquisition and Bridge Construction Trust Fund in an amount equal to the cost of acquiring that right-of-way.

History. — s. 34, ch. 90-136; s. 114, ch. 92-152; s. 282, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 93-164; s. 1, ch. 94-237; s. 42, ch. 95-257; s. 138, ch. 96-320; s. 26, ch. 96-323.

337.29 Vesting of title to roads; liability for torts.

(1) Title to all roads designated in the State Highway System or State Park Road System shall be in the state, unless otherwise provided herein.

(2) Upon the vesting of title to any lands for highway purposes in the state, local governmental entities shall forthwith issue a deed or right-of-way map to the state covering such lands, which shall be duly recorded. Recordation of deeds or right-of-way maps shall also be effected upon acquisition of any lands by the department.

(3) Title to all roads transferred in accordance with s. 335.0415 shall be in the governmental entity to which such roads have been transferred, upon the recording of a deed or a right-of-way map by the appropriate governmental entity in the public land records of the county or counties in which such rights-of-way are located. To the extent that sovereign immunity has been waived, liability for torts shall be in the governmental entity having operation and maintenance responsibility as provided in s. 335.0415.

Except as otherwise provided by law, a municipality shall have the same governmental, corporate, and proprietary powers with relation to any public road or right-of-way within the municipality which has been transferred to another governmental entity pursuant to s. 335.0415 that the municipality has with relation to other public roads and rights-of-way within the municipality.

History. — s. 108, ch. 29965, 1955; ss. 23, 35, ch. 69-106; s. 16, ch. 77-165; s. 5, ch. 77-416; s. 2, ch. 78-285; s. 169, ch. 84-309; s. 85, ch. 99-385; s. 34, ch. 2012-174.

337.401 Use of right-of-way for utilities subject to regulation; permit; fees.

(1)(

a) The department and local governmental entities, referred to in this

section and in ss. 337.402, 337.403, and 337.404 as the “authority,” that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to the placing and maintaining across, on, or within the right-of-way limits of any road or publicly owned rail corridors under their respective jurisdictions any electric transmission, voice, telegraph, data, or other communications services lines or wireless facilities; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures referred to in this

section and in ss. 337.402, 337.403, and 337.404 as the “utility.” The department may enter into a permit-delegation agreement with a governmental entity if issuance of a permit is based on requirements that the department finds will ensure the safety and integrity of facilities of the Department of Transportation; however, the permit-delegation agreement does not apply to facilities of electric utilities as defined in s. 366.02(2).

(2) The authority may grant to any person who is a resident of this state, or to any corporation which is organized under the laws of this state or licensed to do business within this state, the use of a right-of-way for the utility in accordance with such rules or regulations as the authority may adopt. No utility shall be installed, located, or relocated unless authorized by a written permit issued by the authority. However, for public roads or publicly owned rail corridors under the jurisdiction of the department, a utility relocation

schedule and relocation agreement may be executed in lieu of a written permit. The permit shall require the permitholder to be responsible for any damage resulting from the issuance of such permit. The authority may initiate injunctive proceedings as provided in s. 120.69 to enforce provisions of this subsection or any rule or order issued or entered into pursuant thereto.

(3)(

a) Because of the unique circumstances applicable to providers of communications services, including, but not limited to, the circumstances described in paragraph (

e) and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way.

Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way.

In addition to other reasonable rules or regulations that a municipality or county may adopt relating to the placement or maintenance of communications facilities in its roads or rights-of-way under this subsection, a municipality or county may require a provider of communications services that places or seeks to place facilities in its roads or rights-of-way to register with the municipality or county and to provide the name of the registrant; the name, address, and telephone number of a contact person for the registrant; the number of the registrant’s current certificate of authorization issued by the Florida Public Service Commission, the Federal Communications Commission, or the Department of State; and proof of insurance or self-insuring status adequate to defend and cover claims.

(4) As used in this section, “communications services” and “dealer” have the same meanings ascribed in

chapter 202, and “cable service” has the same meaning ascribed in 47 U.S.C. s. 522, as amended.

(5) This section, except subsections (1) and (2) and paragraph (3)(g), does not apply to the provision of pay telephone service on public, municipal, or county roads or rights-of-way.

(6)(

a) As used in this subsection, the following

definitions apply:

(7)(

a) This subsection may be cited as the “Advanced Wireless Infrastructure Deployment Act.”

History. — s. 127, ch. 29965, 1955; s. 1, ch. 63-279; s. 1, ch. 65-52; ss. 23, 35, ch. 69-106; s. 141, ch. 84-309; s. 8, ch. 85-174; s. 8, ch. 86-155; ss. 2, 21, ch. 88-168; s. 8, ch. 89-232; s. 41, ch. 91-221; s. 26, ch. 94-237; s. 1, ch. 98-147; s. 2, ch. 99-354; ss. 50, 51, 58, 59, ch. 2000-260; ss. 34, 35, 38, ch. 2001-140; s. 81, ch. 2002-20; s. 6, ch. 2002-48; s. 57, ch. 2003-286; s. 13, ch. 2004-366; s. 6, ch. 2005-171; s. 10, ch. 2006-138; s. 5, ch. 2007-29; s. 29, ch. 2008-227; s. 22, ch. 2010-225; s. 2, ch. 2016-44; s. 5, ch. 2017-42; s. 1, ch. 2017-136.

337.402 Damage to public road caused by utility.

History. — s. 128, ch. 29965, 1955; s. 142, ch. 84-309; s. 27, ch. 94-237; s. 969, ch. 95-148.

337.403 Interference caused by utility; expenses.

(1) If a utility that is placed upon, under, over, or within the right-of-way limits of any public road or publicly owned rail corridor is found by the authority to be unreasonably interfering in any way with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion, of such public road or publicly owned rail corridor, the utility owner shall, upon 30 days’ written notice to the utility or its agent by the authority, initiate the work necessary to alleviate the interference at its own expense except as provided in paragraphs (a)-(j).

The work must be completed within such reasonable time as stated in the notice or such time as agreed to by the authority and the utility owner.

(2) If such utility work is incidental to work to be done on such road or publicly owned rail corridor, the notice shall be given at the same time the contract for the work is advertised for bids, or no less than 30 days before the commencement of such work by the authority, whichever occurs later.

(3) Whenever a notice from the authority requires such utility work and the owner thereof fails to perform the work at his or her own expense within the time stated in the notice or such other time as agreed to by the authority and the utility owner, the authority shall proceed to cause the utility work to be performed. The expense thereby incurred shall be paid out of any money available therefor, and such expense shall, except as provided in subsection (1), be charged against the owner and levied and collected and paid into the fund from which the expense of such relocation was paid.

History. — s. 129, ch. 29965, 1955; s. 1, ch. 57-135; s. 1, ch. 57-1978; ss. 23, 35, ch. 69-106; s. 143, ch. 84-309; s. 12, ch. 87-100; s. 28, ch. 94-237; s. 970, ch. 95-148; s. 25, ch. 99-385; s. 10, ch. 2009-85; s. 35, ch. 2012-174; s. 5, ch. 2014-169; s. 24, ch. 2015-2; s. 3, ch. 2016-44.

337.404 Removal or relocation of utility facilities; notice and order; court review.

(1) Whenever it becomes necessary for the authority to perform utility work as provided in s. 337.403, the owner of the utility or the owner’s chief agent shall be given notice that the authority will perform such work and, after the work is completed, shall be given an order requiring the payment of the cost thereof and a reasonable time, which may not be less than 20 or more than 30 days, in which to appear before the authority to contest the reasonableness of the order. Should the owner or the owner’s representative not appear, the determination of the cost to the owner shall be final. Authorities considered agencies for the purposes of

chapter 120 shall adjudicate removal or relocation of utilities pursuant to

chapter 120.

(2) A final order of the authority shall constitute a lien on any property of the owner and may be enforced by filing an authenticated copy of the order in the office of the clerk of the circuit court of the county wherein the owner’s property is located.

(3) The owner may obtain judicial review of the final order of the authority within the time and in the manner provided by the Florida Rules of Appellate Procedure by filing in the circuit court of the county in which the utility was relocated a petition for a writ of certiorari in the manner prescribed by said rules or in the manner provided by

chapter 120 when the respondent is an agency for purposes of

chapter 120.

History. — s. 130, ch. 29965, 1955; s. 16, ch. 63-512; s. 1, ch. 69-267; ss. 23, 35, ch. 69-106; s. 56, ch. 78-95; s. 144, ch. 84-309; s. 500, ch. 95-148; s. 36, ch. 2012-174.

337.405 Trees or other vegetation within rights-of-way of State Highway System or publicly owned rail corridors; removal or damage; penalty.

(1) The removal, cutting, marring, defacing, or destruction of any trees or other vegetation, either by direct personal action or by causing any other person to take such action, within the rights-of-way of roads located on the State Highway System or within publicly owned rail corridors is prohibited unless prior written permission to remove or cut such trees or other vegetation has been granted by the department, except where normal tree trimming is required to ensure the safe operation of utility facilities and such tree trimming is performed in accordance with the provisions of its utility accommodations guide, and any subsequent amendments thereto.

The department shall adopt rules for the implementation of this

section to achieve protection of vegetation while at the same time assuring safe utility operations.

(2) Any person who violates the provisions of this

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

History. — s. 156, ch. 29965, 1955; ss. 23, 35, ch. 69-106; s. 238, ch. 71-136; s. 46, ch. 84-309; s. 29, ch. 94-237.

337.406 Unlawful use of state transportation facility right-of-way; penalties.

(1) Except when leased as provided in s. 337.25(5) or otherwise authorized by the rules of the department, it is unlawful to make any use of the right-of-way of any state transportation facility, including appendages thereto, outside of an incorporated municipality in any manner that interferes with the safe and efficient movement of people and property from place to place on the transportation facility.

Failure to prohibit the use of right-of-way in this manner will endanger the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement within travel lanes, sudden stoppage or slowdown of traffic, rapid lane changing and other dangerous traffic movement, increased vehicular accidents, and motorist injuries and fatalities.

Such prohibited uses include, but are not limited to, the free distribution or sale, or display or solicitation for free distribution or sale, of any merchandise, goods, property or services; the solicitation for charitable purposes; the servicing or repairing of any vehicle, except the rendering of emergency service; the storage of vehicles being serviced or repaired on abutting property or elsewhere; and the display of advertising of any sort, except that any portion of a state transportation facility may be used for an art festival, parade, fair, or other special event if permitted by the appropriate local governmental entity.

Local government entities may issue permits of limited duration for the temporary use of the right-of-way of a state transportation facility for any of these prohibited uses if it is determined that the use will not interfere with the safe and efficient movement of traffic and the use will cause no danger to the public. The permitting authority granted in this subsection shall be exercised by the municipality within incorporated municipalities and by the county outside an incorporated municipality.

Before a road on the State Highway System may be temporarily closed for a special event, the local governmental entity which permits the special event to take place must determine that the temporary closure of the road is necessary and must obtain the prior written approval for the temporary road closure from the department. Nothing in this subsection shall be construed to authorize such activities on any limited access highway.

Local governmental entities may, within their respective jurisdictions, initiate enforcement action by the appropriate code enforcement authority or law enforcement authority for a violation of this section.

(2) Persons holding valid peddlers’ licenses issued by appropriate governmental entities may make sales from vehicles standing on the right-of-way to occupants of abutting property only.

(3) The Department of Highway Safety and Motor Vehicles and other law enforcement agencies are authorized and directed to enforce this statute.

(4) Camping is prohibited on any portion of the right-of-way of the State Highway System that is within 100 feet of a bridge, causeway, overpass, or ramp.

(5) The violation of any provision of this

section or any rule promulgated by the department pursuant to this

section constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and each day a violation continues to exist constitutes a separate offense.

History. — s. 1, ch. 73-188; s. 1, ch. 79-30; s. 206, ch. 81-259; s. 168, ch. 84-309; s. 3, ch. 86-37; s. 3, ch. 87-266; s. 25, ch. 88-168; s. 9, ch. 90-227; s. 43, ch. 95-257; s. 10, ch. 2005-281; s. 23, ch. 2010-225.

337.4061

Definitions; unlawful use of state-maintained road right-of-way by nonfranchised cable and video services.

(1) As used in this section, the term:

(2) It is unlawful to use the right-of-way of any state-maintained road, including appendages thereto, and also including, but not limited to, rest areas, wayside parks, boat-launching ramps, weigh stations, and scenic easements, to provide for cable or video service over facilities within a geographic area subject to a valid existing franchise for cable or video service, unless the cable or video service provider using such right-of-way holds a franchise from a franchise authority for the area in which the right-of-way is located.

(3) A violation of this

section shall be deemed a violation of s. 337.406.

History. — s. 2, ch. 87-266; s. 6, ch. 2007-29.

337.407 Regulation of signs and lights within rights-of-way.

(1) No person shall erect any sign, as defined in

chapter 479, or light within the right-of-way limits of any road on the interstate highway system, the federal-aid primary highway system, the State Highway System, or the State Park Road System; however, the department is authorized to adopt rules concerning the placement of signs, canopies, and other overhanging encroachments along and over any state roads which are within municipalities, or which are of curb-and-gutter construction outside municipalities, provided no supports are located within the rights-of-way.

(2) The department has the authority to direct removal of any sign erected in violation of subsection (1), in accordance with the provisions of

chapter 479.

(3) The department may not authorize the erection of signs where such signs are prohibited by the local governmental entity having jurisdiction.

History. — s. 37, ch. 29965, 1955; s. 1, ch. 63-501; s. 5, ch. 67-461; ss. 23, 35, ch. 69-106; s. 1, ch. 71-38; s. 1, ch. 74-79; s. 9, ch. 78-412; s. 1, ch. 80-246; s. 49, ch. 84-309; s. 20, ch. 85-180; s. 160, ch. 92-152; ss. 30, 62, ch. 94-237; s. 122, ch. 99-13; s. 87, ch. 99-385.

337.408 Regulation of bus stops, benches, transit shelters, street light poles, waste disposal receptacles, and modular news racks within rights-of-way.

(1) Benches or transit shelters, including advertising displayed on benches or transit shelters, may be installed within the right-of-way limits of any municipal, county, or state road, except a limited access highway, provided that such benches or transit shelters are for the comfort or convenience of the general public or are at designated stops on official bus routes and provided that written authorization has been given to a qualified private supplier of such service by the municipal government within whose incorporated limits such benches or transit shelters are installed or by the county government within whose unincorporated limits such benches or transit shelters are installed.

A municipality or county may authorize the installation, without public bid, of benches and transit shelters together with advertising displayed thereon within the right-of-way limits of such roads. All installations shall be in compliance with all applicable laws and rules, including, without limitation, the Americans with Disabilities Act.

Municipalities and counties that authorize or have authorized a bench or transit shelter to be installed within the right-of-way limits of any road on the State Highway System shall be responsible for ensuring that the bench or transit shelter complies with all applicable laws and rules, including, without limitation, the Americans with Disabilities Act, or shall remove the bench or transit shelter.

The department shall have no liability for any claims, losses, costs, charges, expenses, damages, liabilities, attorney fees, or court costs relating to the installation, removal, or relocation of any benches or transit shelters authorized by a municipality or county.

On and after July 1, 2012, a municipality or county that authorizes a bench or transit shelter to be installed within the right-of-way limits of any road on the State Highway System must require the qualified private supplier, or any other person under contract to install the bench or transit shelter, to indemnify, defend, and hold harmless the department from any suits, actions, proceedings, claims, losses, costs, charges, expenses, damages, liabilities, attorney fees, and court costs relating to the installation, removal, or relocation of such installations, and shall annually certify to the department in a notarized signed statement that this requirement has been met.

The certification shall include the name and address of each person responsible for indemnifying the department for an authorized installation.

Municipalities and counties that have authorized the installation of benches or transit shelters within the right-of-way limits of any road on the State Highway System must remove or relocate, or cause the removal or relocation of, the installation at no cost to the department within 60 days after written notice by the department that the installation is unreasonably interfering in any way with the convenient, safe, or continuous use of or the maintenance, improvement, extension, or expansion of the State Highway System road.

Any contract for the installation of benches or transit shelters or advertising on benches or transit shelters which was entered into before April 8, 1992, without public bidding is ratified and affirmed. Such benches or transit shelters may not interfere with right-of-way preservation and maintenance. Any bench or transit shelter located on a sidewalk within the right-of-way limits of any road on the State Highway System or the county road system shall be located so as to leave at least 36 inches of clearance for pedestrians and persons in wheelchairs.

Such clearance shall be measured in a direction perpendicular to the centerline of the road.

(2) Waste disposal receptacles of less than 110 gallons in capacity, including advertising displayed on such waste disposal receptacles, may be installed within the right-of-way limits of any municipal, county, or state road, except a limited access highway, provided that written authorization has been given to a qualified private supplier of such service by the appropriate municipal or county government. A municipality or county may authorize the installation, without public bid, of waste disposal receptacles together with advertising displayed thereon within the right-of-way limits of such roads.

Such waste disposal receptacles may not interfere with right-of-way preservation and maintenance.

(3) Modular news racks, including advertising thereon, may be located within the right-of-way limits of any municipal, county, or state road, except a limited access highway, provided the municipal government within whose incorporated limits such racks are installed or the county government within whose unincorporated limits such racks are installed has passed an ordinance regulating the placement of modular news racks within the right-of-way and has authorized a qualified private supplier of modular news racks to provide such service.

The modular news rack or advertising thereon shall not exceed a height of 56 inches or a total advertising space of 56 square feet. No later than 45 days prior to installation of modular news racks, the private supplier shall provide a map of proposed locations and typical installation plans to the department for approval. If the department does not respond within 45 days after receipt of the submitted plans, installation may proceed.

(4) The department has the authority to direct the immediate relocation or removal of any bus stop, bench, transit shelter, waste disposal receptacle, public pay telephone, or modular news rack that endangers life or property or that is otherwise not in compliance with applicable laws and rules, except that transit bus benches that were placed in service before April 1, 1992, are not required to comply with bench size and advertising display size requirements established by the department before March 1, 1992.

The department may adopt rules relating to the regulation of bench size and advertising display size requirements. If a municipality or county within which a bench is to be located has adopted an ordinance or other applicable regulation that establishes bench size or advertising display sign requirements different from requirements specified in department rule, the local government requirement applies within the respective municipality or county.

Placement of any bench or advertising display on the National Highway System under a local ordinance or regulation adopted under this subsection is subject to approval of the Federal Highway Administration.

(5) A bus stop, bench, transit shelter, waste disposal receptacle, public pay telephone, or modular news rack, or advertising thereon, may not be erected or placed on the right-of-way of any road in a manner that conflicts with the requirements of federal law, regulations, or safety standards, thereby causing the state or any political subdivision the loss of federal funds.

Competition among persons seeking to provide bus stop, bench, transit shelter, waste disposal receptacle, public pay telephone, or modular news rack services or advertising on such benches, shelters, receptacles, public pay telephone, or news racks may be regulated, restricted, or denied by the appropriate local government entity consistent with this section.

(6) Street light poles, including attached public service messages and advertisements, may be located within the right-of-way limits of municipal and county roads in the same manner as benches, transit shelters, waste disposal receptacles, and modular news racks as provided in this

section and in accordance with municipal and county ordinances. Public service messages and advertisements may be installed on street light poles on roads on the State Highway System in accordance with height, size, setback, spacing distance, duration of display, safety, traffic control, and permitting requirements established by administrative rule of the Department of Transportation.

Public service messages and advertisements shall be subject to bilateral agreements, where applicable, to be negotiated with the owner of the street light poles, which shall consider, among other things, power source rates, design, safety, operational and maintenance concerns, and other matters of public importance. For the purposes of this section, the term “street light poles” does not include electric transmission or distribution poles. The department shall have authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this section.

No advertising on light poles shall be permitted on the Interstate Highway System. No permanent structures carrying advertisements attached to light poles shall be permitted on the National Highway System.

(7) A public pay telephone, including advertising displayed thereon, may be installed within the right-of-way limits of any municipal, county, or state road, except on a limited access highway, if the pay telephone is installed by a provider duly authorized and regulated by the Public Service Commission under s. 364.3375, if the pay telephone is operated in accordance with all applicable state and federal telecommunications regulations, and if written authorization has been given to a public pay telephone provider by the appropriate municipal or county government.

Each advertisement must be limited to a size no greater than 8 square feet, and a public pay telephone booth may not display more than three advertisements at any given time. An advertisement is not allowed on public pay telephones located in rest areas, welcome centers, or other such facilities located on an interstate highway.

(8) Wherever the provisions of this

section are inconsistent with other provisions of this

chapter or with the provisions of

chapter 125,

chapter 335,

chapter 336, or

chapter 479, the provisions of this

section shall prevail.

History. — s. 21, ch. 85-180; s. 61, ch. 94-237; s. 30, ch. 95-257; s. 63, ch. 96-323; s. 82, ch. 2002-20; s. 22, ch. 2004-366; s. 11, ch. 2009-85; s. 37, ch. 2012-174.

337.409 Willfully or maliciously removing, damaging, destroying, altering, or appropriating benches, transit shelters, waste receptacles, or advertising displayed thereon; penalty.

History. — s. 31, ch. 95-257; s. 14, ch. 97-96.