In this resolution the City of Coral Gables purports to order Florida Power & Light to restore our electricity by Sunday night on pain of … wait for it … $500/day fines if it doesn’t (plus the some dubious threat of additional higher fines under state law).
Does a city have the power to order a state-regulated utility to restore power by a set date after a hurricane? Given the relationship between cities and the State of Florida, I’d be a little surprised if the answer were yes, at least in the absence of clearly dilatory or unreasonable behavior, although I am certainly not an expert in local government law. The resolution cites two authorities: § 2-203 of the Coral Gables code and Florida Statutes § 162.09. The Coral Gables code section is about cease and desist letters:
Sec. 2-203. – Penalty for failure to obey cease and desist letter.
(a) The city attorney is authorized to issue cease and desist letters for violation of the City Code, Zoning Code and any other applicable law where such violation causes harm to the city, its residents or its businesses.
(b) It shall be unlawful for any person or entity to disobey the demand made by the city attorney or his/her designee, on behalf of the City of Coral Gables, in a cease and desist letter.And And
(c) Failure to obey the demand made in a cease and desist letter shall result in the issuance of a code enforcement citation, punishable by a fine of $500.00 per day.
(d) A violator who has been issued a citation for failure to comply with the demand in the cease and desist letter, must elect to either comply with the demand in the letter and pay the fine or request an administrative hearing before a special master, as set forth in chapter 101, article VI, division 3 of the City Code.
(e) As a cumulative remedy, the city attorney is authorized to file a civil action to enforce the cease and desist letter, the city is entitled to an injunction and the violator is responsible for attorney’s fees and costs incurred. Such proceedings shall be expedited by the court.
(f) The city, as well as its elected and appointed officials, employees and agents are immunized from civil or criminal liability for actions taken in accordance with this section.
(g) Subsection (a) of this Code section shall be incorporated into section 2-201 of the City Code as subsection (13).
As for the state statute, I see authority for “$15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature.” But is failure to repair quickly enough really a zoning violation? Maybe at some point yes, but a week after a hurricane? Surely there is some implicit (and in the case of the state law, fairly explicit) reasonableness limit operative here?
As to the Coral Gables ordinance, I sort of wonder how it applies–does FPL have a legal duty to the city under zoning law that is enforceable in this manner? (I honestly don’t know.) Does it make sense to talk of ‘cease and destining” from failure to deal with a public emergency? (It might.) More to the point, though, even if the legal answer is yes, can you really make FP&L do anything in these post-hurricane conditions? (Not as far as I can see.)
Perhaps prudently, therefore, the Commission’s resolution only demands that the power be back by Sunday at 11:45pm (although it demands downed power lines blocking streets be cleared today). As FP&L has publicly said it will have all the power back on the east coast of Florida by Sunday unless your house is destroyed or it would be dangerous to turn it on, at least as to the power restoration this may be more sound than fury.
Then again, I suppose there could be litigation: this is the same Coral Gables Commission that recently sued Facebook and Instagram to find out the identity of a public (and until the lawsuit, very obscure) critic. The legal theory in that case — trademark and irreparable harm to the city — was maybe tenable enough not to be risible (but I’d say on balance not even that). More to the point the suit looked to me like a SLAPP suit, and seemed very very unwise, in terrible taste, and probably outright unconstitutional.
So who knows, maybe my tax money will be spent on a suit about this too.
Don’t get me wrong, I have no love for FP&L, even if they did get my lights back on a couple of days ago. Having had no power for five weeks after Andrew, and having everything in my fridge just spoil, I understand how awful it can be to be without it — and that it is even worse for people who depend on medical equipment.
I’m all for getting tough with FP&L on solar power, on burying power lines (on which, let the record show, Coral Gables wimped out long ago), and even on harrying them to fix the power. But is this the right way to go about it? I am not convinced. FP&L may not do a great job of pre-hurricane hardening, but large-scale post-hurricane restoration is something they seem fairly good at, if only because they have practice and get massive help from out of state.
I’d much rather see Coral Gables get tough with FP&L about pre-hurricane preparedness, like burying power lines, than this post-hurricane spasm — whether it is sincere or a publicity stunt. (I should emphasize that it could be either for all I know. Normally I would call up and try to interview some Commissioners about this, which I think is the right thing to do when writing about people. But I expect that they have better things to do immediately post-Irma than talk to me and I’m not about to bother them.)