Judges: Charlie Crist Attorney General
Filed Date: 6/1/2005
Status: Precedential
Modified Date: 7/5/2016
Mr. Daniel J. Bosanko St. Johns County Attorney Post Office Box 349 St. Augustine, Florida 32085-349 Attn: Mr. Patrick F. McCormack
Dear Mr. Bosanko:
As St. Johns County Attorney, you have asked for my opinion on substantially the following questions:
1. Is St. Johns County authorized to entirely prohibit the sale of a private water/wastewater system located within the county to a municipality located outside the county?
2. Must such sale be approved as a matter of right if the criteria described in section
You have advised this office that a water/wastewater utility located within St. Johns County is currently for sale. The Board of County Commissioners is concerned that a municipality located outside the county may purchase this utility. The county fears that its citizens may not be fairly represented if their water and wastewater service provider is a governmental authority located outside the county and therefore is not politically accountable to the same degree as utilities regulated by St. Johns County.1
Question One
Section
Pursuant to the Florida Constitution, noncharter counties such as St. Johns County have only such powers of self-government as are provided by general or special law.2 In this regard, the Legislature has granted noncharter counties broad powers to carry on county government. Section
In this regard, Chapter
"To purchase and/or construct and to improve, extend, enlarge, and reconstruct a water supply system or systems or sewage disposal system or systems, or both, within such county and any adjoining county or counties and to purchase and/or construct or reconstruct water system improvements or sewer improvements, or both, within such county and any adjoining county or counties and to operate, manage and control all such systems so purchased and/or constructed and all properties pertaining thereto and to furnish and supply water and sewage collection and disposal services to any of such counties and to any municipalities and any persons, firms or corporations, public or private, in any of such counties; provided, however, that none of the facilities provided by this chapter may be constructed, owned, operated or maintained by the county on property located within the corporate limits of any municipality without the consent of the council, commission or body having general legislative authority in the government of such municipality unless such facilities were owned by the county on such property prior to the time such property was included within the corporate limits of such municipality. No county shall furnish any of the facilities provided by this chapter to any property already being furnished like facilities by any municipality without the express consent of the council, commission or body having general legislative authority in the government of such municipality."
Clearly, then, counties are authorized to purchase, construct, and control water supply systems and water system improvements within the county or any adjoining county.
Like counties, municipalities are authorized to purchase and sell water utilities. Chapter
"No municipality may purchase or sell a water . . . utility that provides service to the public for compensation . . . until the governing body of the municipality has held a public hearing on the purchase [or] sale . . .and made a determination that the purchase [or] sale . . . is in the public interest. In determining if the purchase [or] sale . . . is in the public interest, the municipality shall consider, at a minimum, the following:
(1) The most recent available income and expense statement for the utility;
(2) The most recent available balance sheet for the utility, listing assets and liabilities and clearly showing the amount of contributions-in-aid-of-construction and the accumulated depreciation thereon;
(3) A statement of the existing rate base of the utility for regulatory purposes;
(4) The physical condition of the utility facilities being purchased [or]sold . . .
(5) The reasonableness of the purchase [or] sale . . . price and terms;
(6) The impacts of the purchase [or] sale . . . on utility customers, both positive and negative;
(7)(a) Any additional investment required . . .
* * *
(8) The alternatives to the purchase [or] sale . . . and the potential impact on utility customers if the purchase [or] sale . . . is not made; and
(9)(a) The ability of the purchaser . . . to provide and maintain high-quality and cost-effective utility service, whether the purchaser is the municipality or the entity purchasing the utility from the municipality."
The statute also requires that the municipality prepare a statement showing that the purchase or sale of such a facility is in the public interest. The statement must include a summary of the purchaser's experience in water utility operation and proof of financial ability to provide the service.
Chapter
"Any municipality may extend and execute all of its corporate powers applicable for the accomplishment of the purposes of this chapter outside of its corporate limits, as hereinafter provided and as may be desirable or necessary for the promotion of the public health, safety and welfare or for the accomplishment of the purposes of this chapter; provided, however, that said corporate powers shall not extend or apply within the corporate limits of another municipality."
The statute provides that a municipality desiring to act under the provisions of Chapter 180 may create a zone or area by ordinance and develop reasonable regulations "requiring all persons or corporations living or doing business within said area to connect, when available, with any . . . alternative water supply system . . . operated under the provisions of [Chapter 180]."7 The municipality cannot include any area within the limits of any other incorporated city, nor shall such area or zone extend for more than 5 miles from the corporate limits of the municipality.
Chapter
Clearly, the Florida Statutes contemplate the ownership and operation of water utilities by municipalities outside their corporate limits. I am aware of no statutory provision, and you have brought none to my attention, that would authorize a county to prohibit a municipality from purchasing and operating a water utility located in an adjacent county. Thus, because noncharter counties have only such powers of self-government as are provided by general or special law, it is my opinion that a noncharter county has no authority to prohibit the acquisition by a municipality of a water utility within the boundaries of the county.
Question Two
You have also asked whether the provisions of section
You have advised this office that St. Johns County has opted out of Public Service Commission regulation pursuant to section
Section
"An application (for proposed sale of the utility) shall be disposed of as provided in s.
(a) The sale of facilities, in whole or part, to a governmental authority shall be approved as a matter of right; however, the governmental authority shall, prior to taking any official action, obtain from the utility or commission with respect to the facilities to be sold the most recent available income and expense statement, balance sheet, and statement of rate base for regulatory purposes and contributions-in-aid-of-construction."
As discussed above, nothing in section
In sum, it is my opinion that a county that is not subject to Public Service Commission regulation has no responsibility under section
Sincerely,
Charlie Crist Attorney General
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