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
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