Exh 8G
SG
9-i3-99
CITY OF ATLANTIC BEACH
CITY COMMISSION
STAFF REPORT
AGENDA ITEM: Attorney General Opinion on Sewer Connections
DATE: September 9, 1999
SUBMITTED BY: David E. Thompson, City Manager
BACKGROUND: The attached letter was received relative to the questions proposed
to the Attorney General's office relative to the enforcement of the
mandatory sewer connections under state law.
Staff defers to the City Attorney and the City Commission relative
to the interpretation of the opinion. However, it appears that the
City is not directed by State Law to enforce the provisions of the
statute. This provides room for the City Commission to make a
policy decision relative to the enforcement of the statute.
While considering the interpretation of the state law, the City
Commission may also wish to consider taking further action
relative to billing for sewer services 90 days after notification. The
City Commission deferred the issue until an Attorney General's
Opinion was received.
RECOMMENDATION: To make policy decision as to whether or not the City Commission
wants staff to enforce the provisions of the state statute requiring
• connections to the sewer system.
Additionally, to review the City Code on this matter to determine
whether or not the City Commission wishes to make changes in the
code relative to required connections.
ATTACHMENT: Letter and opinion from the Attorney General
City of Atlantic Beach Code relative to mandatory sewer
connections
REVIEWED BY CITY MANAGER: B~
AGENDA ITEM NUMBER:
ALAN JENSEN ATTY 373 P01
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___
AIjAN C. JENS~'
Attormep at Law
935 North Third Street
paw OPFce Bux 50457
3ac~somvilT,e Bah, F~~rida 32-0457
Tet~gphane tsoa~l zas-2~oo
R~L~IORANDIT.~1~
DATE: August 31, 1999
TO: I?avid B. Thompson, City Maa~°ez'
City of Atlantic Beach
FRO1V,~: Alan C. 7ensen, Psq., City Attorney
ItE; Sewer Hookups
AUG 31'99 14:18
Fie ) 2~6-49fQ
'PIA FAX
I received today azt opinion from the Office of the Attorney General gursuaz~.t and a copy is faxed
herewith. I believe the opinion is self-explanatory, is in accord with raze my opi~nzon, but please cwt
if you have any quesrions ze~arduig it.
I would appreciate you distributing copies of the opuiion m the mayor, commissioners, city clerk,
and anyone else you deem appropriate. Thank you.
AGTlsky
..
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I20AE~tT A. B~3'ERWORTH
E~IlOIT1Ey rsB11~GtQ1
Str~€e of Ficrridu
ALAN JENSEN ATTY 373 PBZ AUG 31'99 14:18
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LEGAL AFFAIRS
THE CAPITOL
TALLAHASSEE, FLOitIDA 32399-~ 054
August 27, 2999
Mr. Alan C. Jensen
Atlantic Beach City Attorney
post Office Box•54057
Jacksonville,•Florida 32240-0~5?
Dear Mr. Jensen:
You have asked for assistance regarding the enforcement of
homeowner hookup to a city-owned sewerage system pursuant
to section 381.00655, Florida Statutes. Attorney General
Butterworth has asked me to respond to your letter.
Initially, I must reiterate that this office is authorized by
statute to issue opinions on questions of state law. Local
ordinances such as the one adopted by the City of Atlantic Beach
and matters of factual dispute such as promises made by local
officials to homeowners are not within the scope of Attorney
General Opinions .1
section 381,00655, Florida Statutes, provides for connection
to central sewerage systems by property owners who currently
have onsite sewage treatment and disposal systems. An onsite
sewage treatment system includes such things as septic systems.
Pursuant to the statute:
The owner of a properly functioning onsite sewage
treatment and disposal-system must connect the
system or the building's plumbing to an available
publicly owned ox investor--owned sewerage system within
365 days a:Eter written notification by the owner of the
publicly owned or investor-owned sewerage system that
the system is available for connection. The publicly
owned or investor-owned sewerage system must notify the
owner of the onsite sewage treatment and disposal
system of the availability of the central sewerage
system. No less than 1 year prior to the date the
sewerage system will become available, the publicly
owned or investor-owned sewerage system shall notify
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•. t i:.
MI AFARUATNEACTICN~pUq~, Cpp~ypT~N1•fyEIAGLOYECi
ALAN JENSEN ATTY 3?3 P03 AUG 31'99 14:11
Mr. Alan C. Jensen
Page Two
the affected owner of the onsite sewage treatment and
disposal system of the anticipated availability of the
sewerage system and shall also notify the ownex that
the owner will be required to connect to the sewerage
system within 1 year of the actual availability. .Z
The statute also provides that the owner of an onsite sewage
treatment and disposal system that must be repaired in order to
function properly must connect to an available sewerage system
within 90 days. This statute, by its terms, applies to both
publicly owned and investor-owned sewerage systems,
Section 381.Q0655(2}(b}, Florida Statutes, also provides that:
,A publicly owned or investor-owned sewerage system may,
with the approval of the [Department of Health], waive
the requirement of mandatory onsite sewage disposal
connection if it determines that such connection is not
required in the public interest due to public health
considerations.
Clearly, the statute recognizes instances where a local govern-
ment (in the form o~ its publicly owned system} may waive the
requirement of mandatory sewer hookup if it makes a determination
that the public health would not be adversely effected by this
action and it secures the approval of the Department of Health.
While nothing in section 381.00655,_ Florida Statutes, requixes
a~municipality to Pnfor~,g the~rovisiQns of the sta-tote,
mun~c~.pal7,ty is not foreclosed from ta]~ing local legislative
action provid~xls~_f~r-_enforcement of section38~ ,QoF55. Florida
Statutes. The Municipal Home Rule Powers Act states that
cities have the power to enact legislation concerning any
subject matter upon which the state Legislature may act3 and
local ordinances relating to enforcement of provisions of section
381.00655, Florida Statutes, would appear to be appropriate
subjects for legislation. In fact, section 381.0055, Florida
Statutes, recognises the authority of counties and municipalities
to "enforce other laws for the protection of the public health
and safety."
. ALAN JENSEN ATTY 373 P04 AUG 31'99 14.:11
p
Mr. Alan C. Jensen
Page 'three
T trust that these informal comments will assist you in advising
your.client, the City Commission of Atlantic Beach.
Sincerely,
~~ i~~~~ rsr ~ ,jam
Gerry Hammond
Assistant Attorney General
GH/tgk
~ See, s. 16.01(3), Fla. Stat.
z Section 387,.00655 (1} {a} , Fla. Stat.
s Section 166.021(3), Fla. Stat.
I
Sec. 22-89. Compliance regarding type, capacities, location and layout.
The type, capacities, location, and layout of a private wastewater disposal system shall
comply with all recommendations of the City of Jacksonville Health, Welfare, and
Bioenvironmental Services Division.
(Ord. No. 80-83-23, § I(Art. III, § 4), 6-27-83)
Sec. 22-90. Connection to public sewers; failure of system; cleaning and filling.
(a) At such time as a public sewer becomes available to a property served by a private
wastewater disposal system (onsite sewage disposal system [or OSDS]), as provided in section
22-89, or when a failure of such OSDS occurs, the property owner shall be notified by the city
that a direct connection shall be made to the public sewer within ninety (90) days in compliance
with this article. Such failed septic tanks, cesspools, and similar private wastewater disposal
facilities shall be cleaned of sludge and filled with suitable material. The requirement to hook up
to the city's sewer system will not be required of property owners who began paying an
assessment for sewer lines before February 1, 1995, unless their OSDS fails. Property already
served by the city sewer system shall remain on the city sewer system.
(b) "Failure" is defined as a condition existing within an OSDS which prohibits the
system from functioning in a sanitary manner. Failure may result in the discharge of untreated or
partially treated wastewater onto ground surface, into surface water, or into groundwater. Failure
may cause building plumbing to discharge improperly.
a
(Ord. No. 80-83-23, § I(Art. ~II, § 5), 6-27-83; Ord. No. 80-94-53, § 2, 11-28-94)
Sec. 22-91. Maintenance.
The owner shall operate and maintain the private wastewater disposal facilities in a
sanitary manner at all times, at no expense to the city. Any and all maintenance or repair to a
private OSDS [onsite sewage disposal system] must be permitted and inspected by the cite
building department.
(Ord. No. 80-83-23, § I(Art. III, § 6), 6-27-83; Ord. No. 80-94-53, § 3, 11-28-94)
Sec. 22-92. Written report required for failed private system.
At such time as a private OSDS [onsite sewage disposal system] fails, as defined in
section 22-90 of this article; a written report shall be made by the owner of such OSDS to the city
within seven (7) days of such failure.
(Ord. No. 80-94-53, § 4, 11-28-94)
Secs. 22-93--22-100. Reserved.