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HomeMy WebLinkAbout2013 10 28 Public Hearing 502 Waste Management Services - Emergency Ordinance 2013-16 COMMISSION AGENDA Informational Consent ITEM 502 public Hearings X Regular October 28, 2013 KS Regular Meeting City Manager Department REQUEST: The City Manager and City Attorney recommend that the City Commission consider adopting an emergency ordinance regarding the enforcement of the City's authority to regulate the collection and disposal of solid waste within the jurisdictional limits of the City. SYNOPSIS: The City Commission enacted Ordinance No. 2006-01 granting an exclusive solid waste franchise to Waste Pro of Florida, Inc. in accordance with the terms and conditions of a franchise agreement. The Ordinance grants Waste Pro the authority to collect and dispose of all residential and commercial solid waste within the jurisdictional limits of the City. "Commercial service" is defined under the Ordinance to include collection and disposal service provided to business establishments, churches, schools, multiple dwelling units, office buildings and other commercial establishments. Upon information and belief, the City recently learned that the School District may be selecting a different solid waste hauler to handle solid waste collection and disposal services at schools located within the City of Winter Springs, effective November 1, 2013, in violation of the City's exclusive solid waste franchise granted to Waste Pro. On October 22, 2013 Waste Pro requested, in writing, that the City honor and enforce the City's exclusive solid waste franchise agreement with respect to the schools located within the City of Winter Springs. Emergency Ordinance No. 2013-16 reemphasizes the powers and authority granted to municipalities by the Florida Legislature under Chapters 166, 180, and 403, Florida Statutes for solid waste collection and disposal that have been traditionally recognized by the courts. Further, the Ordinance authorizes code enforcement staff to issue civil code citations to any person or entity that provides solid waste collection and disposal services to real property within the jurisdictional limits of the City without first obtaining a franchise or Public Hearings 502 PAGE 1 OF 4-October 28,2013 license from the City or in violation of any applicable solid waste franchise awarded and adopted by the City. Such violations will constitute a Class III ($300) penalty. Each refuse container, trash receptacle, rolloff container, mechanical cart, or mechanical container collected in violation of Ordinance No. 2013-16 shall constitute a separate violation. CONSIDERATIONS: 1. The City Commission may enact emergency ordinances, by two-thirds (2/3) vote of the Commission, pursuant to section 166.041(3)(b), Florida Statutes, and Section 4.15(d) of the Winter Springs Charter. 2. Pursuant to Chapters 166, 180, and 403, Florida Statutes, the City Commission adopted Ordinance No. 2006-0lwhich granted an exclusive franchise agreement to Waste Pro of Florida, Inc. ("Waste Pro") for the collection and disposal of residential and commercial solid waste and construction debris. "Commercial service" is defined under the Ordinance to include collection and disposal service provided to business establishments, churches, schools, multiple dwelling units, office buildings and other commercial establishments. 3. Recently, the City became aware that the School District requested bids for solid waste services for some of the District's school facilities. The bid request excluded school facilities within the cities of Lake Mary and Sanford because District staff indicated that both of these cities have exclusive solid waste franchises. However, although Winter Springs similarly has an exclusive solid waste franchise, Winter Springs' schools were included in the bid because District staff apparently concluded that Winter Springs' Franchise does not apply to governmental entities and schools. 4. As referenced in paragraph 2 of this Agenda Item, Ordinance No. 2006-01 expressly and unambiguously applies to "schools" under the general category of commercial service. 5. As of the date of this Agenda Item, it is City staff's understanding that the School District will likely issue a notice to proceed (effective November 1, 2013) to another solid waste hauler other than Waste Pro to begin collecting and disposing of solid waste from school sites within the jurisdictional limits of Winter Springs in violation of Ordinance No. 2006-01. 6. On October 22, 2013 Waste Pro requested, in writing, that the City honor and enforce the City's exclusive solid waste franchise agreement with respect to the schools located within the City of Winter Springs. 7. Over the years, Waste Pro has provided exemplary service to the property owners of the City and there is currently no basis to deny Waste Pro the benefits and privileges granted to them pursuant to Ordinance No. 2006-01. If the City does not honor and enforce the exclusivity provision of the solid waste franchise, the City risks breaching the franchise agreement with Waste Pro. 8. Although City staff hopes that this matter is amicably resolved with the School District and Waste Pro to avoid a violation of the City's solid waste franchise ordinance, enforcement of the Ordinance may be necessary. Section 1-15 of the City Code currently provides that any violation of City ordinances (including Ordinance No. 2006-01) is Public Hearings 502 PAGE 2 OF 4-October 28,2013 subject to a fine of not more than $500. However, violations of Ordinance No. 2006-01 are not currently subject to civil citation code enforcement powers under § 2-66 et. seq. The use of civil citations would provide the City with a more efficient and supplemental means of enforcing the City's right to regulate the collection and disposal of solid waste within the City, particularly with respect to ensuring that other persons do not intrude into the field of solid waste collection and disposal in violation of any approved City Franchise Ordinance. 9. Emergency Ordinance No. 2013-16 reemphasizes the powers and authority granted to municipalities by the Florida Legislature under Chapters 166, 180, and 403, Florida Statutes for solid waste collection and disposal that have been traditionally recognized by the courts. Further, the Ordinance authorizes code enforcement staff to issue civil code citations to any person or entity that provides solid waste collection and disposal services to real property within the jurisdictional limits of the City without first obtaining a franchise or license from the City or in violation of any applicable solid waste franchise awarded and adopted by the City. 10. Such violations will constitute a Class III ($300) penalty. Each refuse container, trash receptacle, rolloff container, mechanical cart, or mechanical container collected in violation of Ordinance No. 2013-16 shall constitute a separate violation. 11. Emergency Ordinances only require one reading and require at least a two-thirds vote of the City Commission. Under the City Charter, emergency ordinances are automatically deemed repealed on the 61st day after adoption unless sooner repealed by the Commission. 12. Based on the information that is currently available, City staff believes time is of the essence to enact this Ordinance given that the School District staff may issue a notice to proceed for a new hauler on November 1, 2013. Hence, for the reasons explained above and the time constraints to timely act before November 1st, an emergency exists under the circumstances. 13. Simultaneous with the adoption of the emergency ordinance, City staff is also recommending that the provisions of this Ordinance be permanently adopted into the City Code by commencing the regular ordinance adoption process on First Reading by separate ordinance. First reading of the regular ordinance will immediately follow this Agenda Item. FISCAL IMPACT: None. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas/Agenda Item information, Homeowner's Associations/Representatives Public Hearings 502 PAGE 3 OF 4-October 28,2013 on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: The City Manager and City Attorney recommend that the City Commission adopt Emergency Ordinance No. 2013-16. ATTACHMENTS: 1. Letter from Waste Pro, dated October 22, 2013. 2. Ordinance 2013-16. Public Hearings 502 PAGE 4 OF 4-October 28,2013 WASTE PRil Caring For Our Communities` October 22, 2013 Mr. Kevin Smith City Manager City of Winter Springs 1126 E. SR 434. Winter Springs, FL 32708 Re: Winter Springs Solid Waste Agreement Dear Mr. Smith: Section 3.0 Grant of Franchise of the solid waste collection agreement between the City of Winter Springs and Waste Pro clearly grants Waste Pro an exclusive right to collect, transport and dispose of solid waste in the City of Winter Springs. Furthermore, Section 2.12 Commercial Service defines commercial services as "Shall herein refer to the collection and disposal service provided to business establishments, churches, schools, multiple dwelling units, office buildings and other commercial establishments." At this time we respectfully request that the city begin to enforce the solid waste and collection agreement it has with Waste Pro with regard to the schools located in the City of Winter Springs. Please feel free to contact me if you should have further questions. Sincey.ly, Tim Dolan Regional Vice President Waste Pro 3705 Saint Johns pkwy• Sanford, FL 32777-6369 T 407-774-0800 F 407-786.0800 www.wasteprousa.com ORDINANCE NO. 2013-16 AN EMERGENCY ORDINANCE OF THE CITY COMMISSION OF WINTER SPRINGS, FLORIDA REGULATING THE COLLECTION AND DISPOSAL OF SOLID WASTE WITHIN THE JURISDICTIONAL LIMITS OF THE CITY OF WINTER SPRINGS; ESTABLISHING A CIVIL CITATION FINE AS A SUPPLEMENTAL MEANS OF ENFORCING THE CITY'S AUTHORITY TO REGULATE THE COLLECTION AND DISPOSAL OF SOLID WASTE AND ANY EXCLUSIVE SOLID WASTE FRANCHISE ADOPTED BY THE CITY; PROVIDING SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, this emergency ordinance is enacted pursuant to section 166.041(3)(b), Florida Statutes, and Section 4.15(d) of the Winter Springs Charter; and WHEREAS, for the reasons expressed in the recitals of this Ordinance and the corresponding City Commission Agenda Item, the City Commission hereby declares that an emergency exists for purposes of expeditiously addressing an anticipatory violation of the City's exclusive solid waste franchise ordinance that undermines the traditional municipal function of the City to regulate the collection and disposal of solid waste within the jurisdictional limits of the City of Winter Springs in furtherance of the public health, safety and welfare of the City; and WHEREAS, upon completion of a competitive bid process, the City Commission previously adopted Ordinance No. 2006-01 granting an exclusive solid waste franchise to Waste Pro of Florida, Inc. for purposes of collecting and disposing of solid waste and construction debris on a comprehensive, efficient, and economical basis for all residential and commercial customers within the jurisdictional limits of the City of Winter Springs in accordance with the terms and conditions expressly set forth in the solid waste franchise agreement ("Franchise Ordinance"); and WHEREAS, the Franchise Ordinance was adopted pursuant to the powers and authority granted to municipalities by the Florida Legislature under Chapters 166, 180, and 403, Florida Statutes, which powers and authority have been traditionally recognized by the courts; and WHEREAS, solid waste collection and disposal is a traditional municipal function under Florida law, Bennett Electric Co. v. Village of Miami Shores, 11 F. Supp.2d 1348 (S.D. Fla. May 6, 1998), and a city may require that it be the sole and exclusive provider of garbage service within its jurisdiction. United Sanitation Services of Hillsborough, Inc. v. City of Tampa, 302 So. 2d 435 (Fla. 2" DCA 1974); and WHEREAS, the City Commission desires to reemphasize that the Franchise Ordinance is exclusive and is intended to apply to all residential and commercial solid waste services, as those terms are broadly defined in the Franchise Ordinance; and City of Winter Springs Ordinance 2013-16 Page 1 of 4 WHEREAS, the Franchise Ordinance expressly and unambiguously defines "commercial service" to include collection and disposal service provided to business establishments, churches, schools,multiple dwelling units, office buildings and other commercial establishments; and WHEREAS, the Franchise Ordinance also does not exempt any person, private or governmental entity or organization from the requirements of said Ordinance; and WHEREAS, section 19-2(a) of the Winter Springs Code provides that all property owners shall be required to utilize the solid waste services provided by the city in accordance with any applicable solid waste franchise awarded by the city and in accordance with other applicable law; and WHEREAS, the City Commission finds that the intrusion of any person, private or governmental entity or organization into the field of solid waste collection and disposal in violation of the City's Franchise Ordinance is a substantial threat to the public health, safety and welfare of the City and its residents and property owners and the legitimate governmental interest of the City to exclusively provide for the efficient and proper methods of collecting and disposing of solid waste within the jurisdictional boundaries of the City of Winter Springs. See Pahokee Housing Authority, Inc. v. South Florida Sanitation Company, 478 So. 2d 1107 (Fla. 4th DCA 1985) (rejecting housing authority's claim that state law exempted housing authority from county's exclusive solid waste franchise); United Sanitation Services of Hillsborough, Inc. v. City of Tampa, 302 So. 2d 435 (Fla. 2d DCA 1974) (garbage enterprise may not only be regulated but also exclusively performed as an essential part of a public service by a municipality even if the exclusive collection of garbage results in the complete preclusion of other such collections); West Coast Disposal Service, Inc. v. Smith, 143 So. 2d 352 (Fla. 2d DCA 1962); and WHEREAS, Waste Pro of Florida, Inc. has recently notified the City that it anticipates that the Seminole County School District may authorize, effective on November 1, 2013, the use of a different solid waste hauler to service schools within the jurisdictional limits of Winter Springs in violation of the Franchise Ordinance and Agreement between Waste Pro of Florida, Inc. and the City, and that Waste Pro of Florida, Inc. has requested that the City enforce the exclusivity provision of the Franchise Ordinance and Agreement with respect to schools; and WHEREAS,the apparent actions of the School District not only appear to be contrary to the aforementioned legal authority, but have also placed the City in a difficult position of risking a breach of the Franchise Ordinance and Agreement if they are not enforced, thereby jeopardizing the comprehensive solid waste franchise and program adopted and established by the City for the general welfare of the entire City; and WHEREAS, the City Commission declares that it is the City's intention to exercise its authority to regulate the collection and disposal of solid waste within the City and to honor the exclusive Franchise Ordinance and Agreement which was awarded to Waste Pro of Florida, Inc. and to avoid any breach of the same to the extent possible; and City of Winter Springs Ordinance 2013-16 Page 2 of 4 WHEREAS, although section 1-15 of the City Code currently provides that any violation of City ordinances is subject to a fine of not more than $500, the City Commission desires to expressly authorize the use of civil citations as a more efficient and supplemental means of enforcing the City's right to regulate the collection and disposal of solid waste within the City and the City's duly approved Franchise Ordinance against persons and entities that intrude into the field of solid waste collection and disposal in violation of the Franchise Ordinance and City Code; and WHEREAS, the City Commission of Winter Springs also finds that this Ordinance is in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. NOW THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS,AS FOLLOWS: Section 1. Recitals. The foregoing recitals are deemed true and correct and constitute legislative findings of the City Commission of Winter Springs. Section 2. Section 19-3 Solid Waste Collection and Disposal Authority; Establishment of Civil Citation Penalty for Violations. (a) All solid waste accumulated on real property within the City shall be collected, conveyed and disposed of by the City or its designated agents, licensees, or franchisees pursuant to the terms and conditions adopted by the City for the collection, conveyance and disposal of solid waste in accordance with law. (b) It shall be unlawful for any person or entity to provide solid waste collection and disposal services to real property located within the jurisdictional limits of the City without having first obtained a franchise or license from the City. The City shall have the right to impose a franchise or license fee for the use of City rights-of-way, roads, streets, and other public ways. (c) It shall be unlawful for any person or entity to provide solid waste collection and disposal services to real property within the jurisdictional limits of the City in violation of any applicable solid waste franchise awarded and adopted by the City. (d) A violation of subsection(b)or(c) shall constitute a Class III violation($300) and shall be subject to the City's civil code enforcement ordinance § 2-66 et. seq. Each refuse container, trash receptacle, rolloff container, mechanical cart, or mechanical container collected in violation of subsection(b)or(c) shall constitute a separate violation. Section 3. Not Incorporated Into Code. This Ordinance shall not be incorporated into the Winter Springs City Code. Section 4. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of City of Winter Springs Ordinance 2013-16 Page 3 of 4 competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 5. Effective Date; Termination. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs and as provided by City Charter. Unless sooner repealed by the City Commission by a subsequently enacted ordinance, this emergency ordinance shall automatically stand repealed on December 28, 2013 pursuant to Section 4.15(d) of the City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, by 2/3rds vote of the Commission on this 28th day of October, 2013. Charles Lacey,Mayor ATTEST: Andrea Lorenzo-Luaces,City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: ANTHONY A.GARGANESE, City Attorney City of Winter Springs Ordinance 2013-16 Page 4 of 4