Florida Statutes 1974 Supplement - fall.fsulawrc.com · growth and development, nutrition, dental health, mental health, and communicable dis eases. (c) To meet emergency health needs.

s. 402.313 1974 SUPPLEMENT TO FLORIDA STATUTES 1973 s. 402.32

402.313 Family day-care homes.-(1) Family day-care homes may be licensed

under this act if they are presently being licensed under an existing county licensing ordinance or if the board of county commissioners passes a resolution that family day-care homes be licensed. If not subject to license, family · day-care homes may report annually to the department the following information: the name and address of the home, the name of the operator, the number of children served, and the availability of emergency care.

(2) This information shall be included in a directory to be published annually by the department to inform the public of available child-care facilities.

(3) Family day-care home operators may avail themselves of supportive services offered by the department.

Hlstory.-s. 13, ch. 74-113.

402.314 Supportive services.~The department shall provide consultation services, technical assistance, and in-service training, when requested and as available, to operators, licensees, and applicants to help improve programs and facilities for child care, and shall work cooperatively with other organizations and agencies concerned with child care.

Hlstory.-s. 13, ch. 74-113.

402.315 Funding.-(1) If the county designates a local agency to

be responsible for the licensing of child-care centers, the county shall bear the costs involved.

(2) The state will bear the costs of the licensing of child-care centers when contracted to do so by a county or when directly responsible for licensing in a county which fails to meet or exceed state minimum standards.

Hlstory.-s. 15, ch. 74-113.

402.316 Exemptions.-(!) The provisions of this act shall not apply

to a child-care facility which is an integral part of church or parochial schools conducting regularly scheduled classes, courses of study, or educational programs accredited by, or by a member of, an organization which publishes and requires compliance with its standards for health, safety, and sanitation. However, such facilities shall meet minimum requirements of the applicable local governing body as to health, sanitation, and safety.

(2) Any county or city with state or local child-care licensing programs in existence on July 1, 1974 will continue to license the childcare facilities as covered by such programs, notwithstanding the provisions of subsection (1), until and unless the licensing agency makes a determination to exempt them.

(3) Any child-care facility covered by the exemption provisions of subsection (1), but desiring to be included in this act, is authorized to do so by submitting notification to the department. Once licensed, such facility cannot withdraw

from the act and continue to operate. Hlstory.--6. 16, ch. 74-113.

*402.32 School health services program.-( 1) This section shall be known and may be

cited as the "School Health Services Act of 1974." (2) The legislature finds that health services

conducted as a part of the total school health program should be carried out to appraise, protect, and promote the health of students. School health services supplement, rather than replace, parental responsibility and are designed to encourage parents to devote attention to child health, to discover health problems, and to encourage use of the services of their physician, dentist, and community health agencies.

(3) The following words and phrases shall have the following meanings for the purpose of this section:

(a) "Screening" means presumptive identification of unknown or unrecognized disease or defects by the application of tests that can be given with ease and rapidity to apparently healthy persons.

(b) "Physical examination" means a thoroucll evaluation of the medical status of an individual.

(c) "Indigent children" means any children of a family eligible for free or reduced price lunches, special programs under Title I of the Elementary and Secondary Education Act, or the aid to families with dependent children program.

(d) "Emergency health needs" means onsite management and aid for illness ***[or] injury pending student return to classroom or release to parent, guardian, designated friend, or designated health care provider.

(4) Duties of the Department of Health and Rehabilitative Services shall be:

(a) To employ, contract for, and supervise health service personnel for each school in the district in accordance with the state plan; however, in matters of coordination of health service programs with other school programs, the principal of each school shall have immediate supervisory authority over the health personnel working in that school.

(b) To carry out health appraisal and screening programs which include periodic review and analysis of health-related records, observation, and screening tests, consistent with sound health practices. Screening shall include vision, hearing, growth and development, nutrition, dental health, mental health, and communicable diseases.

(c) To meet emergency health needs. (d) When definitive diagnosis or treatment is

indicated, to consult with parents or guardians, when appropriate, regarding the need for medical attention by the family physician, dentist, or other specialist, as the case may require.

(e) To follow up on children referred for further diagnosis and treatment.

(f) To provide indigent children with physical examinations and to refer indigent children to appropriate medical and dental treatment, in co-

401


operation with the private medical and dental community whenever possible.

(g) In cooperation with school personnel, to counsel pupils and parents in matters regarding health programs and practices.

(h) To maintain records by school on the incidence of health problems, corrective measures taken, and such other information as may be needed to plan and evaluate health programs. Records on individual children shall remain confidential in accordance with law and regulations of the Department of Health and Rehabilitative Services and the State Board of Education.

(i) To aid in the diagnosis and evaluation of children for placement in exceptional child programs and in the reevaluation at periodic intervals of the children placed in such programs.

(j) In cooperation with the Department of Education, to promulgate the rules and regulations necessary for the implementation of this section.

(k) In cooperation with school officials, to provide assistance to school personnel in such areas as health education programs, identification of children with health problems, and working with children with special health problems.

(5) Each district school board, and the Department of Education where applicable, shall have the duty:

(a) To coordinate the educational aspects of the 'lchool health services program with the Comprehensive Health Education Act of 1973 and to include health services and health education as part of the school districts' comprehensive educational plan.

(b) To cooperate with the Department of Health and Rehabilitative Services in the provision of health services to children.

(c) To provide physical facilities at each school for the health services program.

(d) To provide inservice health training for school personnel.

(e) To cooperate with public health pesonnel in counseling pupils and parents in matters regarding health programs and practices.

(6) Nonpublic schools may request to participate in the school health services program. Nonpublic schools voluntarily participating in the school health services program shall comply with paragraphs (b)-(e) of subsection (5).

(7) At the beginning of each school year, parents or guardians will be requested to provide their written permission for medical or physical examination, screening, and treatment. Any child shall be exempt from medical or physical examination, screening, and treatment if his parent or guardian does not provide such permission. However, the laws, rules, and regulations relating to contagious or communicable diseases and sanitary matters shall not be violated.

(8) School health services shall be implemented in annual increments so that all children will be served by 1979. Expenditures for school health services shall be accounted for by county in accordance with standards established by the Department of Health and Rehabilitative Services or as provided by law. Implementation

shall commence January 1, 1975, upon completion of the plan **[required by s. 8, ch. 74-356]. There is hereby designated from the moneys appropriated to the Department of Health and Rehabilitative Services for fiscal year 1974-1975 the amount of $50,000 for planning and evaluation for the purpose of carrying out this section.

Hlstory.-ss. 1-7, 9, ch. 74-356. •Note.-Subsections (1)-(7) effective January I, 1975. ••Note.-Bracketed words added by the editors in the interest of

clarity. •••Note.-Bracketed word substituted for "or• by the editors.

CHAPTER403

ENVIRONMENTAL CONTROL

PART I POLLUTION CONTROL

PART II ELECTRICAL POWER PLANT SITING

PART IV RESOURCE RECOVERY AND MANAGEMENT

403.031 403.051

403.061 403.087

403.088

403.111 403.141

403.161 403.201 403.414

PART I

POLLUTION CONTROL

Definitions. Board meetings; hearings and proce

dure; witnesses. Department; powers and duties. Permits; general issuance; denial; re;

vocation; prohibition; penalty. Water pollution operation permits;

temporary permits; conditions. Confidential records. Civil liability; joint and several liabil-

ity. Prohibitions, violation, penalty, intent. Variances. Pollution control awards program.

(New) 403.415 403.4151 403.4152

Motor vehicle noise. (New) Exempt motor vehicles. (New) Joint departmental study and report.

(New)

403.031 Definitions.-In construing this chapter, or rules and regulations adopted pursuant thereto, the words, phrases or terms, unless the context otherwise indicates, shall have the following meanings:

(1) "Department" is the Department of Pollution Control.

(2) "Pollution" is the rresence in the outdoor atmosphere or waters o the state of any substances, contaminants, noise, or man-made or man-induced alteration of the chemical, fhysical, biological, or radiological integrity o air or water in quantities or *[at] levels which are or may be potentially harmful or injurious to hu-

402


man health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.

(3) "Waters" shall include, but not be limited to rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface or underground. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water. Underground waters include, but are not limited to, all underground waters passing through pores of rock or soils or flowing through in channels, whether man-made or natural.

(4) "Contaminant" is any substance which is harmful to plant, animal or human life.

(5) "Wastes" means sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state.

(6) "Treatment works" and "disposal systems" means any plant or other works used for the purpose of treating, stabilizing, or holding wastes.

(7) "Sewerage system" means pipelines or conduits, pumping stations, and force mains, and all ~~~er structures, devices, appurtenances, and facilities used for collecting or conducting wastes to an ultimate point for treatment or disposal.

(~~ "Installation" is any structure, equipment, facility, or appurtenances thereto, or operation which may emit air or water contaminants in quantities prohibited by rules of the department.

(9) "Plant" is any unit operation, complex, area, or multiple of unit operations that produce, process, or _cause to _be processed any materials, the processmg of which can, or may, cause air or water pollution.

(10) "Source" is any and all points of origin of the item defined in subsection (4), whether privately or publicly owned or operated.

(! 1) . "P_erson" means the state or any agency or m_st~t~twn the~eof, an~ municipality, political S';~bdiVISion, pubhc or pnvate corporation, individul;ll. partnership, association, or other entity, ~nd mcludes any officer or governing or managu:;tg body of . any municipality, political subdivisiOn, or pubhc or private corporation. . (12) "Effluent limitations" means any restric

tion established by the department on quantities, rates,. **[o:l concentrations of chemical, physical, biOlogical, **[or] other constituents which are discharged from sources into waters of the state.

Hlstory.-s. 4, ch. 67-436; ss. 26, 35, ch. 69-106; s. I, ch. 11-36; s. 2, ch. 71-137; s. 153, ch. 71-377; s. I, ch. 73-46· s. 112 ch. 73-333· ss 1 2, ch. 74-133. ' ' ' · '

*Note.-Bracketed word inserted by the editors. **Note.-"Or" substituted for ••and" by the editors.

403.051 Board meetings; hearings and procedure; witnesses.-

( I) No rule or regulation, or amendment or repeal thereof, shall be adopted by the department except after public hearing held for that purpose after 30 days' prior notice given in the

manner which the department shall prescribe. The manner prescribed shall at least include notice by mail to all parties known by the department to be affected by the matters under consideration and some system of newspaper publication reasonably calculated to bring the matter under consideration to the attention of the general public. There shall be stated in such notice the date, time, and place of the hearing at which time opportunity to be heard shall be given to all affected parties and the public. To insure due process to all parties affected, the procedures of chapter 120 shall be followed at all hearings of the department.

(2) The department shall cause a transcript of the proceedings at all hearings and meetings to be made.

(3) The decision of the department to adopt, modify or repeal a rule or regulation shall be based solely on the preponderance of the competent substantial evidence presented at the public hearing.

(4) A quorum of the Pollution Control Board shall consist of three members for all hearings and meetings except those required by subsection (1) and s. 403.121, which shall require a quorum of four, and a majority vote of the entire board shall be required to take action on any matter before the board.

(5) The department shall have the power, and upon application of any affected party shall have the duty, to compel the attendance of witnesses and the production of evidence on behalf of the state or any affected party.

*(6)(a) Any department planning, design, construction, modification, or operating standards, criteria, and requirements for treatment works, disposal systems, and sewerage systems for wastes from any source shall be promulgated as a rule or regulation pursuant to the requirements and procedures of chapter 120.

(b) The department shall not withhold the issuance of a permit to consider matters not addressed by the permit application, or to consider standards, criteria, and requirements not adopted as required by paragraph (a).

Hlstory.-s. 6, ch. 67-436; ss. 26, 35, ch. 69-106; s. I , ch. 7(}.84; s. 2, ch. 11-137; s. I , ch. 71-138; s. 154, ch. 71-377; s. I , ch. 72-223; s. I, ch. 74-358.

*Note.-Effective October I, 1974 .

403.061 Department; powers and duties.The department shall have the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules and regulations adopted and promulgated by it, and for this purpose to:

(1) Approve and promulgate current and long-range plans developed to provide for air and water quality control and pollution abatement.

(2) Hire only such employees as may be necessary to effectuate the responsibilities of the department.

(3) Utilize the facilities and personnel of other state agencies, including the Division of Health of the Department of Health and Rehabilitative Services, and delegate to any such agency

403


any duties and functions as the department may deem necessary to carry out the purposes of this act.

(4) Secure necessary scientific, technical, research, administrative, and operational services by interagency agreement, contract, or otherwise. All state agencies, upon direction of the department, shall make these services and facilities available.

(5) Accept state appropriations, loans and grants from the Federal Government and from other sources, public or private, which loans and grants shall not be expended for other than the purposes of this act.

(6) Exercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.

(7) Adopt, modify, and repeal rules and regulations to carry out the intent and purposes of this act. Any rules or regulations adopted pursuant to this act shall be consistent with provisions of federal law, if any, relating to control of emissions from motor vehicles, effluent limitations, pretreatment requirements, or standards of performance.

(8) Hold hearings relating to the adoption of rules to control or prohibit air and water pollution, including hearings upon complaints for violations.

(9) Designate a hearing officer to conduct hearings, who shall have the power to issue notices of hearings, subpoenas requiring the attendance of witnesses and the production of evidence, to administer oaths and to take testimony as may be necessary or in conformity with this chapter, and such hearing officer shall certify and file with the department, recommendations, findings of fact, and a proposed order; provided, however, that all hearings for the adoption of rules shall be before the department.

(10) Issue such orders as may be necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceedings.

(11) Adopt a comprehensive program for the prevention, control, and abatement of pollution of the air and waters of the state, and from time to time review and modify such program as necessary.

(12) In order to develop a comprehensive program for the prevention, abatement, and control of the pollution of the waters of the state, a grouping of the waters into classes may be made in accordance with the present and future most beneficial uses, such classifications may from time to time be altered or modified; provided, however, before any such classification is made, or any modifications made thereto, public hearings shall be held by the department.

(13) Establish ambient air quality and water quality standards for the state as a whole or for any part thereof, and also standards for the abatement of excessive and unnecessary noise. The department shall cooperate with the Department of Highway Safety and Motor Vehicles in the development of regulations required

by s. 316.272(1). (14)(a) Cause field studies to be made and

samples to be taken out of the air and from the waters of the state periodically and in a logical geographic manner so as to determine the levels of air quality of the air and water quality of the waters of the state.

(b) Whenever a study is made or a sample collected which proves to be below the air or water quality standard set for air or water, then the department shall determine the source of the pollution.

(15) Require persons engaged in operations which may result in pollution, to file reports which may contain information relating to locations, size of outlet, height of outlet, rate and period of emission and composition and concentration of effluent, and such other information as the department shall prescribe to be filed relative to pollution.

( 16) Establish a permit system whereby a permit may be required for the operation, construction, or expansion of any installation that may be a source of air or water pollution; provide for the issuance and revocation of such permits and for the posting of an appropriate bond to operate.

( 17) Consult with any person proposing to construct, install, or otherwise acquire a pollution control device or system, concerning the efficacy of such device or system, or the pollution problem which may be related to the source, device, or system. Nothing in any such consultation shall be construed to relieve any person from compliance with this act, rules and regulations of the department, or any other provision of law.

(18) Require that notice be given to it prior to the undertaking of the construction or installation or expansion of any new air or water contaminant sources. Within 30 days of its receipt of such notice, the department shall require, as a condition precedent to the construction or installation or expansion of such sources, the submission of plans, specifications, and such other information as it deems necessary in order to determine whether the proposed construction or installation will be in accord with applicable laws, rules and regulations. If within 60 days of the receipt of plans, specifications, or other information required pursuant to this chapter, the department determines that the proposed construction or installation will not be in accord with the requirements of this act or applicable rules and regulations, it shall issue an order prohibiting the construction or installation. Failure of such an order to issue within the time prescribed herein shall be deemed a determination that the construction or installation may proceed; provided, that it is in accordance with plans, specifications, or other information, if any, required to be submitted. In regard to any application for a federal National Pollutant Discharge Elimination System (NPDES) permit, the department shall have 100 days to grant or deny therequested NPDES permit and associated state permit, if any.

404


(19) Encourage voluntary cooperation by persons and affected groups to achieve the purposes of this act.

(20) Encourage local units of government to handle pollution problems within their respective jurisdictions on a cooperative basis, and provide technical and consultative assistance therefor.

(21) Encourage and conduct studies, investigations, and research relating to pollution and its causes, effects, prevention, abatement and control.

(22) Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of this state and the several parts thereof, and make recommendations to appropriate public and private bodies with respect thereto.

(23) Collect and disseminate information and conduct educational and training programs relating to pollution.

(24) Advise, consult, cooperate, and enter into agreements with other agencies of the state, the Federal Government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department.

(25) Adopt, modify and repeal rules go~erning the specific~tions, con~truction, and mam~enance of industnal reservmrs, dams, and contamers which store or retain industrial wastes of a deleterious nature.

(26) Adopt rules and regulations to insure that no detergents are sold in Florida after December 31, 1972, which are reasonably found to have a harmful or deleterious effect on human health or on the environment. Any regulations adopted pursuant to this subsection shall apply statewide. Subsequent to the promulgation of such rules and regulations, no county, municipality or other local political subdivision shall ad~pt or enforce any local ordinance, special law, or local regulation go:verning detergents which are less stringent than -state law or regulation. Regulations, ordinances, or special acts adopted by a county or municipality governing detergents shall be subject to approval by the board of the Department of Pollution Control, except that regulations, ordinances, or special acts adopted by any county or municipality with a local pollution control program approved pursuant to s. 403.182 shall be approved as an element of the local pollution control program.

(27) Perform any other act necessary to control and prohibit air and water pollution, and to delegate any of its responsibilities, authority, and powers, other than rule-making powers, to any state agency now or hereinafter established.

Hlstory.-s. 7, ch. 67-436; ss. 19, 26, 35, ch. 69-106; s. I, ch. 71-35; s. 2, ch. 71-36; s. 3, ch. 72-39; s. I, ch. 72-53; s. 113, ch. 73-333; s. 3, ch. 74-133.

403.087 Permits; general issuance; denial; revocation; prohibition; penalty.-

(1) No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained,

constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. In no event shall a permit for a water pollution source be valid for more than 5 years. However upon expiration, a new permit may be issued by the department in accordance with this act and the rules and regulations · of the department.

(2) The department shall adopt, amend, or repeal rules, regulations, an~ standards _for the issuance denial, and revocation of penruts.

(3) The department shall issue permits ?n such conditions as are necessary to effect the mtent and purposes of this section.

(4) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be ' expected to be a source of pollution only when it determines that the installation is provide<l. or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department, except as _Provided in. S: ~03. 088, and which will comply wtth the prohibtttons in s. 124.41 of volume 40 of the Code of Federal Regulations.

(5) The department may require ~n ~pplication fee of not more than $20 per apphcat10n.

(6) A permit issued pursuant to this section shall not become a vested right in the permittee. The department may revoke any permit issued by it if it finds that the permit holder:

(a) Has submitted false or inaccurate information in his application;

(b) Has vio~ated law, c;Jepartl!l~nt orders, rules or regulations, or penrut condtttons;

(c)' Has failed to submit operational reports or other information required by department rule or regulation; or

(d) Has refused lawful inspection under s. 403.091.

(7) No revocation shall become effective except after notice is served upon the person or persons named therein and a hearing held if requested within the t~me specifie~. in the notice. The notice shall spectfy the proVlston of the law, rule, or regulation alleged to be violated, or the permit condition or department order alleged to be violated, and the facts alleged to constitute a violation thereof.

(8) Violation of this section shall be punishable as provided in this chapter.

Hlstory.-s. I, ch. 71-203; s. 4, ch. 74-133.

403.088 Water pollution operation permits; temporary permits; conditions.-

(1) No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiVing waters below the classification established for them.

(2) Any person discharging treated or untreated waste into waters within the state on a regular, intermittent or continuous basis prior to

405

s. 403.088 1974 SUPPLEMENT TO FLORIDA STATUTES 1973

January 1, 1972, and who intends to continue such discharges shall file a written report of such discharges with the department. The report shall specify the location, nature, volume, and frequency of such discharges. The department may require the person to furnish any additional information reasonably necessary to evaluate the effect of such discharges upon the receiving waters.

(3)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires.

(b) The department shall consider each application, and shall grant or deny the requested permit within 60 days from the date of receipt of the application; except that in regard to any application for a federal National Pollutant Discharge Elimination System (NPDES) permit, the department shall have 100 days to grant or deny therequested NPDES permit and associated state permit, if any. The department may require the applicant to submit any additional information reasonably necessary, and may refuse to grant a permit until such time as the information is furnished and evaluated.

(c) If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. If the department finds that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds that such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest.

(d) A permit shall: 1. Specify the manner, nature, volume, and

frequency of the discharge permitted; 2. Require proper operation and maintenance

of any pollution abatement facility by qualified personnel in accordance with standards established by the department;

3. Contain such additional conditions, requirements, and restrictions as the department deems necessary to preserve and protect the quality of the receiving waters; and

4. Be valid for the period of time specified therein.

(e) An operation permit may be renewed upon application to the department. No renewal permit shall be issued if the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them.

(4)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (c) of subsection (3) may apply to the department for a temporary operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department may

require. The department may require such person to submit any additional information reasonably necessary for proper evaluation.

(b) The department shall give notice to people resident in the drainage area of the receiving waters for the proposed discharge concerning the period during which they may present objections to the proposed discharge.

(c) After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds:

1. The proposed discharge does not qualify for an operation permit;

2. The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules for constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort throu2h research and other means to discover and impfement such a method;

3. The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an aeproved and acceptable pollution abatement facility or alternate waste disposal system;

4. There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state;

5. The denial of a temporary operation permit would work an extreme hardship upon the applicant;

6. The granting of a temporary operation permit will be in the public interest; or

7. The discharge will not be unreasonably destructive to the quality of the receiving waters.

(d) A temporar-y operation · permit , issued shall: ·

1. Specify the manner, nature, volume, and frequency of the discharge permitted;

2. Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition. 9f the permit;

3. Require the permit holder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to insure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters;

4. Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and

5. Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest.

406


(5) Any facility for sanitary sewage disposal which demonstrates a good faith effort to build or improve its treatment facilities so as to comply with the rules and regulations of the department, and for which the department makes a determination that additional sewer connections shall not be detrimental to the health, safety, and welfare of the citizens of the State of Florida or to the natural environment *[to such an extent as to require the denial of an exemption -under this subsection], may be exempted completely or partially by the department from the prohibition on sewer connections which the State of Florida attempts to impose. Any such facility can operate under the provisions of this act until June 30, 1975. The facilities operating under this exemption shall be subject to the rules and regulations of the department, and said exemption will be subject to reaffirmation or revocation by the department. Evaluation shall focus on:

(a) the efforts made by the facility to take affirmative steps to build, improve, or upgrade its treatment facilities; and

(b) The extent of any environmental damage that is resulting from the operation of the facility and any continued increases in sewer connections to the facility.

An unsatisfactory evaluation shall be reported to the Pollution Control Board, and if the board determines that such affirmative steps have not been taken or that such environmental damage has occurred, then the exemption for that facility shall be terminated by the board.

(6)(a) The provisions of this section shall not be construed to repeal or restrict any other provisions of this chapter, but shall be cumulative thereto.

(b) This section shall not be construed to exempt any permittee from the pollution control requirements of any local air and water pollution control rule, regulation, ordi~~ce, or code, or to authorize or allow any violatiqn thereof.

Hlstory.-ss. 2, 3, 5, cb. 71-203; s. I, cb. 73-360; s. 5, cb. 74- 133. •Note.-Bracketed language inserted by the editors in lieu of the

word usufficiently."

403.111 Confidential records.-Any information, other than effluent data, relating to secret processes, methods of manufacture or production which may be required, ascertained, or discovered by inspection or investigation, shall not be disclosed in public hearings and shall be kept confidential by any member, officer, or employee of the department. Provided that nothing herein shaU be construed to prevent the use of such records in judicial proceedings in connection with the prosecution of violations of this act, when ordered to be produced by appropriate subpoena or by order of the court. No such subpoena or order of the court shall abridge or alter the rights or remedies of persons affected in the protection of trade secrets or secret processes, in the manner provided by law, and such persons affected may take any and all steps available by law to protect such trade secrets or processes.

History.---... 12, cb. 67-436; ss. 26, 35, cb. 69-106; s. 6, cb. 74-133.

403.141 Civil liability; joint and several UabUity.-

( 1) Whoever commits a violation specified in s. 403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including animal, plant, and aquatic life, of the state to their former condition, and furthermore is subject to the judicial imposition of a civil penalty for each offense in an amount of not more than $10,000 per offense. However, the court may receive evidence in mitigation. Each day during any portion of which such violation occurs constitutes a separate offense. Nothing herein shall give the deyartment the right to bring an action on behalf o any private person.

(2) Whenever two or more persons pollute the air or waters of the state in violation of this chapter or any rule, regulation, or order of the department so that the damage is indivisible, each violator shall be jointly and severally liable for such damage and for the reasonable cost and expenses of the state incurred in tracing the source of discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including the animal, plant, and aquatic life of the state, to their former condition. However, if said damage is divisible and may be attributed to a particular violator or violators, each violator is liable only for that damage attributable to his violation.

(3) In assessing damages for fish killed, the value of the fish is to be determined in accordance with a table of values for individual categories of fish which shall be promulgated by the department. At the time the table is adopted, the department shall utilize tables of values established by the Department of Natural Resources and the Game and Fresh Water Fish Commission. The total number of fish killed may be estimated by standard practices used in estimating fish population.

HJRory.---<1: 15, cb. 67-436; _ss. 26, 35, ch. 69-106; s. I, ch. 70-141; a. I, ch. 71-204, s. 3, ch. 72-286, s. 7, ch. 74-133.

403.161 Prohibitions, violation, penalty, in-tent.- ·

(1) It shall be a violation of this chapter, and it shall be prohibited:

(a) To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.

(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.

(c) To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed

407


or required to be maintained under this chapter, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, rule, regulation, or order issued under this chapter.

(2) Whoever commits a violation specified in subsection (I) is liable to the state for any damage caused and for civil penalties as provided in s. 403.141.

(3) Any person who willfully or negligently commits a violation specified in subsections (l)(a) and (b) shall be guilty of a misdemeanor of the first de~ee punishable as provided in *[ss. 775.082(4)(a) and 775.083(7)] by a fine of not less than $2,500 or more than $25,000, or punishable by 1 year in jail, or by both for each offense. Each day during any portion of which such violation occurs constitutes a separate offense.

(4) Any person who commits a violation specified in subsection (l)(c) shall be guilty of a misdemeanor of the first degree punishable as provided in *[ss. 775.082(4)(a) and 775.083(7)] by a fine of not more than $10,000 or by 6 months in jail, or by both for each offense.

(5) It is the legislative intent that the civil penalties and criminal fines imposed by the court be of such amount as to insure immediate and continued compliance with this act.

History.-•: 17, ch. 67 ... 36; .ss. 26, 35, ch. 69-106; s. I, ch. 70.356; s. I, cb. 70-439, s. 4, ch. 72-286, s. 8, cb. 74-133.

•Note..-Bracketed section numbers substituted for "ss. 775.082(5Xa) and 775.083(6)" by the editors to conform these references to amend.nents by ss. 5 and 6, ch. 74-383, Laws of Florida.

403.201 Variances.-(!) Upon application the department in its

discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons:

(a) There is no practicable means known or available for the adequate control of the pollution involved.

(b) Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.

(c) To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months except that variances granted pursuant to part II may extend for the life of the permit or certification.

(2) The department or its duly designated hearing officer shall hold a hearing on each application for a variance. The hearing procedures of s. 403.051 shall apply at such hearing.

(3) The department may prescribe such time limits and other conditions to the granting of a variance as it shall deem appropriate.

Hlstory.-s. 21, cb. 67...a6; ss. 26, 35, ch. 69-106; s. I, cb. 74-170.

403.414 Pollution control awards program.-( 1) It is hereby declared to be the intent of

the legislature to encourage the prevention of, and cleaning up of, pollution in the state by recognizing:

(a) Those agencies, municipalities, counties, or other government units and private organiza-. tions, institutions, industries, communication media, and residents of the state who aid in restoring and maintaining the chemical, physical, and biological integrity of the state's air and water, or implement procedures for the abatement of excessive and unnecessary noise, above and beyond the minimum standards as presently set by the Department of Pollution Control or any other state agency.

(b) Any communication media, communication media representatives, or individual residents of the state who highlight problems where they exist and work toward seeing the problems solved, or design innovations for the prevention, control, or cleaning up of pollution in the state.

(2) There is hereby created a pollution control awards program to be administered by the Department of Commerce.

(3) Awards under the pollution control awards program may be granted to agencies, municipalities, counties, or other governmental units and private organizations, institutions, industries, communication media, and residents of the state for efforts in preventing or cleaning up pollution as provided by rules and regulations promulgated by the Department of Commerce. Special awards may be granted to those agencies, municipalities, counties, or other governmental units and private organizations, institutions, industries, communication media, and residents of the state who have made an outstanding effort to prevent or clean up pollution as provided by rules and regulations promulgated by the Department of Commerce. All awards and special awards must be approved by the Department of Commerce, but the Department of Pollution Control shall have the power to veto any award which, in the opinion of the Department *[of Pollution Control], would be so controversial as to be unadvisable.

(4) Awards or special awards may be pre-sented in the following categories:

(a) Water pollution. (b) Air pollution. (c) Noise pollution. (d) Communication media on pollution prob

lems. (5) Any agency, municipality, county, or

other governmental unit or private organization, institution, industry, communication medium, or resident of the state may submit to the Department of Commerce at any time the name of any agency, municipality, county, or other governmental unit or private organization, institution, industry, communication medium, or resident of the state for consideration for an award or special award. Prior to consideration by the Department of Commerce, nominees shall be required

408


to submit to the department such additional information as the department may require, including, but not limited to, a list of all plant operations and subsidiaries in Florida. The Department of Commerce shall consider such nominations at least twice a year.

(6) The Department of Commerce shall adopt reasonable rules and regulations to carry out the intent and purposes of this act in accordance with chapter 120.

Hlstory.-ss. 1-6, ch. 74-60. •Note--Bracketed words inserted by the editors for clarity.

*403.415 Motor vehicle noise.-(1) SHORT TITLE.-This act shall be known

and may be cited as the "Florida Motor Vehicle Noise Prevention and Control Act of 1974."

(2) LEGISLATIVE INTENT.-The intent of the legislature is to implement the state constitutional mandate of s. 7, Art. II of the State Constitution to improve the quality of life in the state by limiting the noise of new motor vehicles sold in the state and the noise of motor vehicles used on the highways of the state.

(3) DEFINITIONS.-The following words and phrases when used in this section shall have the meanings respectively assigned to them in this subsection, except where the context otherwise requires:

(a) "dB A" means the composite abbreviation for A-weighted sound level, and the unit of sound level, the decibeL

(b) "Gross combination weight rating" or "GCWR" means the value specified by the manufacturer as the loaded weight of a combination vehicle.

(c) "Gross vehicle weight rating" or "GVWR" means the value specified by the manufacturer as the loaded weight of a single vehicle.

(d) "Motor vehicle" means any vehicle which is self-propelled and any vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.

(e) "Motorcycle" means any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor.

(f) "Motor-driven cycle" means every motorcycle and every motor scooter with a motor which produces not to exceed 5-brake horsepower, including every bicycle with a motor attached.

(g) "Sound level" means the A-weighted sound pressure level measured with fast response using an instrument complying with the specification for sound level meters of the American National Standards Institute, Inc., or its successor bodies, except that only A-weighting and fast dynamic response need be provided.

(h) "Vehicle" means any device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.

(i) "Department" means the Department of

Pollution ControL (4) NEW VEHICLE NOISE LIMITS.-No per

son shall sell, offer for sale, or lease a new motor vehicle that produces a maximum sound level exceeding the following limit at a distance of 50 feet from the center of the lane of travel under test procedures established under subsection (5):

(a) For motorcycles other than motor-driven cycles:

Date of manufacture

From January 1, 1973 to December 31, 1974

From January 1, 1975 to December 31, 1978

On or after January 1, 1979

Sound level limit

86 db A

83 db A 78 db A

(b) For any motor vehicle with a GCWR of 10,000 pounds or more:

GVWR or

Date of manufacture Sound level limit

From January 1, 1973 tu December 31, 1974 86 db A

From January 1, 1975 to December 31, 1977 83 db A


On or after January 1, 1981 75 db A (c) For motor-driven cycles and any other motor

vehicle not included in paragraph (a) or paragraph (b):

Date of manufacture Sound level limit



On or after January 1, 1979 75 db A

(5) TEST PROCEDURES.-The test procedures for determining compliance with this section shall be established by regulation of the Department of Pollution Control and in cooperation with the Department of Highway Safety and Motor Vehicles in substantial conformance with applicable standards and recommended practices established by the Society of Automotive Engineers, Inc., or its successor bodies, and the American National Standards Institute, Inc., or its successor bodies, for the measurement of motor vehicle sound levels. Regulations establishing these test procedures shall be promulgated no later than December 1, 1974.

(6) CERTIFICATION.-The manufacturer, distributor, importer, or designated agent thereof shall file a written certificate with the department stating that the specific makes and models of motor vehicles described thereon comply with the provisions of this section. No new motor vehicle shall be sold, offered for sale, or leased unless such certificate has been filed.

(7) NOTIFICATION OF CERTIFICATION.The department shall notify the Department of

409


Highway Safety and Motor Vehicles of all makes and models of motor vehicles for which valid certificates of compliance with the provisions of this section are filed.

(8) REPLACEMENT EQUIPMENT.-On or after July 1, 1975:

(a) No person shall sell or offer for sale for use as part of the equipment of a motor vehicle any exhaust muffler, intake muffler, or other noise abatement device which, when installed, will permit the vehicle to be operated in a manner that the emitted sound level of the vehicle is increased above that emitted by the vehicle as originally manufactured and determined by the test procedures for new motor vehicle sound levels established under this section.

(b) The manufacturer, distributor, or importer, or designated agent thereof, shall file a written certificate with the department that his products sold within this state comply with the requirements of this section for their intended applications.

(9) OPERATING VEHICLE NOISE MEASUREMENTS.-The department shall establish, with the cooperation of the Department of Highway Safety and Motor Vehicles, measurement procedures for determining compliance of operating vehicles with the noise limits of s. 316.· 293(2). Regulations establishing such measurement procedures shall be promulgated no later than January 1, 1975. The department shall advise· the Department of Highway Safety and Motor Vehicles on technical aspects of motor vehicle noise enforcement regulations and assist in the training of enforcement officers.

(10) ENACTMENT OF LOCAL ORDINANCES LIMITED.-The provisions of this section shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this section unless expressly authorized. However, this subsection shall not prevent any local authority from enacting an ordinance when such enactment is necessary to vest jurisdiction of violation of this section in the local court.

Hlstory.-ss. 1·3, ch. 74-110. *Note.-Effective October I, 1974.

403.4151 Exempt motor vebicles.-The provisions of this act shall not apply to any motor vehicle which is not required to be licensed under the provisions of chapter 320.

Hlstory.-s. 7, ch. 74-110.

*403.4152 Joint departmental study and report.-The Department of Pollution Control and the Department of Highway Safety and Motor Vehicles shall jointly undertake a study of the effectiveness of this act during the initial 2 years of its implementation and shall report the results of that study to the legislature no later than 30 days prior to the convening of the 1977 regular session.

Hlstory.-s. 6, ch. 74-110. •Note.-Effective October I , 1974.

PART II

ELECTRICAL POWER PLANT SITING

403.511 Effect of certification.

403.511 Effect of certification.-(1) Subject to the conditions set forth therein,

any certification agreement signed by the chairman of the Pollution Control Board shall bind· the state or any of its departments, agencies, divisions, bureaus, commissions, districts, or boards as to the approval of the site and the construction and operation of the proposed electrical power plant and major transmission lines.

(2) The certification agreement shall authorize the electric utility named therein to construct and operate the proposed electrical power plant subject only to the conditions set forth in such certification. The certification agreement may include conditions which constitute variances from nonprocedural standards or regulations otherwise applicable to the construction and operation of the proposed electrical power plant.

(3) The issuance of a site certification shall be in lieu of any permit, certificate, or similar document required by any other department, agency, division, bureau, commission, district, or board of this state or any local agency, including, but not limited to, those documents, permits, or certificates which may be required under chapters 161, 253, 298, 370, 373, 378, 380, 381, and 387, but shall not affect in any way the rate-making powers of the Public Service Commission under chapter 366, nor shall this act in any way affect the right of any local government to charge appropriate fees or require that construction be in compliance with local building codes, standards, and regulations.

Hlstory.-s. I , ch. 73-33; s. 2, ch. 74-170.

PART IV

RESOURCE RECOVERY AND MANAGEMENT

403.701 Short title. (New) 403.702 Legislative findings; public purpose.

(New) 403.703 Definitions. (New) 403.704 Powers and duties of the department.

(New) 403.705 State resource recovery and manage

ment program. (New) 403.706 Local resource recovery and manage-

ment programs. (New) 403.707 Permits. (New) 403. 708 Prohibition; penalty. (New) 403.709 Resource recovery and management

grant fund. (New) 403.710 Resource Recovery and Management

Advisory Council. (New) 403.711 Pilot project. (New) 403.712 Revenue bonds. (New)

410


Transport of solid waste. (New) Duties of Department of General Services. (New)

403.701 Short title.-Sections 403.701-403.-713 shall be known and may be cited as the "Florida Resource Recovery and Management Act."

Hlstory.--s. I , ch. 74-342.

403.702 Legislative findings; public purpose.

(I) In order to enhance the beauty and quality of our environment, conserve and recycle our natural resources, prevent the spread of disease and creation of nuisances, protect the public health, safety, and welfare, and provide a coordinated statewide resource recovery and management program, the legislature finds that:

(a) Inefficient and improper methods of managing solid waste create hazards to public health, cause pollution of air and water resources, constitute a waste of natural resources, have an adverse effect on land values, and create public nuisances.

(b) Problems of solid-waste management have become a matter statewide in scope and necessitate state action to assist local government in improving methods and processes to promote more efficient methods of solid-waste collection and disposal.

(c) The continuing technological progress and improvements in methods of manufacture, packaging, and marketing of consumer products has resulted in an ever-mounting increase of the mass of material discarded by the purchasers of such products, thereby necessitating a statewide approach which will avoid varied and uncoordinated solutions by local governments around the state.

(d) The economic and population growth of state and the improvements in the standard

living enjoyed by our population have reincreased industrial production together

related commercial and agricultural operato meet our needs, which have resulted in a tide of unwanted and discarded materials. The failure or inability to economically rematerial and energy resources from solid results in the unnecessary waste and deof our natural resources, and, therefore,

resource recovery from solid waste <>vii"''""' recycling and reuse of such re

must be considered goals of the state. It is declared to be the purpose of this act

(a) Plan for and regulate the storage, collectransport, separation, processing, recycling, disposal of solid waste in order to protect public safety, health, and welfare; enhance environment for the people of the state; and

resources which have the potential for usefulness.

Establish and maintain a cooperative state •rnar,,.n of planning and technical assistance for

resource recovery and management. (c) Provide the authority, and require coun

ties and municipalities, to adequately plan and provide efficient, environmentally acceptable resource recovery and management.

(d) Require review of the design, and issue permits for the operation, of resource recovery and management facilities.

(e) Promote the application of resource recovery systems which preserve and enhance the quality of air, water, and land resources. History.-<~. I , ch. 74-342.

403.703 Definitions.-As used in this act: (1) "Department" means the Department of

Pollution Control or any successor agency performing a like function.

(2) "County or municipality," or any like term, shall include political subdivisions engaged in resource recovery and management.

(3) "Person" means any and all persons, natural or artificial, including any individual, firm, or association; any municipal or private corporation organized or existing under the laws of Florida or any other state; any county of this state; and any governmental agency of this state or the Federal Government.

(4) "Recycling" means the reuse of solid waste in manufacturing, agriculture, power production, or other processes.

(5) "Resource management" means the process by which solid waste is collected, transported, stored, separated, processed, or disposed of in any other way, according to an orderly, purposeful, and planned program.

(6) "Resource recovery" means the process by which materials, excluding those under control of the Atomic Energy Commission, which still have useful physical or chemical properties after serving a specific purpose are reused or recycled for the same or other purposes, including use as an energy source.

(7) "Resource recovery and manafement facility" means any solid waste disposa area, volume reduction plant, or other facility, the purpose of which is resource recovery or the disposal, recycling, processing, or storage of solid waste.

(8) "Solid waste" means garbage, rubbish, refuse, and other discarded solid or semisolid materials resulting from domestic, industrial, commercial, agricultural, and governmental operations, but does not include solids or dissolved material in domestic sewage or other significant pollutants in water resources such as silt, dissolved or suspended solids in industrial waste water effluents, dissolved materials in irrigation return flows, or other common water pollutants.

(9) "Volume reduction plant" includes, but is not limited to, incinerators, pulverizers, compactors, shredding and baling plants, transfer stations, composting plants, and other plants which accept and process solid waste for recycling or disposal.

411


History .-s. I, ch. 7 4-342.

403.704 Powers and duties of the department. -The department shall have responsibility for the implementation and enforcement of the provisions of this act. In addition to other powers and duties, the department shall:

( 1) Adopt by rule for the state a resource recovery and management program, as defined in s. 403.705, within 1 year after this act takes effect. In developing the state resource recovery and management program, the department shall hold public hearings around the state in accordance with chapter 120, and shall give notice of such public hearings to all local governments and regional planning agencies.

(2) Provide technical assistance to counties, municipalities, and other persons, and cooperate with appropriate federal agencies and private organizations in carrying out the provisions of this act.

(3) Promote the planning and application of recycling and resource recovery systems which preserve and enhance the quality of the air, water, and other natural resources of the state.

(4) Serve as the official state representative for all purposes of the federal Solid Waste Disposal Act, as amended by P.L. 91-512, or as subsequently amended.

(5) Utilize private industry through contractual arrangements for implementation of some or all of the requirements of the state resource recovery and management program and for such other activities as may be considered necessary, desirable, or convenient.

(6) Encourage recycling and resource recovery as an energy source.

(7) Assist in and encourage, as much as possible, the development within the state of industries and commercial enterprises which are based upon resource recovery, recycling, and reuse of solid waste.

(8) Charge reasonable fees for any services it performs pursuant to this act, provided user fees shall apply uniformly within each municipality or county to all users who are provided with resource recovery and management services.

(9) Acquire, at its discretion, personal or real property or any interest therein by gift, lease, or purchase for the purpose of providing sites for resource recovery and management facilities.

(10) Acquire, construct, reconstruct, improve, maintain, equip, furnish, and operate, at its discretion, such resource recovery and management facilities as are called for by the state resource recovery and management program.

(11) Receive funds or revenues from the sale of products, materials, fuels, or energy in any form derived from processing of solid waste by state-owned or operated facilities, which funds or revenues shall be deposited in the general revenue fund.

Hlstory.-s. I, ch. 74-342.

403.705 State resource recovery and management program.-

( I) The state resource recovery and manage-

ment program shall provide guidelines for the orderly collection, transportation, storage, separation, processing, recovery, recycling, and disposal of solid waste throughout the state; encourage coordinated local activity within a common geografhical area; and investigate the present status o solid-waste management in the state with positive proposals for local action to correct deficiencies in present resource recovery and management processes.

(2) The program shall be developed by the department and adopted by rule within 1 year after this act takes effect. The department shall consult with and obtain the approval of the Resource Recovery and Management Advisory Council, established pursuant to s. 403.710, prior to adoption by rule of the program.

(3) The state resource recovery and management program shall encourage cooperative efforts by counties and municipalities in common geographic areas and shall, to the maximum extent possible, include provision for the continuation of existing regional resource recovery, recycling, and management facilities and programs. In order to encourage such cooperative efforts, the state program shall provide for a pilot resource recovery and management program, as recommended by the Resource Recovery and Management Advisory Council and approved by the legislature according to s. 403.711.


403.706 Local resource recovery and management programs.-

( 1) Within 2 years after the department adopts the state resource recovery and mana~ement program, all counties and municipalities shall adopt, either solely or in cooperation with other counties and municipalities, a local resource recovery and management which shall be approved by the nPI'lRrrm,,.nr implement the provisions of the by adequately providing for the collection, portation, storage, separation, processing, covery, recycling, or disposal of solid waste erated or existing within the boundaries county or incorporated limits of the mlmicip•ality or in the area served thereby.

(2) If any county or municipality fails to velop in a manner consistent with the nPlnRrTment guidelines, either solely or in ,.n,nn.Pr~•tir'n with other counties, municipalities, or nriu<~i~.,. terprise, an approved local and management program, the by rule, adopt a suitable program for or municipality involved, which program elude cooperation of any county or u ...... ,._ .... , .... ~J with any other county or municipality. resource recovery and management adopted by the department under this shall be administered by local government.

(3) Nothing in th~s act shall be construed prevent the governing body of any county or nicipality from providing by ordinance or tion for resource recovery and mltmtge~m•ent quirements which are stricter or more eX1:en:sivl

412


than those imposed by the state resource recovery and management program and rules, regulations, and orders issued thereunder.

(4) Nothing in this act shall be construed to require counties and municipalities to plan for recycling or recycle solid waste where sufficient solid waste is not generated to make it economically practical to engage in recycling and resource recovery programs, as recommended by the Resource Recovery and Management Advisory Council.

(5) The time limit set out in subsection (1) shall be extended by the department upon application to the department by the local unit of government involved and on due cause shown that good faith efforts to meet the requirements of this act have been and are being made.

Histol')'.-s. I, ch. 74-342.

403.707 Permits.-(!) After January 1, 1975, no resource re

covery and management facility or site shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department.

(2) No permit under this section shall be required for the following activities, provided no public nuisance or any condition adversely affecting the public health is created, and provided the activity does not violate other state or local laws, ordinances, rules, regulations or orders:

(a) Disposal by persons of solid waste resulting from their own activities on their own property.

(b) Normal farming operations. (3) All applicable provisions of ss. 403.087

and 403.088, relating to permits and temporary operation permits, shall be construed to include the control of resource recovery and management facilities. However, a temporary operation permit shall not be issued for more than a 3-year period.

403.708 Prohibition; penalty.(!) No person shall: (a) Place or deposit any solid waste in or on

land or waters located within the state ex-in a manner approved by the department consistent with applicable approved pro

of counties or municipalities. However, uv •. uuJLJ<; in this act shall be construed to prohibit

<11s:posa1 of solid waste without a permit as s. 403. 707(2). solid waste except in a manner pre

the department and consistent with lDtllicablle approved programs of counties or mu-

Construct, alter, modify, or operate a rerecovery and management facility or site first having obtained a valid permit from

c:IPI'lartm,f>nt as provided. ins. 403.707. packaging of products manufactured

in the state may not be controlled by govuun;uLLcu rule, regulation, Or Ordinance adopted

March 1, 1974.

(3) Violations of the state resource recovery and management program or rules, regulations, permits, or orders issued thereunder by the department, and violations of approved local programs of counties or municipalities, or rules, regulations, or orders issued thereunder, shall be punishable by a civil penalty as provided in s. 403.141.

(4) The department or any county or municipality may also seek to enjoin the violation of, or enforce compliance with, this act or any program adopted hereunder as provided ins. 403.131.

Hl.tory.---<1. I, ch. 74-342.

403.709 Resource recovery and management grant fund.-

(1) The department may assist counties and municipalities in complying with this act by providing grants to pay a portion of the cost, in no case to exceed 50 percent of the total planning and project costs, for planning and implementing local resource recovery and management programs as required by s. 403.706. Implementation costs may include the cost of acquiring equipment, but not land, in accordance with an approved local program.

(2) Such grants are to be based on a formula of $5,000 per county or municipality plus 25 cents per capita for each user of resource recovery and management services being provided by a county or municipality. To the extent funds are available, the department shall allocate such funds to counties and municipalities in accordance with the formula provided in this subsection.

(3) Prior to the adoption by the department of the state resource recovery and management program, and to the extent funds are available, grants may be made by the department to counties and municipalities according to the formula in subsection (2) to pay a portion of the cost, in no case to exceed 50 percent of the total cost for operation and implementation, of local resource recovery and management programs existing on July 1, 1974.

Hlstory.-a. I, ch. 74-342.

403.710 Resource Recovery and Management Advisory Council.-

( 1) There is created a Resource Recovery and Management Advisory Council to consist of 13 members. The governor shall appoint nine members and designate one as chairman. The governor shall include among the members appointed by him one representative from each of the following: Municipalities, counties, environmental interests, the academic community, agricultural interests, business interests, resource recovery interests, professional engineering interests, and any other profession or occupation which may be affected by the provisions of this act. The president of the senate shall appoint two members from the senate, and the speaker of the house shall appoint two members from the house of representatives. Members of the council shall serve without compensation, but shall be reim-

413


bursed for all necessary expenditures in the performance of their duties.

(2) Not inore than 30 days after the appointment of the council, the chairman shall call. a meeting at which time the council shall establish procedures for the conduct of its business. The council shall meet not less than once in each quarter of each year, and other meetings may be called when necessary by the chairman at any time.

(3) The council shall study all facets of resource recovery and management, including laws and programs in other states, and make such recommendations for new legislation or amendments to existing legislation a); it deems necessary to insure that resources, including solid waste, in Florida are collected, disposed of, and managed in a manner consistent with environmental and economic concerns, and are also recovered and recycled to the greatest extent practicable for continued use and for use as a source of energy which is vital to the preservation of the state's untouched natural resources.

(4) As part of its work, the council shall approve the proposed state resource recovery and management program prior to adoption by the department and make recommendations for changes in the proposed program prior to adoption. The department shall cooperate fully with the council. In addition, the council shall review local implementation programs as they are submitted to the department according to s. 403.706 and make whatever recommendations and findings it deems necessary. The council shall specifically recommend to the department those counties and municipalities which will not generate sufficient solid waste to make it economically practical to plan for recycling or recycle solid waste and which therefore should not be required . to engage in recycling or resource recovery programs.

(5) In order to encourage and promote resource recovery and recycling, the council shall recommend to the 1975 regular session of the legislature, in its interim report, an appropriate site or sites and funding requirements for a state resource recovery and management pilot project as described in s. 403.711.

(6) The council shall also consult with local governments, regional planning agencies, and relevant state agencies and obtain the views of the public, including the views of businesses and professions concerned with resource recovery and management.

(7) The council shall prepare and submit to the governor and legislature interim reports on March 1, 1975, and March l. 1976, and shall submit a comprehensive report and recommendations by January 1, 1977. The comprehensive report shall contain an analysis of state and local resource recovery and management programs and of the state pilot project as well as any other matters the council chooses to include.

(8) The council shall employ an executive director and may employ such other staff and consultants as needed to carry out its functions.


403.711 PUot project.-( 1) The Resource Recovery and Management

Advisory Council shall recommend in its interim report to the 1975 regular session of the legislature an appropriate site or sites and required funding for a state resource recovery and management pilot project.

(2) The pilot project shall have as its primary purpose the coordination and advancement of existing technology in the field of resource recovery, management, and recycling and shall, whenever practicable, promote and encourage the production of energy from solid waste.

(3) Upon approval of a site and funding by the legislature, the department shall include the pilot project in the state resource recovery and management program and may exercise any of the powers provided in s. 403.704 in implementing the project.

Hlstory.---c. I, ch. 74-342.

403.712 Revenue bonds.-Revenue bonds payable solely from funds which result from the sale of solid waste, recovered resources, energy, and recyclable products which are derived from state or local resource recovery and management programs may be issued by the Division of Bond Finance of the Department of General Services on behalf of the state or any county or municipality in the manner provided by the State Bond Act, ss. 215.57 et seq. and the Revenue Bond Act of 1953, as amended, part I, chapter 159. Such bonds shall be issued only to finance the cost of construction, maintenance, or operation of resource recovery and management facilities, which cost may include the acquisitiop of real property and easements therein for such purposes.

Hlstory.---c. I , ch. 74-342.

403.713 Transport of solid waste.(1) Nothing in this act shall be interpreted as

limiting the free flow of solid waste across municipal or county boundaries in accordance with the rules and regulations issued pursuant to this act.

(2) No municipality or county of this shall take any actlon to prevent such free solid waste provided the transport or Clis:positJion of the solid waste is in accord with the provi sions of this act.

Hlstory.---c. I, ch. 74-342.

403.714 Duties of Department of General vices.-It shall be the duty of the Department General Services to:

( 1) Establish a program, in cooperation the Department of Pollution Control, for the lection of all wastepaper materials in state flees throughout the state, which program, in dition to requiring participation by established executive departments, shall for participation by the offices of the ·~e•'"''"'"Y' and judicial branches of state government well.

414


(2) Provide a program to recycle all wastepaper materials collected in accordance with the provisions of this section whenever practicable.

(3) Evaluate the amount of wastepaper material recycled by the state and make all necessary modifications to said recycling program to insure that all wastepaper materials are effectively and practicably recycled. ~&tory.-&. 2, ch. 74-342.

CHAPTER 409

FAMILY SERVICES

Legislative intent. (New) Definitions. (New) Dependent children; action for sup

port. (New) Public assistance payments to child

debt to state; limitations; subrogation. (New)

Notice of debt; mailing; contents. (New)

Debt based on public assistance; service; contents; hearing. (New)

Service of lien. (New) Order to withhold and deliver; issue

and service; contents; effect; delivery of property; bond to release. (New)

Earnings exempt from lien or order. (New)

Assertion of lien; effect. (New) Civil liability upon failure to comply

with order or lien. (New) Release of excess to debtor. (New) Distraint, seizure, and sale of property

subject to liens under s. 409.2470; procedure. (New)

.(\ction for foreclosure of child support lien; satisfaction. (New)

Satisfaction of lien after foreclosure proceedings instituted; redemption. (New)

Department may set debt payment schedule. (New)

Department may release lien or order or return seized property; effect. (New)

Interest on debts due; waiver. (New) Charging off child support debts as

uncollectible. (New) Unidentifiable moneys held in special

account. (New) Employee debtor rights protected; lim

itation. (New) Assignment of earnings to be honored;

effect. (New) Receipt of public assistance for a child

as assignment of rights in child support obligations. (New)

409.2498

409.2501

409.2503 409.2505 409.2507

409.2509

409.401

409.402

409.403

409.404

409.405

409.501 409.502 409.503 409.504

409.505

409.506

Alternative when method of notification held invalid. (New)

Department use of functioning child support enforcement programs. (New)

Alternative methods. (New) Report to the legislature. (New) Division receipt and disbursement of

support payments. (New) Information concerning persons owing

support obligation. (New) Interstate Compact on the Placement

of Children. (New) Financial responsibility for child.

(New) Definitions; Interstate Compact on the

Placement of Children. (New) Agreements between party state offi

cers and agencies. (New) Court placement of delinquent chil-

dren. (New) Short title. (New) Legislative intent. (New) Definitions. (New) Community Service Trust Fund; cre

ation and distribution. (New) Accountability for funds; penalty for

misuse. (New) Programs for which fund use autho

rized. (New)

409.2452 Legislative intent.-Common law and statutory procedures governing the remedies for enforcement of support for financially dependent minor children by responsible parents have not proven sufficiently effective or efficient to cope with the increasing incidence of financial dependency. The increasing workload of courts, prosecuting attorneys, and the attorney general has made such remedies uncertain, slow, and inadequate, thereby resulting in a growing burden on the financial resources of the state, which is constrained to provide public assistance for basic maintenance requirements when parents fail to meet their primary obligations. The state, therefore, exercising its police and sovereign power, declares that the common law and statutory remedies pertaining to family desertion and nonsupport of minor dependent children shall be augmented by additional remedies directed to the real and personal property resources of the responsible parents. In order to render resources more immediately available to meet the needs of minor children, it is the legislative intent that the remedies herein provided are in addition to, and not in lieu of, existing law. It is declared to be the public policy of this state that ss. 409.2452-409.2509 be construed and administered to the end that children shall be maintained from the resources of responsible parents, thereby relieving, at least in part, the burden presently borne by the general citizenry through welfare programs.

History.-&. I, ch. 74-380.

415


409.2454 Definitions.-As used in ss. 409.· 2452-409.2509:

(1) "Department" means the Department of Health and Rehabilitative Services.

(2) "Dependent child" means any person under the age of 18, or under the age of 21 and still in school. who has been deprived of parental support ~r care by reason of death, continued absence from the home, or the physical or mental incapacity of a parent.

(3) "Court order" means any judgment or order of any court of appropriate jurisdiction of the state or an order of a court of comparable jurisdiction of another state, ordering payment of a set or determinable amount of support moneys.

(4) "Responsible parent" means the natural or adoptive parent of a dependent child. .

(5) "Public assistance" means moneys pa1d to any persons included in s. 409.235.

Hlstory.-s. 2, cb. 74-380.

*409.2456 Dependent children; action for support.-

(1) In all cases in which regular child support payments are not being made, within 30 days of the date that an applicant is approved for. public assistance on behalf of such dependent child, the Division **[of Family Services] shall institute a civil action for support from persons liable for the support of the child. The division shall notify th~ state attorney's office in the district in which the recipient resides by petition settin~ forth the facts in the case, including the obligor s address, if known, and the public assistance case number. Whenever applicable, the procedures established under the provisions of chapter 88, the Uniform Reciprocal Enforcement of Support Law, shall govern actions instituted under the provisions of this section.

(2) The ?rd~r for support e~tE;r~d pursuant to an action msbtuted by the diVISIOn under the provisions of subsection (1) shall stipulate that the child support payments be made monthly to the Division of Family Services as long as the child receives public assistance.

(3) The division shall notify the state attorney's office whenever the client's public assi~tance is canceled for any reason, when the obligor has failed to provide the required monthly support for 2 consecutive months, or when the obligor is in arrears 60 days or more, in order that the state attorney's office may institute the appropriate action.

(4) The division shall return any support moneys collected under the provisions of this section to the public assistance recipient.

Hlstory.-s. 3, ch. 74-380. •Note.-Effectlve October I, 1974. .. Note.-Bracketed language Inserted by the editors In the interest

of clarity.

*409.2458 Public assistance payments to child debt to state; Umitations; subrogation.-

( I) Any payment of public assistance money made to, or for the benefit of, any dependent child or children creates a debt due and owing to the department by the natural or adoptive parent

or parents who are responsible for support of such children, in an amount equal to the amount of public assistance money so paid. However, when there has been a court order or final judgment of dissolution of marriage, the debt shall be limited to the amount of said court order or decree. The department shall have the right to petition the appropriate court for modification of a court order on the same grounds as either party to the cause.

(2) The department shall be subrogated to the right of the child or children, or person having the care, custody, and control of the child orchildren, to prosecute or maintain any support action or action to determine paternity or execute any administrative remedy existing under the laws of the state to obtain reimbursement of moneys thus expended.

(3) Debt under this section shall not be incurred by, nor at any time be collected from, a parent or other person who is the recipient of public assistance moneys for the benefit of minor dependent children or who is incapacitated and financially unable to pay as determined by the department for the period such person or persons are in such status.

Hlstory.-s. 4, ch. 74-380. •Note.-Effectlve October I, 1974.

*409.2460 Notice of debt; mailing; contents.( 1) The department shall issue a notice of a

child support debt accrued or accruing, based upon subrogation to or assignment of the judgment created by a court order or final judgment of dissolution of marriage. The notice shall be served upon the debtor in the manner prescribed for the service of summons in a civil action and shall demand payment within 20 days of the date of receipt.

(2) The notice of debt shall include: (a) A statement of the child support debt ac

crued or accruing, computable on the amount required to be raid under any court order or final dissolution o marriage to which the department is subrogated or has an assigned interest.

(b) A statement that if no answer is made on or before 20 days from the date of the service, the child support debt shall be assessed and determined subject to computation and is subject to collection action.

(c) A statement that the property of the debtor will be subject to lien and foreclosure, distraint, seizure and sale, or order to withhold and deliver.

(d) A statement that the net proceeds will be applied to the satisfaction of the child debt .

(3) If no answer is had by the department the notice of debt on or before 20 days of date of service, action to collect the or assigned child support debt by lien and closure, distraint, seizure and sale, or order withhold and deliver shall be lawful.

Hlstory.-s. 5, ch. 74-380. •Note.-Effective October I, 1974.

416


*409.2462 Debt based on public assistance; service; contents; hearing.-

( I) In the absence of a court order or final judgment of dissolution of marriage, but not in the absence of a legal sanction of parental obligations, the department shall issue a notice of a child support debt accrued or accruing, based upon payment of public assistance to or for the benefit of any dependent child or children.

(2) The notice of debt shall include: (a) A statement of the child support debt ac

crued or accruing, computable on the basis of the amount of public assistance previously paid and to be paid in the future.

(b) A statement of the amount of the monthly public assistance payment.

(c) A statement of the name of the recipient and the name of the child or children for whom assistance is being paid.

(d) A demand for immediate payment of the child support debt or, in the alternative, a demand that the debtor make answer, within 20 days of the date of service, to the department stating defenses to liability.

(e) A statement that if no answer is made on or before 20 days from the date of the service, the child support debt shall be assessed and determined subject to computation and is subject to collection action.

(f) A statement that the property of the debtor will be subject to lien and foreclosure distraint, seizure and sale, or order to withhold and deliver.

(3) If no answer is had by the department to the notice of debt on or before 20 days of the date of service, the child support debt shall be assessed and determined subject to computation, and the department shall issue a collection warrant authorizing collection action under this act. If the debtor, within 20 days of date of service of the notice of debt, makes answer to the department alleging defenses to liability, said debtor shall have the right to a hearing by the department. The decision of the department in the hearing shall establish the liability of the debtor, if any, for repayment of public assistance moneys expended to date as an assessed and determined child support debt. Action by the department under the provisions of this act to collect the child support debt shall be lawful from the date of issuance of the decision in the hearing

final disposition of the appeal, if any. History .-s. 6, ch. 7 4-380. *Note.-Effective October I, 1974.

*409.2464 Service of lien.-The department at any time after filing of a child support

serve a copy of the lien upon any person, corporation, association, political subdivior department of the state in possession of

or deposits or balances held in any account of any nature which are due ow-

or belonging to said debtor. The child' suplien shall be served upon the person, firm,

association, political subdivision, or of the state in the manner prescribed

for the service of summons in a civil action. No lien filed under s. 409.2470 shall have any effect against earnings or bank defosits or balances unless it states the amount o the child support debt accrued and unless service upon said person, firm, corporation, association, political subdivision, or department of the state in possession of earnings or bank accounts, deposits, or balances is accomplished pursuant to this section.

History.-. 7, ch. 74-380. *Note.-Effective October I, 1974.

*409.2466 Order to withhold and deliver; issue and service; contents; effect; delivery of property; bond to release.-After service of a notice of debt as provided for in ss. 409.2460 and 409.2462 **[which is based upon] a child support debt accrued or accruing, based upon subrogation to or assignment of the amount required to be paid under any court order or final judgment of dissolution of marriage, or whenever a child support lien has otherwise lawfully been filed pursuant to s. 409.2470, a court of competent jurisdiction, upon proper notice and hearing is authorized to issue to any person, firm, corporation, association, political subdivision, or department of the state an order to withhold and deliver property of any kind, including, but not restricted to, earnings which are due, owing, or belonging to the debtor, when the department has reason to believe that there is in the possession of such person, firm, corporation, association, political subdivision, or department of the state property which is due, owing, or belonging to said debtor. However, the provisions of this act shall not be construed to allow the attachment, seizure, distraint, execution, or sale of any property exempted from any such action under the provisions of s. 4, Art. X of the State Constitution or under any other provisions of said constitution or under the provisions of s. 222.11. The order to withhold and deliver, which shall also be served upon the debtor, shall state the amount of the child support debt accrued and shall state in summary the terms of ss. 409.2468 and 409.2472. The order to withhold and deliver shall be served in the manner prescribed for the service of a summons in a civil action or by certified mail, return receipt requested. Any person, firm, corporation, association, political subdivision, or department of the state upon whom service has been made is hereby required to answer the order to withhold and deliver within 20 days, exclusive of the day of service, under oath and in writing and make true answers to the matters inquired of therein. In the event there is in the possession of any such person, firm, corporation, association, political subdivision, or department of the state any property which may be subject to the claim of the department, such property shall be withheld immediately upon receipt of the order to withhold and deliver and shall after the 20-day period, upon demand, be delivered forthwith to the department. The department shall hold the property in trust for application on the indebtedness involved or for return, without in-

417


terest, in accordance with final determination of liability or nonliability. In the alternative, there may be furnished to the department a good and sufficient bond, satisfactory to the department, conditioned upon final determination of liability. When money is due and owing under any contract of employment, express or implied, or is held by any person, firm, corporation, association, political subdivision, or department of the state, subject to withdrawal by the debtor, such money shall be delivered by remittance, payable to the order of the department. Delivery to the department of the money or other property held or claimed shall satisfy the requirement of the order to withhold and deliver. Delivery to the department shall serve as full acquittance, and the state warrants and represents that it shall defend and hold harmless for such actions persons delivering money or property to the department pursuant to this act. The foregoing is subject to the exemptions contained in ss. 409.2468 and 409. 2476.

Hlstory.-s. 8, ch. 74-380. *Note.-Effective October I, 1'974. ••Note.-Bracketed language inserted by the editors in the interest

of clarity.

*409.2468 Earnings exempt from lien or order.-Whenever a child support lien or order to withhold and deliver **[asserting a child support debt against earnings] is served upon any person, firm, corporation, association, political subdivision, or department of the state **[and there is in th~ possession of such person, firm, corporation, association, political subdivision, or department of the state] any such earnings, 50 percent of the disposable earnings shall be exempt and may be disbursed to the debtor whether such earnings are paid, or to be paid, weekly, monthly, or at other regular intervals, · and whether there be due the debtor earnings for 1 **[week] or for a longer period. The lien or order to withhold and deliver shall continue to operate and require said person, firm, corporation, association, political subdivision, or department of the state to withhold the nonexempt portion of earnings at each succeeding earnings disbursement interval until the entire amount of the child support debt stated in the lien or order to withhold and deliver has been withheld. As used in this act, the term "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and specifically includes periodic payments pursuant to pension or retirement programs or insurance policies of any type, but does not include payments by any department or division of the state based upon inability to work or obtain employment. Such definition shall not include the payment of any money or other thing due to any person who is the head of a family residing in this state when the money or other thing is due for the personal labor or services of such person. "Earnings" also means that part of temporary total disability payments and permanent total disability compensation to a workman as provided in chapter

440, ***[which is payable] to the spouse and children of a workman, and shall also include no more than 40 percent of the net proceeds of payments to a workman for permanent partial disability as provided by chapter 440. The term "disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amount required by law to be withheld.

Hlstory.-s. 9, cb. 74-380. •Note.-Effective October I, 1974. ••Note.-The bracketed language was apparently omitted from the

amendment to CS for HB 54 by a typographical error (See p. II63, House Journal).

•••Note.-Bracketed language inserted by the editors in the interest of clarity.

*409.2470 Assertion of lien; effect.-Upon proper notice and hearing, a court of competent jurisdiction may enter a judgment against the debtor. Based on such jud~ent or final resolution of an appeal, if any, *resolution of an appeal, and there is in the possession of any person, firm, corporation, association, political subdivision, or department of the state having notice of said lien any property which may be subject to the child support lien, such property shall not be paid over, released, sold, transferred, encumbered, or conveyed except as provided for by the exemptions contained in ss. 409.2468 and 409.2476, unless a written release or waiver signed by the department has been delivered to said person, firm, corporation, association, political subdivision, or department of the state or unless a determination has been made in a hearing pursuant to s. 409.2462, or by a court, ordering release of the child support lien on the basis that no debt exists or that the debt has been satisfied.

Hlstory.-s. 10, cb. 74-380. •Note.-Effective October I, 1974. ••Note.-lt appears that in the preparation of an amendment to CS

for HB 54 (See p. ll62, House Journai) a substantial amount of material was inadvertently omitted at the place marked by the "•• .'' Fol· lowing is the text of the section as it appeared in CS for HB 54:

Seetioll • • AaMrtioD of Ilea; efteet.-( I) Upon proper notice and bearing, a court of competent jurisdlc·

tion may enter a judgment against the debtor. Based on such judgment or final resolution of an appeal, if any, the department may assert a lien upon the real or personal property of the debtor not oth· erwise exempted; provided, however, that the provistons of this act shall not be construed to allow the attachment, seizure, distraint, execution, or sale of any property exempted from any such action under the provisions of Section .t of Article X of the State Constitution or under any other provisions of said constitution or under the provi· sions of s. 222.ll, Florida Statutes. This lien sbali be separate and apart from, and in addition to, any other lien created by, or provided for, in this act. The lien shall attach to ali real and personal property of the debtor on the date of filing of such statement with the clerk of the circuit court of the county in which such property is located.

(2) Whenever a child support lien has been ffied pursuant to lawful notice, hearing, judgment and, if any, resolution of an appeal, and there is· in the Jl?Ssession of any person, firm. corporation, association, political subdivtsion, or department of tbe state having notice of said lien any property which may be subject to the child support lien, such property shall not be paid over, released, sold, transferred, encumbered or conveyed, except as provided for by the exem!Kions contained in sections 8 and 13, unless a written release or waJVer signed by the department bas been delivered to said person, finn, corpora· tion, association, political subdivision, or department of the state or unless a determination bas been maae in a hearing pursuant to

l!!'~s 5 tb'!t ':r., ~e'i,~~xi~;:e,r:"&a~::"d~~t ~:S ~n s~Jsfi~~en on

*409.24 72 Civil liability upon failure to ply with order or lien.-Should any person, corporation, association, political subdivision, department of the state:

(1) Fail to make answer to an order to hold and deliver within the time nrf•!l;r.lnhl~n

418


herein or fail or refuse to deliver property pursuant to said order;

(2) After actual notice of filing of a child support ien, pay over, release, sell, transfer, or convey real or personal property subject to a child support lien to or for the benefit of the debtor or any other person;

(3) Fail or refuse to surrender upon demand property distrained under the provisions of s. 409.24 76; or

(4) Fail or refuse to honor an assignment of wages presented by the department,

said person, firm, corporation, association, political subdivision, or department of the state shall be liable to the department in an amount equal to 100 percent of the value of the debt which is the basis of the lien, order to withhold and deliver, distraint, or assignment of wages, together with costs, interest, and reasonable attorney's fees.

Hlstory.-s. II, ch. 74-380. •Note.-Effective October I, 1974.

*409.2474 Release of excess to debtor.Whenever any person, firm, corporation, association, political subdivision, or department of the state has in its possession earnings, deposits, accounts, or balances in excess of the amount of the debt claimed by the department plus $100, such person, firm, corporation, association, political subdivision, or department of the state may, without liability under this act, release the excess to the debtor.

Hlstory.-s. 12, ch. 74-380. •Note.-Effective October I, 1974.

*409.2476 Distraint, seizure, and sale of property subject to liens under s. 409.2470; procedure.-Whenever a child support lien has been filed pursuant to s. 409.24 70, the department may collect the child support debt stated in said lien by the distraint, seizure, and sale of the property subject to the lien. The department shall give notice to the debtor and any person known to have or claim an interest therein of the general description of the property to be sold and the time and place of sale of the property. The notice shall be given to such persons by certified mail, return receipt requested. A notice specifying the property to be sold shall be posted in at least two public places in the county wherein the distraint has been made. The time of sale shall not be less than 10 or more than 20 days from the date of posting of such notices. The sale shall be conducted by the department, which shall proceed to sell such property by parcel or by lot at a public auction and which may set a minimum reasonable price to include the expenses of making a levy and of advertising the sale, and if the amount bid for such property at the sale is not equal to the price so fixed, the department may declare such property to be purchased by the department for such price, or may coJnOlllct another sale of the property pursuant to

provisions of this section. In the event of

sale, the debtor's account shall be credited with the amount for which the property has been sold. Property acquired by the department as herein prescribed may be sold by it at public or private sale for a commercially resalable value, and the amount realized shall be placed in the state general revenue fund to the credit of the department. In all cases of sale, as aforesaid, the department shall issue a bill of sale or a deed to the purchaser, and the bill of sale or deed shall be prima facie evidence of the right of the department to make such sale and conclusive evidence of the regularity of its proceeding in making the sale, and shall transfer to the purchaser all right, title, and interest of the debtor in the property. The proceeds of any such sale, except in those cases wherein the property has been acquired by the department, shall be first apflied by the department to the reimbursement o the costs of distraint and sale, and thereafter in satisfaction of the delinquent account. Any excess which shall thereafter remain in the hands of the department shall be refunded to the debtor. Sums so refundable to a debtor may be subject to seizure or distraint by any taxing authority of the state or its political subdivisions or by the department for new sums due and owing subsequent to the subject proceeding. Except as specifically provided in this act, there shall be exempt from **[an order to] withhold and deliver, distraint, seizure, execution, and sale under this act such property as is exempt therefrom under the laws of this state.

History.-<~. 14, ch. 74-380. •Note.-Effective October I, 1974 . .. Note.-Bracketed language inserted by the editors in the interest

of clarity.

*409.2478 Action for foreclosure of child support lien; satisfaction.-Whenever a child support lien has been filed, an action in foreclosure of lien upon real or personal property may be brought in the circuit court where the real or personal property is or was located and the lien was filed. Judgment shall be rendered in favor of the department for the amount due, with costs, and the court shall allow, as part of the costs, the moneys paid for making and filing the claim of lien and a reasonable attorney's fee. The court shall order any property upon which any lien provided for by this act is established to be sold by the sheriff of the proper county to satisfy the lien and costs. The payment of the lien debt, costs, and reasonable attorney's fees, at any time before sale, shall satisfy the judgment of foreclosure. When the net proceeds of sale upon application to the debt claimed do not satisfy the debt in fuJI, the department shall have judgment over for any deficiency remaining unsatisfied, and further levy and sales upon other property of the judgment debtor may be made under the same execution. In all sales contemplated under this section, advertising of notice shall only be necessary for 2 weeks in a newspaper published in the county where the property is located and, if there be no newspaper therein, then in the most convenient newspaper having a circulation in the

419


county. Remedies provided for herein are alternatives to other remedies provided for in other sections of this act.

Hlstor"y.-s. 15, cb. 74-380. *Note.-Effective October I , 1974.

*409.2480 Satisfaction of lien after foreclosure proceedings Instituted; redemption.-Any person owning real property, or any interest in real property, against which a child support lien has been filed and foreclosure instituted shall have the right to pay the amount due, together with expenses of the proceedings and reasonable attorney's fees, to the department **[and upon such payment, the department] shall restore the property to him and all further proceedings in the foreclosure action shall cease. The person shall also have the right, within 240 days after the sale of property foreclosed under s. 409.24 78, to redeem the property by making payment to the purchaser in the amount paid by the purchaser, plus interest thereon at the rate of 6 percent per annum.

Hlstory.-s. 16, cb. 74-380. •Note.-Effective October I , 1974. ••Note.-lt appears, from a comparison with the text of s. 15 of CS

for HB 54, from which the language of this section was taken in the preparation of an amendment to CS for HB 54 (See p. 1162, House Journal) that the bracketed words were inadvertently omitted.

*409.2482 Department may set debt payment schedule.-The department may at any time, cor.sistent with the income, earning capacity, and resources of the debtor, set or reset a level and schedule of payments to be paid upon the debt.

Hlstory.-s. 17, cb. 74-380. *Note.-Effective October I , 1974.

*409.2484 Department may release lien or order or return seized property; effect.-The department may at any time release a child support lien or order to withhold and deliver on all or part of the property of the debtor, or return seized property without liability, if assurance of payment is deemed adequate by the department or if the action will facilitate the collection of the debt, but the release or return shall not operate to prevent future action to collect from the same or other property.

Hlstory.-s. 18, cb. 74-380. *Note.-Effective October I, 1974.

*409.2486 Interest on debts due; waiver.-Interest of 6 percent per annum on any child support debt due and owing to the department under s. 409.2456 may be collected by the department. No provision of ss. 409.2452-409.-2509 shall be construed to require the department to maintain interest balance due accounts and said interest may be waived by the department if the waiver would facilitate the collection of the debt.


*409.2488 Charging off child support debts as uncollectible.-Any child support debt due the department from a re·sponsible parent which the

department deems uncollectible may be transferred from accounts receivable to a suspense account and cease to be accounted as an asset. At any time after 6 years from the date a child support debt was incurred, the department may charge off as uncollectible any child support debt upon which the department finds there is no available, practical, or lawful means by which the debt may be collected, subject to audit by the state comptroller. No proceedings or action under the provisions of this act may be begun after expiration of the 6-year period to institute collection of a child support debt. Nothing herein shall be constru C1 to render invalid or nonactionable a child support lien filed prior to the expiration of the 6-year period.

Hlstory.-s. 20, cb. 74-380. *Note.-Effectlve October I, 1974.

*409.2490 Unidentlflable moneys held In special account.-All moneys collected in fees, costs, attorney's fees, interest payments, or other funds received by the department which are unidentifiable as to the child support account against which they should be credited shall be held in a special fund from which the department may make disbursement for any costs or expenses incurred in the administration or enforcement of the provisions of this act.

Hlstory.-s. 21, cb. 74-380. •Note.-Effectlve October I, 1974.

*409.2492 Employee debtor rights protected; limitation.-No employer shall discharge an employee for the reason that a child support lien or order to withhold and deliver has been served against said employee's earnings. However, this provision shall not apply if more than three child support liens or orders to withhold and deliver are served upon the same employer within any period of 12 consecutive months.


*409.2494 Assignment of earnings to be honored; effect.-Any person, firm, corporation, association, political subdivision, or department of the state employing a person owing a child support debt or obligation shall honor, according to its terms, a duly executed assignment of earnings _presented by the department as a plan to satisfy or retire a child support debt or obligation. This requirement to honor the assignment of earnings, and the assignment of earnings itself, shall be applicable whether the earnings are to be paid presently or in the future and shall continue in force and effect until released in writing by the department. Payment of moneys pursuant to an assignment of earnings presented by the department shall serve as full acquittance under any contract of employment, and the state warrants and represents it shall defend and hold harmless such action taken pursuant to said assignment of earnings. The department shall be released from liability for improper receipt of moneys under an assignment of earnings upon return of any moneys so received.

420



*409.2496 Receipt of public assistance for a child as assignment of rights in chlld support obUgations.-By accepting public assistance for or on behalf of a child or children, the recipient shall be deemed to have made assignment to the department of any and all right, title, and interest in any child support obligation owed to or for said child or children up to the am.ount of public assistance money paid for or on behalf of the child or children for such term of time as the public assistance moneys are paid. The recipient shall also be deemed, without the necessity of signing any document, to have appointed the department as his or her true and lawful attorney in fact to act in his or her name, place, and stead to perform the specific act of endorsing any and all drafts, checks, money orders, or other negotiable instruments representing child support payments which are received on behalf of the child or children as reimbursement for the public assistance moneys previously paid to the recipient.

Hlstory.-s. 24, cb. 74-380. •Note.-Effective October I, 1974.

409.2498 Alternative when method of notification held invalid.-If any method of notification provided for in this act is held invalid, service as provided for by the laws of the state for service of process in a civil action shall be substituted for the method held invalid.

Hlstory.-s. 25, cb. 74-380.

*409.250 1 Department use of functioning chlld support enforcement programs.-In any circuit in which there is a presently functioning and legally sanctioned child support enforcement program, the department may enter into contract with the state attorney to carry out the provisions of this act. Such a contract shall contain provisions for appropriate reporting procedures concerning the disposition of child support cases and the expenditure and collection of funds. Nothing in the contract shall be in conflict with federal law or regulations.

Hlstory.-s. 26, cb. 74-380. •Note.-Effective October I, 1974.

*409.2503 Alternative methods.-Section 409.- . 2456 shall be alternative and cumulative to ss. 409.2458-409.2501 as determined by the department.

Hlstory.-s. 27, cb. 74-380. •Note.-Effective October I , 1974.

*409.2505 Report to the legislature.-The deshall repoJ1 to the legislature no later

March 15, 1975, and annually thereafter, as

(1) The number of parents located. (2) The amount of money generated through

collection of child support of dependent chil-

The cost for generating that money. Such other information as would be useful

to the legislature in evaluating the program by which the department collects child support moneys for dependent children.

Hlstory.--<!1. 28, cb. 74-380. •Note.-Effective October I, 1974.

*409.2507 Division receipt and disbursement of support payments.-When no court order or lien has been filed, the Division of Family Services shall be the recipient of support payments and will disburse payment moneys to the client. In keeping with this operating methodology, a clearing account and revolving fund to ease administration and cash flow is authorized.

Hlstory.--<!1. 29. cb. 74-380. •Note--Effective October I, 1974.

*409.2509 Information concerning persons owing support obligation.-To assist in locating parents who have deserted their children and other persons liable for support of dependents, the department may request and shall receive information from the records of all state boards, commissions, departments, officers, and agencies thereof, and the same are authorized to provide such information as is necessary for this purpose. Only information directly bearing on the Identity and whereabouts of a person owing or asserted to be owing an obligation of support shall be requested and used or transmitted by the department pursuant to the authority conferred by this act. The department may make such information available only to public officials and agencies of this state, other states, and political subdivisions of this state and other states seeking to locate parents who have deserted their children and other persons liable for support of dependents for the purpose of enforcing their liability for support.

Hlstory.--<!1. 30, cb. 74-380. •Note.-Effective October I, 1974.

409.401 Interstate Compact on the Placement of Chlldren.-The Interstate Compact on the Placement of Children is hereby enacted into law and entered into with all other jurisdictions legally joining therein in form substantially as follows:

INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN

ARTICLE I. Purpose and Policy It is the purpose and policy of the party states

to cooperate with each other in the interstate placement of children to the end that:

(a) Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.

(b) The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the

421


proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.

(c) The proper authorities of the state from which the placement is made may obtain the most complete information on the basis on which to evaluate a projected placement before it is made.

(d) Appropriate jurisdictional arrangements for the care of children will be promoted.

ARTICLE II. Definitions As used in this compact: (a) "Child" means a person who, by reason of

minority, is legally subject to parental, guardianship or similar control.

(b) "Sending agency" means a party state, officer or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings, or causes to be sent or brought any child to another party state.

(c) "Receiving state" means the state to which a child is sent, brought, or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or · persons.

(d) "Placement" means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, and any hospital or other medical facility.

ARTICLE III. Conditions for Placement (a) No sending agency shall send, bring, or

cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.

(b) Prior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. The notice shall contain:

(1) The name, date and place of birth of the child.

(2) The identity and address or addresses of the parents or legal guardian.

(3) The name and address of the person, agency or institution to or with which the sending agency proposes to send, bring, or place the child.

(4) A full statement of the reasons for such proposed action and evidence of the authority pursuant to which the placement is proposed to

be made. (c) Any public officer or agency in a receiving

state which is in receipt of a notice pursuant to paragraph (b) of this article may request of the sending agency, or any other appropriate officer or agency of or in the sending agency's state, and shall be entitled to receive therefrom, such supporting or additional information as it may deem necessary under the circumstances to carry out the purpose and policy of this compact.

(d) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.

ARTICLE IV. Penalty for Illegal Placement The sending, bringing, or causing to be sent or

brought into any receiving state of a child in violation of the terms of this compact shall constitute a violation of the laws respecting the placement of children of both the state in which the sending agency is located or from which it sends or brings the child and of the receiving state. Such violation may be punished or subjected to penalty in either jurisdiction in accordance with its laws. In addition to liability for ariy such punishment or penalty, any such violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.

ARTICLE V. Retention of Jurisdiction (a) The sending agency shall retain jurisdic

tion over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency's state, until the child is adopted, reaches majority, becomes selfsupporting or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement. Nothing contained herein shall ·defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein.

(b) When· the sending agency is a public agency, it may enter into an agreement with authorized public or private agency in the ing state providing for the rerformance of one or more services in respect o such case by the latter as agent for the sending agency.

(c) Nothing in this compact shall be construed to prevent a private charitable agency authorized to place children in the receiving state from performing services or acting as agent

422


that state for a private charitable agency of the sending state; nor to prevent the agency in the receiving state from discharging financial responsibility for the support and maintenance of a child who has been placed on behalf of the sending agency witho~1t relieving the responsibility set forth in paragraph (a) hereof.

ARTICLE VI. Institutional Care of Delinquent Children

A child adjudicated delinquent may be placed in an institution in another party jurisdiction pursuant to this compact but no such placement shall be made unless the child is given a court hearing on notice to the parent or guardian with opportunity to be heard, prior to his being sent to such other party jurisdiction for institutional care and the court finds that:

1. Equivalent facilities for the child are not available in the sending agency's jurisdiction; and

2. Institutional care in the other jurisdiction is in the best interest of the child and will not produce undue hardship.

ARTICLE VII. Compact Administrator The executive head of each jurisdiction party

to this compact shall designate an officer who shall be general coordinator of activities under this compact in his jurisdiction and who, acting jointly with like officers of other party jurisdictions, shall have power to promulgate rules and regulations to carry out more effectively the terms and provisions of this compact.

ARTICLE VIII. Limitations This compact shall not apply to: (a) The sending or bringing of a child into a

receiving state by his parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or nonagency guardian in the receiving state.

Any placement, sending or bringing of a into a receiving state pursuant to any other

•nTPr''""' .. compact to which both the state from child is sent or brought and the receivare party, or to any other agreement

hpt·ur•• .. n said states which has the force of law.

ARTICLE IX. Enactment and Withdrawal This compact shall be open to joinder by any

territory or possession of the United the District of Columbia, the Commonof Puerto Rico, and, with the consent of

the Government of Canada or any nr(ltvtrlce thereof. It shall become effective with

to any such jurisdiction when such jurishas enacted the same into law. Withfrom this compact shall be by the enact

a statute repealing the same, but shall effect until two years after the effective

of such statute and until written notice of withdrawal has been given by the withdrawstate to the Governor of each other party ju-

risdiction. Withdrawal of a party state shall not affect the rights, duties and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal.

ARTICLE X. Construction and Severability The provisions of this compact shall be liber

ally construed to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

History.-<!. I , ch. 74-317.

409.402 Financial responsibility for chlld.-Financial responsibility for any child placed pursuant to the provisions of the Interstate Compact on the Placement of Children shall be determined in accordance with the provisions of Article V thereof in the first instance. However, in the event of partial or complete default of performance thereunder, the provisions of state laws fixing responsibility for the support of children also may be invoked.

History.-<~. 2, ch. 74-317.

409.403 Definitions; Interstate Compact on the Placement of Chlldren.-

(1) The "appropriate public authorities" as used in Article III of the Interstate Compact on the Placement of Children shall, with reference to this state, mean the Division of Family Services of the Department of Health and Rehabilitative Services, and said division shall receive and act with reference to notices required by said Article III.

(2) As used in paragraph (a) of Article V of the Interstate Compact on the Placement of Children, the phrase "appropriate authority in the receiving state" with reference to this state shall mean the Division of Family Services of the Department of Health and Rehabilitative Services.

(3) As used in Article VII of the Interstate Compact on the Placement of Cliildren, the term "executive· head" means the governor. The governor is hereby authorized to appoint a compact administrator in accordance with the terms of said Article VII. Hlstory.-<~s. 3, 4, 8, ch. 74-317.

409.404 Agreements between party state officers and agencies.-

( I) The officers and agencies of this state and its subdivisions having authority to place chil-

423


dren are hereby empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to paragraph (b) of Article V of the Interstate Compact on the Placement of Children, s. 409.401. Any such agreement which contains a financial commitment or imposes a financial obligation on this state or subdivision or agency thereof shall not be binding unless it has the approval in writing of the secretary of Health and Rehabilitative Services in the case of the state.

(2) Any requirements for visitation, inspection, or supervision of children, homes, institutions, or other agencies in another party state which may apply under the provisions of chapters 63 and 409 shall be deemed to be met if performed pursuant to an agreement entered into by appropriate agencies of this state or a subdivision thereof as contemplated by paragraph (b) of Article V of the Interstate Compact on the Placement of Children, s. 409.401.

Hlstory.-ss. 5, 6, ch. 7._317.

409.405 Court placement of delinquent children.-Any court having jurisdiction to place delinquent children may place such a child in an institution in another state pursuant to Article VI of the Interstate Compact on the Placement of Children, s. 409.401, and shall retain jurisdiction as provided in Article V thereof.

Hiatory.-s. 7, ch. 7~17.

409.501 Short title.-Sections 409.501-409:-505 shall be known and may be cited as the "Florida Financial Assistance for Community Services Act of 1974."

Hlstory.-s. I, cb. 7._166.

409.502 Legislative intent.-(1) The legislature finds and declares that

great numbers of Florida citizens are denied adequate opportunities to become self-sufficient because local communities, given the scope and magnitude of community problems, do not possess the ability to generate enough revenue to carry out effective programs designed to develop human resources. The legislature also recognizes local governments as vital partners in the effort to help all citizens achieve self-fulfillment and that local government must be capable of meeting the needs of its community.

(2) It is the purpose of ss. 409.501-409.505 to facilitate and assist local governing authorities in the development, establishment, and administration of community service programs to meet the unmet needs of their citizens in essential and necessary human resource development programs and activities.

Hlstory.-s. I , ch. 7._166.

409.503 Definitions.-As used in ss. 409.501-409.505, except where the context clearly indicates a different meaning:

(1) "Department" means the Department of Community Affairs.

(2) "Local governing authority" means the governing body of a county or municipality.

(3) "Private corporation not ·for profit" means any Florida corporation in compliance with part I of chapter 617.

(4) "Program for community services" means a program developed and approved by a local governing authority, either independently or in combination with other local governing authorities or a private corporation not for profit, to provide community services in the area of human resource development, especially with respect to programs which serve individuals who are either recipients or potential recipients of public assistance.

Hlstory.-s. I, ch. 7._166.

409.504 Community Service Trust Fund; creation and distribution.-

( 1) The Community Service Trust Fund is hereby created. All revenue designated for deposit in such fund shall be deposited by the appropriate agency. Any funds deposited therein not needed for distribution may be invested pursuant to s. 215.49, with the interest earned to be deeosited in the trust fund.

(2) On or before September 1 of each year, a local governing authority, either independently or in combination with other local governing authorities, or a private corporation not for profit whose program plan has been approved by a local governing authority, may apply to the department for financial assistance to implement any program of community services for the fiscal year beginning on October 1 and ending the following September 30. The department is authorized to issue special instructions and make such rules and regulations as are necessary to carry out the intent of ss. 409.501-409.505.

(3) Funds distributed pursuant to ss. 409.501-409.505 for any program shall be matched by an equal amount of funds contributed by the applicant. One-half of the applicant's contribution must be cash. Trust funds shall be distributed in equal monthly payments.

(4)(a) Distribution shall be based on population. The amount available for distribution within each county shall be determined by dividing the total amount estimated to be available by the total population and multiplying the per capita figure derived therefrom by the total population of the county.

(b) If the applications from any county, whether submitted by one or more local governing authorities or by private corporations not for profit, exceed the amount available for distribution within that county, the department shall empanel a committee from that county consisting of one representative from each applying unit and adjust the total amount applied for to the total amount available.

(c) If funds remain available after all applications have been processed, the department may invite local units to apply for special assistance for demonstration and research programs.

424


Hlltory.-s. I, ch. 74-166,

409.505 Accountability for funds; penalty for misuse.-

( I) The applicants, or combination thereof, shall be responsible for setting up rroper budgeting, accounting, and other fisca management procedures.

(2) The department shall make an annual report to the governor and legislature on or before January 1 of each year on financial assistance for community services programs, inCluding priorities and goals established by local governments, a description of funded programs, and the amount of funds distributed.

(3) An elector of any unit receiving funds hereunder may file a petition, including a statement of facts, with the department alleging misuse of funds pursuant to ss. 409.501-409.505. Upon determining that the petition is not frivolous and has merit, the department shall conduct a local hearing in order to determine if the allegation is true and if disqualification and repayment is warranted.

(4) Any local governing authority using funds provided hereunder for any program or purpose other than that authorized herein shall repay such amount plus a 10 percent penalty and shall be deemed to have waived the privilege of receiving funds under ss. 409.501-409.505 for the year or years in question.

Hlatory.-s. I, ch. 74-166.

409.506 Programs for which fund use authorized.-Any funds appropriated to the Department of Community Affairs to establish the Community Trust Fund are to be used to fund presently established, or to be established, local human services programs, including programs which serve senior citizens, youth, the unemployed, the medically indigent, expectant mothers, infants, children needing day care, the handicapped, and other needy persons, and for necessary costs of administering this program, as set forth in ss. 409.501-409.506 and current general and special laws pertaining to such expenditures. In the event that federal funds are forthcoming and to the extent that they are available for the same purpose, they shall be used instead of or to replace general revenue appropriations. However, not more than 15 percent of the total stated matching dollars may be used

salaries or administrative cost.

CHAPTER413

VOCATIONAL REHABILITATION

PART I BLIND SERVICES PROGRAM

PART II GENERAL VOCATIONAL REHABILITATION PROGRAMS

PART I

BLIND SERVICES PROGRAM

413.032 Purpose. (New) 413.033 Definitions. (New) 413.034 Council established; membership.

(New) 413.035 Duties and powers of the council.

(New) 413.036 Procurement of services by state agen

cies; authority of council. (New) 413.037 Cooperation with council required;

duties of state agencies. (New) 413.038 Report to governor and legislature.

(New) 413.08 Equal accommodations for blind and

visually handicapped; unlawful to prohibit or interfere with; guide dog allowed to accompany.

413.032 Purpose.-The purpose of this act is to further the policy of the state to encourage and assist blind and other severely handicapped individuals to achieve maximum personal independence through useful, productive, and gainful employment by assuring an expanded and constant market for their products and services, thereby enhancing their dignity and capacity for self-support and minimizing their dependence on welfare and need for costly institutionalization.


413.033 Definitions.-As used in ss. 413.032-413.038:

(1) "Blind" means an individual having central visual acuity of 201200 or less in the better eye with correcting glasses or a disqualifying field defect in which the peripheral field has contracted to such an extent that the widest diameter or visual field subtends an angular distance no greater than 20 degrees.

(2) "Other severely handicapped" and "severely handicapped individuals" mean an individual or class of individuals under a physical or mental disability other than blindness, which, according to criteria established by the council created in s. 413.034, after consultation with appropriate entities of the state and taking into account the views of nongovernment entities representing the handicapped, constitutes a substantial handicap to employment and is of such a nature as to prevent the individual under such disability from currently engaging in normal competitive employment.

(3) "Qualified nonprofit agency for the blind" means an agency:

(a) Organized under the laws of the United States or of this state, operated in the interest of blind individuals, the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual;

(b) Which complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor of the United States;

425


(c) Which, in the production of commodities and the provision of services, whether or not the commodities or services are procured under ss. 413.032-413.038, during the fiscal year employs blind individuals for not less than 75 percent of the man-hours of direct labor required for the production or provision of the commodities or services; and

(d) Which meets the criteria for determining nonprofit status under the provisions of s. 196.-195 and is registered and in good standing as a charitable organization with the Department of State under the provisions of chapter 496.

(4) "Qualified nonprofit agency for other severely handicapped" means an agency:

(a) Organized under the laws of the United States or of this state, operated -in the interest of severely handicapped individuals who are not blind, the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual;

(b) Which complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor of the United States;

(c) Which, in the production of commodities and in the provision of services, whether or not the commodities or services are procured under ss. 413.032-413.038, during the fiscal year employs blind or other severely handicapped individuals for not less than 75 percent of the manhours of direct labor required for the production or erovision of the commodities or services; and

(d) Which meets the criteria for determining nonprofit status under the provisions of s. 196.· 195, and is registered and in good standing as a charitable organization with the Department of State under the provisions of chapter 496.

(5) "Direct labor" includes all work required for preparation, processing, and packing, but not supervision, administration, inspection, and shipping.

(6) "Agency" includes any political subdivision of the state having its own purchasing agency, such as a county, municipality, school district, or other public body, that is supported in whole or in part by funds appropriated by the legislature.

Hlstory.-s. 2, cb. 74-236.

*413.034 Council established; membership.-( 1) There is created within the Department of

General Services a council to be known as the Council for the Purchase of Products and Services of the Blind or Other Severely Handicapped, to be composed of the executive director of the Department of General Services, the chief of the Bureau of Budget of the Division of Budget of the Department of Administration, the secretary of the Department of Health and Rehabilitative Services, and two members to be appointed by the governor, who shall be an executive director of a nonprofit agency for the blind and an executive director of a nonprofit agency for other severely handicapped. The appointive members shall serve as follows: One member shall serve for a term of 4 years and one member

shall serve for a term of 2 years; thereafter, both appointive members shall serve for terms of 4 years.

(2) The members of the council shall elect one of their members to serve as chairman. Any member may designate a representative of his agency or department to represent him at any meeting of the council.

(3) Members of the council shall not be entitled to compensation for their services as members, but shall be reimbursed for traveling expenses as provided ins. ll2.061.

Hlstory.-s. 3. cb. 74-236. •Note.-Effective October I, 1974.

*413.035 Duties and powers of the councU.(1) It shall be the duty of the council to

determine the market price of all products and services offered for sale to the various agencies of the state by any qualified nonprofit agency for the blind ***for] other severely handicapped. The price shal recover for the nonprofit agency the cost of raw materials, labor, overhead, and delivery cost, but without profit, and shall be revised from time to time in accordance with changing cost factors. The council shall make such rules and regulations regarding specifications, time of delivery, assignment of products and services to be supplied by nonprofit agencies for the blind or by agencies for the other severely handicapped, with priority **[for assignment] of products to agencies for the blind, authorization of a central nonprofit agency to facilitate the allocation of orders among qualified nonprofit agencies for the blind, authorization of a central nonprofit agency to facilitate the allocation of orders among qualified nonprofit agencies for other severely handicapped, and other relevant matters of procedure as shall be necessary to carry out the purposes of this act. The council shall authorize the purchase of products and services elsewhere when requisitions cannot reasonably be complied with through the nonprofit agencies for the blind and other sever:ely handicapped.

(2) The council shall establish and publish a list of products and services provided by any qualified nonprofit agency for the blind and any nonprofit agency for the other severely handicapped, which the council determines are suitable for procurement by agencies of the state pursuant to this act. This procurement list and revision thereof shall be distributed to all purchasing officers of the state and its political subdivisions.

Hlstory.-s. 4, cb. 74-236. •Note.-Effective October I , 1974. ••Note.-Bracketed language inserted by the editors. •••Note.-"Or" substituted for "and" by the editors.

*413.036 Procurement of services agencies; authority of councU.-If any ...... ,'"IIL:v

tends to procure any product or service procurement list, that agency shall, in dance with rules and regulations of the co,un~~il,, procure such product or service at the tablished by the council from a QU<alified nn••n~'•"-

426


fit agency for the blind or for the other severely handicapped if the product or service is available within a reasonable delivery time. This act shall not apply in any case in which products or services are available for procurement from any agency of the state and procurement therefrom is required under the provision of any law currently in effect.


*413.037 Cooperation with council required; duties of state agencies.-

( 1) In furtherance of the purposes of this act and in order to contribute to the economy of state government, it is the intent of the legislature that there be close cooperation between the council and any agency of the state from which procurement of products or services is required under the provision of any law currently in effect. The council and any such agency of the state are authorized to enter into such contractual agreements, cooperative working relationships, or other arrangements as may be determined to be necessary for effective coordination and efficient realization of the objectives of this act and any other law requiring procurement of products or services from any agency of the state.

(2) The council may secure directly from any agency of the state information necessary to enable it to carry out this act. Upon request of the chairman of the council, the head of the agency shall furnish such information to the council.

(3) Space shall be set aside in the state capitol for the purpose of exhibiting products produced by clients of rehabilitation-oriented agencies of the state.

Hlstory.-ss. 6, 8, ch. 74-236. •Note.-Effective October I, 1974.

*413.038 Report to governor and legislature. -The council shall, not later than 90 days following the close of each fiscal year, transmit to the governor and the legislature a report which shall include the names of the council members serving in the preceding fiscal year, the dates of council meetings in that year, a description of its activities under this act in that year, and any recommendations for changes in this act which it determines are necessary.


413.08 Equal accommodations for blind and visually handicapped; unlawful to prohibit or interfere with; guide dog allowed to accompany.-

(1)(a) The blind and the visually handicapped are entitled to full and equal accommodations, advantages, facilities, and privileges on all common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, boats, or any other public conveyances or modes of transportation and at hotels, lodging places, places of public accommodation, am\}sement or resort, and other places to which the general public is invited, subject only to the conditions and limita-

tions established by law and applicable alike to all persons.

(b) Every totally or partially blind J'erson shall have the right to be accompanie by a guide dog, especially trained for the purpose, in any of the places listed in paragraph (a) without being required to pay an extra charge for the guide dog; however, he shall be liable for any damage done to the premises or facilities by such dog.

(2) Any person, firm, or corporation, or the agent of any person, firm, or corporation, who denies, or interferes with, admittance to or enjoyment of the public facilities enumerated in subsection (1) or otherwise interferes with the rights of a totally or partially blind person under this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3) It is the policy of this state that the blind, visually handicapped, and otherwise physically disabled shall be employed in the service of the state or political subdivisions of the state, in the public schools, and in all other employment supported in whole or in part by public funds, and no employer shall refuse employment to the blind, the visually handicapped, or the otherwise physically disabled on the basis of the disability alone, unless it is shown that the particular disability prevents the satisfactory performance of the work involved.

(4) Blind persons and visually handicapped persons shall be entitled to rent, lease, or purchase, as other members of the general public, all housing accommodations offered for rent, lease, or other compensation in this state, subject to the conditions and limitations established by law and applicable alike to all persons.

(a) "Housing accommodations" means any real property or portion thereof which is used or occupied, or intended, arranged, or designed to be used or occupied, as the home, residence, or sleeping place of one or more human beings, but shall not include any single-family residence the occupants of which rent, lease, or furnish for compensation not more than one room therein.

(b) Nothing in this section shall require any person renting, leasing, or otherwise providing real property for compensation to modify his property in any way or provide a higher degree of care for a blind person or visually handicapped person than for a person who is not so handicapped.

(c) Every totally or partially blind person who has a guide dog, or who obtains a guide dog, shall be entitled to full and equal access to all housing accommodations provided for in this section, and he shall not be required to pay extra comrensation for such guide dog. However, he shal be liable for any damage done to the premises by such guide dog.

*(5) Any employer covered under subsecton (3) who discriminates against the blind, visually handicapped, or otherwise physically **[disabled] in employment, as specified in subsection (3), or any person, firm, or corporation, or the agent of

427


any person, firm, or corporation, providing housing accommodations as provided in subsection (4) who discriminates against the blind, visually handicapped, or otherwise physically **[disabled] is guilty of a misdemeanor of the second degree punishable as provided in s. 775.082 or s. 775. 083.

Hlstory.-s. I , ch. 25268, 1949; s. I , cb. 61-217; s. 361, cb. 71-136; s. I , cb. 71 -276; s. I , cb. 73-110; s. I , ch. 74-286.

•Note.-subsection (5) takes effect October I , 1974. ••Note.-"Disabled" substituted for "handicapped" by the editors to

conform to the terminology of subsection (3).

413.46 413.47 413.48

413.49

413.50 413.501 413.502

PART II

GENERAL VOCATIONAL REHABILITATION PROGRAMS

Legislative intent. (New) Definitions. (New) Establishment and maintenance of a

central registry. (New) Duties and responsibilities of the de-

partment. (New) Purpose. (New) Definitions; ss. 413.50-413.504. (New) Division authorized to contract with re-

413.503 habilitation workshop facility. (New)

Eligibility and standards of service. (New)

413.504 Department to promulgate rules and regulations. (New)

413.46 Legislative intent.-It is the intent of the legislature to insure the referral of severely handicapped persons to the Department of Health and Rehabilitative Services by appropriate individuals or public and private agencies in order that all severely handicapped persons might obtain the appropriate rehabilitative services rendered by the department and other state agencies.

Hlstory.-s. I , cb. 74-254.

413.47 Definitions.-As used in ss. 413.46-413.49:


(2) "Severe disability" means: (a) Any spinal cord disease or injury resulting

in permanent and total disability. (b) Amputations of extremities that require

prosthesis. (c) Visual acuity of 20/200 or worse in the

better eye with the best correction. (d) A peripheral field so contracted that the

widest diameter of such field subtends an angular distance no greater than 20 degrees.

(e) A serious visual limitation in any infant sufficient to warrant special assistance to parents in matters of child-rearing and development.

Hlstory.-s. 2, cb. 74-254.

*413.48 Establishment and maintenance of a central registry.-The department shall establish and maintain a central registry of severely dis-

abled persons. (1) Every public and private health and social

agency and attending physician shall report to the department within 7 days after identification of any severely disabled person; however, the consent of the individual shall be obtained prior to making this report.

(2) The report shall contain the name, age, residence, and type of disability of the individual and such additional information as may be deemed necessary by the department.


*413.49 Duties and responsibilities of the department.-

(1) Within 15 days of the report and identification of a severely disabled person, the department shall notify the most immediate family members of their right to assistance from the state, the services available, and the eligibility requirements.

(2) The department shall refer severely disabled persons to appropriate divisions of the department and other state agencies to assure ·that rehabilitative services, if desired, are obtained by the severely disabled person.

(3) All other agencies of the state shall cooperate with the department to insure that appropriate rehabilitative services are available.


413.50 Purpose.-The purpose of ss. 413.50-413.504 is:

(1) To provide extended employment in rehabilitation workshop facilities for developmentally disabled persons who are over 16 years of age and are, as a result of their disability, unable to enter the competitive labor market.

(2) To encourage the development, improvement, and expansion of rehabilitation workshop facilities for developmentally disabled persons.

Hlstory.-s. I, cb. 74-341.

*413.501 Definitions; ss. 413.50-413.504.When used in ss. 413.50-413.504, unless the context clearly requires otherwise:


(2) "Division" means the Division of Vocational Rehabilitation of the Department of Health and Rehabilitative Services.

(3) "Rehabilitation workshop facility" means a place operated by a nonprofit voluntary agency engaged in the manufacture or production of products which provides gainful rehabilitation to severely handicapped persons until such persons can become employed and provides gainful work to developmentally disabled persons unable to be employed.

( 4) "Extended employee" means one who has been employed in a rehabilitation workshop facility in excess of 24 months. This period shall include all developmental services involving, but not limited to, evaluation, personal and work-

428


adjustment training, and subsequent facility employment.

(5) "Extended employment" means meaningful remunerative activity for at least 20 hours per week resulting in earnings of at least $5 per week.

(6) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, or epilepsy, which disability can reasonably be expected to continue indefinitely and constitutes a substantial handicap to an individual.

(7) "Costs" means operating expenditures of the extended employment portion of the rehabilitation workshop facility less operating income generated by such extended employment activities.

(a) Expenditures approvable in arriving at costs may include, but are not limited to, the cost of:

I. Staff salaries and benefits attributable to extended employment work operations.

2. Rent, either on a ratio of extended employees to total facility client population or on a basis of space used, whichever is higher, or, if the building is owned by the facility, the equivalent of rent, including taxes, interest on mortgage, building maintenance and repair, depreciation of building, etc.

3. Utilities. 4. Equipment, on a depreciation basis. 5. Insurance. 6. Operation and maintenance. 7. The purchase, operation, and maintenance

of vehicles used primarily for transporting the developmentally disabled to and from the facility and for transporting subcontract work and supplies.

8. Such indirect items as administration, including supervision of staff, bookkeeping, accounting, and secretarial and clerical services.

9. Other necessary expenditures approved and authorized in advance by the division.

(b) The following expenditures shall not be approvable:

I. Purchase of land. 2. New construction. 3. Acquisition, renovation, alteration, or ex

pansion of existing buildings. 4. Mortgage amortization. 5. Any subsidy in addition to earned wages

which is paid to an employee by a facility. Hlstory.-s. 2, ch. 74-341. •Note.-Effective October I, 1974.

*413.502 Division authorized to contract with rehabilitation workshop facility.-

( I) Whenever it appears to the satisfaction of the division that a developmentally disabled person over the age of I6 years can reasonably be expected to benefit from, or if his best interests reasonably require, extended employment in a rehabilitation workshop facility operated by an approved nonprofit, organization, the division is authorized to contract with the organization for the furnishing of extended employment to the de-

velopmentally disabled person. (2) The division shall maintain a register of

nonprofit organizations operating rehabilitation workshop facilities which, after inspection of the facilities for extended employment provided by them, the division deems qualified to meet the needs of such developmentally disabled persons. The inspections shall also determine the eligibility of such organizations to receive the funds hereinbefore specified.

History.--<~. 3, ch. 74-341. •Note.-Effective October I, 1974.

*413.503 Eligibility and standards of service.( I) Persons eligible for support as extended

employees are those persons having a developmental disability who are over I6 years of age and are, as a result of their disability, unable to enter the competitive labor market.

(2) The determination of developmental disability shall be made by the division upon the basis of psychological or medical records on file in the rehabilitation workshop facility that provide suitable and adequate evidence of:

(a) Mental retardation. (b) Cerebral palsy. (c) Epilepsy. (d) Any combination of these disabilities.

The psychological or medical records which determine the condition of developmental disability shall not be more than 2 years old at the time of application by the facility for the support of such person. The division may require reexamination of a person by the facility in order to revalidate developmental disability.

(3) Those persons for whom subsidies are requested by a facility shall receive appropriate rehabilitation or habilitation services such as evaluation, personal and work adjustment training, or other services in order to assist the division in making a determination of the suitability of placement of such persons in extended employment within the facility. The facility shall be responsible for providing adequate information relating to the decision that an appropriate evaluation has been made of the validity of the "extended employee" designation.

(4) Periodic evaluations on at least a semiannual basis shall be conducted by the facility to determine if an extended employee's potential has been increased to the point where outside employment is possible. Professional evaluation services shall be regularly available either from the staff of the facility or on regular schedule from a rehabilitation facility which provides these professional services.

(5) Adequate job-placement services shall be made available by the facility for those extended employees deemed to have attained the potential for competitive employment.

(6) Any person in the facility whose productivity is at or above the level of the statutory minimum wage shall be excluded from support in this program unless there are modifying fac-

429


tors making competitive employment difficult. (7) The maximum number of developmentally

disabled persons in extended employment in any one rehabilitation workshop facility for whom the facility may receive support shall not exceed the maximum number of work stations available at any one full-time shift in the facility. For purposes of this subsection, "full-time" means a minimum of 5 hours of work daily. However, exceptions may be made on an individual basis, and consideration shall be given to medical reports rendered.

HllltAiry.-s. 4, ch. 74-341. •Note.-Etfectlve October I, 1974.

*413.504 Department to promulgate rules and regulations.-The department is authorized to promulgate such reasonable rules and regulations as it may deem necessary or proper to carry out the provisions of this act. Administration of this act shall be consistent with the state plan for the Federal Developmental Disabilities Services and Facilities Construction Act as developed and implemented by the Division of Retardation.

HilltGry.-s. 5, ch. 74-341. •Note.-Etfectlve October I, 1974.

420.20 420.201

420.202 420.203

420.204 420.205 420.206

420.207

420.208

420.209

420.210 420.211

CHAPTER420

FLORIDA HOUSING ACT

PART III

RURAL HOUSING

Short title. (New) Finding and declaration of necessity.

(New) Definiti6ns. (New) Revolving Rural Land Acquisition and

Site Development Assistance Trust Fund established. (New)

Loans authorized; purposes. (New) Terms of loan agreements. (New) Rules and regulations; annual report.

(New) Default by borrower; power of the sec

retary. (New) Failure or inability of the eligible bor

rower to cause housing to be developed on labd purchased; recourse. (New)

Disposition of property accruing to the state. (New)

Lands; subject to taxation. (New) Expiration of lending authority. (New)

420.20 Short title.-This part shall be known as the "Florida Rural Housing Land Acquisition and Site Development Assistance Act of 1974."

HllltAiry.-s. I , ch. 74-168.

420.201 Finding and declaration of necessity. -It is hereby declared that:

(1) It is the policy of this state to realize, through cooperation with the private sector and federal and local governments, as soon as feasible, the goal of decent, safe, and sanitary housing and a suitable living environment for all citizens of Florida at a price they can afford.

(2) There exists within this state a serious shortage of safe and sanitary residential housing at prices or rentals which persons and families of low and moderate income can afford. This shortage has contributed, and will contribute, to the creation and persistence of substandard living conditions which are detrimental to the health, welfare, and prosperity of the residents of this state.

(3) The solution to Florida's housing problem lies in sustained, measured efforts. The problem transcends the capability of a single jurisdiction or entity, public or private, to achieve a solution.

(4) Proportionately, the largest housing problem found in the state is in the rural areas. A rural home is more likely to be overcrowded, to lack plumbing, to be older, and to be valued less than an urban house.

(5) To the extent that the lack of suitable, affordable, improved building sites for rural housing continues to exist, the problem of delivery of rural housing in the state is further compounded.

(6) Assistance in the provision of safe and sanitary dwelling accommodations, as well as the acquisition and development of land for the creation of a suitable living environment for persons and families of low or moderate income, are exclusively public purposes and uses for which public moneys may be borrowed, expended, advanced, or loaned. Such activities serve a public purpose in improving or otherwise benefiting the people of this state. .

(7) The necessity of enacting the provisions hereinafter set forth is in the public interest and is so declared as a. matter of express legislative determination.

Hlatory.-s. 2, ch. 74-168.

420.202 Deftnltions.-For the purpose of this part, the following terms, unless the context indicates otherwise, shall have the meaning ascribed to them in this section: ,

(1) "Department" means the Department of Community Affairs.

(2) "Eligible borrower," "eligible loan applicant," or "loan recipient" means a county commission; a municipal council, or commission or agency thereof; or a housing authority as provided by chapter 421.

(3) "Eligible sponsor" or "eligible developer" means any person, firm, corporation, municipality, or federal, state, or local agency eligible to sponsor or develop housing for persons of low or moderate income under any housing program of the federal, state, or local governments.

(4) "Fund" means the Revolving Rural Land Acquisition and Site Development Assistance Trust Fund.

430


(5) "Persons of low or moderate income" means persons or families who lack the amount of income which is necessary, as determined by federal law, to enable them, without financial assistance, to live, without overcrowding, in decent, safe, and sanitary dwellings.

(6) "Rural areas" means an incorporated or unincorporated town, village, or other place which has a population consistent with the housing jurisdiction of the Farmers Home Administration of the United States Department of Agriculture.

(7) "Secretary" means the secretary of community affairs.

Hlltory.-s. 3, ch. 74-168.

420.203 Revolving Rural Land Acquisition and Site Development Assistance Trust Fund estabUsbed.-There is established in the state treasury a separate revolving trust fund to be called "the Revolving Rural Land Acquisition and Site Development Assistance Trust Fund." There shall be deposited into the fund all moneys appropriated by the legislature or moneys received from any other source for the purpose of this part and all proceeds derived from the use of such moneys; however, interest earned on loans made from the fund as well as income earned by the fund invested pursuant to s. 215.49 shall be deposited to the general revenue fund of the state unallocated. The fund shall be administered by the department from moneys appropriated by the legislature for that purpose.

Hlltory.-ss. 4, 5, ch. 74-168.

420.204 Loans authorized; purposes.-( I) The secretary is authorized to make loans

to eligible borrowers for the acquisition and development of suitable sites for housing for persons of low or moderate income in rural areas of the state when he determines that:

(a) A need for such housing exists as demonstrated by an approved feasibility letter from the appropriate agency.

(b) Federal, state, or local assistance funds are available or are likely to be available to aid in the construction, maintenance, or support of low or moderate income housing on such sites if developed.

(c) Funding for land acquisition and site development is not readily available in the area from private sources.

(2) Loan recipients shall use moneys borrowed from the fund to purchase or contract to purchase from any person, firm, corporation, municipality, county, or federal or state agency real property and provide for such improvements to the real property that the loan recipient and the secretary determine are reasonably necessary for development of housing and housing-related facilities for persons of low or moderate income. The secretary may authorize a loan for the site upon which the housing is to be situated and sites designated for other uses that are deemed to be necessary to such housing, as defined by the rules and regulations.

(3) Such real property or any portion thereof purchased and developed under this part shall be made available to an eligible developer or sponsor for the purpose of construction of housing for persons of low or moderate income, or directly to a qualified low or moderate income family, at such price and upon such terms as are consistent with the loan agreement. The loan recipient shall, by public notice through publication in a newspaper having a general circulation in the community at least 30 days prior to the _ execution of any contract for the sale of such real property, invite proposals from, and make available all pertinent information to, eligible developers or any persons interested in undertaking to develop housing on such real property or any portion thereof. The loan recipient shall consider all such development proposals and other relevant factors, including, but not limited to, financial and legal *[factors], and the construction and development capability of the persons making such proposals to carry them out. Such real property or any portion may be disposed of by the loan recipient, and in tum by the eligible developer, at a price not to exceed the actual prorated land costs, development costs, accrued taxes, and interest.

Hlltory.-6. 6, ch. 74-168. •Note.-Bracketed language Inserted by the editors In the Interest of

clarity. cf.-6. 420.211 Expiration of lending authority.

420.205 Terms of loan agreements.-( I) In addition to any terms or conditions

which the secretary may require, each loan agreement shall include:

(a) Provision for interest, which shall be set at 3 percent per annum.

(b) Provision for a schedule for the repayment of principal and interest upon terms not to exceed 3 years. However, the secretary, upon review after the expiration of no less than 18 months of the original term, is authorized to extend the terms of a loan for an additional period not to exceed 2 years.

(c) Provisions for reasonable security for the loan to insure the repayment of the principal and any interest accrued within the term specified. Reasonable security may include, but is not limited to:

1. A promissory note. 2. A mortgage from the eligible borrower on

the property purchased and improved from the proceeds of the loan.

3. A pledge of unencumbered revenues of the eligible borrower.

4. Other forms of collateral acceptable to the secretary.

(d) Provisions to insure that the land acquired shall be utilized for the development of housing and related services for persons of low or moderate income.

(e) Provisions to insure, to the extent possible, that any accrued savings in cost due to the availability of these funds shall be passed on to persons of low or moderate income in the form of lower prices or rents for dwellings constructed

431


on such land. (f) Provision that no land acquired through

assistance under this part shall be disposed of or alienated in any way except for the provision of housing for persons of low and moderate income in a manner that in no way violates Title VIII of the 1968 Civil Rights Act, which specifically prohibits discrimination based on race, color, religion, or national origin in the sale of vacant land to be used for residential purposes.

(2) No single loan made under this section shall exceed the lesser of:

(a) The development costs, as determined by rule of the secretary;

(b) The value of the property as improved with the loan; or

(c) Two hundred thousand dollars,

unless it is determined by the secretary that any excess amount will be recovered through assured refunds before the maturity of the loan from sources such as utility companies *[and be used] for pertinent facilities financed with the loan.

Hls1ol')'.-s. 7, ch. 74-168. •Note.-Bracketed words inserted by the editors.

d.-s. 420.211 Expiration of lending authority,

420.206 Rules and regulations; annual report. -The secretary is authorized to promulgate rules and regulations, on or before February 1, 1975, necessary to establish terms and conditions that will insure that the purposes of this part are carried out and the state's interests are adequately protected. The secretary shall submit to the governor by June 30 an annual report with complete details of the amount loaned, interest earned, loan recipients, persons housed, and the balances on all loans outstanding at the end of each fiscal year.

Hls1ol')'.-s. 8, ch. 74-168. d.-s. 420.211 Expiration of lending authority.

420.207 Default by borrower; power of the secretary.-

(!) In the event of default on a loan, the secretary is empowered on behalf of the state to foreclose on any mortgage or security interest or commence any legal action to protect the interest of the state and recover the amount of the unpaid frincipal, accrued interest, and fees on behalf o the fund.

(2) When a local government has secured a loan through the pledge of eligible revenues as security and subsequently there is a default on the loan, the secretary shall so certify to the comptroller who shall forward the amount in default to the fund from any moneys so secured that may be due to the applicant under any revenue-sharing or tax-sharing fund established by the state, except as otherwise provided by the Florida Constitution.

Hls1ol')'.-s. 9, cb. 74-168. d.-s. 420.211 Expiration of lending authority.

420.208 Failure or inability of the eligible borrower to cause housing to be developed on land purchased; recourse.-The secretary is autho-

rized to take appropriate legal action to transfer title of the land to the state when:

(1) A loan recipient does not cause the land to be developed for housing for persons and families of low or moderate income within 3 years from the execution of the loan agreement, unless the secretary has extended the term of the loan.

(2) It is jointly determined by the secretary and the loan recipient that, because of a change in the characteristics of the parcel acquired or because of a change in federal, state, or local programs, it is impossible for the land to be developed for housing for persons of low or moderate income.

All land so acquired shall be administered by the secretary in accordance with s. 420.209.

Hlstory.-s. 10, cb. 74-168. d.-s. 420.211 Expiration of lending authority.

420.209 Disposition of property accruing to the state.-When, because of the effects of this part, title to lands is acquired by the state to be administered by the secretary, the following provisions shall apply:

(1) Subject to the approval of the Board of Trustees of the Internal Improvement Trust Fund, and pursuant to rules and regulations promulgated by the secretary and approved by such trustees, the secretary is empowered to make land so acquired available to eligible sponsors for the provision of housing for persons of low or moderate income, and, in such cases, the conveyance and reconveyance procedures for state lands as provided in chapters 253 and 270 shall not apply.

(2) When the secretary determines that it is not possible for the land to be developed for housing for persons of low or moderate income, the land shall be sold in accordance with the conveyance and reconveyance procedures for state lands as provided in chapters 253 and 270, with all net procee.c;ls to be deposited to the fund.

Hlstory.-s. 11. ch. 74-168.

420.210 Lands; subject to taxation.-Lands purchased under this part shall not be exempted from ad valorem taxation while title is held by the loan recipient. Such taxes shall accrue and be capitalized as par,t of the total development costs.

Hlstol')'.-s. 12, ch. 74-168.

420.211 Expiration of lending authority.-The lending authority granted to the secretary under this part shall expire June 30, 1979. All unencumbered and repaid funds after this date shall revert and be transferred to the general revenue fund of the state, unallocated. Loan repayments received in the fund after June 30, 1979, shall revert and be transferred to the general revenue fund, unallocated, as they are received.

Hlstory.-s. 14, ch. 74-168.

432

1974 SUPPLEMENT TO FLORIDA STATUTES 1973 s. 440.02

CHAPTER 425

RURAL ELECTRIC COOPERATIVE LAW

425.10 Board of trustees.

425.10 Board of trustees.-( 1) The business and affairs of a cooperative

shall be managed by a board of not less than five trustees, each of whom shall be a -member of the cooperative or of another cooperative which shall be a member thereof. The bylaws shall prescribe the number of trustees, their qualifications, other than those provided for in this chapter, the manner of holding meetings of the board of trustees and of the election of successors to trustees who shall resign, die, or otherwise be incapable of acting. The bylaws may also provide for the removal of trustees from office and for the election of their successors. Without approval of the members, trustees shall not receive any salaries for their services as trustees and, except in emergencies, shall not be employed by the cooperative in any capacity involving compensation. The bylaws may, however, provide that a fixed fee and expenses of attendance, if any, may be allowed to each trustee for attendance at each meeting of the board of trustees and that such may be allowed for the performance of other cooperative business, provided it has prior approval of the board of trustees.

(2) The trustees of a cooperative named in any articles of incorporation, consolidation, merger or conversion, as the case may be, shall hold office until the next following annual meeting of the members or until their successors shall have been elected and qualified. At each annual meeting or, in case of failure to hold the annual meeting as specified in the bylaws, at a special meeting called for that purpose, the members shall elect trustees to hold office until the next following annual meeting of the members, except as hereinafter otherwise provided. Each trustee shall hold office for the term for which he is elected or until his successor shall have been elected and qualified.

(3) The bylaws may provide that, in lieu of electing the whole number of trustees annually, the trustees may be divided into three classes at the first or any subsequent annual meeting, each class to be as nearly equal in number as possible, with the term of office of the trustees of the first class to expire at the next succeeding annual meeting and the term of the second class to expire at the second succeeding annual meeting and the term of the third class to expire at the third succeeding annual meeting. At each annual meeting after such classification a number of trustees equal to the number of the class whose term expires at the time of such meeting shall be elected to hold office until the third succeeding annual meeting.

(4) A majority of the board of trustees shall constitute a quorum.

(5) If a husband and wife hold a joint membership in a cooperative, either one, but not

both, may be elected a trustee. (6) The board of trustees may exercise all of

the powers of a cooperative except such as are conferred upon the members by this chapter, or its articles of incorporation or bylaws.

m.tory.-. 9, ch. 19138, 1939; CGL HMO Supp. 6494(52); s. I, cb. 28053, 1953; s. I, cb. 74-33.

CHAPTER440

WORKMEN'S COMPENSATION LAW

440.02 440.04 440.05

440.075

440.09 440.10 440.12

440.14 440.15 440.151 440.16 440.18 440.20 440.24

440.25 440.29

440.30 440.39

440.44

440.441

440.45

440.49

440.50

440.51

Definitions. Waiver of exemption. Notice of exemption or acceptance and

waiver of exemption or acceptance. When corporate officer rejects chapter;

effect. (New) Coverage. Liability for compensation. Time for commencement and limits on

weekly rate of compensation. Determination of pay. Compensation for disability. Occupational diseases. Compensation for death. Notice of injury or death. Payment of compensation. Enforcement of compensation orders;

penalties. Procedure in respect to claims. Procedure before the commission or di-

vision. Depositions. Compensation for injuries where third

persons are liable. Workmen's compensation; staff orga

nization. Salaries of industrial relations commis

sioners. Judges of industrial claims; delegation

of authority. Rehabilitation of injured employees;

Special Disability Trust Fund. Workmen's Compensation Administra

tion Trust Fund. Expenses of administration.

440.02 Definitions.-When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:

(1) "Employment." (a) "Employment," subject to the other provi

sions of this chapter, means any service performed by an employee for the person employing him.

(b) The term "employment" shall include: 1. Employment by the state and all political

subdivisions thereof and all public and quasipublic corporations therein, including officers elected at the polls.

433

s. 440.02 1974 SUPPLEMENT TO .FLORIDA STATUTES 1973

2. All private employments in which one or more employees are employed by the same employer.

**(c) The term "employment" shall not include service performed by or as:

1. Domestic servants in private homes. 2. Agricultural labor performed on a farm in

the employ of a bona fide farmer, or association of farmers, who employs 5 or less regular employees and who employs less than 12 other employees at one time for seasonal agricultural labor that is completed in less than 30 days, provided such seasonal employment does not exceed 45 days in the same calendar year. The term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, fish, and truck farms, ranches, nurseries, and orchards. The term "agricultural labor" includes field foremen, timekeepers, checkers, and other farm labor supervisory personnel.

3. Professional athletes, such as professional boxers, wrestlers, baseball, football, basketball, hockey, polo, tennis, jai alai, and similar players.

(2) "Employee." (a) "Employee" means every person engaged

in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also including minors whether lawfully or unlawfully employed.

(b) The term "employee" shall include any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous. However, any officer of a corporation may elect to be exempt from coverage under this chapter by filing written certification of the election with the division as provided in s. 440.05. Services shall be presumed to have been rendered the corporation in cases where such officer is compensated by other than dividends upon shares of stock of such corporation owned by him.

(c) The term "employee" shall include a sole proprietor or a partner who devotes full time to the proprietorship or partnership and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05.

(d) The term "employee" shall not include: 1. Independent contractors; or 2. Persons whose employment is both casual

and not in the course of the trade, business, profession, or occupation of the employer.

(3) The term "casual" as used in this section shall be taken to refer only to employments where the work contemplated is to be completed in not exceeding 10 working days, without regard to the number of men employed, and where the total labor cost of such work is less than $100.

(4) The term "employer" means the state and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person.

(5) The term "person" means individual, ·part-. nership, association, or corporation, including any public service corporation.

(6) The term "injury" means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. Damage to dentures, eyeglasses, prosthetic devices, and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accident. This damage must specifically occur as the result of an accident in the normal course of employment.

(7) The term "carrier" means any person or fund authorized under s. 440.38 to insure under this chapter and includes self-insurers.

(8)(a) The term "commission" means the Industrial Relations Commission of the Department of Commerce.

(b) The term "division" means the Division of *[Labor] of the Department of Commerce.

(9) "Disability" means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.

(10) "Death" as a basis for a right to compensation means only death resulting from an injury.

(11) "Compensation" means the money allowance payable to an employee or to his dependents as provided for in this chapter.

(12) "Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer. In employment where an employee receives consideration other than cash as a portion of this compensation the value of such compensation shall be subject to the determination of the division.

**(13) "Child" shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him. "Grandchild" means a child as above defined of a child as above defined. "Brother" and "sister" include stepbrothers and stepsisters, halfbrothers and halfsisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. "Child," "grandchild," "brother" and "sister" includes only persons who at the time of the death of the deceased employees are under 18 years of age, or under 22 years of age if a fulltime student in an accredited educational institution.

(14) The term "parent" includes stepparents and parents by adoption, parents-in-law, and any persons who for more than 3 years prior to the

434


death of the deceased employee stood in the place of a parent to him, and were dependent on the injured employee.

**(15) The term "spouse" includes only a spouse substantially dependent for financial support upon the decedent and living with the decedent at the time of the decedent's injury and death, or substantially dependent upon the decedent for financial support and living apart at said time for justifiable cause.

(16) The term "adoption" or "adopted" means legal adoption prior to the time of the injury.

(17) The term "time of injury" means the time of the occurrence of the accident resulting in the injury.

(18) "Accident" means only an unexpected or unusual event or result, happening suddenly. A mental or nervous injury due to fright or excitement only or disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or narcotic drugs, shall be deemed not to be an injury by accident arising out of the employment. Where a preexisting disease or anomaly is accelerated or aggravated by accident arising out of and in the course of employment, only acceleration of death or the acceleration or aggravation of disability reasonably attributable to the accident shall be compensable with respect to permanent disability or death. Compensation for temporary disability and medical benefits provided by this chapter shall not be subject to apportionment under this subsection.

(19) The term "registered mail" includes certified mail and any mail service which provides for a receipt to the sender and a record of delivery at the office of address.

Hlstory.-s. 2, ch. 17481 , 1935; s. I, ch. 17482, 1935; s. I, ch. 17483, 1935; CGL 1936 Supp. 5966(2); s. I , ch. 18413, 1937; s. I, ch. 20672, 1941 ; s. I , ch. 28238, 1953; s. I , ch. 29778, 1955; s. I , ch. 57-155; s. I, ch. 57-225; s. I , ch. 59-100; s. I, ch. 65-184; s. I , ch. 67-554; ss. 17, 35, ch. 69-106; s. I , ch. 71 -80; s. 162, ch. 71-377; s. I, ch. 72-243; s. I , ch. 73-127; s. I , ch. 73-283; s. 116, ch. 73-333; s. I, ch. 74-46; s. I , ch. 74-124; s. I, ch. 74-197.

•Note.-Division name conformed to ch. 73-283, Laws of Florida. ••Note.-P~aph (1)(c) and subsections (13) and (15) as amended

~l~: rt:97De~itl'!".':t October I, 1974.

440.04 Waiver of exemption.-( I) Every employer having in his employment

any employee not included in the definition "employee" or excluded or exempted from the operation of this chapter may at any time waive such exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in s. 440.05, and by so doing be as fully protected and covered by the provisions of this chapter as if such exclusion or exemption had not been contained herein.

(2) When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of "employee" or whose services are not included in the definition of "employment" or who is otherwise excluded or exempted from the operation of this chapter, the acceptance_ of such policy or contract of insurance by the insured and the

writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of s. 440.05 with respect to notice.

*(3) A corporate officer who has exempted himself by proper notice from the operation of this chapter may at any time revoke such exemption and thereby accept the provisions of this chapter by giving notice as provided in s. 440.05.

History.~. 4, ch. 17481, 1935; CGL 1936 Supp. 5966(4); s. 2, ch. 18413, 1937; s. 2, ch. 29778, 1955; s. 4, ch. 70-148; s. 2, ch. 74-197.

•Note.-Effective October I , 197 4.

*440.05 Notice of exemption or acceptance and waiver of exemption or acceptance.-

(!) Every employer who waives exemption or exclusion pursuant to subsections 440.04(1) and (2) shall post and keep posted in a conspicuous place or places in and about his place or places of business typewritten or printed notices to such effect, in accordance with a form prescribed by the division. He shall file a duplicate of such notice with the division.

(2) Every corporate officer who elects not to accept the provisions of this chapter or who, after electing such exemption, then revokes that exemption shall mail to the division in Tallahassee notice to such effect in accordance with a form to be prescribed by the division.

(3) No notice given pursuant to subsection (2) shall become effective until 30 days after the date it is mailed to the division in Tallahassee. However, if an accident or occupational disease occurs less than 30 days after the effective date of the insurance policy under which the payment of compensation is secured or the date the employer qualified as a self-insurer, such notice shall be effective as of the date it is mailed to the division in Tallahassee.

History.-;-". 5, ch. 17481: 1935; CGL 1936 Supp. 5966(5); ss. 17, 35, ch. 69-106, s. 2, ch. 70-148, s. I , ch. 70-439; s. 3, ch. 74-197.

•Note.-This section, as amended, takes effect October I, 1974.

*440.075 When corporate officer rejects chapter; effect.-Every corporate officer who elects to reject this chapter shall, in any action to recover damages for injury or death brought against the corporate employer, proceed as at common law, and the employer in such suit may avail itself of all defenses that exist at common law. History.~. 4, ch. 74-197. •Note.-Effective October I , 1974.

440.09 Coverage.-*(!) Compensation shall be payable under

this chapter in respect of disability or death of an employee if the disability or death results from an injury arising out of and in the course of employment. Death resulting from an operation by a surgeon furnished by the employer for the cure of hernia as required in s. 440.15(6) shall for the purpose of this chapter be considered as a death resulting from the accident causing the hernia. Where an accident happens while the

435


employee is employed elsewhere than in this state, which would entitle him or his dependents to compensation if it had happened in this state, the employee or his dependents shall be entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state. However, if an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided herein.

*(2) No compensation shall be payable in respect of the disability or death of any employee covered by the Federal Employer's Liability Act, the Longshoremen's and Harbor Worker's Compensation Act, or the Jones Act.

(3) No compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another. Where injury is caused by the willful refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully required or approved by the commission, and brought prior to the accident to his knowledge, the compensation as provided in this chapter shall be reduced 25 percent.

Hlstory.-s. 9, ch. 17481, 1935; CGL 1936 Supp. 5966(9); s. 3, ch. UI·U3, 1937; s. 1, ch. 28236, 1953; s. I, ch. 57-293; s. 2, ch. 73-127; s. 5, ch. 74-197. ·~-Subsections (1) and (2), as amended, take effect October 1,

1974.

440.10 Uability for compensation.-*(1) Every employer coming within the provi

sions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees, or any physician or surgeon providing medical services under the provisions of s. 440.13, of the compensation payable under ss. 440.13, 440.15, and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment. A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.

(2) Compensation shall be payable irrespective of fault as a cause for the injury, except as provided in s. 440.09(3).

Hlstory.-s. 10, ch. 17481, 1935; CGL 1936 Supp. 5966(10); s. 4, ch. 18413, 1937; s. 6, ch. 74-197.

•Note.-Subsection (1), as amended, takes effect October 1, 1974.

440.12 Time for commencement and Umits on weekly rate of compensation.-

(1) No compensation shall be allowed for the first 7 days of the disability, except benefits provided for in s. 440.13; provided, however, that if the injury results in disability of more than 14 days compensation shall be allowed from the commencement of the disability.

*(2) Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week. However, if the employee's wages at the time of injury are less than $20 per week, he shall receive his full weekly wages. If his wages at the time of the injury exceed $20 per week, compensation shall not exceed an amount per week which is:

(a) Equal to sixty-six and two-thirds percent of the average weekly wage, determined :is hereinafter provided for the year in which the injury occurred and

(b) Adjusted to the nearest multiple of $7.

For the purpose of this subsection the "average weekly wage" means the average weekly wage paid by employers subject to the Florida Unemployment Compensation Law as reported to the department for the four calendar quarters ending each June 30, which average weekly wage shall lie determined by the department on or before November 30 of each year and shall be used in determining the maximum weekly compensation rate with respect to injuries occurring in the calendar year immediately following. The average weekly wage determined by the department shall be reported annually to the legislature.

*(3) The provisions of this section as amended effective July 1, 1951, shall govern with respect to disability due to injuries suffered prior to July 1, 1959. The provisions of this section as amended effective July 1, 1959, shall govern with respect to disability due to injuries suffered after June 30, 1959, and prior to January 1, 1968. The provisions of this section as amended effective January 1, 1968, shall govern with respect to disability due to injuries suffered after December 31, 1967, and prior to July 1, 1970. The provisions of this section as amended effective July 1, 1970, shall govern with respect to disability due to injuries suffered after June 30, 1970, and prior to July 1, 1972. The provisions of this section as amended effective July 1, 1972, shall govern with respect to disability due to injuries suffered after June 30, 1972, and prior to July 1, 1973. The provisions of this section, as amended effective July 1, 1973, shall govern with respect to disability due to injuries suffered after June 30, 1973, and prior to January 1, 1975.

Hlstory.-s. 12, ch. 17481, 1935; CGL 1936 Supp. 5966(12); s. 5, ch. 111413, 1937; s. I, ch. 21824, 1943; ss. 1, 3, ch. 26876, 1951; s. 1, ch. 59-151; s. 1, ch. 67-239; s. 1, ch. 70-172; s. I, ch. 72-198; ss. 3, 4, ch. 73-127; s. 7, ch. 74-197.

•Note.-Subsections (2) and (3), as amended, take effect October 1, 1974.

440.14 Determination of pay.-Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall

436

1974 SUPPLEMENT TO FLORIDA STATUTES 1973 s. 440.15

be determined subject to limitations of s. 440.-12(2) as follows:

(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said 13 weeks.

(2) If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding subsection.

*(3) If an employee is a seasonal worker and the foregoing method cannot be fairly applied in determining the average weekly wage, then the employee may use, instead of the 13 weeks immediately preceding the injury, the calendar year or the 52 weeks immediately preceding the injury. The employee will have the burden of proving that this method will be more reasonable and fairer than the method set forth in subsections (1) and (2) and, further, must document prior earnings with W-2 forms, written wage statements, or income tax returns. The employer shall have 30 days following the receipt of this written proof to adjust the compensation rate, including the making of any additional payment due for prior weekly payments, based on the lower rate compensation.

*(4) If any of the foregoing methods cannot reasonably and fairly be applied the full-time weekly wages of the injured employee shall be used, except as otherwise provided in subsections (5) or (6).

(5) If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages.

(6) If it be established that the injured employee was a part-time worker at the time of the injury, that he had adopt~d part-time employment as his customary practice, and that under normal working conditions he probably would have remained a part-time worker during the period of disability, these factors shall be considered in arriving at his average weekly wages. For the purpose of this subsection the term "parttime worker" means an individual who customarily works less than the full-time hours or fulltime workweek of a similar employee in the same employment.

(7) If compensation is due for a fractional part of the week, the compensation for such fractional part shall be determined by dividing the weekly compensation rate by the number of days employed per week to compute the amount due for each day.

History.~. 14, ch. 17481, 1935; CGL 1936 Supp. 5966(14); s. 3, ch. 20672, 1941; s. 2, ch. 28241, 1953; s. I , ch. 63-160; s. 8, ch. 74-197.

•Note.-Subsection (3), as created, and subsection (4), as amended, take effect October I, 1974.

440.15 Compensation for disability.--Compensation for disability shall be paid to the employee, subject to the limits provided in s. 440:-12(2) as follows:

(1) PERMANENT TOTAL DISABILITY.-(a) In case of total disability adjudged to be

permanent, 60 percent of the average weekly wages shall be paid to the employee during the continuance of such total disability.

(b) Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts.

(c) In cases of permanent total disability resulting from injuries which occurred prior to July 1, 1955, such payments shall not be made in excess of 700 weeks.

(d) If an employee who is being paid compensation for permanent total disability shall become rehabilitated to the extent that he shall establish an earning capacity by employment he shall be paid during the period of such employment, instead of the compensation provided in paragraph (a), 60 percent of the difference between his average weekly wages at the time the total disability was incurred and his wageearning capacity as determined by his actual earnings in such employment.

*(e) In case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955, and for which the liability of the employer for compensation has not been discharged under the provisions of subsection 440.-20(10), the injured employee shall receive from the division additional weekly compensation benefits equal to 5 percent of the injured employee's weekly compensation rate as established pursuant to the law in effect on the date of his injury, multiplied by the number of calendar years since the date of injury, and subject to the maximum weekly compensation rate set forth in subsection 440.12(2). Such additional benefits shall be paid out of the Workmen's Compensation Trust Fund. This applies to payments due after October 1, 1974.

(2) TEMPORARY TOTAL DISABILITY.-(a) In case of disability total in character but

temporary in quality, 60 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 350 weeks except as provided ins. 440.12(1).

(b) Temporary total disability for which compensation shall be paid pursuant to paragraph (a) shall include such period as may be reasonably required for training in the use of artificial members and appliances, and shall include such period as the employee may be receiving training or education under a rehabilitation program pursuant to s. 440.49(1), (2) or (3), not to exceed 40

437


weeks. *(c) Notwithstanding the provisions of para

graph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member, because of organic damage to the central nervous system, or has lost the sight of both eyes as provided in paragraph 440.• 15(3)(p), shall be paid temporary total disability of 80 percent of his average weekly wage until he has completed his training in the use of artificial members or appliances and completed his training or education under a rehabilitative program pursuant to subsections 440.49(1), (2), or (3). In no event should the increased temporary total disability compensation provided for in this paragraph extend beyond 6 months from the date of the injury. The compensation provided by this paragraph is not subject to the limits provided in subsection 440.12(2), but instead is subject to a .maximum weekly compensation rate of $400. If, at the conclusion of this period of increased temporary total disability compensation, the employee is still temporarily totally disabled, he shall continue to receive temporary total disability compensation as set forth in paragraphs (a) and (b). The period of time he has received this increased compensation will be counted as part of, and not in addition to, the maximum periods of time **[for which] he is entitled to compensation under paragraph (a) but not paragraph (b).

(3) PERMANENT PARTIAL DISABILITY.In case of disability partial in character but permanent in quality the compensation shall, in addition to that provided by subsection (2), be 60 percent of the average weekly wages, and shall be paid to the employee as follows:

~) Arm lost, 200 weeks' compensation. ) Leg lost, 200 weeks' compensation. ) Hand lost, 175 weeks' compensation.

(d) Foot lost, 175 weeks' compensation. (e) Eye lost, 175 weeks' compensation. (f) Thumb lost, 60 weeks' compensation. (g) First finger lost, 35 weeks' compensation. (h) Great toe lost, 30 weeks' compensation. (i) Second finger lost, 30 weeks' compensa

tion. (j) Third finger lost, 20 weeks' compensation. (k) Toe other than great toe lost, 10 weeks'

compensation. (1) Fourth finger lost, 15 weeks' compensa

tion. (m) Loss of hearing: Compensation for loss of

hearing of one ear, 40 weeks. Compensation for loss of hearing of both ears, 150 weeks.

(n) Phalanges: Compensation for loss of more than one fhalange of a digit shall be the same as for loss o the entire digit. Compensation for loss of the first phalange shall be one-half of the compensation for the loss of the entire digit.

(o) Amputated arm or leg: Compensation for an arm or leg, if amputated at or above the elbow or the knee, shall be the same as for the loss of the arm or leg, but, if amputated between the elbow and the wrist, or the knee and the ankle, shall be the same as for loss of hand or

foot. (p) Percent of vision: Compensation for loss

of 80 percent or more of the vision of an eye shall be the same as for the loss of the eye.

( q) Two or more digits: Compensation for loss of two or more digits or one or more phalanges of two or more digits, of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.

(r) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.

(s) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.

(t) Disfigurement: The division shall award proper and equitable compensation for serious facial or head disfigurement, not to exceed $2;-000; provided, that in such award the division shall consider only the effect such disfigurement shall have on the future earning capacity of the injured employee.

(u) Other cases: In all other cases in this class of disability the compensation shall be 60 percent of the injured employee's average weekly wage for such number of weeks as the injured employee's percentage of disability is of 350 weeks; provided, however, that for the purpose of this paragraph "disability" means either physical impairment or diminution of wageearning capacity, whichever is greater.

(4) TEMPORARY PARTIAL DISABILITY.In case of temporary partial disability resulting in decrease of earning capacity the compensation shall be 60 percent of the difference between the injured employee's average weekly wages before the inJury and his wage-earning capacity after the inJury in the same or other employment, to be paid during the continuance of such disability, but shall not be paid for a period exceeding 5 years.

(5) SUBSEQUENT INJURY.-(a) If any employee receives any injury for

which compensation is payable while he is still receiving or entitled to receive compensation for a previous injury in the employ of the same employer, he shall not at the same time be entitled to compensation for both injuries, unless the latter injury be a permanent injury such as specified in this section; but he shall be entitled to compensation for that injury and from the time of that injury which will cover the longest period and the largest amount payable under this chapter.

(b) If any employee receives a permanent injury as specified in this section, after having previously sustained another permanent injury in the employ of the same employer, he shall be entitled to compensation for both injuries, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation. When the previous and subsequent injuries received in the same employ-

438


ment result in permanent total disability, compensation shall be payable for permanent total disability.

(c) The fact that an employee has suffered previous disability, impairment, or disease or received compensation therefor shall not preclude him from benefits for a later injury nor preclude benefits for death resulting therefrom; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will represent his earning capacity at the time of the later injury. However, if an employee who has received compensation under this chapter for a previous permanent partial disability, impairment, or disease incurs a subsequent permanent partial disability from injury or occupational disease arising out of and in the course of his employment which merges with the preexisting permanent partial disability, impairment, or disease to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury or occupational disease alone, the compensation received for the previous permanent partial disability, impairment, or disease shall be deducted from the compensation payable for the subsequent permanent partial disability. However, in no event shall the compensation for the subsequent permanent partial disability be less than that allowed for the degree of disability that would have resulted from the subsequent injury or occupational disease if the previous disability had not existed.

(6) HERNIA-In all claims for compensation for hernia resulting from injury by an accident arising out of and in the course of his employment it must be definitely proved to the satisfaction of the division:

(a) That there was an injury resulting in her-nia.

(b) That the hernia appeared suddenly. (c) That it was accompanied by pain. (d) That the hernia immediately followed an

accident. " (e) That the hernia did not exist prior to the

accident for which compensation is claimed. (f) All hernia, inguinal, femoral, or otherwise,

so proved to be the result of an injury by accident arising out of and in the course of the employment, shall be treated at the expense of the employer in a surgical manner by radical operation. Compensation shall be paid for a period of 6 weeks from the date of the operation. In case the injured employee refuses to undergo the radical operation for the cure of said hernia, no compensation will be allowed during the time of refusal. This shall not apply to those who by religious belief do not use medical or surgical treatment. If, however, it is shown that the employee had some chronic disease, or is otherwise in such physical condition that the division considers it unsafe for the employee to undergo said operation, the compensation shall be paid as otherwise provided in subsection (4), but not for exceeding 30 weeks. Comfensation shall be allowed for temporary tota dis_ability as provided by subsection (2) for such disability before the

operation. (7) EMPLOYEE REFUSES EMPLOYMENT.

If an injured employee refuses employment suitable to his capacity, offered to or procured for him, he shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the division such refusal is justifiable.

(8) EMPLOYEE LEAVES EMPLOYMENT.If an injured employee, when receiving compensation for temporary partial disability, leaves the employment of the employer by whom he was employed at the time of the accident for which such compensation is being paid, he shall, upon securing employment elsewhere, give to such former employer an affidavit in writing containing the name of his new employer, the place of employment and the amount of wages being received at such new employment and until he gives such affidavit the compensation for temporary partial disability will cease. The employer by whom such employee was employed at the time of the accident for which such compensation is being paid may also at any time demand of such employee additional affidavit in writing containing the name of his employer, the place of his employment and the amount of wages he is receiving, and if the employee, upon such demand, fails or refuses to make and furnish such affidavit, his right to compensation for temporary partial disability shall cease until such affidavit is made and furnished.

(9) EMPLOYEE BECOMES INMATE OF INSTITUTION.-In case an employee who is permanently and totally disabled becomes an inmate of a public institution, then no compensation shall be payable unless he has dependent upon him for support a person or persons defined as dependents elsewhere in this chapter, whose dependency shall be determined as if the employee were deceased and to whom compensation would be paid in case of death and such compensation as is due said employee shall be paid such dependents during the time he remains such inmate.

(10) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER AND FEDERAL OLDAGE, SURVIVORS, AND DISABILITY INSURANCE ACT.-

(a) Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. s. 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee, had he not been entitled to benefits under this chapter, under 42 U.S.C. s. 423 and s. 402, does not exceed 80 percent of the employee's average weekly wage. This reduction of compensation benefits shall not be applicable to any compensation benefits payable for any week subsequent to the week in which the injured worker reaches the age of 62 years.

(b) If the provisions of 42 U.S.C. s. 424a are amended to provide for a reduction or increase

439


of the percentage of average current earnings that the sum of compensation benefits payable under this chapter and the benefits payable under 42 U.S.C. s. 423 and s. 402 can equal, the amount of the reduction of benefits provided in this subsection shall be reduced or increased accordingly.

(c) No disability compensation benefits payable for any week shall be reduced pursuant to this subsection until the Social Security Administration determines the amount otherwise payable to the employee under 42 U.S.C. s. 423 and s. 402 and the employee has begun receiving such social security benefit payments.

Hlltory.-s. 15, ch. 17481, 1935; CGL 1936 Supp. 5966(15); s. 4, ch. 20672, 1941; s. 2, ch. 22814, 1945; s. 1, ch. 23921, 1947; s. 11, ch. 25035, 1949; s. 1, ch. 26877, 1951; s. 10, ch. 26484, 1951; s. 1, ch. 29803, 1955; s. 3, ch. 29778, 1955; s. I, ch. 59-1 03; s. 1, ch. 59-1 02; s. 2, ch. 61-119; s. 1, ch. 61-188; s. 1, ch. 63-235; s. 1, ch. 65-168; ss. 17, 35, ch. 69-106; s. 1, ch. 7(}.71 ; s. 1, ch. 7(}.312; s. 5, ch. 73-127; s. 9, ch. 74-197.

•Note--Subsections (1)(e) and (2)(c) take effect October 1, 1974. ••Note--Bracketed words inserted by the editors.

440.151 Occupational diseases.-(1)(a) Where the employer and employee are

subject to the provisions of the Workmen's Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, his dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer and was actually contracted while so engaged, meaning by "nature of the employment" that to the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations, or, in case of death, unless death follows continuous disability from such disease, commencing within the period above limited, for which compensation has been paid or awarded or timely claim made as provided in this section, and results within 350 weeks after such last exposure.

(b) No compensation shall be payable for an occupational disease if the employee, at the time of entering into the employment of the employer by whom the compensation would otherwise be payable, falsely represents himself in writing as not having previously been disabled, laid off or compensated in damages or otherwise, because of such disease.

(c) Where an occupational disease is aggra-

vated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.

(d) No compensation for death from an occupational disease shall be payable to any person whose relationship to the deceased, which under the provisions of this Workmen's Compensation Law would give right to compensation, arose subsequent to the beginning of the first compensable disability save only to afterborn children of a marriage existing at the beginning of such disability.

(e) The presumptions in favor of claimants established by s. 440.26 of this Workmen's Compensation Law shall not apply to a claim for compensation for an occupational disease under this section.

(f) No compensation shall be payable for disability or death resulting from tuberculosis arising out of and in the course of employment by the Division of Health of the Department of Health and Rehabilitative Services at a state tuberculosis hospital, or aggravated by such employment, when the employee had suffered from said disease at any time prior to the commencement of such employment.

*(2) Whenever used in this section the term "occupational disease" shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occuifation, process, or employment, and to exclude a ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.

(3) Except as hereinafter otherwise provided in this section, "disablement" means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease; and "disability" means the state of being so incapacitated.

(4) This section shall not apply to cases of occupational disease in which the last injurious exposure to the hazards of such disease occurred before this section shall have taken effect.

(5) Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the

440


insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier; and the notice of injury and claim for compensation, as hereinafter required, shall be given and made to such employer; provided, however, that in case of disability from any dust disease the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last injuriously exposed to the hazards of the disease for a period of at least 60 days.

(6) The time for notice of injury or death provided in s. 440.18 (1) shall be extended in case of occupational diseases to a period of 90 days.

Hlstory.-s. I, ch. 22852, 1945; s. I, ch. 23921 , 1947; s. II, ch. 25035, 1949; s. 3, ch. 28241 , 1953; s. I , ch. 65-116; ss. 19, 35, ch. 69-106; ss. 10, 24, ch. 74-197.

•Note.-Paragraph (l)(a) and subsection (2) as amended; subsection (6) as repealed; and subsection (7) renumbered as subsection (6) take effect October I, 1974.

440.16 Compensation for death.-lf death results from the accident within 1 year thereafter or follows continuous disability and results from the accident within 5 years thereafter, the employer shall pay:

(1) Actual funeral expenses not to exceed $1;-000.

*(2) Compensation, in addition to the above, in the following percentages of the average weekly wages to the following persons entitled thereto on account of dependency upon the deceased and in the following order of preference subject to the limitation provided in paragraph

[(b)], but such compensation shall be subject to the limits provided in s. 440.12(2) and shall not exceed $50,000; and may be less than, but shall not exceed, for all dependents or persons entitled to compensation, 60 percent of the average wage:

(a) To the spouse if there is no child, 45 percent of the average weekly wage, said compensation to cease upon the spouse's death or remarriage.

(b) To the spouse if there is a child or children, the compensation payable under paragraph (a) and, in addition, 15 percent on account of the child or children. However, when the deceased is survived by a spouse and also a child or children, whether such child or children be the product of the union existing at the time of death or of a former marriage or marriages, the division may provide for the payment of compensation in such manner as to it may appear just and proper and for the best interests of the respective parties and in so doing may provide for the entire compensation to be paid exclusively to the child or children; and, in the case of death or remarriage of such spouse, 30 percent for each child.

(c) To the child or children, if there is no spouse, 30 percent for each child.

(d) To the parents, 25 percent to each, such compensation to be paid during the continuance of dependency.

(e) To the brothers, sisters, and grandchildren, 15 percent for each brother, sister, or grandchild.

(3) For the purpose of this charter the dependence of a widow or widower o a deceased employee shall terminate with remarriage. The dependence of a child, except a child physically or mentally incapacitated from earning a livelihood, shall terminate wit~ the attainment of 18 years of age, or upon mamage.

(4) Where, because of the limitation in subsection (2), a person or class of persons cannot receive the percentage of compensation specified as payable to or on account of such person or class, there shall be available to such person or class that proportion of such percentage as, when added to the total percentage payable to all persons having priority of preference, will not exceed a total of said 60 percent, which proportion shall be paid:

(a) To such person; or (b) To such class share and share alike unless

the division determines otherwise in accordance with the provisions of subsection (5).

(5) If the division determines that payme~ts in accordance with paragraph (b) of subsection (4) would provide no substantial benefit to any person of such class, it may provide for the payment of such compensation to. the J>E:rson or. persons within such class whom 1t considers will be most benefited by such payment.

(6) Upon the cessation of compensation ~der this section to any person, the compensation of the remaining persons entitled to compensation, for the unexpired part of the period during which their compensation is payable, s~all b_e that which such persons would have received If they had been the only persons entitled to compensation at the t~me of the decedent's.d~ath ..

(7) Relationship to the dece~~ed glVln~ nght to compensation u~der the proVI~IOns of this se~tion must have eXIsted at the trme of the accident, save only in the case of afterborn children of the deceased.

(8) Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents, except that dependents in any . foreign c<?untry s~all be li~ited to surviving Wife and child or children, or If there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, eith~r wholly or in part, ~or_ the period of 1 year pnor to the date of the m]ury, and except that the division may, at its option, or upon the application of the insurance carrier, commute all future installments of compensation to be paid to such aliens by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the division, and provided further that compensation to dependents referred to in this subsection shall in no case exceed $1; 000.

Hlsto!f--:-:5· 16, ch. 17481, 1935; s. 7, ch. 18413, 1937; CGL 1936 Supp. 5966(16); s. 5, ch. 20672, 1941; s. I, ch. 26966, 1951; ss. 4-6,

441


ch. 28241, 1953; s. I , ch. 57-143; s. 2, ch. 67-239; ss. 17, 35, ch. 69-106; s. 6, ch. 73-127; s. II , ch. 74- 197.

•Note.-Subsection (2), as amended, takes effect October I, 1974.

440.18 Notice of injury or death.-(!) Notice of an injury or death in respect to

which compensation is payable under this chapter shall be given within 30 days after the date of such injury or death:

(a) To the division; (b) To the employer; provided, however, that

in the event of any injury which results in the death of the injured employee within 24 hours of the time of such injury immediate notice shall be given to the division by telegraph or telephone. Such immediate notice shall be in addition to any other notice provided for in this section; and, provided further, that such special notice shall not be required where the death results subsequent to the submission to the division of a previous notice of such injury which did not result in immediate death.

(2) Such notice shall be in writing, shall contain the name and address of the employee and a statement of the time, place, nature, and cause of the injury or death, and shall be signed by the employee or by some person on his behalf or in case of death, by any person claiming to be entitled to compensation for such death or by a person on his behalf.

(3) Notice shall be given to the division by delivering same to it or sending same by mail addressea to its office, and to the employer, by delivering same to him or by sending same by mail addressed to him at his last known place of business. If the employer is a partnership, such notice may be given to any partner, or if a corporation, such notice may be given to any agent or officer thereof upon whom legal process may be served or who is in charge of the business in the place where the injury occurred.

(4) Failure to give such notice shall not bar any claim under this chapter:

(a) If the employer or his agent in charge of the business in the place where the injury occurred or the carrier had knowledge of the injury or death and the division determines that the employer or carrier has not been prejudiced by failure to give such notice; or

(b) If the division excuses such failure on the ground that for some satisfactory reason such notice could not be given; nor unless objection to such failure is raised before the division at the first hearing of a claim for compensation in respect of such injury or death. Provided, in case the delay in giving notice is so excused, no compensation shall be payable for aggravation of the injury caused by want of first aid or proper medical treatment during such delay, and every presumption shall be against the validity of the claim.

*(5) The employer, if not self-insured, shall notify his carrier of an accident within 10 days after the employer has notice of the accident. Any employer who fails so to notify his insurance carrier as required by this subsection shall be subject to a civil penalty not to exceed $100

for each such willful or negligent failure. Hlstory.-s. 18, ch. 17481, 1935; CGL 1936 Supp. 5966(18); s. I, ch.

57-245; ss. 17, 35, ch. 69-106; s. 12, ch. 74-197. •Note.-Effective October I, 1974.

440.20 Payment of compensation.-( I) Compensation under this chapter shall be

paid periodically, promptly in the usual manner and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.

(2) The first installment of compensation shall become due on the 14th day after the employer has knowledge of the injury or death on which date all compensation then due shall be paid. Thereafter, compensation shall be paid in installments biweekly except where the division determines that payments in installments should be made monthly or at some other period.

(3) Upon making the first payment, and upon suspension of payment for any cause, the employer shall immediately notify the division, in accordance with a form prescribed by the division, that payment of compensation has begun or has been suspended, as the case may be.

( 4) If the employer controverts the right to compensation he shall file with the division on or before the 21st day after he has knowledge of the alleged injury or death, a notice in accordance with a form prescribed by the division, stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted.

*(5) If any installment of compensation payable without an award is not paid within 14 days after it becomes due, as provided in subsection (2), there shall be added to such unpaid installment an amount equal to 10 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, such installment, unless notice is filed under subsection (4), or unless such nonpayment is excused by the division after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment. The division may assess the above-mentioned 10 percent additional payment against either the employer or the insurance carrier, depending upon who was at fault in causing the delay. The insurance policy cannot provide that this sum will be paid by the carrier if the division determines that the 10 percent additional payment should be made by the employer rather than the carrier.

(6) If any compensation, payable under the terms of an award, is not paid within 20 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in s. 440.25.

(7)(a) Within 30 days after final payment of compensation has been made, the employer shall

442


send to the division a notice, in accordance with a form prescribed by the division stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid.

(b) If the employer fails to so notify the division within such time the division may assess against such employer a civil penalty in an amount not over $100.

(8) The division: (a) May upon its own initiative at any time in

a case in which payments are being made without an award; and

(b) Shall in any case where right to compensation is controverted, or where payments of compensation have been stopped or suspended,

upon receipt of notice from any person entitled to compensation, or from the employer, that the right to compensation is controverted, or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examination to be made, or hold such hearings, and take such further action as it considers will properly protect the rights of all parties.

(9) Whenever the division deems it advisable it may require any employer to make a deposit with the state treasurer to secure the prompt and convenient payments of such compensation, and payments therefrom upon any awards shall be made upon order of the commission.

(10) Upon the application of any party in interest and after giving due consideration to the interests of all interested parties, if he finds that

is for the best interests of the person entitled compensation a judge of industrial claims may

a compensation order requiring that the liof the employer for compensation shall be

_ ... ·~-~·--' by the payment of a lump sum equal value of all future payments of computed at 4 percent true dis

com~lotmcled annually, or requiring that eu.•v•·uy•t::• make advance payment of a part of coJnpem;atJion for which he is liable by the

of a lump sum equal to the present of such part of the compensation comat 4 percent true discount compounded an

Upon joint petition of all interested parafter giving due consideration to the

;.,t." .. "'"t" of all interested parties, if he finds that is for the best interests of the person entitled compensation a judge of industrial claims may

a compensation order approving and authe discharge of the liability of the emboth compensation and remedial treat-

care, and attendance by the payment of a sum equal to the present value of all future

for both compensation and remedial """'·'"•'"~• care, and attendance; and a compen

so entered upon joint petition of all ntF•rp,c;tPd parties shall not be subject to modifi

or review under s. 440.28. The probability

of the death of the injured employee or other person entitled to compensation before the expiration of the period during which he is entitled to compensation shall in the absence of special circumstances making such course improper be determined in accordance with a standard experience table of mortality approved by the division. The probability of the happening of any other contingency affecting the amount of duration of the compensation except the possibility of the remarriage of a widow shall be disregarded. As a condition of approving a lump sum payment to a widow the judge of industrial claims in his discretion may require security which will insure that in the event of the remarriage of such widow any unaccrued future payments so paid may be recovered or recouped by the employer or carrier. Such applications shall be considered and determined in accordance with ss. 440.25 and 440.27 and the rules of procedure prescribed by the division.

( 11) If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.

Hlstory.-a. 20, cb. 17481, 1935; CGL 1936 Supp. 5966(20); s. 9, cb. 18413, f937; s. 6, cb. 20672, 1941; s. 2, cb. 23921, 1947; s. 2, cb. 26877, 1951; s. 5, cb. 29778, 1955; s. I, cb. 59-422; ss. I, 2, cb. 65-203; s. 2, cb. 67-554; ss. 17, 35, cb. 69-106; s. 13, cb. 74-197.

•Note.-Subsectlon (5), as amended, takes effect October I, 1974.

440.24 Enforcement of compensation orders; penalties.-

(!) In case of default by the employer or carrier in the payment of compensation due under any compensation order of a judge of industrial claims or order of the commission or other failure by the employer or carrier to comply with such ·order for a r.eriod of 10 days after the order has become fina , any circuit court of this state within the jurisdiction of which the employer or carrier resides or transacts business shall, upon application by the division or any beneficiary under such order, have jurisdiction to issue a rule nisi directing such employer or carrier to show cause why a writ of execution, or such other process as may be necessary to enforce the terms of such order, shall not be issued, and unless such cause is shown, the said court shall have jurisdiction to issue a writ of exeuction or such other process or final order as may be necessary to enforce the terms of such order of the judge of industrial claims or commission.

(2) In any case where the employer is insured and the carrier fails to comply with any compensation order of a judge of industrial claims or order of the commission for a period of 10 days after such order has become final, the division shall notify the Department of Insurance of such failure, and the Department of Insurance shall thereupon suspend the license of such carrier to do an insurance business in this state, until such carrier has complied with such order.

(3) In any case where the employer is a selfinsurer and fails to comply with any compensation order of a judge of industrial claims or order of the commission for a period of 10 days after

443


such order has become final, the division may suspend or revoke any authorization previously given to the employer to become a self-insurer, and the division will be authorized to sell such of the securities deposited by such self-insurer with the division as may be necessary to satisfy such order.

*(4) In any case wherein the employee fails to comply with any order of a judge of industrial claims within 10 days after such order becomes final, the judge may dismiss the claim or suspend payments due under said claim until the employee complies with such order. The judge may strike the defenses of the employer, if said employer is self-insured, or of the insurance carrier, if said employer is not self-insured, if said employer or carrier fails to comply with any order of a judge of industrial claims within 10 days after such order becomes final.

Hlstory.-s. 24, ch. 17481, 1935; CGL 1936 Supp. 5966(24); s. 10, ch. 18413, 1937; s. 7, ch. 28241, 1953; s. 2, cb. 67·554; ss. 13, 17, 35, ch. 69-106; s. 120, ch. 71·355; s. 14, ch. 74-197.

•Note.-Effective October I , 1974.

440.25 Procedure in respect to claims.-(1) Subject to the provisions of s. 440.19,

claim for compensation may be filed with the division at its office in the City of Tallahassee in accordance with regulations prescribed by the division at any time after the first 7 days of disability following any injury or at any time after the death, and the division shall have full power and authority to hear and determine all questions in respect to such claims.

(2) Within 10 days after such claim is filed the division, in accordance with regulations prescribed by it, shall notify the employer and any other person other than the claimant whom the division considers an interested party that a claim has been filed. Such notice may be served personally upon the employer or other person or sent to such employer or person by regular mail.

*(3)(a) The division shall make or cause to be made such investigations as it considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereof. If a hearing on such claim is ordered, the division shall give the claimant and other interested parties at least 15 days' notice of such hearing served/ersonally upon the claimant and other intereste parties by certified or registered mail. All medical reports obtained by the carrier or employer under this section shall be furnished free of charge to the employee or his attorney on demand.

(b) The hearing shall be held in the county where the injury occurred, if the same occurred in this state, unless otherwise agreed to between the parties and authorized by the judge of industrial claims in the county where the injury occurred. If the injury occurred without the state, and is one for which compensation is payable under this chapter, then the hearing above referred to may be held in the county of the employer's residence or place of business, or in any other county of the state which will, in the discretion of the division, be the most convenient

for a hearing. The hearing shall be conducted by a judge of industrial claims, who shall within 30 days, unless otherwise agreed to by the parties, after such hearing determine the dispute in a summary manner. At such hearing the claimant and employer may each present evidence in respect of such claim and may be represented by any attorney authorized in writing for such purpose. When there is a conflict in the medical evidence submitted at the hearing the judge of industrial claims may designate a disinterested doctor to submit a report or to testify in the proceeding, after such doctor has reviewed the medical reports and evidence, examined the claimant, or otherwise made such investigation as appropriate. The report or testimony of any doctor so designated by the judge of industrial claims shall be made a part of the record of the proceeding and shall be given the same consideration by the judge of industrial claims as is accorded other medical evidence submittted in the proceeding; and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceeding, subject to the provisions of s. 440.13(3)(a).

(c) The order making an award or rejecting the claim, referred to in this chapter as a compensation order, shall set forth the findings of ultimate facts and the mandate, and the order need not include any other reasons or justification for such mandate, and shall be filed in the office of the division at Tallahassee. A copy of such compensation order shall be sent by registered mail to the claimant and to the employer at the last known address of each, with the date of mailing noted thereon.

(4)(a) The compensation order rendered the judge of industrial claims shall become 20 days after the date copies of same are to the parties at the last known address of unless within said time any interested make and file with the commission or a industrial claims an application for a thereof by the commission in accordance the provisions of this subsection; provided, ever, that an employer who has not secured payment of compensation under this chapter compliance with s. 440.38 shall, as a condition filing such application for a review by the mission, file with his application for review good and sufficient bond, as provided in s. 59.1 conditioned to pay the amount of the award, terest and costs payable under the terms of order of the commission, if the application be dismissed or the order thereon shall make an award of benefits in any an:toulllt. upon failure of such employer to with his application for review shall dismiss the application for plication must state concisely and the grounds upon which the appellant relies, the consideration of the commission thereof be confined solely to the grounds so prE!Selnted. CQPY of all applications for review shall served on all interested parties, and proof of vice thereof shall accompany all

444


when filed. (b) The appellant shall have prepared, in ac

cordance with such rules as the division may prescribe, a transcript of the proceedings before the judge of industrial claims, certified by the judge of industrial claims, which transcript must be filed with the commission within 45 days from the date of the filing of the application for review, unless the commission for good cause shown by verified petition presented prior to the expiration of said period shall extend the time therefor. The appellant shall have a copy of the transcript served on the opposing farty or parties or their counsel and evidence o such service shall be filed with the transcript when filed with the commission. Upon failure of the appellant to file a transcript of the proceedings with the commission, together with evidence of service of a copy thereof on the opposing party or parties, within the time specified or within such time as allowed by the commission pursuant to petition for an extension of time as aforesaid, the commission shall dismiss the application for review.

(c) Within 10 days after the appellant has filed his application for review, any other interested party who desires review of any adverse ruling by the judge of industrial claims must file his cross-application for review with the commission or a judge of industrial claims. The crossapplication for review must state concisely and particularly the grounds upon which the crossappellant relies, and the consideration of the commission thereof will be confined solely to the grounds so presented. A copy of all crossapplications for review shall be served on all interested parties, and proof of service thereof shall accompany all cross-applications when filed.

(d) Unless the application for review is withdrawn with its permission or is dismissed as aforesaid, the commission shall consider the matter upon the record as certified by the judge of industrial claims and shall thereafter affirm, reverse or modify said compensation order, or remand the claim for further proceedings before a judge of industrial claims who shall proceed as the commission may direct. The order of the commission shall be filed in the office of the division at Tallahassee, and a copy of such order shall be sent by registered or certified mail to each interested party at his last known address. The order of the commission shall become final

<>v·nir·.,tinn of the period within which any ntF•rp,c;tPI1 party may file a petition for writ of

requesting review of such order by the court unless within said time any inter

party shall file a petition for writ of certioraccordance with s. 440.27. An award of compensation for disability

be made after the death of an injured em-

injured employee claiming or entitled cmnpem;atJion shall submit to such physical

.......... ,, .. a••vu by a duly qualified physician desigor approved by the division as the division

require. The place or places shall be reason-

ably convenient for the employee. Such physician or physicians as the employee, employer or carrier may select and pay for may participate in an examination if the employee, employer or carrier so requests. Proceedings shall be suspended and no compensation be payable for any period during which the employee may refuse to submit to examination. Any interested party shall have the right in any case of death to require an autopsy, the cost thereof to be borne by the party requesting it; and the division shall have authority to order and require an autopsy and may in its discretion withhold its findings and award until an autopsy is held.

History.-<~. 25, ch. 17481, 1935; CGL 1936 Supp. 5966(25); s. 11, ch. 18413, 1937; s. 7, ch. 20672, 1941; s. 3, ch. 22814, 1945; s. I, ch. 26967, 1951; s. 8, ch. 28241, 1953; s. 6, ch. 29778, 1955; s. I, 57·270; s. 2, ch. 59-100; s. 2, ch. 59-142; s. 2, ch. 65-120; s. I, ch. 65-119; s. I, ch. 67-374; s. 2, ch. 67·554; ss. 17, 35, ch. 69-106; s. 120, ch. 71· 355; s. I , ch. 74-48; s. 15, ch. 74-197.

•Note.--subsectlon (3)(a), as amended, by s. 15, ch. 74-197, takes effect October I, 1974. d .--6. 1.01 Defines registered mall to include certified mall with re

turn receipt requested.

440.29 Procedure before the commission or division.-

( 1) In making an investigation or inquiry or conducting a hearing neither the commission nor the division shall be bound by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry, or conduct such hearing in such manner as to best ascertain the rights of the parties. Declaration of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made or the hearing conducted shall be received in evidence and shall, if corroborated by other evidence, be sufficient to establish the injury.

(2) Hearings before the division shall be open to the public and shall be reported, and the division is authorized to contract for the reporting of such hearings. The division shall by regulation provide for the preparation of a record of the hearings and other proceedings before it and shall be permitt~d to charge for transcripts of testimony and copies of any instrument the same fees as are allowed by law to reporters and clerks of courts of this state for like services.

*(3) The practice and procedure before the commission and the judges of industrial claims shall be governed by rules adopted by the supreme court.

Hlstory.--6. 29, ch. 17481, 1935; CGL 1936 Supp. 5966(29); s. 10, ch. 20672, 1941; s. 8, ch. 29778, 1955; ss. 17, 35, ch. 69-106; s. 16, ch. 74-197.

•Note.-Effective October I, 1974. ef.--6. 28.24 Fees of clerk of circuit court.

s. 29.03 Compensation for services of official court reporters. s. 696.05 Photographic recording authorized; clerk clrcu!t court.

*440.30 Depositions.-Depositions of witnesses or parties, residing within or without the state, may be taken and may be used in connection with proceedings under the Florida Workmen's Compensation Law, either upon order of the division or at the instance of any party or prospective party to such proceedings, and either prior to the institution of a claim, if the claimant is represented by an attorney, or after the filing

445


of the claim in the same manner, for the same purposes, including the purposes of discovery, and subject to the same rules; all as now or hereafter prescribed by law or br rules of court governing the taking and use o such depositions in civil actions at law in the circuit courts of this state. Such deposition may be taken before any notary public, court reporter or deputy, and the fees of the officer taking the same and the fees of the witnesses attending the same, including expert witness fees as provided by law or court rule, shall be the same as in depositions taken for such circuit courts. Such fees may be taxed as costs and recovered by the claimant, if successful in such workmen's compensation proceedings. If the claim has not been controverted or if 21 days have not passed without payment, then the carrier or employer taking the deposition shall pay the claimant's attorney a reasonable attorney's fee for attending said deposition. Hlstory~s. 30, ch. 17481, 1935; CGL 1936 Supp. 5966(30); s. 13,

ch. 18413, 1937; s. 1, cb. 28228, 1953; ss. 17, 35, cb. 69-108; s. 17, ch. 74-197.

•Note.-Thls section, as amended, takes effect October 1, 1974.

440.39 Compensation for injuries where third persons are Uable.-

(1) If an employee, subject to the provisions of the Florida Workmen's Compensation Law, is injured or killed in the course of his employment by the negligence or wrongful act of a third party tort-Ieasor, such injured employee, or in the case of his death his dependents, may accept compensation benefits under the provisions of this law, and at the same time such injured employee, his dependents or personal representatives may pursue his remedy by action at law or otherwise against such third party tort-feasor.

(2) If the employee or his dependents shall accept compensation or other benefits under this law or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder then the insurer, shall be subrogated to the rights of the employee or his dependents against such third party tort-feasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3).

*(3)(a) In all claims or actions at law against a third party tort-feasor, the employee, or his dependents, or those entitled by law to sue in the event he is deceased, shall sue for the employee individually, and for the use and benefit of the employer if a self-insurer, or employer's insurance carrier, in the event compensation benefits are claimed or paid, and such suit may be brought in the name of the employee or his dependents or those entitled by law to sue in the event he is deceased, as plaintiff or, at the option of such plaintiff may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded

and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Notice of suit being filed and notice of payment of compensation benefits shall be served upon the compensation carrier and upon all parties to the suit or their attorneys of record.

(b) If the employer or insurance carrier has given written notice of his rights of subrogation to the third party tort-feasor, and, thereafter, settlement of any such claim or action at law is made, either before or after suit is filed, and the parties fail to agree on the rroportion to be paid to each, the circuit court o the county in which the cause of action arose shall determine the amount to be paid to each by such third party tort-feasor in accordance with the provisions of paragraph (a) above.

(4)(a) If the injured employee or his dependents, as the case may be, fail to bring suit against such third party tort-feasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer, and if not, the insurance carrier, may, after giving 30 days' notice to the injured emplo~ee or his de~ndents and the injured employee s attorney, 1f represented by counsel, institute suit against such third party tort-feasor, either in his own name or as provided by subsection (3), and, in the event suit is so instituted, shall be subrogated to and entitled to retain from any judgment recovered against, or settlement made with, such third party, the followin~: All amounts paid as compensation and medical benefits under the sions of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments compensation are to be made, together with court costs, including attorney's fees expended the prosecution of such suit, to be prorated provided by subsection (3). The remainder of moneys derived from such judgment or ment shall be paid to the employee or his dents, as the case may be.

(b) If the carrier or employer does not suit within 2 years following the accrual cause of action against a t~d party tOI~-realsor the right of action shall revert to the emtplti>YE~ or, in the case of his death, those entitled to sue, and in such event the provisions section (3) shall apply.

(5) In all cases under subsection (4) in•rnJ•llin,o third party tort-feasors, where

446


benefits under this law are paid, or are to be paid, settlement either before or after suit is instituted shall not be made except upon agreement of the injured employee or his dependents and the employer or his insurance carrier, as the case may be.

(6) Any amounts recovered under this section by the employer or his insurance carrier shall be credited against the loss-experience of said employer.

History.-s. 39, ch. 17481, 1935; CGL 1936 Supp. 5966(38); s. 14, ch. 18413, 1937; s. 1, ch. 23822, 1947; s . 1, ch. 26546, 1951; s. 1, ch. 59-431; s. 6, ch. 7().148; s. 18, ch. 74-197.

•Note--Subsection (3)(a), as amended, takes effect October 1, 1974.

440.44 Workmen's compensation; staff organization.-

(1) INTERPRETATION OF LAW.-As a guide to the interpretation of this chapter, the legislature takes due notice of federal social and labor acts and hereby creates an agency to administer such acts passed for the benefit of employees and employers in Florida industry, and desires to meet the requirements of such federal acts wherever not inconsistent with the constitution and laws of Florida.

(2) BUREAU CREATED.-There is created, within the Division of *[Labor] of the Department of Commerce, a Bureau of Workmen's Compensation, and, except as otherwise provided, the division shall administer the provisions of this act through this bureau. The director of the division shall devote his entire time to his official duties. The director of the division and each member of the Industrial Relations Commission shall receive one-half of his total salary from the trust fund created by s. 443.14( 1) and one-half from the trust fund created by s. 440.50. In the event the Industrial Relations Commission is not required to review orders of appeals under chapter 443, each member of the said commission shall receive his total salary from the trust fund created by s. 440.50.

BUREAU CHIEF; EXPENSES; ETC.Under the direction and supervision of the

the Bureau of Workmen's Compensation be administered by a full-time chief, who at the division's expense, furnish a fidelity bond to the division in the sum of $10,000. The division shall make such expenditures

inc:Iwdintg expenditures for personal services and seat of goyernment and elsewhere, for books of reference, periodicals, equip-

supplies, and for printing and binding be necessary in the administration of this

c:natptt~r All expenditures of the division in the of this chapter shall be allowed

as provided in s. 440.50 upon the pres~nL<ILiun of itemized vouchers therefor approved

division. MERIT SYSTEM PRINCIPLE OF PER

'""' ....... n.,T ADMINISTRATION.-to the other provisions of this

ctnTi~iinn is authorized to appoint, fix cornp1ens:ation, and prescribe the duties and

of a bureau chief, judges of industrial attorneys, accountants, medical advisers,

technical assistants, inspectors, and such other employees as may be necessary in the performance of its duties under this chapter. No person shall be appointed as judge of industrial claims who is not an attorney at law admitted to practice in this state.

(b) With the exception of the members of the commission appointed by the governor, no fulltime employee of the division shall, during his or her service under the division, actively engage in any other business or profession; serve as the representative of any political party, or any executive committee or other governing body thereof, or as an executive officer or employee of any political committee, organization, or association; or be engaged on the behalf of any candidate for public office in the solicitation of votes.

(5) OFFICE.-The division shall maintain and keep open during reasonable business hours an office, which shall be provided in the capitol or some other suitable building in the City of Tallahassee, for the transaction of business under this chapter, at which office its official records and papers shall be kept. The office shall be furnished and equipped by the division. The division, commission, or any judge of industrial claims may hold sessions and conduct hearings at any place within the state.

(6) SEAL.-The commission shall have a seal for authentication of its orders, awards and proceedings, upon which shall be inscribed the words "State of Florida-Industrial Relations Commission-seal," and it shall be judicially noticed.

(7) DESTRUCTION OF OBSOLETE RECORDS.-The division is expressly authorized to provide br regulation for and to destroy obsolete records o the division and commission.

**(8) ADVISORY COUNCIL.-The division may designate an advisory council to aid the division in formulating policies, discussing problems, and in assuring impartiality and freedom from political influence in the solution of such problems, related to the administration of this chapter or any other law administered by the division. The members of such advisory council shall receive no compensation for such services, but shall be reimbursed for traveling expenses as provided in s. 112.061.

History.-. 44, ch. 17481, 1935; CGL 1938 Supp. 5966(42); s. 15, ch. 18413, 1937; s. 1, ch. 20299, 1941; s. 1, ch. 21875, 1943; s. 4, ch. 22814, 1945; s. I, ch. 23920, 1947; s. 10, ch. 28484, 1951; s. 11, ch. 28241, 1953; s. 24, ch. 57-1; s. 1, ch. 57-785; a. 1, ch. 57-158; s. 1, ch. 63-274; s. 19, ch. 63-400; s. 2, ch. 67-554; as. 17, 35, ch. 69-106; s. 163, ch. 71-377; ss. I, 2, ch. 72-143; s. 2, ch. 72-241; s. I, ch. 73-283; s. 19, ch. 74-197.

•Note.-Divlslon name conformed to ch. 73-283, Laws of Florida. ••Note.-Subsectlon (8), as amended, takes effect October I, 1974.

ef.-<1. 20.03 Definition of commission. s. 20.17 Full-time Industrial Relations Commission within the De

partment of Commerce. s. 113.07 Bonds of officials. ·

440.441 Salaries of industrial relations commlssloners.-Notwithstanding any other provisions of existing law, the full-time industrial relations commissioners shall be paid a salary equal to that paid under state law to judges of the district courts of appeal.

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Hlltory.-s. 3, ch. 72-241; s. 2, ch. 74-363.

440.45 Judges of industrial claims; delegation of authority.-

*( I) The governor shall appoint as many fulltime judges of industrial claims as may be necessary to effectually perform the duties prescribed for them under this chapter. However, there shall be at least one judge of industrial claims for each judicial circuit in the state. No person shall be appointed as a full-time jud&e of i~dustri~l claims who has not had 3 years expenence m the practice of law in this state; and no judge of industrial claims during his term of office shall engage in the private practice _of law. ~e gov~rnor may appoint any former Judge of mdustnal claims to serve as a judge of industrial claims pro hac vice to complete !he proceedings on an;y claim with respect to which he had heard testimony and which remained pending at the time of the expiration of his term of office. However, no former judge of industrial claims shall be appointed to serve as a judge of industrial clai!Ds pro hac vice for a period to exceed 60 successive days.

*(2) Each full-time judge of industrial claims shall be appointed for a term of 4 years, but during his term of office may be removed by the governor for cause. Prior to the expiration of the term of office of the judge of industrial claims, the conduct of said judge shall be revi~wed by the judicial nominating commission, which commission shall determine whether said judge ~~all be retained in office. A report of the deciSion shall be furnished to the governor no later than 6 months frior to the exJ?iration of t~e t.er:rn of th~ judge o industrial claims. If the JU~Cial r_tOminating commission votes not to retrun the J~dge of industrial claims, he shall not be reappomted but shall remain in office until his successor is appointed and qualified. If the judici_al nomin~ting commission votes to retain the JUdge of mdustrial claims in office, then the governor shall reappoint said judg~ for a term of 4 years. .

(3) Each full-time judge of industrial claims shall receive a salary of $4,000 less per year than that paid to a full-time industrial relatior_ts co~missioner, payable out of the fund established m s. 440.50.

*(4) The governor may appoint any attorney who has 3 years' experience in the practice of law in this state to serve as a judge of industrial claims pro hac vice in the absence or disqualification of any full-time judge of industrial claims or to serve upon a temporary basis as an additional judge of industrial claims in any area of the state in which it is determined by the governor that a need exists therefor; however, no attorney so appointed by the gove_rnor shall serve for a period to exceed 60 success1ve day~.

*(5) The division may delegate to. Its at~orneys, examiners, safety representatives, field agents, inspectors, and othe~ legal. representatives such powers and authonty as It may deem necessary in the administration of this chapter.

Hlstory.-s. 45, cb. I 7481, 1!)35; CGL 1936 Supp. 5966(43); s. 2, ch. 57-245; s. I, ch. 61-133; s. I, cb. 63-179; s. I , ch. 63-275; s. I, ch. 65-541; s. I, ch. 67-515; s. 2, ch. ,67-554; s. I, ch. 69-201; ss. 17, 35, ch.

69-106; s. I, ch. 70-313; s. I , cb. 71-290; s. 20, ch. 74-I97; s. 3, ch. 74-363.

•Note.-Subsections (1), (2), (4), and (5), as amended, by s. 20, ch. 74-197, take effect October I , 1974.

440.49 Rehabilitation of injured employees; Special Disability Trust Fund.-

(1) In cases in which it appears that disability probably will be permanent the division shall assist injured employees to obtain appropriate training, education and employment ~nd may cooperate with federal and state agencies for vocational education and with any public or private agency C<?operating ~th such fe_d~ra! or s~te agencies m the vocatl<?n.~ rehabilitatior_t ?f mjured employees. The diVIsion may, and It IS authorized to, expend moneys from the special fund established by s. 440.50, for the purpose of assisting such injured employees to obtain appropriate trai~ing, ~ducatio_n and emp~<?ym.ent m connection With their vocational rehabilitation.

(2) Whenever the division determines that there is a reasonable probability that with appropriate training or education a_per~on ~!ltitled. to compensation for total or partial disability whi~!"t is or is likely to be permanent may be rehabilitated to the extent that he will require less care and attendance or to the extent that he can become gainfully employed or increase his earning capacity and that it is for the best interests of such person to undertake such training or education if the injured employee without reasonable cause refuses to undertake the training or educational progra~ dete~~d. by the d_ivi~ion ~o be suitable for him, the diVIsion may m Its discretion suspend, reduce or limit the compensatio_n otherwise payable to such person under this chapter, any provisions of this chapter to the contrary notwithstanding.

(3) In cases involving total disability adjudge~ to be permanent! within 2 y~a!~ after a disability has been so adjudged, the diVIsion shall determine whether there is a reasonable probability that with appropriate training or education the injured employee may be rehabilitated to the extent that he can become gainfully erntDI4CIVE!d and whether it is for the best person to undertake such training or t:uuo.;,auuu, and whenever the division determines that is a reasonable probability that the inj ployee may be so rehabilitated and that it his best interests, if the injured employee out reasonable cause refuses to undertake training or educational program determined the division to be suitable for him, the di shall suspend or reduce by not less than 50 cent the compensation otherwise payable to employee under this chapter, any provisions this chapter to the contrary notwithstanding.

(4) LIMITATION OF LIABILITY FOR SEQUENT INJURY THROJJGH SPECIAL ABILITY TRUST FUND.-

(a) Legislative intent.-It is the purpose this subsection to encourage the employment the physically handicapped by protecting ployers from excess liability for co:mt:•ensal:ioi and medical expense when an injury to a

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capped worker merges with his preexisting permanent physical impairment to cause a greater disability than would have resulted from the injury alone. It shall not be construed to create or provide any benefits for injured employees or their dependents not otherwise provided by this chapter. The entitlement of an injured employee or his dependents to compensation under this chapter shall be determined without regard to this subsection, the provisions of which shall be considered only in determining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the Special Disability Trust Fund.

*(b) Definitions.-As used in this subsection: 1. "Permanent physical impairment" means

any permanent condition due to previous accident or disease or any congenital condition which is, or is likely to be, a hindrance or obstacle to employment, but not due to the natural aging process.

2. "Merger" describes or means that: a. Had the permanent physical impairment

not existed, the subsequent accident or occupational disease would not have occurred;

b. The permanent disability resulting from the subsequent accident or occupational disease is materially and substantially greater than that which would have resulted had the permanent physical impairment not existed and the employer has been required to pay, and has paid, permanent disability compensation benefits for that materially and substantially greater disability; or

c. Death would not have been accelerated had the permanent physical impairment not existed.

3. "Excess permanent compensation" means that compensation for permanent disability for which the employer or carrier is otherwise entitled to reimbursement from the Special Disability Trust Fund.

*(c) Permanent disability after other physical impairment.-

1. Partial disability.-If an employee who has a permanent physical impairment incurs a subsequent permanent disability from injury or occupational disease arising out of, and in the course of, his employment which merges with the preexisting permanent physical impairment to cause a permanent partial disability, the employer shall, in the first instance, pay all benefits provided by this chapter, but, subject to the limitations specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by this paragraph for the last 60 of all compensation for permanent

disability which the employer has been required to provide as a result of the subsequent accident or occupational disease.

2. Total disability.-If an employee who has a ... " .. "''" physical impairment incurs a subse

... " .. "''" disability from injury or occudisease arising out of, and in the course employment which merges with the

pn~ex1st:mg permanent physical impairment to permanent total disability, the employer

shall, in the first instance, pay all benefits provided by this chapter, but, subject to the limitations specified in paragraph (t), such employer shall be reimbursed from the Special Disability Trust Fund created by this paragraph for all compensation for rermanent total disability which is in excess o the first 175 weeks of permanent total disability compensation.

*(d) When death results.-If death results from the subsequent disability contemplated in paragraph (c) within 1 year after the subsequent injury, or within 5 years after the subsequent injury when disability has been continuous since the subsequent injury, and it shall be determined that the death resulted from a merger, the employer shall, in the first instance, pay the funeral expenses and the death benefits prescribed by this chapter, but, subject to the limitations specified in paragraph (t), he shall be reimbursed from the Special Disability Trust Fund created by this subsection for the last 75 percent of all compensation allowable and paid for such death and for 75 percent of the amount paid as funeral expenses.

*(e) Reimbursement for compensation paid for permanent disability or death.-Subject to the limitations specified in paragraph (f), and when the preexisting permanent physical impairment has contributed to the need **[either] medically or circumstantially for temporary disability and remedial treatment, care, and attendance, an employer entitled to reimbursement from the Special Disability Trust Fund for compensation paid for permanent disability or death shall be reimbursed from said fund for 50 percent of the first $10,000 paid as compensation for temporary disability and remedial treatment, care, and attendance pursuant to s. 440.13, for the same injury; thereafter, the employer shall be reimbursed from said fund for all sums paid by the employer as compensation for temporary disability and remedial treatment, care, and attendance pursuant to s. 440.13 which are in excess of $10,· 000. However, any amount in excess of $1,500 which is designated as consideration for future remedial treatment, care, and attendance in discharge of an employer's liability pursuant to the provisions of subsection 440.20(10) in which the employee is not permanently ar:d totally disabled shall be reclassified for the purposes of this subsection as compensation for permanent disability.

*(f) Reimbursement limitations.-1. No reimbursement shall be allowed under

this subsection unless the total amount otherwise reimbursable to the employer with respect to any case is $3,000 or more and it is established that the employer reached an informed conclusion prior to the occurrence of the subsequent injury or occupational disease that the preexisting physical condition is permanent and is, or is likely to be, a hindrance or obstacle to employment. However, when :the employer establishes that he knew of the preexisting permanent physical impairment prior to the subsequent accident or occupational disease, there shall be a

449


conclusive presumption that the employer considered the condition to be permanent and to be, or likely to be, a hindrance or obstacle to employment, when said condition is one of the following:

a. Epilepsy. b. Diabetes. c. Cardiac disease. d. Marie-Strumpell disease. e. Amputation of foot, leg, arm, or hand. f. Total loss of sight of one or both eyes or a

partial loss of corrected vision of more than 75 percent bilaterally.

g. Residual disability from poliomyelitis. h. Cerebral palsy. i. Multiple sclerosis. j. Parkinson's disease. k. Vascular disorder. I. Psychoneurotic disability following confine

ment for treatment in a recognized medical or mental institution for a period in excess of 6 months.

m. Hemophilia. n. Chronic osteomyelitis. o. Ankylosis of a major weight-bearing joint. p. Hyperinsulinism. q. Muscular dystrophy. r. Thrombophlebitis. s. Herniated intervertebral disc. t. Surgical removal of an intervertebral disc

or spinal fusion. u. Total deafness. v. Mental retardation, provided the

employee's intelligence quotient is such that he falls within the lowest 2 percentile of the general population. However, it shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population.

w. Any permanent physical condition which, prior to the industrial accident or occupational disease, constitutes a 20-percent impairment of a member or of the body as a whole.

2. The Special Disability Trust Fund shall not be liable for any costs, interest, penalties, or attorneys' fees.

3. An employer's or carrier's right to apportionment or deduction pursuant toss. 440.02(19), 440.15(5)(c), and 440.151(1)(c) shall not preclude reimbursement from said fund except when the merger comes within the definition of subsubparagraph (b)2.b. and such apportionment or deduction relieves the employer or carrier from providing the materially and substantially greater permanent disability benefits otherwise contemplated in said paragraphs.

*(g) Reimbursement of employer.-The right to reimbursement as provided in this subsection shall be barred unless written notice of claim of the right to such reimbursement is filed by the employer or carrier entitled to such reimbursement with the division at Tallahassee prior to 60 days after the order awarding the excess permanent compensation with respect to which such reimbursement is claimed becomes final or, if

payment of such excess permanent compensation is made by the employer or carrier without an award, prior to 60 days after the date the first payment of excess compensation for the rermanent disability was made. The notice o claim shall contain such information as the division by rule or regulation may require; and the employer or carrier claiming reimbursement shall furnish such evidence in support of the claim as the division reasonably may require. If the Special Disability Trust Fund through its representative denies or controverts the claim, the right to such reimbursement shall be barred unless an application for a hearing thereon is filed with the division at Tallahassee within 60 days after notice to the employer or carrier of such denial or contraversion. When such application for a hearing is timely filed, the claim shall be heard and determined in accordance with the procedure prescribed by the division. In such proceeding on a claim for reimbursement, the Special Disability Trust Fund shall be made the party respondent, and no findings of fact made with respect to the claim of the injured employee or his dependents for compensation, including any finding made or order entered pursuant to s. 440.20(10), shall be res judicata. The Special Disability Trust Fund shall not be joined or made a party to any controversy or dispute between an employee and his dependents and ~he employer or between two or more employers or carriers without the written consent of the fund. When it has been determined that an employer or carrier is entitled to reimbursement in any amount, the employer or carrier shall be reimbursed periodically every 6 months from the Special Disability Trust Fund for the compensation and medical benefits paid by him for which he is entitled to reimbursement upon filing request therefor and submitting evidence of such payment in accordance with rules prescribed by the division.

(h) 1. Special Disability Trust Fund.-There is established in the state treasury a special fund to be known as the "Special Disability Trust Fund," which shall be available only for the purposes stated in this subsection, and the assets thereof shall not at any time be appropriated or diverted to any other use or purpose. The state treasurer shall be the custodian of such fund and all moneys and securities in such fund shall be held in trust by such treasurer and shall not be the money or property of the state. The state treasurer is authorized to disburse moneys from such fund only when approved by the' division and upon the order of the comptroller, countersigned by the governor. The state treasurer shall deposit any moneys paid into such fund into such depository banks as the division may nate and is authorized to invest any portion the fund which, in the opinion of the division, is not needed for current requirements, in the same manner and subject to all the provisions of the law with respect to the deposits of state funds such treasurer. All interest earned by such tion of the fund as may be invested by the treasurer shall be collected by him and placed

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Florida Statutes 1974 Supplement - fall.fsulawrc.com · growth and development, nutrition, dental health, mental health, and communicable dis eases. (c) To meet emergency health needs.

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