2.6 COLLECTION METHODS

2.6.1 Utility Billing

For those local governments which have pre-existing utility billing systems or which are prepared to establish billing systems, FLA. STAT., § 403.0893(1) specifically authorizes an additional utility fee for stormwater services.

In State v. City of Miami, 27 So.2d 118 (Fla. 1946), the Supreme Court of Florida approved a City ordinance which allowed the shutoff of water service if a customer failed to pay for sewer service. The Court found the services to be so interlocked that neither could be effective without the other.

In contrast, Edris v. Sebring Utilities Commission, 237 So.2d 585 (Fla. 2d D.C.A. 1970) held that a city could not require water customers outside its boundary to purchase electricity from the City, because the services were not interlocked. More important, the customers were not subject to the governmental control of the City.

In the case of customers within the territory of a local government, there should be no legal objection to the tie-in of billing. Moreover, in Sebring Utilities Commission v. Home Savings Association of Florida, 508 So.2d 26 (Fla. 2d D.C.A. 1987), the Court held that a mandatory tie-in was permissible so long as the policy was uniformly administered.

Charges may be imposed for the service or the availability of the service, whether or not a benefited property is occupied, and a lien may be imposed for the unpaid bill. Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st D.C.A. 1977). A lien may also be imposed for unpaid special assessments, and such a lien is superior to a first mortgagee's lien on the property. Gleason v. Dade County, 174 So.2d 466 (Fla. 3d D.C.A. 1965).

2.6.2 Non-ad valorem assessments (uniform method)

For those local governments which do not have pre-existing billing systems, it may be more economical to utilize the uniform method of levy, collection and enforcement of non-ad valorem assessments provided by Florida Statutes, Chapter 197.

Article X, §4 of the Florida Constitution provides that homesteads shall be exempt from forced sales or liens, except for the payment of taxes and assessments thereon.

FLA. STAT., § 197.3632 (1) (d) authorizes such assessments to be collected on the annual property tax bill, along with ad valorem taxes, if the procedures of that section are followed.

In order to utilize the uniform method of collection for the first time, a local government must first advertise notice of its intent to utilize that method for four consecutive weeks. Then the local government must adopt a resolution, prior to January 1 of the year in which the method is to be utilized, and send a copy to the property appraiser and the tax collector by January 10 (By agreement of the appraiser and tax collector, these times may be delayed to March 1 and March 10, respectively).

It is the responsibility of the property appraiser to provide, by June 1, a list of the names and addresses of the owners of record of the affected properties. The local government may adopt an assessment roll at a public hearing anytime between June 1 and September 15. The local government must advertise a notice of the hearing at least 20 days prior to the hearing, and must send notice by first-class mail to every person owning property which will be subject to the assessment. The notice must set forth the amount to be levied on the parcel; the unit of measurement being utilized; the number of those units contained in the owner's parcel; the total expected to be collected; the property owner's right to be heard in person or in writing and the date, time and place of the hearing; and a statement that the failure to pay the assessment will cause a tax certificate to be issued and may result in loss of title to the property.

After the public hearing, the local government board adopts the assessment roll, approving the final unit of measurement and the total amount of the assessment. The chair must then certify the roll to the tax collector. Ordinarily, notice of the final non-ad valorem assessment will be combined with the notice of ad valorem taxes required in FLA. STAT., § 197.3635.

The notice requirements of that statute are critical. In Atlantic Gulf Communities Corp. v. City of Port St. Lucie, 764 So.2d 14 (Fla. 1^st D.C.A. 1999), the City succeeded in its claim that any stormwater utility charge, whether a user fee or a special assessment, may be collected via the annual non-ad valorem assessment method. But the Court invalidated the particular assessment as to succeeding years, because the City had failed to give proper notice to all affected property owners that the assessment would be recurring in subsequent years. Moreover, the decision held that any increase in the assessment for a subsequent year would require renotification as if it were a "new" assessment. In a related case, City of Port St. Lucie v. Zlinkoff, 821 So.2d 1130 (Fla. 4^th D.C.A. 2002), the Court held that the challenging parties were entitled to a retroactive refund of their assessments for all years in which inadequate notice of assessments had been given by the City.