Loading...
Exh 8G AGENDA ITEM: DATE: SUBMITTED BY: CITY OF ATLANTIC BEACH CITY COMMISSION STAFF REPORT Attorney General Opinion on Sewer Connections September 9, 1999 David E. Thompson, City Manager q-z7-9~' 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: ~-- AGENDA .ITEM NUMBER: a ~ ALAN JENSEN ATTY 3?3 P01 AUG 31'99 14:10 v ALERT C. JF.N'SEN ~- ~'~' 933 North xhir~t Street ~a~ o Box soa~~ J~~m~ man, ~u,~-a~- a~2ao-aas~ Tetephtms (90~) ?.46-2~4() F~csi~a~e {~04) ?~5-996a ~oxnxnu.~z DATE. August 31, 1999 VIA, FAX T'U: David E. Tlwmpson, Cif Manager City of Atlantic Beach FROM: Alan C. Tenser, F.sq., +Eaty Attonzey xtE: Sewer Hookups I received today azt opinion. fmm the Office of the Attaraey General pursuant and a cagy is faxed herewith. ~ believe the opinion is se,If-explanatory, is in accord with the may opizxion, but please cad if you have any questirnas zegarding it. I would appreciate you distributing copies of the opinion to the mayor, commissioners, city clerk, and anyone else you deem riate. 'Dank you. ACTlsky ALAN JENSEN ATTY 3?3 P0Z C)FFIQE OF TAE ATTORNEY GENERAL itOJ3Elt~' A. BUxTERWORTH Attorney General Slate o}'Floridu August 27, 2999 DEPARTMENT OF LEGJ-L AFFAIRS THE CAPITOL TAiLAHASSEE, FLORIDA 32399-1054 Mr. Alan C. Jensen Atlantic Beach City Attorney post Office Box~54057 Jaeksonville,~Florida 32240-C~45? Dear Mr. Jensen: AUG 31'99 24:10 Yau 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 Atlax~t~,c Beach and matters of factual dispute such as promises made by local officials to homeowners are not within the scope of Attorney General Opinions.l SectS.on 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 or investor--owned sewerage system within 365 days after 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 nota.fy 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 ~[~~~~~~~ ~i;~3 aN ACt7auATNE ACTICt~r,FQUAL OPPOATlltyfiY EMDLOYES~ ~ P., •- f i:. ~2 ALAN JENSEN ATTY Mr. Alan C. Jensen Page Two 3?3 P83 AUG 31'99 14:11 the affected owner~of the onsite sewage treatment and disposal system of the anticipated availability of the sewerage system and shall also notify the owner that the owner will be required to connect to the sewerage system within 3. year of the actual availability. .2 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 381.00655(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 of 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 3$1.00655, Florida Statutes, requixes a municipality to enforce the provisions of the statute, a municipality is not foreclosed from taping local legislative action providing for enforcement of section 381.00655, Florida Statutes, The Municipal Home Rule Powers Act states that cities have the power to enact legislation concerning axiy 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 381.00655, Florida Statutes, recognizes the authority of counties and municipalities to "enforce other laws for the protection of the public health and safety." _ . ALAN JENSEN ATTY 3?3 P04 AUG. 31'99 14:12 Mr. Alan C. 3ensen Page ~'hree I trust that these informal comments will assist you in advising your.client, the City Commission of Atlantic Beack~. Sincerely, Gerry Hammond Assistant Attorney General GH/tgk ~ See, s. 16.01(3), Fla. Stat. a Section 581.00655(1}(a}, Fla. Stat. s Section 166.021(3), Fla. Stat. 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. (Ord. No. 80-83-23, § I(Art. III, § 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 city 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.