What Real Estate Developers need to know about Land Development BEFORE Excavation

 As Florida continues to grow, it is necessary to understand the dynamic environmental impact of issues involving land development. Florida Legislatures have enacted rules to regulate a safer development of Real Estate to prevent irreversible damage to homeowners. Stormwater Litigation Attorney Andrew Lannon is a passionate advocate for property owners in Florida and uses the law to ensure property rights are protected.

Underground Facility Damage Prevention and Safety Act

The Florida Legislature, by and through Chapter 93-240, otherwise known as the Underground Facility Damage Prevention and Safety Act, created a non-profit corporation called Sunshine State One-Call of Florida, Inc. (hereinafter “Sunshine 811”). Sunshine 811’s primary duty is the location and coordination of underground excavation for the express purpose of preventing damage to improvements from excavation. If a contractor fails to comply with sections 556.101 et. seq., Fla. Stat., a rebuttable presumption will arise that the excavator was negligent should any damages to a facility occur. Please note that Sunshine 811 is neither permitted nor required to either locate or mark underground facilities. Any violator of the Act may be assessed a civil penalty ranging from $1,000-$5,000, issued by the authority which issued the permit for the excavation.

Under the Act, not less than two (2) business days before commencing any excavation or demolition, save an excavation beneath the waters of the State of Florida, an excavator shall provide the following information to Sunshine 811:

          Name, street address, and telephone number of individual providing information;

          Name, street address, and telephone number of the person’s employer;

          Name, telephone number and e-mail address for the representative for the excavator in order to facilitate a positive response by the system, if available;

          The county, city or closest city, and the street address or nearest intersection to the location of the excavation or demolition to be performed, including the construction limits thereof;

          Commencement date and anticipated duration of the excavation or demolition;

          The type of work to be done, approximate depth of excavation, and whether machinery will be used for the      operation;

          The person or entity for whom the work is being performed;

          The type of work to be performed;

          The approximate depth of the excavation.

The information is given when you call the statewide toll-free number during business hours (800.432.4770 or 811). Notification received outside of business hours is considered received the next business day.

If a member operator determines that there is a proximity to or conflict with an underground facility of the operator, that operator shall mark and identify by stakes, paint, flags or other suitable means the location of the facility within twenty-four inches (24”) from the outer edge of either side. The Uniform Color Code for Utilities of the A.P.W.A. shall be used for horizontal marking. This marking must occur within two (2) business days of the notification. If the horizontal markings are at any point removed or fall off, they shall be promptly replaced.

Please note that an excavator may not ignore a known underground facility even though it has not been marked. Instead, the demolition shall not proceed until the underground facilities have been marked, located and (if possible) removed. A member operator who certifies that it does not have accurate information is exempt from marking but shall provide the best available information to the excavator. In such an event, the excavator is not liable for damage to an underground facility if the excavation is performed with reasonable care. 

In the event of an emergency, Sunshine 811 must be notified of the excavation within the earliest opportunity. It still may proceed to provide reasonable precautions are taken to protect any underground facilities. An emergency is defined as any condition constituting a clear and present danger to life or property caused by (1) escape of a material or substance transported via underground facility; (2) interruption or vital public service or communication caused by a break or defect in a member operator’s underground facility; or (3) use of highways, streets, or roads owned, operated or maintained by a governmental entity is impaired by an unforeseen occurrence which necessitates immediate repair.