O.C.G.A. § 25-9-5 (2019)
A facility owner or operator to which appropriate notice of
blasting or excavating with mechanized equipment as prescribed in subsection (a) of Code Section 25-9-6 was given shall be prohibited from seeking claims for damages if no designation of underground facilities or sewer laterals was performed prior to the damage being incurred and the person blasting or excavating complied with the provisions in Code Section 25-9-8.
(f) The enforcement provisions of this Code section shall not apply to any person that commences, performs, or engages in blasting or in excavating with mechanized equipment within the curb lines or edges of the pavement of any public road and that causes damage to an underground facility located within the roadway hard surface or the graded aggregate base therein if such person has complied with the provisions of this chapter and there is no indication that an underground facility is in conflict with the proposed excavation.
(g) Any person engaged in excavating the concrete or asphalt of a road maintained by a local governing authority for the purpose of road repair, full depth reclamation, potholing, or general road repair that complies with Code Section 25-9-6 shall not be held liable for damage claims if the underground facility or sewer facility falls within the depth of the existing pavement and subbase materials or 12 inches below the road surface, whichever is less.
(h) The commission shall enforce the provisions of this chapter. The commission may promulgate any rules and regulations necessary to implement the commission’s authority to enforce this chapter. In order to provide local governing authorities adequate time for initial budgeting and staffing, the starting date for enforcement of the requirement to locate traffic control devices and traffic management systems shall be January 1, 2024.
(i) Enforcement actions brought under this chapter shall commence within three years from the date that the probable violation was reported to the commission.
(j)(1) The Governor shall appoint an advisory committee as follows:
(A) One member to represent the Department of Transportation;
(B) One member to represent traffic control devices, traffic management systems, water systems, or water and sewer systems owned or operated by local governing authorities;
(C) One member to represent the UPC;
(D) One member to represent traffic control devices, traffic management systems, water systems, or water and sewer systems owned or operated by counties;
(E) One member to represent traffic control devices, traffic management systems, water systems, or water and sewer systems owned or operated by municipalities;
(F) One member to represent the nonmunicipal electric industry;
(G) Five members to represent excavators to include the following:
(i) One member to represent licensed utility contractors;
(ii) One member to represent licensed general contractors;
(iii) One member to represent licensed plumbers;
(iv) One member to represent landscape contractors; and
(v) One member to represent highway contractors;
(H) One member to represent locators;
(I) One member to represent the nonmunicipal telecommunications industry;
(J) One member to represent the nonmunicipal natural gas industry;
(K) One member to represent municipal gas, electric, or telecommunications providers; and
(L) The commission chairperson or such chairperson’s designee. The commission chairperson or his or her designee shall serve as chairperson of the advisory committee and shall cast a vote only in the case of a tie. Persons appointed to the advisory committee shall have expert knowledge of this chapter and specific operations expertise with the subject matter encompassed by the provisions of this chapter.
(2) The advisory committee shall establish rules of operation including an attendance policy. In the event a committee member resigns or fails to meet the criteria of the attendance policy, the advisory committee shall appoint an interim member to represent the same stakeholder group until such time as the Governor appoints a replacement.
(3) The advisory committee shall assist the commission in the enforcement of this chapter, make recommendations to the commission regarding rules and regulations, and perform duties to be assigned by the commission including, but not limited to, the review of reported violations of this chapter and the preparation of recom150 mendations to the commission as to the appropriate penalties to impose on persons violating the provisions of this chapter.
(4) The members of the advisory committee shall be immune, individually and jointly, from civil liability for any act or omission done or made in the performance of their duties while serving as members of such advisory committee, but only in the absence of willful misconduct.
(k)(1) Commission enforcement of this chapter shall follow the procedures described in this subsection. Nothing in this subsection shall limit the authority of the commission delegated from the federal government and authorized in other state law.
(2)(A) The commission is not authorized to impose civil penalties on any local governing authority except as provided in this paragraph. The commission may recommend training for local governing authorities in response to any probable or proven violation. Civil penalties may be recommended for or imposed on any local governing authority for refusal to comply with the requirements of Code Section 25-9-7 or for other violations of Code Section 25-9-7 that result in injury to people, damage to property, or the interruption of underground facility service in the event that investigators find that a local governing authority has demonstrated a pattern of willful noncompliance. Civil penalties may be recommended or imposed for violations of provisions of this chapter other than Code Section 25-9-7 in the event that investigators find that the severity of an excavation violation warrants civil penalties or that a local governing authority has demonstrated a pattern of willful noncompliance. Any such civil penalty shall be recommended or imposed in accordance with a tiered penalty structure designed for local governing authorities. In the event that the investigators determine that a local governing authority has made a good faith effort to comply with this chapter, the investigators shall not recommend a civil penalty. For purposes of this subsection “refusal to comply” means that an underground facility owner or operator does not respond in PRIS to a locate request, does not respond to a direct telephone call to designate their facilities, or other such direct refusal. Refusal to comply shall not mean a case where the volume of requests or some other mitigating circumstance prevents the underground facility owner or operator from locating in accordance with Code Section 25-9-7.
(B) No later than January 1, 2006, the advisory committee shall recommend to the commission for adoption a tiered penalty structure for local governing authorities. Such structure shall take into account the size, annual budget, gross receipts, number of underground facility connections and types of utilities within the territory of the local governing authority. Such penalty structure shall also take into account the number of locate requests received annually by the local governing authority, the number of locate codes made annually to the local governing authority from the UPC, the number of customers whose service may have been interrupted by violations of this chapter, and the duration of such interruptions. Such penalty structure shall also consider the cost of compliance. The penalty structure shall establish for each tier the maximum penalty per violation and per 12 month period at a level to induce compliance with this chapter. Such maximum penalty shall not exceed $5,000.00 per violation or $50,000.00 per 12 month period for the highest tier.
(3) If commission investigators find that a probable violation has occurred, they may recommend training in lieu of penalties to any person for any violation. The commission shall provide suggestions for corrective action to any person requesting such assistance. Commission investigators shall make recommended findings or offers of settlement to the respondent.
(4) Any respondent may accept or disagree with the settlement recommended by the investigators. If the respondent disagrees with the recommended settlement, the respondent may dispute the settlement recommendation to the advisory committee. The advisory committee shall then render a recommendation either supporting the investigators’ recommendation, rejecting the investigators’ recommendation, or substituting its own recommendation. With respect to an investigation of any probable violation committed by a local governing authority, any recommendation by the advisory committee shall be in accordance with the provisions of paragraph (2) of this subsection. In its deliberations the advisory committee shall consider the gravity of the violation or violations; the degree of the respondent’s culpability; the respondent’s history of prior offenses; and such other mitigating factors as may be appropriate. If the advisory committee determines that a respondent has made a good faith effort to comply with this chapter, the committee shall not recommend civil penalties against the respondent. To the extent that a respondent does not accept a settlement agreement or request to dispute the recommendation of the investigators to the advisory committee, the respondent shall be assigned to a hearing officer or administrative law judge.
(5) If any respondent disagrees with the recommendation of the advisory committee, after notice and hearing by a hearing officer or administrative law judge, such officer or judge shall make recommendations to the commission regarding enforcement, including civil penalties. Any such recommendations relating to a local governing authority shall comply with the provisions of paragraph (2) of this subsection. The acceptance of the recommendations by the respondent at any point shall stop further action by the investigators in such case.
(6) When the respondent agrees with the advisory committee recommendation, the investigators shall present such agreement to the commission. The commission is then authorized to adopt the recommendation of the advisory committee regarding a civil penalty, or to reject such a recommendation. The commission is not authorized to impose a civil penalty greater than the civil penalty recommended by the advisory committee or to impose any civil penalty if the advisory committee does not recommend a civil penalty.
(7) The commission may, by judgment entered after a hearing on notice duly served on any person not less than 30 days before the date of the hearing, impose a civil penalty not exceeding $10,000.00 for each violation, if it is proved that the person violated any of the provisions of this chapter as a result of a failure to exercise additional care in accordance with subsection (d) of Code Section 25-9-8 or reasonable care in accordance with other provisions of this chapter. Any such recommendations relating to a local governing authority shall comply with the provisions of paragraph (2) of this subsection. Any proceeding or civil penalty undertaken pursuant to this Code section shall neither prevent nor preempt the right of any party to obtain civil damages for personal injury or property damage in private causes of action except as otherwise provided in this chapter.
(l) All civil penalties ordered by the commission and collected pursuant to this Code section shall be deposited in the general fund of the state treasury.
History
Code 1981, § 25-9-13, enacted by Ga. L. 1986, p. 1069, § 1; Ga. L. 1989, p. 495, § 1; Ga. L. 1990, p. 805, § 1; Ga. L. 2000, p. 780, § 1; Ga. L. 2000, p. 1706, § 19; Ga. L. 2005, p. 1142, § 10/SB 274; Ga. L. 2014, p. 652, § 7/SB 117; Ga. L. 2014, p. 866, § 25/SB 340; Ga. L. 2015, p. 5, § 25/HB 90; Code 1981, § 25-9-14, as redesignated by Ga. L. 2022, p. 325, § 1/HB 1372. The 2022 amendment, effective September 1, 2022, redesignated former Code Section 25-9-13 as present Code Section 25-9-14; substituted “underground” for “utility” throughout this Code section; rewrote the introductory paragraph of subsection (a), which read: “Any person who violates the requirements of subsection (a), (f), or (g) of Code Section 25-9-6 and
whose subsequent excavating or blasting damages utility facilities or sewer laterals shall be strictly liable for:”, in paragraph (a)(1), added “, excluding betterments” at the end of the first sentence and added the second and third sentences; substituted “blasting or excavating” for “excavating or blasting” and “any public” for “the public” in subsection (b); substituted “that” for “who” and “when resultant blasting or excavating” for “whose subsequent excavating or blasting” in the first sentence in subsection (c); substituted “in instances when” for “whenever” in subsection (d); substituted “that commences, performs, or engages” for “who shall commence, perform, or engage” in subsections (e) and (f); in subsection (e), inserted “appropriate” and substituted “with respect to” for “re-
specting” in the first sentence, and added the second sentence; substituted “that causes damage to an underground” for “who causes damage to a utility” and “indication that an underground” for “indication that a utility” in subsection (f); added subsection (g); redesignated former subsection (g) as subsection (h) and added the second sentence; added subsection (i); redesignated former subsections (h) through (j) as (j) through (l); substituted “as follows” for “consisting of persons who are employees or officials of or who represent the interests of” at the end of the introductory language of paragraph (j)(1), substituted “traffic control devices, traffic management systems, water systems,” for “water systems” in subparagraphs (j)(1)(B), (j)(1)(D), and (j)(1)(E), substituted “UPC” for “utilities protection center” at the end of subparagraph (j)(1)(C), inserted “member to represent” in divisions (j)(1)(G)(i) through (j)(1)(G)(v), substituted “contractors” for “contractor” in divisions (j)(1)(G)(i), (j)(1)(G)(ii),
(j)(1)(G)(iv), and (j)(1)(G)(v), and substituted “plumbers” for “plumber” in division (j)(1)(G)(iii); in subparagraph (k)(2)(A), inserted “facility” in the third sentence, deleted “on or after January 1, 2006” following “imposed” in the fourth sentence, substituted “that an” for “that a” in the seventh sentence, and in the eighth sentence, substituted “shall“ for “does” and inserted “facility”; in subparagraph (k)(2)(B), inserted “facility” in the first sentence and substituted “number of customers” for “number of utility customers” in the second sentence; and substituted “shall” for “will” and “such” for “that” in the last sentence in paragraph (k)(5).
Annotations
Code Commission notes. Pursuant to Code Section 28-9-5, in 2022, a comma was deleted preceding “imposed” in the fourth sentence of subparagraph (k)(2)(A). Editor’s notes. See the editor’s notes to Code Section
RESEARCH REFERENCES Am. Jur. 2d. 36 Am. Jur. 2d, Forfeitures and Penalties, § 61 et seq.
C.J.S. 70 C.J.S., Penalties, § 1 et seq.
CHAPTER 10 REGULATION OF FIREWORKS Sec.
Sec. Definitions. Prohibited fireworks activities; application of noise ordinances. Use of fireworks and consumer fireworks while under the influence; violation. Permitted sales and uses of fireworks. Storage of fireworks by licensed nonmanufacturers. License required for pyrotechnics exhibits; requirements; penalty for violations. Permit required to conduct public fireworks exhibition or display. Prohibition of employment of minors where fireworks are stored or displayed. License and fee for manufacture, storage, and transportation of fireworks or pyrotechnic displays; regulations; inspections. Requirements for issuance of license to distribute con-
Administrative rules and regulations. Manufacturing, Storage, Sales, Exhibitions and Displays of Fireworks and Pyrotechnics, Use of Flame Effects Before a Proximate Audience, Official Compilation of the Rules and Regulations of the State
sumer fireworks; required signage. Fireworks manufactured, sold, or stored in violation of chapter declared contraband; seizure and disposition thereof; forfeiture. Applicability of provisions of chapter. Penalty for violations of chapter. Penalty for illegal use or sale of fireworks. Prohibition on release of certain fire-propelled devices into the air and certain floating lantern devices into public water locations. Enforcement; cease and desist orders; license revocation; opportunity for hearing; penalty for failure to comply with order; authority to bring civil action. Additional grounds for revocation or suspension, refusal, or nonrenewal of license.
of Georgia, Office of Commissioner of Insurance, Safety, Fire Commissioner and Industrial Loan Commissioner, Rules of Safety Fire Commissioner, Rule 120-3-22.01 et seq.
RESEARCH REFERENCES ALR. Validity, construction, and application of state or local laws regulating the sale,
possession, use, or transport of fireworks, 48 A.L.R.5th 659.