The Worst Form of Government

Can there be a worse government than one that is inept? Can there be a worse government than one that is morally, ethically or procedurally corrupt? Yes, for in a democratic society, the worst form of government is a government abandoned by its citizens.

When a governmental body alienates any segment of its constituency, a government for the people and by the people has been abandoned and hence is nothing but an abject failure.

When citizens are forced to abandon their government and withdraw their consent, it is no longer their government, and therefore the government has no legitimate or just powers. Consider these words from the Declaration of Independence;

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

And for proof in the negative, one need not look any further than the grotesque failure of communism. the systemic coercive approach to rule irrespective of the will of the people led to nothing more than the wholesale alienation of the very same people targeted for governance. The net effect being the greatest blight on the face of mankind.

Despite what the elected believe, alienation does not come from disagreement. In fact, disagreements, lively debates, formal and forceful expressions of contrasting points of view, are all antithetical to alienation. Madison, Jay, and Jefferson knew this and hence framed our form of government to include the inalienable right of free speech. Coarse and often contentious discourses actually engage one and all, and thereby afford the sense and practice of belonging to a society where infinite perspectives are the bond that unite us.

The self-righteous disagree as to what causes alienation by pointing to irrelevant extremes. They point to the anarchists. they point to those that are desirous in dismantling everything and anything. They point to those that are informed from merely watching the news and don't vote because after all why bother. They point to their self-formulated bogeymen who haunt their perceived sense of what is right and what is wrong. hence, the self-righteous fabricate a ruse as to why citizens are alienated from their government by singling out those who were not part "of the people" to begin with.

Alienation only comes when engaged and good intentioned people are disenfranchised by their own government. The process is simple, it happens every day, it is happening too often in this country, it is the de facto style of government on Marco Island.

Why the eschewal of government? Because people can only be insulted for so long, can only be demeaned for so long, can only be treated as stupid for so long, can only be referenced in disparaging terms for so long - so long before they simply must walk away. Humanity is an odd thing, for our instincts take over when that so long tipping point is reached, and therefore find ourselves protecting ourselves by having to take flight from the cadre of hate. It is simply primeval. Fight or flight. And as pacifists, we do only the flight. Ergo the forced alienation with the inevitable result being an abandoned government.

The recently exposed emails are but a schema of the systematic and wanton alienation of citizens. What we found in these emails are nothing new - the cynical, punitive, Machiavellian, demeaning words and deeds from the majority of this council and the majority of this city government have been with us for some time. What these emails do show is the permanence and pervasiveness of the majority's biased hatred for those they just don't like. If there were ever a course taught to college freshmen political science students on how to disenfranchise and alienate the citizens of a democratic republic, the textbook would be nothing more than the collection of emails from the city government of Marco Island.

In but one example, a citizen writes to a councilperson offering to help on a particular community effort. The citizen is not seeking anything, is not a business concern. The citizen is simply offering to help. The response? The councilperson forwards the email to the city manager with a disparaging remark about the citizen and a family member. While it would have been simpler, polite, human, and respectful of the democratic gift entrusted to an elected official by simply responding with a "thank you", the councilperson writes disparaging remarks about the citizen, the family member, and forwards them to the city manager. There has never been a response to the citizen's offer to help.

The behavior of the majority of the elected officials and of the entirety of the management at city hall is nothing more than the abuse of delegated powers and the exertion of assumed powers. In this vain, Jefferson speaks to us:

"A change by the people [of those in power] would be the constitutional remedy. And where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy."

Therefore, there is no recourse with the present governance, so we must look ahead. Hence, it is encouraged that any citizen looking to lead this city by virtue of the next election should invest two hours between now and then. Just two hours.

Invest thirty minutes by watching an episode from ABC's Nightline entitled "The Deep Dive". In this short true story of a real organization we are entreated to the process of fixing problems through the open exchange of diversely different ideas by a highly eclectic and outspoken group of people. Despite incredibly bizarre behavior and utterly wacky ideas, no one is disenfranchised, no one is alienated, immensely difficult challenges are overcome with grace and style, and where even the "loosing ideas" and those that proposed them are victors.

Invest another hour reading the book "The Big Ripoff" by Timothy P. Carney. In this exquisitely researched book you will find what has happened to the republic Lincoln spoke of on a solemn day in a lacerated Pennsylvanian field. You will realize what has happened and perhaps be so inclined to do all you can to stem the tide at best, or avoid the rip current at the very least.

And lastly invest another half an hour doing a little bit of soul searching. Find out if when you vehemently disagree with someone, if you are willing to bring facts and only facts to the debate, if you are willing to accept people for who they are and what they do, if you are willing to accept that different people have a different demeanor than you, and if in the end you can pen a simple thank you note when all is said and done.

We can only hope and pray that those seeking elected office can come with such a mantra, and therefore bring back to the difficult but bountiful table called democracy those of us that have something to offer. Until then, those of us that have been forcefully alienated will only hope and pray and invest our efforts in seeking a rightful remedy by nullifying the acts of the worst form of government.

Mario R. Sanchez, Ph.D.

Since Marco Island is Planning Injection Wells ...

EPA to Permit Florida to Pollute
Drinking Water Supplies

By Donald Sutherland

Before EPA Administrator Christine Todd Whitman resigned from her office she had decided to sign off on a rule-making decision drawn up by EPA water administrators declaring Florida exempt from certain provisions of the Safe Drinking Water Act.

Published in the Federal Register on May 5, 2003, the exemption will permit Florida to legally pollute drinking water aquifers with inadequately treated waste through municipal underground injection control (UIC) wells.

The problem the EPA administrators were and are still reviewing arose when the federal agency advised the Florida Department of Environmental Protection (FDEP) in the late seventies to initiate a program of disposal of municipal sewage and industrial waste by injection underground via deep injection wells.

A Fortune 500 engineering consulting firm, CH2M Hill, had assured all parties the deeply injected underground waste effluent would be contained by a geological barrier and not commingle with drinking water aquifers.

The injected sewage and industrial waste would also harmlessly be disposed of in deep saline aquifers and then migrate into coastal waters.

Since the time the EPA gave the OK for the underground injection of sewage and industrial waste over one hundred and twenty Class 1 UIC wells have been built to service the bulging unfettered growth in south Florida.

FDEP officials estimate the flow of injected waste at over 400 million gallons daily (mgd) but environmental groups contend it is closer to 1 billion MGD.

However, there is a big containment problem.

EPA and FDEP monitoring tests in the nineties and this year have shown the UIC waste is migrating upward into aquifers the region relies on for drinking water.

U.S. Geological Society (USGS) tracer studies of injection wells in the Florida Keys have also shown bacteria, viruses, and nutrient loading from migrating UIC sewage waste are contaminating tourist beaches and destroying the nutrient sensitive fragile coastal reef ecosystem in the Florida Keys National Marine Sanctuary.

Coral choking algae, fish and marine mammal killing harmful algal blooms (HABs), and dying sea grass beds are all associated with nutrient loading from sewage waste.

Government officials admit these events are occurring where sewage waste injected into Florida's underground sources of drinking water (USDW) is migrating into coastal waters.

Federal and state governments have secured no funding to study the health implications of the nation's largest violation of the Safe Drinking Water Act and the environmental impact of municipal UIC waste migration into coastal waters.

The tourist, recreational, and resort industries have not expressed a concern with the economic impact of UIC pollution even though beach closings due to bacteria contamination and HABs have increased since the inception of municipal UICs.

Florida's building, housing, and construction industries endorse the continuation of a sewage disposal process that is less expensive than building advanced wastewater treatment plants with treated effluent reuse facilities.

Communities and residents of most of south Florida's counties have not repealed the expansion of municipal injection wells and have not expressed a health concern with the practice.

Only Pinellas County has decided to plug failed UIC wells and replace them with an extensive wastewater reuse program.

All of Florida's government representatives, officials, and agencies have endorsed south Florida's loosely permitted UIC disposal.

Although two Democratic state legislators this year proposed legislation to have a stricter accounting of UIC permitting, the proposal failed to be considered.

All this, even though Florida's UIC municipal waste disposal program is banned in other states because it is viewed as a health and environmental threat.

"There is no short term solution to the municipal Class 1 UIC fluid migration into underground sources of drinking water (USDW) in Florida," says Nancy H. Marsh, program manager for EPA Region 4 Ground Water UIC section.

"Municipalities are reliant on these injection wells and they can't be shut down," she says.

Only two environmental organizations, the Florida Sierra Club and Legal Environmental Assistance Foundation (LEAF), have mounted a campaign to oppose the nation's largest violation of the Safe Drinking Water Act and the UIC destruction of Florida's marine ecosystems.

"The Sierra Club's Florida Chapter has been rebuffed by the state in a call for transparency of the state's underground injection control program that would enhance the public right to know," says Alan Farago, the organization's Miami Conservation Chair.

"Governor Bush and FDEP Secretary Struhs failed to support a proposal which sought simply to account for the massive pollution of underground aquifers in Florida," he says.

So far there are no lawsuits being brought against the EPA, FDEP, or any local utility authority.

A regional EPA official who walked out of the DC headquarters rule reversal sessions on Florida's UIC program says, "The big question is, is the EPA violating the federal law National Environmental Policy Act (NEPA) with this action?"

NEPA requires all federal agencies to integrate environmental values in their rule-making processes which consider environmental impacts of their proposed actions and give reasonable alternatives to those actions. The act also mandates a detailed Environmental Impact Statement (EIS) for these rule-making processes.

A bigger question according to the same EPA regional official is what is the legal precedent set by this EPA rule change of the Safe Drinking Water Act to accommodate a state's noncompliance with a national law to safeguard the public and the environment.

©Donald Sutherland 2003

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References

"Underground Injection Control Program--Revision of Underground Injection Control Requirements for Class I Municipal Wells in Florida; Notice of Data Availability" [Federal Register: May 5, 2003 (Volume 68, Number 86)]

http://www.epa.gov/fedrgstr/EPA-WATER/2003/May/Day-05/w10268.htm

"Underground Injection Control Regulations for Class V Injection Wells, Revision; Final Rule" [Federal Register: December 7, 1999 (Vol. 64, Number 234)

http://www.epa.gov/safewater/uic/c5fedreg.pdf

"Revision to the Federal Underground Injection Control (UIC) Requirements for Class I-Municipal Wells in Florida; Extension of Comment Period" [Federal Register: September 1, 2000 (Volume 65, Number 171)]

http://www.epa.gov/fedrgstr/EPA-WATER/2000/September/Day-01/w22519.htm

"Notice of Stakeholder Meeting on the Revision to Federal Underground Injection Control (UIC) Requirements for Class I--Municipal Wells in Florida" [Federal Register: June 7, 1999 (Volume 64, Number 108)]

http://www.epa.gov/fedrgstr/EPA-MEETINGS/1999/June/Day-07/m14355.htm

EPA News Release: "EPA Proposes Revision to Federal Requirements for Wastewater Disposal in Florida," July 7, 2000.

http://www.epa.gov/region4/oeapages/00press/000707.htm

National Environmental Policy Act (NEPA) website

http://www.epa.gov/compliance/nepa/index.html

Florida Department of Environmental Protection's "Water Resources" website

http://www.dep.state.fl.us/southeast/water/watermain.htm

"Underground Injection Control" of Florida Department of Environmental Protection's "Water Resources" website

http://www.dep.state.fl.us/southeast/water/watermain.htm#UIC

"Wastewater" section of Florida Department of Environmental Protection's Underground Injection Control Program website

http://www.dep.state.fl.us/water/wastewater/uic/index.htm

"Vulnerability of Biscayne Aquifer to Contamination," U.S. Geological Survey

http://sofia.usgs.gov/publications/wri/78-107/vulnerability.html

"Determination of Groundwater-Flow Direction and Rate Beneath Florida Bay, the Florida Keys, and Reef Tract," U.S. Geological Survey

http://sofia.usgs.gov/projects/grndwtr_flow/

Pinellas County Utilities Update

http://pubgis.co.pinellas.fl.us/pcuweb_live/whatsnew/water_sewer_rates_update.cfm

"Harmful Algal Blooms," National Centers for Coastal Ocean Science website

http://www.habhrca.noaa.gov/links.html

"Issues: Safe Drinking Water," Florida Chapter, Sierra Club

http://florida.sierraclub.org/issues/safewater.asp

"What are we doing to our drinking water?" - Miami Group, Sierra Club

http://florida.sierraclub.org/miami/cons_deepwell.htm

Legal Environmental Assistance Foundation, Inc.

http://www.cehn.org/cehn/resourceguide/leaf.html

"Testing the Waters: A Guide to Water Quality at Vacation Beaches," July 2002, Natural Resources Defense Council

http://www2.nrdc.org/water/oceans/ttw/sumflo.pdf

"Underground Injection Control," Environmental and Land Use Law Section of The Florida Bar

http://www.eluls.org/under_inject.html

And Then What Happened?

Weren't we told that the STRP was well designed?

Tuesday, March 15, 2005 3:34:08 PM Message
From: Bill Moss
Subject: Tigertail sewers
To: Terri DiSciullo

Dear Chairwoman DiSciullo:

The appropriate permits from DEP arrived. The lift station should be activated today to allow use of new sewer system along Tigertail. Meanwhile, the North Marco Utilities is causing fits to our systems. Their new pumps are too powerful and over-ride our pumps. We are spending $5000 a day to pump out our lift stations while we argue with them over who is responsible for what.

Bill Moss
City Manager

Comments from City Council Meeting

February 20, 2007

City's Selection to "Investigate" Sunshine Violations

Veterans Protest Herron Involvement in Recount, Warn Against Disenfranchising Military Voters
Thursday, November 16, 2006
Sally Tibbetts

Sarasota, Florida --Veterans for Vern Buchanan today protested the involvement of Tallahassee attorney Mark Herron in the current recount, expressed concern that Christine Jennings will try to disenfranchise United States military voters, and called on Jennings to concede. Recent reports indicate that Tallahassee attorney Mark Herron is representing Jennings in the current recount. Herron is the Florida attorney who led the Democrat's efforts to disqualify legitimate overseas and military ballots cast in the 2000 Presidential Election.

"This is a slap in the face to all veterans who have sacrificed to defend this nation," said retired U.S. Army Lieutenant Colonel Rich Swier of Sarasota. "It is time for Christine Jennings to concede. Instead, she has involved in this process an attorney who worked to deny the men and women of the United States Armed Forces - the soldiers on the front line of the effort to defend this nation and promote freedom and democracy - their constitutional right to vote."

"The votes have been counted and recounted and will be counted again," said retired U.S. Army Lieutenant Colonel Lee Kichen of Sarasota. "Vern Buchanan is the Congressman-elect. Rather than concede, Christine Jennings has brought in out-of-town lawyers in a shameful attempt disenfranchise those who serve to guarantee our freedom and democracy. As a veteran, I call on Jennings to send her lawyers packing, concede this race, and for us to get on with the business of the people. "

In November 2000, Mark Herron crafted a plan for Democrat attorneys for how they could attack ballots cast by military voters. Armed with Herron's "how to" manual, Democrat attorneys argued to canvassing boards throughout the state that military ballots should be rejected and not counted. The Herron memo caused an uproar among both Republican and Democrat leaders alike and even then Vice-Presidential candidate Sen. Joe Lieberman called on Democrats to give military voters the benefit of any doubt as to whether the ballots should be accepted.

Recount results this week confirmed Congressman-elect Vern Buchanan's election night victory over Christine Jennings. In fact, the Elections Canvassing Commission has confirmed that Buchanan has increased his margin of victory from 368 to 401.

Veterans will be on hand as Military and overseas ballots cast in the congressional race are scheduled to be tallied on Friday at 4:00 p.m. at the Supervisor of Elections office on Ringling in Sarasota.

Public Funds for a Private Party

The City of Marco Island through its City Manager is proposing to donate $5,000 to a commercial enterprise for the purpose of hosting a private party.

Yes, its a private party when only 200 select people - out of the 15,000 citizens - are invited by a commercial organization. The Chamber of Commerce, notwithstanding the propaganda, represent commerce - not the citizens.

Read the below noted law, and just one case. Hence expect the fallout to be yet another criminal investigation of the City.

Enjoy the party.

Article VII, section 10, Florida Constitution, provides in pertinent part:

"Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person [.]"[7]

Also, in State v. Town of North Miami, the Florida Supreme Court stated:
Our organic law prohibits the expenditure of public money fora private purpose. It does not matter whether the money is derived by ad valorem taxes, by gift, or otherwise. It is public money and under our organic law public money cannot be appropriated for a private purpose or used for the purpose of acquiring property for the benefit of a private concern. It does not matter what such undertakings may be called or how worthwhile they may appear to be at the passing moment. The financing of private enterprises by means of public funds is entirely foreign to a proper concept of our constitutional system.

Be Informed ...

Your duty - and just in case someone misrepresents your duty ...

On the Duty of Civil Disobedience (pdf)
On the Duty of Civil Disobedience (word)

One Citizen's Response to the STRP Postcard

February 2, 2007

Mr. William Harrison
Finance Director
CITY OF MARCO ISLAND
50 Bald Eagle Dr.
Marco Island, FL. 34145

VIA CERTIFIED MAIL

Mr. Harrison,

In receipt of your letters dated December 15, 2006 and January 25, 2007 as to the STRP, I am respectfully requesting that you answer the following questions. The answers to these questions will be instrumental in responding to your requests and therefore essential to selecting the options presently dictated to me by the City.

1. Will the City of Marco Island provide a recompense for taking or otherwise denying the use of my private property –as in my septic tank?

2. Are the financing options you make available subject to the Truth in Lending Act? If so, please provide the disclosure as required by law.

3. If the financing options are not subject to the Truth in Lending Act, why not?

4. What power backup system is in place for the pumping station that will be nearest to my house in the likely event that there is a power outage?

5. In the event that there is a power outage and the nearest pumping station to my house has no backup power source, what will happen to the sewage flowing and/or accumulating in the sewer pipe in front of my house?

6. The following questions pertain to, or reference, Florida Statute 381.00655;
a. Can you explain to me why I can not opt to follow this Florida law?
b. If I opt to follow this law, will the City prosecute or seek any form of legal redress against me?
c. If I opt to follow this law, will I be entitled to equal protection and equal treatment as to the finance options made available to other citizens?
d. Under what law does the City have the right to negate this Florida Statute?

7. If the Florida Supreme Court rules against the City of Marco Island as to the validity of the proposed bonds, how will the City finance the entirety of the STRP?

8. If for whatever reason the STRP is terminated,
a. Will I get a refund of my money?
b. If so, will the refund include interest?
c. If the refund were to include interest, at what interest rate will that interest be based on?
d. If the refund were to include interest, is the City of Marco Island going to provide a
disclosure per the Truth in Lending Act?

9. If the City does not prevail in securing the funding for the STRP via bonds or other financial instruments will the City continue funding the STRP by using the reserves? If not, then by what means?

10. In your January 25, 2007 letter you state:
“After receipt of your post card we will mail an agreement appropriate for the option you selected.”

In the postcard included with the same letter you state:

“If you select one of these options you will be mailed the legal agreement for your choice that must be signed by the legal owners and returned to the City of Marco Island no later than the date specified on your letter.”

Since you are not specifying the time I will have to review the agreement, I can not agree to unknown terms in an undisclosed time frame a priori. Hence, please provide at your earliest convenience the three agreements. If there is a cost associated with sending me the three agreements, please specify the amount prior to sending them.

11. In your December 15, 2006 letter you state that “… septic systems cannot adequately treat human waste …”. If that is true, why does the City and FDOH sanction, as you say “… present health risks and degradation of our pristine waterways”, by allowing builders to install septic tanks as recently as today?

12. In your December 15, 2006 letter you state that “… septic systems cannot adequately treat human waste …” Please provide scientific, independent, peer-reviewed studies related specifically to Marco Island where such a statement is supported clearly and emphatically.

13. Can the City change the wording of the consent form to include: “Homeowner ("Owner") is required to connect to the new sanitary sewer lines when the plant is upgraded to a 5mgd capacity and certified able to accept new STRP connections or by May 1, 2007, whichever is later.”? If no, why not?

14. Under what circumstances can or will the City deny the “ten (10) year connection waiver” if I comply with all of the rules, regulations, terms and conditions of the Collier County Health Department as related to an Advanced Septic System that I have or may have on my property?

The answers to the questions and requests in this letter are vital in formulating my decision.

While I prefer a written response, I would also be willing to accept the answers in person with the condition that I will electronically record the audio and/or video of such an encounter.

I look forward to your very prompt reply as I am desirous in making an informed decision within the time frame dictated by the City.

Respectfully,

Mario R. Sánchez, Ph.D.

Former City Council Person Responds ...

From: "Vickie Kelber"
To: rogerhall59@hotmail.com
Subject: Malice
Date: Mon, 12 Feb 2007 15:32:12 -0500

Mr. Hall:

You have sent out an email with the following statement:

It appears that the program was born in deceit as evidenced by Chairwoman Vickie Kelber’s statement, "The septic systems are polluting our canals, and there is fecal coliform in the water."

I NEVER MADE THAT STATEMENT. This is an untrue, malicious action on your part.

I DEMAND a public retraction or I WILL seek legal action against you.

Vickie Kelber

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Note: Now watch the video (below).

How (not) To Measure Whatever is (or isn't) in the Waterways

As a public service to the community we present a quick and topical review of 8th grade arithmetic. We find that this information will be invaluable when watching the video below. For those of you that are mathematicians, physicist, pseudo-intellectuals and of course lawyers, please skip the next paragraph.

The modern day use of the phrase/word “exponential” is meant to convey “a lot” or “very much” or “so much we can hardly imagine it”. The problem is that in practical terms, when the term/phrase “exponential” is used by itself, it is meaningless. Exponential is derived from exponent. An exponent is a real or imaginary value by which a number, called a base, is multiplied by itself that many times. For example, a base of 2 with an exponent of 4 (written as 2⁴) is equal to 16, since 2x2x2x2 (the base of 2 multiplied by itself an exponent – 4 – number of times) is 16. So you see, without specifying the exponent when one says “it’s exponential!” is utterly meaningless. More so when one considers that the exponent can be the number 1, so 20 to the exponent 1 is still 20. That too is “exponential” but is not that big is it? Or how about when the exponent is zero? Well, 1 gazillion to the exponent of 0 is … ONE! Well, that is exponential but yet a very big number has been whittled down to 1!

So, onto the video. Since there is no scientific report validating the amount of nitrogen levels growing exponentially as some understand the colloquial definition of this term to mean, we can only assume that the council chairperson proclaiming in this video that “The nitrogen levels have increased exponentially” had a scientific, validated, and peer-reviewed report where the exponent to a base level of nitrogen as measured over time was either zero or 1. So yes, it grew exponentially – by staying the same (exponent of 1) or by shrinking to 1 (exponent of 0). So (yes, the third “so” in this paragraph) once again we have a first in the annals of physics (or Orwellian speak) attributed to Marco Island – nitrogen levels grew by staying the same or shrinking to 1. [Note: if someone actually has this report please post it here so we can all see what the exponent is/was.]

By the way, listen to how “the fecal [sic] has increased”. Seriously, doesn’t this statement conjure images of fecal matter traversing our waterways right alongside manatees, boats (oh, sorry, “yachts”), ducks and lawn trimmings? This proclamation actually validates our analysis. As written on this blog in October 2006 (http://marcoislandblog.blogspot.com/2006/10/recall-for-dummies-intelligent-fecal.html), it is essential that there exist fecal matter, especially the intelligent kind, for how else will the new users of the STRP have exclusive use of the expanded/new part of the sewage treatment plant?

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Note: Video circa 2005

Councilperson Tucker Weighs in on the Sewer Thing

Notable Quotes:
"Don't change [to sewers] because its better, change because there is a need."
"If its just because sewer is better we need to cancel the program."
"Its sewer! Its sewer! Its sewer!"

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Note: Video is circa 2005

Recall Marco Island City Council Update

I am pleased to announce that our attorney, Fred O’Neal, has overcome a major legal issue and we are now able to proceed with our appeal on an expedited basis.

I am sure that you share my frustration with the lack of apparent activity by the recall committee, but we assure you that we have been working diligently on behalf of the citizens of Marco Island. I made a commitment to the dozens of volunteers and the 2,000 voters who have signed over 10,000 petitions that we would see this process through to the end. I believed that this process would follow the simple dictates of the recall statue and be left to the electorate. I didn’t understand how perverted and expensive this process would become. But then, as has frequently been stated, I am new to Marco Island and I don’t know how things are done here.

The recall process was not designed to be a legal battle. These councilmen know they do not have any voter support or moral authority to govern. If they did, they would face the voters and resolve the issues that are dividing the island. They are, therefore, relegated to attempting to protect themselves from the voters by hiding behind the legal system. The councilmen have made the process expensive, time consuming, and delaying. That doesn’t change our commitment.

All that the citizens of Marco Island want is peace, tranquility, quality of life, and the ambiance of our island to be preserved in a cost effective manner. What these councilmen have given us is unbridled flow of substandard, half finished construction projects as well as a Veterans’ Park that has been turned into a toxic waste dump. Any observer driving along Collier Boulevard, from Bald Eagle to Winterberry, would be hard pressed not to admit that this looks like the main street in some third world, undeveloped country. The finished portion of South Collier already has more repairs than most of the original streets on our island. You can’t drive a mile in any direction without observing some unfinished project ruining the image of our island. This is what is destroying our property values. How can you drive around this island and call it Paradise?

When you reflect that we have literally thousands of absentee owners who demand little or no services and pay millions of dollars in taxes, you conclude that this city should be awash in money. Unfortunately, even those funds are not enough. Not only are we spending millions of our reserves, but we are now shifting infrastructure projects that should be paid for by taxes onto our utility base and passing these costs through as rate increases. This council has spent 25 million dollars of our reserves in fiscal year 2006. They are spending $285,000 per day to run our little city. They spend an average 2 million dollars at every council meeting. They now want to transfer our fire department to Collier County so they can have those funds to work with. They are like drunken sailors spending as much of the city’s treasure as they can before they lose power. Today, I heard Mr. Minozzi suggest a $2.00 toll on the Jolly Bridge! This process has to be stopped!

I don’t believe any of us have ever seen a city council more out of control and at war with its citizens than our council. The recent absurd adjournment of a council meeting was a blatant abuse of our rights. The tapes of the meeting clearly show the audience wasn’t unruly. There were five police offers in attendance, most of who were smiling. The average age of the audience was at least 65. What kind of threat did a bunch of geriatrics present? The new format of holding back public comment until after the first session, is another blatant attempt to disenfranchise us.

There is going to be a workshop regarding the STRP on February 14, 2007. We have been repeatedly told at council meetings that the workshops are the proper forum to bring forth our concerns for discussion. I thank the council for giving us this opportunity to express our views. I urge all concerned citizens to attend this workshop and voice their concerns.

It is clear from the recently exposed e-mail between the council and the city manager that the STRP is a program developed to cover up the fact that the council had purchased a worn out, sub-standard waste water treatment facility which was going to cost millions to replace. The council couldn’t go to the hotels and businesses and admit they had made a major mistake and bill them again. Instead they created a new class of users, the septic tank users, to pass these costs on to. The e-mails reveal that they knew that the purchase was a mistake and the STRP program was inequitable. The primary concern was how to promote it without people finding out. It appears that the program was born in deceit as evidenced by Chairwoman Vickie Kelber’s statement, “The septic systems are polluting our canals, and there is fecal coliform in the water.” This wasn’t true, was unsupported by the testing, and promoted with a conspiracy in possible violation of the Sunshine laws. These e-mails validate our recall petition charge that the councilmen had full knowledge of these transgressions yet they continue to support the unnecessary 137 million dollar STRP. It is hard to believe that they can’t understand why they don’t get any respect.

The Naples Daily News supported our appeal in its December 21, 2006 staff editorial. They pointed out that “The judicial branch is set up to serve as a check and balance on the legislative side of government, rather than protect it or do some of its work.” They go on to say, “Thank goodness the petitioners have decided to file an appeal. Getting this matter to a referendum is the way to go.” We thank the NDN for that endorsement and we assure the voters of Marco Island that we will fully exercise our democratic rights with integrity in a respectful and proper manner. We appreciate you continued support.

The costs of this process have been far in excess of what anyone would have envisioned. I have received contributions from hundreds of people and I thank them all. My costs are thousands more than those contributions. I will fund this project through completion, however, any additional assistance would be appreciated.

Roger Hall
1260 Osprey Ct.
Marco Island
Chairman of the Recall Committee

Government in the Background

So while us nincompoops are writing letters, and giving 4 minute speeches at city council meetings, and presenting evidence to planning boards, and delusional in believing we have a government for the people and by the people, the following is what really matters.

From: "Bill Moss"
John,

Either April 7th or April 10th is good. I will be alone. Please let me know.

Thank, again.

Bill

[ mailto:arcmi@comcast.net ]arcmi@comcast.net on Wednesday, March 29, 2006 at 8:10 PM -0500 wrote:

Bill,

Thanks, I had seen this last week. It supported my thinking about the real motivation of these groups. Colombo began his "Marco is in trouble" campaign in todays letter to the editor. Bill, I strongly believe all of this will fail miserably. Had more discussions with Popoff and I am very confident he will stay the course. I have dinn er with the Trotters next Saturday and with the Minozzi's the day after. I just want to make sure all are kept up to date on what efforts will be made to counter all of this negativism. I will report back to you on what ocmes out of the breakfast meeting tomorrow with Jack Patterson, Stefainides and Bill Trotter.

Finally Bill, Lil wants you, and Dad if he is here, for dinner some night before we go. We are open April 7 and April 10. Let's pick a night to get together.Let me know if this fits.Six pm is fine. Wish our love to Fay and tell her to have a great trip (I am sure it is good for her to get away as well as us). Will get together when we return in July.

John

-------------- Original message --------------

From: "Bill Moss" <[ mailto:bmoss@cityofmarcoisland.com ]bmoss@cityofmarcoisland.com>

John,

Thought you may want to see what is circulating throughout the community, although you probably have already seen this. Please do not pass on unless my name is deleted.

Bill

Attorney Opines on City's Violation of Sunshine Laws

In my opinion (and, as I see it, in the Florida Attorney General's Opinion 89-39, attached), what the Commissioners did constituted a Sunshine Law violation.

Back and forth electronic communications between commissioners like the ones supplied to me with (even back and forth communications using the city manager as an intermediary) would be, in my opinion (and, as I see it, in the Attorney General's Opinion), a "meeting" for Sunshine Law purposes. Therefore, though the commissioners are allowed to have such a "meeting" electronically, they must treat such a "meeting" the way they would any other "meeting" in terms of notifying the press and public ahead of time, allowing the press and public to view their "meeting" while it is occurring, as well as allowing the public an opportunity to give input into the "meeting" contemporaneously with its occurrence.

In another Opinion (2001-66) the Attorney General laid out the ground rules for such an electronic "meeting." Of note, the Attorney General additionally stated that the governmental authority was required to make computers available to those members of the public who do not have computers of their own so that they can also view the "meeting" as it occurs, as well as give input.

As a side note, any action taken by a city commission in violation of the Sunshine Law is subject to being nullified by the courts. If the courts do nullify the action taken by the commission in violation of the Sunshine Law, the commission must, then, re-consider the matter, again, in its entirety and the re-consideration must be done in complete compliance with the Sunshine Law.

Fred O'Neal

Marco Island City Council Abruptly Adjourns Meeting

Things to watch for:
1. See if you can spot any democratic reason for adjourning the meeting - if so post it here!
2. The best line: "The U.S. Constitution stops at the Jolley Bridge".

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Marco Island on CBS News for Sunshine Law Violations

Local affiliate exposes Sunshine Law violations, non-unruly council meeting, and subsequent spins.

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CBS News - Marco Island City Councilperson Recommends $2 Toll

Councilperson Minozzi recommends and endorses toll on Jolley Bridge.
Aired February 9, 2007 6PM

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Marco Island City Council Want $2 Toll on Jolley Bridge

Newscast of February 9, 2007 reporting of a meeting where an unnamed city council person (now known to be Minozzi) and City of Marco Island "leaders" are meeting with state officials in order to install a $2 toll on the Jolley Bridge.

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Marco Island City CouncilChairperson: Terri DiSciullo

Dear Terri;

I just saw the piece we shared on Fox4 news and thought I would pass along somecorrections to the snippets of me in the story. Although the final version looked as though I was agreeing with you, nothing could be further from the truth. The ten seconds of tape with me were taken completely out of context, and I have sent a message to Fox4 letting them know that they need never darken my doorstep again.

I am, however, truly saddened by your apparent belief that last night’s meeting had to be abruptly adjourned due to the perception of an unruly crowd. That was not a crowd; those were Marco Islanders.

Marco Islanders, concerned that our government would condone anything but the highest level of honesty and professionalism in our elected officials. You heard some of those thoughts from the podium last night. I too heard them. You heard applause, as did I, and you heard laughter and an occasional boo. What neither of us heard, or saw was an unruly crowd. In a conversation I had earlier on Monday with another councilor, I was told that “Civil disobedience leads to violence”. That was his quote. After seeing the way the meeting ended, your face on the TV tonight, and thinking about all this when I had time to reflect, I realized thatthis whole thing probably stemmed from a briefing you councilors received prior to the meeting. Obviously this is my theory, only you would know if such a seed was planted leading towhat I perceived as being a very tense and contentious atmosphere right from the start. Contention not from the crowd, but from you. Your opening statement was curt and bordered on abrasiveness. Your comment about people laughing at you, I believe, was an overreaction to anadmittedly inappropriate action, but once again it appeared that you were very anxious.

Whoever told this other councilor and I suspect you as well that civil disobedience leadsto violence, may have contributed to your trepidation, but that person obviously doesn’t know much about history. Henry David Thoreau, the author of “On Civil Disobedience” was completely non violent. He opposed an unjust tax and spent time in jail as a result of this action, but eventually the tax was repealed. Mahatmas Gandhi brought down British Imperialism in India following Thoreau’s tenants of civil disobedience. A gentler, caring, nonviolent man outside of Jesus Christ has never existed on the earth.

Martin Luther King, Nelson Mandela, and the list goes on. Nonviolent civil disobedience in the face of injustice is the moral high ground that these great men chose to bring about beneficial change for millions of people, and they did it by adhering to the principals set down byThoreau.

Our fight is nothing compared to what these people did, but it is just, it is right, and it is and always will be nonviolent. I told you back in the summer that this will not go away until you involve the people in the decision making process. I also told you that the Arceri email was troublesome and would not go away. The STRP is the most divisive issue this little Island has ever dealt with. Its purveyors have made some incredible mistakes in the creation, structure, and execution of this program, but the paramount mistake was not being honest with the people. John Arceri will have a guest commentary in today’s Eagle. He will try to justify someof the statements in his emails condoning hiding the truth, not involving the people in a workshop, and directing the city manager to convince the rest of the council to see things his way. This was wrong. John will blame Ed Bania for publishing these emails. He will claim they have been taken out of context, that they are being misunderstood or misinterpreted. The facts are clear. Read the emails.

Ed Bania is not to blame here. Nor is Butch Neylon or Ray Beaufort. The blame for themess Marco Islanders are suffering through now rests firmly with this council, and it’scowardess to stand up and do the right thing for the minority affected by this grievous abuse ofpolitical power.

As with the great men mentioned above, we will not go away, we will not relent nor will we be disrespectful or resort to name calling or personal attack. We will be tenacious incontinuing to bring out the truth of what happened at the genesis of the STRP. We will show where the inequity of the special assessments grows as we find out who is really paying for The Marco Island Utilities and we will make every effort to involve state and federal agencies to investigate what this council is allowing to go on on our beloved island.

I have always been truthful with you. I have offered facts and figures to support every assertion I have made. But for whatever reason, you either haven’t checked these facts or just have taken what others have told you on face value. Monday was a watershed event. This council must now make the decision which way they will go from here: Continue with a program that is unnecessary, inequitable, and has it genesis in deceit, or stand up and representthe people of Marco Island.

I and many others stand by to help Marco Island bring representative government back to our paradise. You and your fellow councilors have the power to bring about consensus on this issue. Without it you can only dictate; you cannot govern.

Respectfully;

Butch Neylon

The OJ Simpson Defense

Bill Moss
City Manager
bmoss@city ofmarcoisland.com
----- Original Message -----

Monday, February 05 , 2007 1:09:06 PM
Message
From: arcmi@comcast.net
Subject: Feedback from FAF
To: Bill Moss
Attachments:

Bill,

I spoke with Adria Harper of the First Amendment Foundation about Ed Bania's use of her in his article on the sunshine law this morning. Since Bania's article put many e-mail s under the umbrella of "sunshine law violations" I tried to see if she cou ld tell me, specifically, which e-mail, if any, were of concern to her. She mentioned the following to me and then forwarded a clarification letter to Bania and Tom Rife, below.

a) That she was uncomfortable with the headline "Expert Says City Violated Sunshine Law" and that she did not make such a conclusion. Note in her letter to Bania she points out that the title "implies that I stated violated occurred, and this is not accurate"

b) That she did not review every e-mail as to specific possible violations but was just providing general information on the sunshine law requirements. Note in her letter she states "the majority of my comments were to e-mails in general. My general points were that IF there was discussion between two or m ore members...and IF there was any discussion between board members about forseeable public business via e-mail this would be problematic.."

c) That she did not know the subject matter of the letters, did not know if a letter written was in reference to an item already covered by council or not. As he states in her letter "those which you highlighted seemed problematic to me because it SEEMED that those e-mails reflected conversation between council members about foreseeable public business..". She was not aware of the timing of issues as to whether they were before or after the fact.

I am preparing a full commentary on this matter addressing many of the inaccuracies in the Bania article and will submit to the Eagle for publicat[i]on shortly. Finally, if you scroll down to the end you will see the letter from Bania to Ms. Harper where he indicates that Phil Lewis had become convinced that sunshine law violations had taken place and asked that the y do this report. Lewis had committed to me in December that input from all sources were critical in printing balanced reports. Bania also mentions "his sources" which are the CARE's people. Apparently none of us are consider ed his source. Bania has called asking for me this afternoon to meet with him to discuss the e-mails and I will not at this time. He waited till after the article and I cannot trust him at all. I had called two days ago asking for input.

John Arceri

The Spin Stops Here

I noticed an article in the Naples News describing and quoting from a Marco Island Councilor, that the Monday, February 5 Council meeting was adjourned before the Council's business was to begin, and the reason given by Councilor Tucker, who made the motion, was that the crowd was unruly.

Since I was part of that crowd, as well as a speaker at this brief meeting, I want to correct this council's SPIN immediately. This was not , by any stretch of even this councils imagination, an unruly crowd. This was a crowd of Marco Residents who were very concerned about recent findings regarding possible violations of the sunshine law, by the council.

Since many major public expenditures, such as the Septic Tank Replacement Fiasco was possibly contrived "out of the sunshine", why wouldn't residents of this Island feel they were blind sided, and obviously be anxious to get at the truth, at this public meeting.

Yes, some audience speakers received applause while one received some disagreeing, yet not disruptive no's from the audience, but this is commonplace at many public meetings. But elected leaders don't walk out because their constituents are anxious for the truth and hunger for representation regarding their concerns from their elected officials. And even worse, elected officials should never adjourn a meeting because of an anxious audience, who might be in disagreement with their planed agenda actions, and SPIN it as a disruptive crowd. This was a serious crowd.

At the microphone, I told the council that I was very concerned over the data I reviewed regarding emails between councilors and staff that could be serious violations of the law. I based my opinions on my experiences in such areas, being a 20 year Federal Criminal Investigator. I did not base it on what I read in the paper, but on my review of the emails obtained from the city via the Freedom Of Information Act. In a Non Disruptive manner, I asked the Council to get in front of this situation quickly, to establish credibility with their constituents.

I suggested they do three things. First, direct the city attorney to initiate an immediate investigation into this matter of sunshine law violation. Second, do nothing at this meeting, such as approve any more sewer districts, until they have clearance that no wrongdoing took place. Third, that no contract be awarded (which was on the agenda) to any contractor that mishandled hazardous substances on this island before.

The Council must be very careful not to SPIN the truth. If the kitchen got to hot for them to handle, perhaps they need to make some attempt to diffuse the anxiety of their constituents by addressing the problem directly and not running away from it under the falsity that the audience was disruptive.

Shame on you council! We deserve better.

Joe Batte

Open Letter to Marco Island City Council (again)

Greetings Council Members:

Last night I watched a group of 5 politicians retreat from their responsibilities. I witnessed the utter breakdown of a local government. This exhibition of unwillingness to lead and participate in our government compromised your stewardship. We deserve better than that. I am embarrassed for you.

Citizens clapping after a citizen speaks is not disrespectful to the Council. Citizens clapping after a Councilman presents a motion is not disrespectful to the Council. Citizens reacting with catcalls when 5 out of 7 members unreasonably refuse a motion that is reconciliatory is predictable.

The majority of citizens being impacted by the STRP feel they were blind sided. There is a reason for that and now we know what it is. The prior Council avoided public participation or discussion. It has been reported that the prior Council knowingly made policy and business decisions out of the sunshine. It is the responsibility of this Council to make that right. You had a responsibility to join with Mr. Kiester's motion to discuss the continuation of the STRP. You decided it was more importan t to save face. To follow your egos. To not consider that wrongdoing may have occurred. You decided that you have no inherent responsibility for the actions of your predecessors.

What would you expect of your citizens? That they timidly sit back and accept your lack of interest and contempt? You ask for respect and decorum without giving the same to those you serve. You have never sought out public input, you never commissioned a public survey to determine what we wa nt or need. You never sought public consensus on any issue. You and your predecessors invented reasons to build something you believed we required and spent our treasure unnecessarily. Only two of you had the courage or willingness to discuss an issue that has torn our community apart for almost two years now. We deserve answers.

Councilman Tucker unnecessarily asked to adjourn the meeting. His motion to adjourn implied he was unwilling to accept responsibility for his vote. It only exhibited further contempt for the process and democracy in general. I and the majority of citizens in that room found his actions reprehensible. Why most of you agreed to follow his lead escapes me. What could possibly be of more importance than resolving the issues of our City? What purpose did the adjournment serve? Do you believe these issues will resolve themselves by the next meeting? You will only have to address an even larger assembly and these issues will still be awaiting for your attention.

Mr. Batte asked you to stand up and take your jobs seriously, he asked someone to lead. To turn over a new leaf and govern our city. It is now obvious that either you have no desire to do so or many of you have no experience in that area. If you are not willing work for and with us, than you should resign. Taking your toys and going home when things do not go your way is not what is expected of you. Your work remains to be done, running away from it serves no purpose.

Byron Erickson

Your (Automated) Government at Work

Please know that this is an automatic response to acknowledge receipt of your email. Depending on the nature of your concerns a further response may be necessary.

Thank you for contacting my office to share your concerns. It is good to know constituents take an interest in their government. It is my pleasure to serve as the Representative from District 76. It is only with citizen participation that I can effectively represent my constituents.

If you are in need of immediate assistance, please contact my office at the address below. I also invite you to check out http://www.myflorida.com which will provide you with up-to-date information about your state government. It will also
provide many tools and links through which you can explore the legislative process, departments of state and the issues facing Florida.

Again, thank you for contacting me. Your concerns may require research and a more extensive reply. If so, we will communicate again with a more personal response.


Respectfully,
Garrett Richter
State Representative, House District 76
District Assistant, Sarah Innis
Legislative Aide, Becky Kokkinos
Suite 203, Administration Building
3301 East Tamiami Trail
Naples, Florida 34112
239-417-6205
239-417-6207 FAX

A Public Service

As a public service to those that may soon be indicted, the following link is an abridged version of what you may be facing.

Sunshine Law Prosecutions

Enjoy.

Marco Island Government Corruption Exposé

Excellent work by Mr. Neylon, Mr. Beaufort, Mr. Bania and the Eagle!

Click ... Corruption

Let's see how this one get's spun. Don't look for the honorable, moral and ethical response. Expect the shoot-the-messengers puerile reaction.

Or the other famous reaction ...

Open Letter to Representative Richter

Dear Representative Richter:

Thank you for your response to my concerns on Marco Island's septic tank replacement program (STRP). I'm afraid your comments suggest misinformation as well as a misunderstanding of those concerns. I'll attempt a brief clarification:

1) Although a court case is indeed pending, it is concerned solely with the issue of bond validation, not the two subjects of my letter ("Home Rule" and HB 749).

2) Your statement that the City of Marco Island, ("City") informed you it considers itself immune to State Statute HB749 was not unexpected. It is that precise position that prompted my contacting your office.

3) That the City "commissioned a study" is only partially correct. What seems overlooked is that the study indicated no need for the forced implementation of a central sewer system.

4) In contacting you I did not seek or expect legal opinion or statute interpretation. I'm sorry if my letter was confusing. However, I do feel it reasonable to ask my Representative and/or Senator for a layman's explanation, applicability and intent of recently enacted legislation.

You're correct in that the question of exemptions for so-called "home rule charter government" is at the crux of an escalating situation on Marco Island. This question is framed by

* City's refusal to place the $135 million sewer issue before the electorate,
* City's inability to produce evidence-based need for the project,
* City's inexplicable rush to approve project contracts even without accessible funding,
* City's unexplained disregard of HB 749's connection time provisions (one year vs City's 90 days).

You have been misinformed, I'm afraid, if you believe any of these issues are in the court system. They are not. Lacking the deep pockets as well as the political influence of a city government, my fellow residents and I obviously have limited options.

There appears to be much on Marco that merits scrutiny from a higher level of governmental authority. We turn to you. Will you help?

H. J. "Russ " Colombo

Florida Attorney General - Advisory Legal Opinion

Mr. Michael S. Mullin
Nassau County Attorney
Post Office Box 1010
Fernandina Beach, Florida 32035-1010

RE: COUNTIES--SEWER SYSTEMS--residential owners whose property is served by onsite septic system required to connect with an investor-owned sewerage system after written notification of system's availability. s. 381.00655, Fla. Stat.

Dear Mr. Mullin:

On behalf of the Nassau County Board of County Commissioners, you ask substantially the following question:

Does section 381.00655, Florida Statutes, mandate that residential property owners whose property is currently served by an onsite septic system connect to an investor-owned sewerage system, and may the costs of such sewerage line be assessed to the property owners that do not hook up to the system?

In sum:

The Legislature, through the enactment of section 381.00655, Florida Statutes, has required residential owners whose property is served by an onsite septic system to connect with an investor-owned sewerage system after written notification by the owner of the investor-owned sewerage system that the system is available for connection. The statute, however, permits the investor-owned sewerage system to waive the connection with the consent of the Department of Health.

The Legislature has enacted section 381.00655, Florida Statutes, which requires property owners who currently have onsite sewage treatment and disposal systems to connect to available central sewerage systems. An onsite sewage treatment system includes such things as septic systems.[1] 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 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 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 1 year of the actual availability. . . ."[2] (e.s.)

If an onsite sewage treatment and disposal system must be repaired in order to function or to comply with the requirements of sections 381.0065-381.0067, Florida Statutes, or rules adopted thereunder, the owner of such system must connect to an available publicly owned or investor-owned sewerage system within 90 days after written notification from the department.[3] In hardship cases, upon request of the owner the department may approve one extension of not more than 90 days for sewerage connection.

The statute recognizes that there may be instances where the requirement of mandatory sewer hookup may be waived. Section 381.00655(2)(b), Florida Statutes, provides:

"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."

It is, however, the publicly owned or investor-owned system that determines, with the approval of the Department of Health, whether the mandatory hookup provisions of section 381.00655, Florida Statutes, may be waived. The statute makes no provision for the property owner to decline to connect to the system.

Section 381.00655(1)(a), Florida Statutes, grants the property owner the option of prepaying the amortized value of required connection charges in equal monthly installments over a period not to exceed 2 years from the date of the initial notification of anticipated availability. In addition, the local governing body of the jurisdiction in which the owner of the onsite sewage treatment and disposal system resides may provide that any connection fee charged under this section by an investor-owned sewerage system may be paid without interest in monthly installments, over a period of time not to exceed 5 years from the date the sewerage system becomes available, if it determines that the owner has demonstrated a financial hardship.[4]

Although the statute requires sewer hookup and makes provision for payment of hookup fees, there are no statutorily prescribed penalties for failure to connect to the system within the designated time period. A companion bill in the House of Representatives to Committee Substitute for Senate Bill 158 provided:

"If the owner of an onsite sewage treatment and disposal system has not connected to an available publicly owned or investor-owned sewerage system within the time required by this subsection, the publicly owned or investor-owned sewerage system may charge the owner any connection fees, customer charges, or minimum billing charges as if the owner had connected to the available sewerage system on the last day of the notification period. Such charges may be collected or enforced as permitted by applicable tariffs or rules and regulations of the sewerage system or as otherwise permitted by law."[5]

No such provisions are contained in the Senate Bill that passed as Chapter 93-151, Laws of Florida, creating section 381.00655, Florida Statutes. Nor does section 381.00655, Florida Statutes, specifically grant enforcement authority to any agency or entity.

This office, however, has stated that a county or a municipality may take local legislative action providing for the enforcement of section 381.00655, Florida Statutes, under home rule powers.[6] The statute itself clearly recognizes the authority of counties and municipalities to "enforce other laws for the protection of the public health and safety."[7] Moreover, section 381.0065(5)(b)1., Florida Statutes, provides that the Department of Health may issue citations containing an order of correction or an order to pay a fine, or both, for violations of sections 381.0065-381.0067 or the rules adopted by the department, when a violation of these sections or rules is enforceable by an administrative or civil remedy, or when a violation of these sections or rules is a misdemeanor of the second degree.[8] A citation issued under sections 381.0065-381.0067, Part I of Chapter 386, or Part III of Chapter 489, Florida Statutes, constitutes a notice of proposed agency action.

Accordingly, I am of the view that the Legislature, through the enactment of section 381.00655, Florida Statutes, requires residential owners whose property is served by an onsite septic system to connect with an investor-owned sewerage system after written notification by the owner of the investor-owned sewerage system that the system is available for connection, unless the investor-owned sewerage system waives the connection with the consent of the Department of Health.

Sincerely,


Robert A. Butterworth
Attorney General

RAB/tjw

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[1] See, s. 381.0065(2)(j), Fla. Stat., as amended by s. 10, Ch. 2000-242, Laws of Florida, defining an "Onsite sewage treatment and disposal system" as used in ss. 381.0065-381.0067, Fla. Stat., to mean

"a system that contains a standard subsurface, filled, or mound drainfield system; an aerobic treatment unit; a graywater system tank; a laundry wastewater system tank; a septic tank; a grease interceptor; a pump tank; a solids or effluent pump; a waterless, incinerating, or organic waste-composting toilet; or a sanitary pit privy that is installed or proposed to be installed beyond the building sewer on land of the owner or on other land to which the owner has the legal right to install a system. The term includes any item placed within, or intended to be used as a part of or in conjunction with, the system. This term does not include package sewage treatment facilities and other treatment works regulated under chapter 403." (e.s.)

[2] Section 381.00655(1)(a), Fla. Stat.

[3] Section 381.00655(1)(b), Fla. Stat.

[4] Section 381.00655(2)(a), Fla. Stat. The statute requires the local governing body to establish criteria for making the determination that the owner has demonstrated a financial hardship, taking into account the owner's net worth, income, and financial needs.

[5] Section 2, HB 2133, 1993 legislative session.

[6] See, Op. Att'y Gen Fla. 96-09 (1996), and Inf. Op. to Alan C. Jensen, dated August 27, 1999.

[7] Section 381.00655(1)(a), Fla. Stat.

[8] Cf., Rule 64E-6.022(1)(p), Fla.Admin.C., establishing disciplinary guidelines for the installation, modification, or repair of an onsite sewage treatment and disposal system in violation of the standards of s. 381.0065 or s. 381.00655, Fla. Stat., or chapter 64E-6, Fla.Admin.C.: First violation, $500 per specific standard violated; repeat violation, 90 day suspension or revocation.