Miami-Dade Legislative Item
File Number: 230008
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File Number: 230008 File Type: Ordinance Status: Adopted
Version: 0 Reference: 23-23 Control: Board of County Commissioners
File Name: REQUIRING DISCLOSURE RELATING TO FATS, OIL, AND GREASE Introduced: 1/4/2023
Requester: NONE Cost: Final Action: 4/4/2023
Agenda Date: 4/4/2023 Agenda Item Number: 7B
Notes: 4-6 WEEKS REQUIRED Title: ORDINANCE RELATING TO REAL ESTATE TRANSACTIONS IN THE INCORPORATED AND UNINCORPORATED AREAS; CREATING SECTION 21-49.2 AND AMENDING SECTION 8CC-10 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; REQUIRING DISCLOSURE RELATING TO FATS, OIL, AND GREASE (“FOG”) GENERATORS TO BE PROVIDED IN CERTAIN REAL ESTATE TRANSACTIONS; PROVIDING FOR ENFORCEMENT BY CIVIL PENALTY OR THROUGH A CAUSE OF ACTION EXISTING UNDER FLORIDA LAW; DIRECTING THE COUNTY MAYOR OR COUNTY MAYOR’S DESIGNEE TO CONDUCT AN EDUCATIONAL CAMPAIGN; PROVIDING SEVERABILITY, INCLUSION IN AND EXCLUSION FROM THE CODE, AND AN EFFECTIVE DATE
Indexes: GENERATOR
  REAL ESTATE
Sponsors: Eileen Higgins, Prime Sponsor
  Raquel A. Regalado, Co-Sponsor
Sunset Provision: No Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Board of County Commissioners 4/4/2023 7B Adopted P
REPORT: County Attorney Geri Bonzon-Keenan read the foregoing proposed ordinance into the record. There being no questions or comments, the Board proceeded to vote on the foregoing proposed ordinance as presented.

County Infrastructure, Operations and Innovations Committee 3/14/2023 1G3 Forwarded to BCC with a favorable recommendation following a public hearing P
REPORT: Assistant County Attorney Eduardo Gonzalez read the title of foregoing proposed ordinance into the record. Chairwoman Regalado opened the public hearing, and seeing no one appear to speak, closed the public hearing. There being no questions or comments, the Committee members proceeded to vote on the foregoing proposed ordinance, as presented

Board of County Commissioners 2/9/2023 Municipalities notified of public hearing County Infrastructure, Operations and Innovations Committee 3/14/2023 1/17/2023

County Attorney 1/18/2023 9:08:46 AM Referred County Infrastructure, Operations and Innovations Committee 3/14/2023

Board of County Commissioners 1/17/2023 Tentatively scheduled for a public hearing County Infrastructure, Operations and Innovations Committee 3/14/2023

Board of County Commissioners 1/17/2023 4B Adopted on first reading 3/14/2023 P
REPORT: County Attorney Geri Bonzon-Keenan read the title of the foregoing proposed ordinance into the record. The foregoing ordinance was adopted on first reading and scheduled for a public hearing before the County Infrastructure, Operations and Innovations Committee (CIOIC) or successor committee to be determined by the Board’s Chairperson for the March 2023 committee date as set forth in the adopted 2023 BCC calendar. SPECIAL NOTE: Subsequently, on February 2, 2023, the Board of County Commissioners (BCC) calendar was revised to include the scheduling of the County Infrastructure, Operations and Innovations Committee (CIOIC) scheduled for Tuesday, March 14, 2023, at 9:00 a.m. according to the BCC Chairman Oliver G. Gilbert, III, memorandum dated January 31, 2023, entitled "Commission Committee Schedule.”

Board of County Commissioners 1/4/2023 Requires Municipal Notification

County Attorney 1/4/2023 Assigned Christopher J. Wahl 1/9/2023

Legislative Text


TITLE
ORDINANCE RELATING TO REAL ESTATE TRANSACTIONS IN THE INCORPORATED AND UNINCORPORATED AREAS; CREATING SECTION 21-49.2 AND AMENDING SECTION 8CC-10 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; REQUIRING DISCLOSURE RELATING TO FATS, OIL, AND GREASE (�FOG�) GENERATORS TO BE PROVIDED IN CERTAIN REAL ESTATE TRANSACTIONS; PROVIDING FOR ENFORCEMENT BY CIVIL PENALTY OR THROUGH A CAUSE OF ACTION EXISTING UNDER FLORIDA LAW; DIRECTING THE COUNTY MAYOR OR COUNTY MAYOR�S DESIGNEE TO CONDUCT AN EDUCATIONAL CAMPAIGN; PROVIDING SEVERABILITY, INCLUSION IN AND EXCLUSION FROM THE CODE, AND AN EFFECTIVE DATE

BODY
WHEREAS, facilities that generate fats, oil, and grease (�FOG�) have the potential to negatively impact human health, the environment, and public and private sewer infrastructure if FOG disposal is not properly managed; and
WHEREAS, on February 21, 2018, this Board adopted Ordinance No. 18-22, which created a new FOG Control Program, codified in section 24-42.6 of the Code of Miami-Dade County, Florida; and
WHEREAS, the County�s adoption of the new FOG Control Program was mandated under the Consent Decree, Case No. 1:12-cv-24400-FAM, effective December 6, 2013, between Miami-Dade County, the United States of America, and the State of Florida, to comply with the Federal Clean Water Act, chapter 403, Florida Statutes, and the Florida Administrative Code, with the goal


of eliminating sanitary sewer overflows and prohibited sewer bypasses that result in contamination
of land and water resources, threaten public health, safety, and welfare, and damage publicly owned infrastructure; and
WHEREAS, the County developed the new FOG Control Program with stakeholder input and with the review and approval of the United States Environmental Protection Agency and the Florida Department of Environmental Protection; and
WHEREAS, the FOG Control Program sets minimum requirements and standards for the design and operation of any �FOG generator,� which is defined as �any nonresidential facility, including, but not limited to, restaurants, bakeries, hotel and cafeteria kitchens, commercial kitchens, kitchens serving hospitals, nursing homes, daycares, assisted living facilities and other healthcare facilities, food processing plants or such other nonresidential facilities that can introduce food waste or FOG into building sanitary drains, building sewers, onsite sewage treatment and disposal systems, or non-utility or utility sanitary sewer systems�; and
WHEREAS, FOG generator also includes �those nonresidential facilities that produce yellow grease,� but exempts certain industrial facilities; and
WHEREAS, among the FOG Control Program�s requirements is that a FOG generator obtain a FOG operating permit and submit an annual certification prepared by a professional engineer attesting that the FOG generator�s existing FOG control devices are functioning as designed and are in good working order; and
WHEREAS, FOG control devices are often referred to as grease traps; and
WHEREAS, FOG operating permits include best management practices and maintenance requirements, which vary depending on the type of FOG control device, such as grease waste drains, kitchen exhaust hoods, and grease storage areas; and
WHEREAS, despite the importance of the FOG Control Program to public health and the environment, there continue to be owners and operators of FOG generators who are either unaware of or otherwise not in compliance with the FOG Control Program; and
WHEREAS, because all FOG generators are legally required to comply with the FOG Control Program, lack of awareness can result in unexpected financial burdens for persons or businesses that come into possession of properties that qualify as FOG generators; and
WHEREAS, these situations are particularly unfortunate when the landlord or prior owner of the property has deliberately chosen not to disclose to the tenant or new owner that the FOG control devices on the property have technical problems or are otherwise not in compliance with the FOG Control Program; and
WHEREAS, persons and entities that are in the process of purchasing or leasing real property therefore may wish to know whether a FOG generator is located on the property; and
WHEREAS, requiring a seller or lessor of real property that contains a FOG generator to provide, before the completion of the transaction, a mandatory disclosure statement could help ensure that the purchaser or lessee is aware of the potential expenses, risks, and legal obligations that come with having a FOG generator; and
WHEREAS, such a disclosure could also prompt a purchaser or lessee to conduct an inspection of the property�s FOG control devices, the results of which could help the purchaser or lessee negotiate repairs to the FOG control devices prior to closing or otherwise obtain a purchase price or rent that better addresses the obligations and risks that come with the FOG generator; and
WHEREAS, this Board therefore wishes to require: (1) a disclosure statement relating to FOG generators before the conveyance or lease of certain real property; and (2) acknowledgement of the disclosure by the purchaser or lessee; and
WHEREAS, because the FOG Control Program applies in both the incorporated and unincorporated areas of the County, this requirement should apply in both the incorporated and unincorporated areas; and
WHEREAS, making the disclosure requirement enforceable with civil penalties could help ensure compliance with this new requirement; and
WHEREAS, Florida law imposes duties on sellers in real estate transactions, including but not limited to the duty of a seller of residential property to disclose to the purchaser all known facts materially affecting the value of the property that are not readily observable and are not known to the purchaser; and
WHEREAS, Florida law further provides more generally that a person�s violation of a duty imposed by ordinance may form the basis of a cause of action by another person injured by the violation; and
WHEREAS, to help ensure compliance with the FOG generator disclosure requirement, this Board intends for this requirement to impose on sellers and lessors a legal duty of disclosure enforceable by purchasers, lessees, or other parties with standing, through a cause of action existing under Florida law when the party has sustained financial injury caused by the failure to comply with the disclosure requirement,
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. The foregoing recitals are incorporated as if set forth herein and are approved.
Section 2. Section 21-49.2 of the Code of Miami-Dade County, Florida, is hereby created to read as follows:1
>>Sec. 21-49.2 - Required disclosures regarding fats, oil, and grease (�FOG�) generators for real estate transactions.

(a) Applicability.

(1) This section shall be a minimum standard and shall apply to both the incorporated and unincorporated areas.
(2) The County may enforce the provisions of this section in the incorporated and unincorporated areas of Miami-Dade County, and each municipality may enforce the provisions of this section within such municipality.
(3) Any municipality may establish and enforce more stringent regulations and set forth such further penalties as such municipality may deem necessary.

(b) Definitions. As used in this section, the term:

(1) Affected real property means any parcel of land on which a FOG generator is located.
(2) FOG generator has the meaning provided in section 24-5.

(c) Disclosure statement requirement. Prior to the execution of any instrument committing an individual or entity to purchase or lease affected real property in Miami-Dade County, the seller or lessor shall provide the purchaser or lessee with the following statement, which shall be set forth conspicuously on a separate sheet of paper in at least 12-point font, and which shall be signed and dated by the purchaser or lessee:

FATS, OIL, AND GREASE (�FOG�) GENERATOR DISCLOSURE

LAND INVOLVED IN THIS TRANSACTION HAS A FOG GENERATOR ON IT. AS DEFINED IN PART IN SECTION 24-5 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA (�CODE�), A �FOG GENERATOR� IS A NONRESIDENTIAL FACILITY THAT: CAN INTRODUCE FOOD WASTE OR FATS, OILS, AND GREASE INTO BUILDING SANITARY DRAINS, BUILDING SEWERS, ONSITE SEWAGE TREATMENT AND DISPOSAL SYSTEMS, OR NON-UTILITY OR UTILITY SANITARY SEWER SYSTEMS; OR PRODUCES YELLOW GREASE. IMPROPERLY MAINTAINED FOG GENERATORS MAY POSE SUBSTANTIAL RISKS TO HUMAN HEALTH AND THE ENVIRONMENT. FOG GENERATORS ARE THEREFORE SUBJECT TO PERMITTING REQUIREMENTS AND OTHER REGULATIONS UNDER THE CODE, INCLUDING, BUT NOT LIMITED TO, THE REQUIREMENTS TO OBTAIN AN OPERATING PERMIT AND TO PERFORM ONGOING MAINTENANCE. FOG GENERATORS MAY ALSO BE SUBJECT TO OTHER LOCAL, STATE, AND FEDERAL REGULATIONS.

(d) Acknowledgment of FOG generator disclosure statement on instrument of conveyance or lease. The seller or lessor shall ensure that the following statement appears in a prominent location on the face of the instrument conveying the affected real property, which instrument must be signed by the purchaser, notarized, and recorded with the Clerk of the Court, or, for a lease, signed by the lessee on the face of the lease:

I HEREBY CERTIFY THAT I HAVE READ, UNDERSTOOD, AND SIGNED THE FATS, OIL, AND GREASE (�FOG�) GENERATOR DISCLOSURE STATEMENT FOR THE CONVEYANCE OR LEASE OF THIS REAL PROPERTY, AS REQUIRED BY SECTION 21-49.2 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA.

(e) Enforcement.

(1) Failure to comply with this section shall constitute a violation. All matters enumerated and prohibited
herein shall be independent of each other, and the violation of any one of the provisions of this section shall be a separate violation.
(2) Any seller or lessor who violates any provision of this section, or fails to comply therewith, or with any lawful rule, regulation, or written order promulgated under this section, shall be subject to fines in accordance with chapter 8CC and to any penalties or remedies provided in section 1-5 and chapter 8CC, as applicable.
(3) It is also the intent of this section to impose on sellers and lessors a legal duty of disclosure enforceable by purchasers, lessees, or other parties with standing, through a cause of action existing under Florida law when such party has sustained financial injury caused by the failure to comply with the disclosure requirement. Notwithstanding the foregoing, this section shall not be construed as creating an express or implied private cause of action.
(4) Miami-Dade County shall not be held liable for any damages or claims resulting from the seller�s or lessor�s failure to comply with this section.<<


Section 3. Section 8CC-10 of the Code of Miami-Dade County, Florida, is hereby amended to read as follows:
Sec. 8CC-10. � Schedule of civil penalties.

The following table shows the sections of this Code, as they may be amended from time to time, which may be enforced pursuant to the provisions of this chapter; and the dollar amount of civil penalty for the violation of these sections as they may be amended.

* * *

Code Section
Description of Violation
Civil Penalty

* * *


>>21-49.2
Failure to provide the disclosure statement to the purchaser or lessee in compliance with section 21-49.2
1,000.00
21-49.2
Failure to ensure acknowledgment of disclosure statement appears as required on instrument of conveyance or lease
1,000.00<<

* * *


Section 4. Educational campaign required. This Board hereby directs the County Mayor or County Mayor�s designee to conduct an educational campaign for property owners and any individuals and businesses that use or work with FOG generators in Miami-Dade County, to educate and inform them as to: (1) the FOG Control Program generally; and (2)�the requirements of this ordinance.
Section 5. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 6. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of sections 2 and 3 of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 7. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of section 4 of this ordinance shall be excluded from the Code of Miami-Dade County.
Section 8. This ordinance shall become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.


1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.



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