Peak v. City of Tuscaloosa

Decision Date29 April 2011
Docket NumberCR–09–0805.
Citation73 So.3d 5
CourtAlabama Court of Criminal Appeals


Mary Virginia Buck, Northport, for appellant.

Timothy H. Nunnally, Tuscaloosa, for appellee.

WELCH, Presiding Judge.

Benson W. Peak was convicted in the Tuscaloosa Municipal Court of failing to register a wastewater system, i.e., a septic tank, a violation of §§ 13–51(3) and (16) of the Tuscaloosa Municipal Code. He appealed for a trial de novo in the circuit court and, after a jury trial, was again convicted of failing to register a wastewater system. The circuit court ordered him to pay a $250 fine plus court costs.

The undisputed evidence presented at trial indicates that Peak owns property in the drainage basin1 of Lake Tuscaloosa located within the police jurisdiction of the City of Tuscaloosa (“the City”).2 Peak has a septic tank on his property; he did not register that septic tank with the City in accordance with § 13–51(3) of the Tuscaloosa Municipal Code, as amended by ordinance no. 6943,3 which provides:

“Registration. On or before August 31, 2006, all Owners within the Drainage Basin upon which is located an onsite wastewater system shall register the same with the Lakes Division [the City of Tuscaloosa's Water and Sewer Department's Division of Lakes]. On each occasion of a change in ownership of property within the Drainage Basin upon which is located an onsite wastewater system, the Owner of such property shall register the same with the Lakes Division.”(C. 308.) Section 13–51(16) of the Tuscaloosa Municipal Code, as added by ordinance no. 6665 and amended by ordinance no. 6943, provides, in relevant part, that [i]t shall be unlawful to fail to register as required in Sec. 13–51(3).” (C. 308.) In addition, § 1–8(a) of the Tuscaloosa Municipal Code provides, in relevant part:

“Whenever in this Code, or in any ordinance of the city, an act is prohibited or is made or declared to be unlawful or an offense or a misdemeanor, whenever in such code or ordinance the doing of any act is required, or the failure to do any act is declared to be unlawful, where no specific penalty is provided therefor, the violation of any such provision of this Code or any such ordinance shall be punished by a fine of not more than five hundred dollars ($500.00), to which may be added in the discretion of the judge of the court trying the case, confinement in the city jail or to hard labor for the city for a period not exceeding six (6) months....”

(C. 324.) The purpose of enacting § 13–51 is set out in ordinance no. 6619, as follows:

“WHEREAS, Lake Tuscaloosa (Lake) is the most vital capital asset of Tuscaloosa County. Completed in 1970, the Lake consists of 5,885 acres with a full pool capacity of 40 billion gallons of water and a withdrawal capability of 200 millions gallons per day. The Lake serves a critical role as the primary source of drinking water for the vast majority of the population of Tuscaloosa County. In addition, the Lake also functions as a major public recreational center for many residents and visitors; and,

“WHEREAS, over the last thirty (30) years there has been significant residential and commercial development in and around the Lake with the majority of the development activity utilizing septic tanks for sanitary sewer disposal. Within the Lake's entire drainage basin more development is also taking place, including agricultural and commercial activities and the domestic use of herbicides, fertilizer and pesticides have increased with development as well; and,

“WHEREAS, on January 22, 2004, the Tuscaloosa County Health Department (Department) presented a report to the City Council of the City of Tuscaloosa (City) as the owner of the Lake, entitled Tuscaloosa County Board of Health, Lake Tuscaloosa Plan’ (Plan). The Plan reported that ongoing monitoring of the water of the Lake ‘demonstrated higher than normal bacterial and other quality standards. There were several locations which exceeded the recommended level of fecal coliform bacteria for “full body contact” by the EPA [Environmental Protection Agency].’ The Plan proposed a public notification program to post notices of water quality findings. In addition, the Department made specific recommendations to the City to address, on a long term basis, sources of pollution and contamination to the Lake which are identified as being primarily failing septic tanks, lack of use of Best Management Practices (BMP) for site development and the use of herbicides, fertilizers and pesticides; and,

“WHEREAS, as a consequence of these events, the City Council has determined that it is imperative to protect the public health, safety and welfare by enacting certain regulations regarding the installation, operation, and maintenance of onsite wastewater systems in the drainage basins of the City's water supply reservoirs.”

(C. 278.)

Before trial, Peak moved to dismiss the complaint against him charging him with failing to register his septic tank, alleging that § 13–51 was invalid. Specifically, he argued: (1) that the City did not have the authority to enact an ordinance to protect its municipal water supply because, he said, providing water to its citizens is a proprietary function of a municipality and not a governmental function; (2) that the entire field of wastewater regulation has been preempted by state law; (3) that § 13–51 violates principles of due process and equal protection under both the United States and Alabama Constitutions because, he said, it does not bear a rational relation to a legitimate governmental interest; and (4) that § 13–51(3) violates the Fifth Amendment of the United States Constitution because, he said, it requires that he provide information of an incriminating nature. The trial court did not conduct an evidentiary hearing on Peak's motion, but allowed the parties to file extensive briefs, with exhibits attached, and then issued a written order denying Peak's motion, finding all of his challenges to § 13–51 to be meritless.

Peak reasserts on appeal all of his challenges to the validity of § 13–51. Before addressing those specific arguments, we note that Peak's arguments appear to challenge not only the registration requirement in § 13–51(3), which he was convicted of violating by virtue of § 13–51(16), but also a service requirement in § 13–51(6) of the Tuscaloosa Municipal Code, as amended by ordinance no. 6665, which requires service and inspection of all septic tanks within the drainage basin every three years and certification to the City that such service and inspection has been completed.4 However, as the City pointed out in its brief in response to Peak's motion to dismiss, because Peak was never charged with or convicted of violating § 13–51(6), he has no standing to challenge that section. See J.L.N. v. State, 894 So.2d 738, 741 n. 3 (Ala.Crim.App.2002) (“In addition to challenging § 15–20–26(b), Ala.Code 1975, under which he was indicted, the appellant also appears to argue that §§ 15–20–23, 15–20–25, and 15–20–26(a), (c), and (d), Ala.Code 1975, are unconstitutional. However, he was not charged with violating any of those provisions of the [Community Notification Act]. Therefore, he does not have standing to challenge those provisions, and we will not review his constitutional challenges regarding those provisions.”), rev'd on other grounds, 894 So.2d 751 (Ala.2004); and State v. Wilkerson, 54 Ala.App. 104, 105, 305 So.2d 378, 380 (1974) (“ ‘As a general rule, in criminal prosecution, accused has the right to assert the invalidity of the law, regulation, or rule under which he is being prosecuted [but] ... [a]n accused affected by one portion of a statute may not plead the invalidity of another portion of the same statute not applicable to his case ...’ ” (quoting 16 C.J.S. Constitutional Law § 84)). See also Byrd v. State, [Ms. CR–07–0113, May 1, 2009] ––– So.3d –––– (Ala.Crim.App.2009); and Taylor v. State, 442 So.2d 128 (Ala.Crim.App.1983). Therefore, we do not consider or address Peak's arguments to the extent they relate to § 13–51(6).

Standard of Review

“An appellate court reviews the legislative actions of a municipality in an extremely deferential manner.” City of Attalla v. Dean Sausage Co., 889 So.2d 559, 565 (Ala.Civ.App.2003). [M]unicipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable.” Cudd v. City of Homewood, 284 Ala. 268, 270, 224 So.2d 625, 627 (1969). “Municipal ordinances are presumed to be validly and properly enacted and unless invalid on its face the burden is upon the person attacking one to show its invalidity.” Burnham v. City of Mobile, 277 Ala. 659, 662, 174 So.2d 301, 303 (1965). In addition, [o]ur review of constitutional challenges to legislative enactments is de novo.” Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001).


Peak contends that the City lacked the authority to enact and enforce § 13–51(3) because, he says, in doing so, the City was acting in a proprietary function, not a governmental function. According to Peak, supplying water to its residents is a proprietary, not a governmental, function of a municipality, and a municipality has no authority to enact ordinances related to, or in furtherance of, a proprietary function.

“A municipal corporation is but a creature of the State, existing under and by virtue of authority and power granted by the State.” Hurvich v. City of Birmingham, 35 Ala.App. 341, 343, 46 So.2d 577, 579 (1950). A municipality “derives all of its power from the state, and no municipality can legislate beyond what the state has either expressly or impliedly authorized.” Arrington v. Associated Gen. Contractors of America, 403 So.2d 893, 902 (Ala.1981). Put another way, [m]unicipal corporations may exercise only such powers as are expressly granted to...

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