Tennessee § 65-31-112 - Civil penalties and remedies — Liability — Indemnification — Offense of Vandalism.

§ 65-31-112. Civil penalties and remedies — Liability — Indemnification — Offense of Vandalism.

Any person who violates this chapter, or the rules promulgated under this chapter, shall be subject to a civil penalty as follows: For a first violation, the violator shall complete a course of training concerning compliance with this chapter as determined by the executive committee; For a second or subsequent violation, the violator shall complete a course of training concerning compliance with this chapter as determined by the executive committee or pay a civil penalty in an amount set by the executive committee, not to exceed two thousand five hundred dollars ($2,500) per incident, or both; and Notwithstanding subdivisions (e)(1) and (2), if any violation was the result of gross negligence or willful or wanton misconduct as determined by the executive committee, the executive committee shall require the violator to complete a course of training concerning compliance with this chapter as determined by the executive committee and pay a civil penalty in an amount set by the executive committee, not to exceed five thousand dollars ($5,000) per incident. For the purposes of this chapter, monetary civil penalties shall not be levied against any department of this state. In the event that a state department is found by the executive committee to be noncompliant, the executive committee may submit a notice of noncompliance to the department head along with a request for an action plan for future compliance. For the purposes of this chapter, monetary civil penalties shall not be levied against a county, city, town, utility district, or other political subdivision of this state unless the executive committee finds that the county, city, town, utility district, or other political subdivision of this state has engaged in a pattern of willful noncompliance with the requirements of this chapter. Except as provided in subsection (e), this section shall not limit any person's right to pursue any additional civil remedy otherwise allowed by law. Any person who is required to complete a course of training under subsection (a) shall be responsible for paying for the cost of the training. Any excavator who violates this chapter may be issued a notice of violation by the inspector, and the inspector may require any excavator to cease work on any excavation, or not start a proposed excavation, until the excavator complies with this chapter. An excavator who complies with this chapter shall not be liable for damage that the excavator causes to an operator's underground facility, if: The operator received the notification required by § 65-31-106; The operator fails to locate its underground facilities as required by § 65-31-108; and The damage is a proximate result of the operator's failure to locate its underground facilities as required by § 65-31-108. Any person who violates § 65-31-106 and whose subsequent excavation or blasting damages utility facilities or sewer laterals shall also indemnify the affected facility owner or operator and the one-call service against all claims or costs incurred, if any, for personal injury, property damage, or service interruptions resulting from damaging the utility facilities or sewer laterals. The requirements of subdivision (e)(3)(A) shall not apply to any state agency, county, city, town, utility district, or other political subdivision of this state. Any person who knowingly and willfully removes or otherwise destroys the stakes or other physical markings used to mark the horizontal route of an underground facility commits the offense of vandalism under § 39-14-408, and shall be subject to the punishment for vandalism under § 39-14-105. Acts 1978, ch. 692, § 12; T.C.A., § 65-3212; Acts 1985, ch. 69, § 1; 1999, ch. 73, § 6; 2006, ch. 686, § 11; 2015, ch. 488, § 6. Amendments. The 2015 amendment rewrote the section, which read: “(a) Any person who violates any provision of this chapter commits a Class A misdemeanor, and is subject to a fine not to exceed two thousand five hundred dollars ($2,500) or a term of imprisonment not to exceed forty-eight (48) hours, or both.“(b)(1) Any excavator who violates the provisions of this chapter may be issued a citation by any local or state law enforcement officer or permitting agency inspector, and the issuer of a citation may require any excavator to cease work on any excavation or not start a proposed excavation until there has been compliance with the provisions of this chapter.“(2) If, after receiving proper notification as required in § 65-31-106 , an operator fails to locate its facilities as required in § 65-31-108 , an underground facility of such operator is damaged by an excavator who has complied with the provisions of this chapter; and such damage is a proximate result of the operator's failure to discharge such duty, then such excavator shall not be liable for such damage.“(c)(1) Any person who violates any provision of this chapter may be required to appear before the appropriate court as set forth in § 40-1-107 . Any person who fails to appear or otherwise properly respond to a citation issued pursuant to this section shall, in addition to the penalties as set forth in the citation, be charged with a misdemeanor offense and, upon conviction, commits a Class B misdemeanor, punishable as provided in § 40-35-111 .“(2) Any person cited for a violation of this chapter, unless required to appear before the appropriate court may:“(A) Post a bond, which shall be equal in the amount to the applicable penalty; or“(B) Sign and accept a citation promising to appear before the appropriate court.“(3) The issuing officer shall indicate on the citation the time and location of the scheduled hearing and shall indicate the applicable penalty.“(4) Any person charged with a violation of this chapter, unless required to appear before the appropriate court, may:“(A) Pay the penalty, in lieu of appearance, either by mail or in person, within ten (10) days after the date of receiving the citation; or“(B) Forfeit the bond, if a bond is posted, by not appearing at the designated time and location.“(5) If the person cited follows either of the procedures of subdivisions (c)(4)(A) or (B), such person shall be deemed to have admitted to committing the infraction and to have waived the right to a hearing on the issue of commission of the infraction. Such admission may be used as evidence in any other proceeding.“(d) Any person who knowingly and willfully removes or otherwise destroys the stakes or other physical markings used to mark the horizontal route of an underground facility commits the offense of vandalism as set forth in § 39-14-408 , and shall be subject to the punishment for vandalism as set forth in § 39-14-105 .” Effective Dates. Acts 2015, ch. 488, § 10. May 20, 2015. Collateral References. Applicability of rule of strict liability to injury from electrical current escaping from powerline. 82 A.L.R.3d 218, 60 A.L.R.4th 732. Liability of electric company to one other than employee for injury or death arising from commencement or resumption of service. 46 A.L.R.5th 423. Liability of gas company for damage resulting from failure to inspect or supervise work of contractors digging near gas pipes. 71 A.L.R.3d 1174.