OFFICE OF THE CITY COUNCIL

CHERYL L. BROWN 117 WEST DUVAL STREET, SUITE 425

DIRECTOR 4^TH FLOOR, CITY HALL

OFFICE (904) 630-1452 JACKSONVILLE, FLORIDA 32202

FAX (904) 630-2906

E-MAIL: CLBROWN@coj.net

RULES COMMITTEE WORKSHOP ON 2011-766

SECONDARY METALS RECYCLING

MEETING MINUTES

January 24, 2012

9:00 a.m.

Location: City Council Chamber, 1st floor, City Hall – St. James Building; 117 West Duval Street

In attendance: Committee Members Bill Bishop (Chair), John Crescimbeni, Matt Schellenberg and Lori Boyer

Excused: Committee Member Clay Yarborough

Also: Council Members Doyle Carter (arr. 9:11), Bill Gulliford (arr. 9:15), Don Redman (arr. 9:26) and Robin Lumb (arr. 10:15). See attached sign-in sheet for other attendees.

Meeting Convened: 9:05 a.m.

Chairman Bishop announced that Sheriff Rutherford would speak first to present the intent of his proposed ordinance and to explain its features. Thereafter the public will be given an opportunity to speak at the public hearing.

Sheriff Rutherford began with a recitation of statistics on the dramatic increase in the theft of metals in recent years, particularly of items such air conditioner cores, funeral vases, manhole covers and catalytic converters. He stressed the importance of acting quickly on the proposed ordinance because there are bills pending in the Florida Legislature that, if passed, would preempt any local regulation of secondary metals recycling that is not in place by March 1 of this year, leaving state regulations to control the problem. If Jacksonville passes an ordinance specifically addressing secondary metals recycling and specific regulated metals, then the City will be free to retain and modify its own regulations into the future without the state preemption. The Sheriff stated that the Florida Sheriff’s Association has worked with the Florida Recyclers Association to craft regulations that are reflected in the draft ordinance. He stated that state regulations already require most if not all of the information that would be required by the pending ordinance, but the local ordinance would add a requirement for recyclers to electronically transmit this information to the Sheriff’s Office. The local ordinance would add a metals transport permit that is not in the state law.

In response to a question Sheriff Rutherford explained how his officers attempt to solve cases of metal theft, much of which depends on tips, fingerprints left at the scene, and other typical police work. The transport permit would be a great help to the Sheriff’s Office by providing yet another potential investigatory avenue and also by providing a probable cause to stop a vehicle seen carrying regulated metals in view of an officer in order to check whether the driver has the proper permit. Council Member Boyer said that she had discussed that aspect of the ordinance with Chief Judge Moran and he was of the opinion that the ordinance by itself would not be sufficient to constitute probable cause to stop a vehicle to check its contents. In response to a question about transport of out-of-state or out-of-county metals through Jacksonville without a permit, the Sheriff indicated that officer discretion will have to be exercised. The committee discussed the ramifications and potential operational difficulties of the proposed transport permit. There may be several valid reasons why citizens would be transporting regulated metals and it may be problematic to expect them to be aware of the regulations and the requirement to obtain a transport permit before engaging in an otherwise unremarkable and unregulated activity.

In response to a question about the feasibility of making the sale of certain metal items (manhole covers, guardrails, street sign poles, etc.) illegal altogether on the grounds that there is likely no way that such items could be obtained other than by theft, the Sheriff explained that there are legitimate ways that individuals or companies could acquire such materials for sale, particularly where a company is hired to do demolition or construction work where it is customary to let the company salvage and sell items not needed after the completion of the project.

The committee discussed the reasoning behind requiring payment for certain items by check, with the Sheriff stating that it provides yet another investigation avenue in the event of a crime. The need for electronic reporting of transaction information was questioned. The Sheriff stated that the information needs to be in an electronically searchable form in order to be useful, so paper copies of documents or scanning and electronic transmission of paper documents doesn’t serve the purpose. Those files can’t be quickly searched for a name, vehicle tag number or other identifier that might help solve a case. The Sheriff’s Office will provide computer software at no cost to metals dealers to help them meet the proposed requirement. In response to a question from Council Member Boyer, the Sheriff stated that the software and local reporting could be used to replace the filing of paper forms required by the state. The state allows the option of keeping required transaction information on either paper or electronic record forms, but doesn’t require that they be transmitted to law enforcement offices. JSO officers now need to visit recyclers in person and manually search their records which is slow and cumbersome.

Council Member Gulliford questioned how much input the recycling companies had into the drafting of the ordinance. Sheriff Rutherford said that his office worked with the Florida Sheriff’s Association and the Florida Recyclers Association. Mr. Gulliford said he understood that many small recycling businesses don’t belong to the state association, that it’s primarily the large companies that may have a different perspective on the legislation and proposed regulations than small “mom and pop” companies.

Public hearing

Charleen Smith: urges passage of 2011-766. She is a landlord who has experienced over 30 air conditioner thefts.

Dennis Shearer: urged passage of 2011-766.

James Logston: manages 105 properties and said the metal theft problem is killing the rental property business. Houses are being completely destroyed by thieves in the process of stealing every scrap of metal wiring and plumbing out of the walls. Something has got to be done to stop the thefts.

Arnold Vernimo: a Southside scrap dealer, said that recyclers already collect photos and thumbprints from sellers and further regulation is not needed. Property owners need to safeguard their property with fences, dogs and especially video surveillance cameras. The Florida Recyclers Association does not represent the interests of small companies like his. He has called the JSO on several occasions when he’s had sellers come in with suspicious materials and officers have always responded promptly. In his opinion, air conditioner thefts are not for the purpose of scrapping and selling the copper, which isn’t worth the effort for the small amount it would produce – it’s to sell or install the whole A/C unit. In response to a question about paying for purchases with checks, Mr. Vernimo stated that his objections are the cost of checks and the extra time it adds to a transaction. A cash sale is much quicker.

Micah Thornton, Main Recycling: he is a member of the Florida Recyclers Association. He has worked with the JSO on this ordinance but opposes the electronic record transmission requirement if they aren’t going to share the information with law enforcement in neighboring counties. The state legislation is proposing a statewide database. In the past he has called the JSO to his business and they’ve been very responsive. He believes that as regulations increase, thieves will chop stolen metal into smaller and smaller pieces to make its original form unrecognizable and therefore more difficult to regulate by specifically targeted rules.

Tammy Wainwright: the pending state law does not have the transport permit, but does include a limitation on recyclers’ hours of operation from 7 a.m. to 8 p.m. on weekdays and 7 a.m. to 1 p.m. on Saturday (closed on Sunday). The state law would reduce the current record retention requirement from 5 years to 3 years. She opposes the proposed local ordinance because Florida’s public records law would make all of a recycler’s transaction records searchable by their competitors, thereby disclosing proprietary information.

Eric Berman, Berman Brothers: has been in the recycling business for many years. Almost everything the City is proposing is already covered by the state law. Enforce the existing laws more vigorously, with more police presence and attention, before adopting more regulations. He has seen some suspicious materials come into his business over the years and the JSO has always been responsive when he’s called them.

Stan Young, Commercial Metals Co. He opposes the local definition of “insulated wire” – the state definition should be used. He believes that electronic reporting of transaction records should only apply to the defined categories of restricted regulated metals, not to all of a company’s transactions because of the release of proprietary information by way of public information requests. The transport permit requirement will drive business to surrounding counties that don’t have such a requirement. The state law should govern. He has had JSO come to his business frequently and they have been responsive to his issues.

Scott Wilson, Northeast Florida Air Conditioning Association: supports passage of the ordinance as-is to help deal with the epidemic of air conditioner thefts. Thieves can cause $3000 in damage to large air conditioners for the sake of stealing $15 of copper. The release of refrigerant in the course of the theft is a real environmental problem.

Linda Teates: it is ludicrous to try to create a permitting system for what people carry in their personal vehicles. She occasionally hauls metals that are proposed to be regulated, saving up small amounts until she has load worth taking to the recycler when the price is the best. These regulations will hurt the individual recycler the most. Permits aren’t the answer, but the curfew idea mentioned earlier would be a much better option. Government is too intrusive into the lives of its citizens already without adding more regulation.

John Puline, Berman Brothers: the JSO needs to aggressively enforce current laws and permanently shut down the businesses that break the law by buying stolen property. The JSO and scrap dealers need to work together to solve the problem. Deal with the criminals, not with the material they steal. The state law is good – enforce it.

David Foster, Alligator Enterprises: the Florida Recyclers Association is all about big companies, charging $500 a year to join. The Institute of Scrap Recycling Industries (ISRI) charges $3000 a year for membership. The problem with requiring checks for some sales is that the sellers then have to cash them. Many sellers are barely surviving by scavenging scrap metal and don’t have bank accounts, so they’ll have to pay a check cashing store a substantial portion of the check just to get it cashed. How will the JSO officer know by looking when a vehicle is hauling 25 pounds or more of material and therefore should have a transport permit? You can’t judge weight by eye.

Mike Herzberg, Northeast Florida Builders Association: thieves are stealing anything and everything from job sites and something has got to be done to stop it. More deterrence is needed, and the best deterrence is to remove the ability to sell the stolen material. Please pass the proposed ordinance.

Henry Turner: the community as a whole can’t keep sustaining the losses inflicted by these metal thefts. The expense to the companies of complying with the ordinance is miniscule in comparison to the hundreds of thousands of dollars in losses and damages that thieves are inflicting on society at large. The City needs to enact the ordinance now before the state pre-empts local action; we can always tweak the ordinance later if improvements are needed.

The public hearing was closed.

Sheriff Rutherford responded to several points raised by the speakers. 1) He did not intend that the ordinance would require all of a company’s transactions to be reported to the JSO, just those of the specifically regulated metals. He is happy to have the ordinance amended to reflect that change. 2) He would agree with dropping the concept of a transport permit and substituting instead a curfew on hours of transport of the regulated materials. 3) Electronic reporting of transactions is vital; it has got to be in a proper electronic form to be quickly sortable and searchable, which is the key to making the information useful. 4) The ordinance needs to be passed by March 1^st to beat the deadline for the state’s preemption, should the state law pass.

In response to a question about whether the local database would be discontinued should the state law create a statewide reporting database, the Sheriff indicated that the state law, if passed, would not create a comprehensive statewide database of the regulated transactions in Tallahassee. He understands that the law will require that transactions in each county be transmitted electronically to that county’s sheriff, not to a state database. The JSO already shares its data with numerous other law enforcement agencies. In response to another question about whether the proposed state and local definitions of “restricted, regulated material” are identical, the Sheriff indicated that there are some minor differences.

Chairman Bishop stated that the Rules Committee will take up this ordinance at its next regular meeting in two weeks. He urged council members desiring to propose amendments to get them drafted by the General Counsel’s Office so that the committee can consider them.

In response to a question from Council Member Crescimbeni about whether the transport curfew idea sounds legally defensible, Steve Rohan said that on its face it seemed valid. In response to another question about preemption by the state law, Mr. Rohan stated that as the law is currently pending in Tallahassee it is his understanding that a county that has an ordinance on this subject in place on March 1^st is not subject to preemption and is free to amend its ordinance in any way thereafter. Mr. Crescimbeni suggested amending the ordinance to clarify throughout that all restricted regulated items are metal items.

In response to a question from Council Member Boyer, Mr. Rohan stated that committee members may circulate draft amendments to other committee members as long as the members do not respond or communicate in a way that would constitute a Sunshine Law violation. The committee authorized the OGC to circulate draft amendments to all committee members and to the Legislative Services Division.

Meeting adjourned: 11:36 a.m.

Minutes: Jeff Clements, Council Research Division

1.25.12 Posted: 5:00 p.m.

Tape: Rules Committee workshop meeting 1.24.12

Legislative Services Division