Monday, September 02, 2019

No more illegal water cutoffs to barrier islands during Hurricane Dorian, Mayor Upchurch and Sheriff Shoar promise.

"It is not our policy to shut off your water."  --- St. Augustine Mayor Tracy Upchurch at September 2, 2019 press conference at St. Johns County Emergency Operations Center.

Unless there is an emergency, there will be no water cutoff to Anastasia Island, as illegally occurred during Hurricane Matthew, to encourage people to evacuate.  State law requires a court order, which no one obtained before doing it during Matthew.

Here's my prior blog posts and correspondence on the issue:

Monday, September 11, 2017

Another victory -- no illegal water cutoff to Anastasia Island during Hurricane Irma

The City of St. Augustine did not cut off water supply to Anastasia Island during Hurricane Irma.

Background: During Hurricane Matthew, apparently violating state criminal law, ignoring a State Attorney General opinion, unadorned by any legal advice and without advance notice,  the City of St. Augustine, St. Johns County Utilities and Jacksonville Energy Authority acted in concert, cutting off power to all of their customers on barrier islands, without obtaining a court order.  How cruel was that?

This broke the law, as I pointed out last year.  (see below).

The City of St. Augustine meekly cited its own ordinance, which does not trump state law.  City burghers never provided a service credit.  They never even apologized.

At least we've taught some manners to the government officials hunkered down in the St. Johns County Emergency Operations Center, where Sheriff DAVID SHOAR and his henchmen last year supposed that they could give illegal orders, cutting off water without court orders.

Three cheers to the City of St. Augustine for not breaking the law during Hurricane Irma.

Apparently, the City Attorney of the itty-bitty city read my e-mail and gave competent legal advice.

Of course, this entire water cutoff issue was never covered by the spoon-fed reporter-distorters at the failed, flailing St. Augustine Record, under new ownership effective October 2, 2017.  They never covered the controversy, despite being copied on e-mails.  However, the Record did recently report that a water cutoff was under consideration but that separate decisions would be made by the City, County and JEA, never quoting the State Attorney General's opinion the City Attorney obtained in 1994.  No reference to Sheriff SHOAR and his henchmen in the EOC throwing their weight around last year.

My October 6, 2016 blog post:

Did City violate criminal law and civil rights by cutting off water to Anastasia Island?

Apparently violating Florida criminal law and citizens' constitutional rights, controversial St. Augutine CIty Manager JOHN PATRICK REGAN, P.E. sua sponte cut off the water supply to the City of St. Augustine's service area on Anastasia Island.  This was a tort and a crime, I reckon.  No legal authority exists for doing this, and there's a specific Florida law that makes it a first degree misdemeanor to shut off water where there are automatic reengineered fire suppression water sprinklers -- dozens exist in businesses, apartments, hotels and motels on Anastasia Island within the City's service area.

Here's my e-mail from early this morning to City Manager JOHN PATRICK REGAN, P.E., et al (no response):

Dear Mr. Regan, et al.
1. Ms. Susan Rathbone, St. Augustine North Davis Shores Neighborhood Association President, confirms that potable water to Anastasia Island was cut off this evening.  
2. The City water plant manager confirms that all water to Anastasia Island has been cut off to encourage evacuation.  This was apparently an illegal, ultra vires act, and a crime.
3. It is a first degree misdemeanor under Florida law, F.S. 633.171(2)(1) to cut off water to a location with a preengineered automatic fire suppression water sprinkler system without a court order.
4. How many hotels, motels, apartments and offices have such systems on Anastasia Island?
5. The City of St. Augustine has actual notice of this controlling legal authority by virtue of the 1995 Attorney General opinion, obtained by then City Attorney Geoffrey Dobson:

Number: AGO 95-26
Date: April 6, 1995
Subject: Disconnect/water service would disable fire protection 

Mr. Geoffrey B. Dobson
St. Augustine City Attorney
66 Cuna Street, Suite B
St. Augustine, Florida 32084

RE: FIRE SAFETY–MUNICIPALITIES--PUBLIC UTILITIES--municipality may not disconnect water service, absent a court order, such that preengineered fire protection system would be disabled. s. 633.171, F.S.  

Dear Mr. Dobson:

You ask substantially the following question:

Does section 633.171(2)(a), Florida Statutes, preclude a city from disconnecting water service to a consumer for nonpayment when the building to which service is provided has a preengineered fire protection system?

In sum:

Section 633.171(2)(a), Florida Statutes, operates to preclude a city, absent a court order, from disconnecting water service to a preengineered fire protection system required by statute or rule when to do so would render such system inoperative.

You state that the City of St. Augustine owns the local water utility service. Pursuant to section 180.13, Florida Statutes, the governing body of a municipality may establish just and equitable rates to be paid to the municipality for the use of a utility by each person, firm or corporation whose premises are served. If the charges are not paid when due, the municipality may recover such sums by suit in a court having jurisdiction in the municipality or by discontinuance of the service until the delinquent charges for the service are paid.[1] There is some question, however, whether the city may discontinue water service to delinquent customers who have preengineered fire protection systems that are required by law or rule.

It has been judicially recognized that a municipality may discontinue water services furnished by the city when the consumer fails to pay the water bill.[2] As noted above, the Legislature has authorized such action when a person using a public utility fails to pay the charges when due.

Section 633.171(2)(a), Florida Statutes, however, provides:

"(2) It shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, to intentionally or willfully:
(a) Render a fire extinguisher or preengineered system required by statute or by rule inoperative except during such time as said extinguisher or preengineered system is being serviced, tested, repaired, or recharged, except pursuant to court order."

The statute clearly makes it a criminal offense to disconnect the water supply to a required preengineered fire protection system such that the system is rendered inoperable, unless by order of a court. Where the Legislature has set forth exceptions to the operation of a statute, no others may be inferred.[3] In this instance, absent a court order, disconnection of water that renders a preengineered fire protection service inoperable could subject the municipality to criminal sanctions. There is no statutory or judicial exemption for municipally owned water systems from the provisions of the statute. Thus, a municipally owned water utility may not, absent a court order, disconnect the water supply to a preengineered fire protection system that is required by law or rule such that the system is rendered inoperable without subjecting itself to the criminal liability imposed in section 633.171(2)(a), Florida Statutes.[4]  

An example of a fire protection system that is required by statute is contained in section 553.895, Florida Statutes. That statute states:

"Except for single-family and two-family dwellings, any building which is of three stories or more and for which the construction is let after January 1, 1994, regardless of occupancy classification and including any building which is subject to s. 509.215, shall be equipped with an automatic sprinkler system installed in compliance with the provisions of chapter 633 and the rules and codes adopted pursuant thereto."[5]

Section 553.895(2), Florida Statutes, has expansive coverage in requiring automatic sprinkler systems in practically all buildings with three or more stories, except for those that are a single-family or two-family dwelling.  

Accordingly, it is my opinion that a municipality is subject to section 633.171(2)(a), Florida Statutes, if, without a court order, it discontinues water service to a structure that has a preengineered fire protection system that is rendered inoperable by such action.


Robert A. Butterworth
Attorney General



[1] Section 180.13(2), Fla. Stat. (1993).

[2]  See State v. City of Miami, 27 So. 2d 118, 126 (Fla. 1946).

[3]  See Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952).

[4]  See Alsop v. Pierce, 19 So. 2d 799, 805 (Fla. 1944) (legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way).

[5] Section 553.895(2), Fla. Stat. (1993).

6. Does the City of St. Augustine have a court order?
7. Did the City ever obtain any legal advice before violating a Florida criminal law and federally protected civil rights?  See F.S. 633.171(2)(a);  Attorney General Opinion 95-26;  Memphis Light, Gas & Water v. Craft, 436 U.S. 1 (1978).
8. Why was no written pre-termination notice given, and no hearing afforded to water utility customers before cutting off their water, potentially risking lives and fire safety and violating a criminal statute and civil rights?
9. Please restore the water to Anastasia Island, instanter to avoid potential criminal prosecution and federal civil rights liability. See F.S. 633.171(2)(a);  Attorney General Opinion 95-26;  Memphis Light, Gas & Water v. Craft, 436 U.S. 1 (1978).

Thank you.

With kindest regards, I am,
Sincerely yours,
Ed Slavin

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