§ 58-3. City council findings and legislative intent.

The city council of the City of Polk City hereby makes the following findings and declares its legislative intent as follows:

(1)

F.S. ch. 166, empowers the city council of the City of Polk City, Florida, to render municipal services in a manner designed to promote and protect the general health, safety, and welfare of the public.

(2)

F.S. § 403.706(14), a municipality to provide by ordinances for solid waste management requirements which are stricter or more extensive than those imposed by the state solid waste management program and rules, regulations, and orders issued thereunder.

(3)

F.S. § 403.706(22), does not limit the authority of any local government to regulate the collection, transportation, processing, or handling of recovered materials or solid waste in order to protect the public health, safety, and welfare.

(4)

The city council of the City of Polk City hereby determines that in order to serve the needs of the community and protect the public health, safety, and welfare, it is necessary to initiate certain regulations set forth below.

(5)

The City of Polk City (the "city") has historically granted franchises for various activities within the city utilizing city rights-of-way.

(6)

There is an immediate and continuing need to protect the public health, safety and welfare by assuring that any holder of a franchise within the city carries out the franchised activity in a manner that is beneficial the city residents, does not violate applicable laws and provides protection to the city and its residents from the activities of the franchisees.

(7)

F.S. § 166.021(1), provides municipalities broad authority, including the governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services. Pursuant to this broad home rule authority, the city may regulate certain activities within the city limits and carry out certain city services by means franchises.

(8)

In addition to the broad authority granted to the city under F.S. ch. 166, §§ 180.02(1) and 180.06(5), grant the city the right to provide for the collection and disposal of solid waste within its city limits. F.S. § 180.14, allows the city to do so by franchising private companies for such term of years and upon such conditions and limitations as may be deemed expedient and for the best interest of the municipality.

(9)

F.S. ch. 403, recognizes the authority of local governments to provide solid waste hauling services. F.S. §§ 403.70605(1)(c) and 403.70605(3), recognize the authority of the local government to displace private solid waste haulers by providing for such service itself or pursuant to an exclusive franchise.

(10)

The city has determined it is in the best interest of the citizens of the City of Polk City that the city provide for solid waste collection within the city, either with its own employees or through one or more licensed franchisees acting on the city's behalf, rather than permitting competing private haulers to do so and set their own rates and standards.

(11)

Towards that end, the city has determined to adopt ordinances requiring all residential and commercial customers to dispose of wastes via collection and disposal by the city or its duly authorized franchisee.

(12)

The city holds the public rights-of-way within its boundaries in trust on behalf of its citizens and has a duty to utilize or permit others to utilize rights-of-way in an appropriate manner while insuring that the city properly manages its resources to the maximum reasonable economic benefit of its citizens.

(13)

The city is the sole authority empowered to own, operate and maintain the city streets, easements and rights-of-way within the city and structures located thereon and to grant the use of such streets, easements and rights-of-ways to others.

(14)

The city has a continuing duty to regulate the use of its rights-of-ways within the city's jurisdiction in order to protect the health, safety and welfare of the citizens living and working in the city.

(15)

The city's powers, both governmental and proprietary, in regard to its rights-of-way have not been preempted by the Florida Legislature.

(16)

The Florida appellate decision known as City of Oviedo v. Alafaya Utilities, Inc., 704 So. 2d 206 (Fla. 5 ^th DCA 1998) has construed F.S. § 337.401(1), to allow cities to grant the use of their rights-of-way subject to such reasonable rules and regulations governing such use as any such city deems necessary or appropriate.

(17)

In order to insure that any franchise fee to be assessed against or negotiated with any franchisee which is granted the authority to use and occupy the city's right-of-way hereunder is appropriate and reasonable, the city declares that it may consider the testimony and advice of experts as to what constitutes an appropriate, reasonable and market-rate franchise fee and will negotiate and determine franchise fees based on such testimony and advice and other relevant considerations.

(18)

The city's police powers in regard to its rights-of-way and public lands have not been preempted by the State of Florida. See Florida Power Corporation v. City of Winter Park, Florida, 887 So.2d 1237 (Fla. 2004).

(19)

It being within the city's authority to do so, the city hereby establishes the reasonable conditions set forth below which shall be the minimum conditions under which any future solid waste franchises within the city shall be granted by the city.

(20)

The city hereby adopts the ordinance from which this chapter is derived pursuant to the power and authority granted to the City by article VIII, section 2, Florida Constitution, F.S. chs. 166, 180 and 403.

(Ord. No. 2012-1291, § 3, 7-9-2012)