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Articles by Topic
Fire Rescue Fee
Coverage from 1998 to present.
Reprinted from BHA News, Vol. XVI, No. 1 Spring 2006
 President’Äôs Column By T. Sinclair (Tory) Jacobs
The Fire Rescue Fee Fiasco - Lessons to be Learned
The Fire Rescue Fee Fiasco reminds me of the movie title ’ÄúSex, Lies & Videotape’Äù without the sex and without the videotape.
Although Judge Lopez has made his ruling on this case and said the unsavory settlement cannot stand and a class action may move forward, it’Äôs important that you, BHA members, know the BHA involvement.
A bit of history... In 1998 a consulting firm set up by an up-state law firm came up with a scheme that would enable Florida municipalities to circumvent their ad valorem tax caps by generating fees through special assessments. This is like offering a scheme to rob banks and then not be liable for prosecution. Everybody knows that bank robbery is a felony. Stealing from taxpayers is even more heinous.
The City of Miami ’Äì then under severe financial pressure ’Äì succumbed to the temptation and voted to enact the Fire Rescue Fee, though strongly opposed by BHA and other community organizations. We were early supporters of TTUFF (Tenants & Taxpayers United For Fairness) an umbrella organization formed to have the fee rescinded, get the funds returned to the taxpayers and to fund an initiative requiring any and all fee legislation be authorized by referendum. BHA contributed to the legal fees by a check for $2,500 to the law firm retained to represent TTUFF.
Initially, we were successful. The City Commission voted 4-1 to repeal the Fee, but the Governor's Oversight Board (then in control) ordered the City to re-instate the Fee.
Speeding forward from 1998 to 2004, the believed-to-be class action proceeded through the Florida courts and the Fee was finally declared unconstitutional. At this point, the City of Miami was defenseless against an action to refund the Fire Rescue Fees paid.
The law firm originally retained by TTUFF had been merged into the Miami firm, Adorno & Yoss. For reasons unknown, the class action status had not been certified by the Court, so that five members of TTUFF were the only plaintiffs. There is conflicting testimony as to how the settlement came about, but it is generally agreed that the City of Miami’Äôs legal department, acting under the impression that they were responsible for protecting the City’Äôs financial interests, not the City taxpayers’Äô interests, came up with a settlement scheme. This plan would cost the City only $7 million and by delaying settlement, permit the statute of limitations to run out, precluding additional claims.
This might be considered astute ’Äúlawyering’Äù in a corporate environment, but it is a mistake in judgment for a municipality.
For the $7 million settlement plan to work required what appears to be collusion between the City and the law firm supposedly representing Fire Rescue Fee payers by keeping the settlement agreement under wraps, a violation of the Sunshine Law.
I am personally most offended by the small group of dedicated civic activists who were founders of TTUFF and who in the end succumbed to greed.
We submit the following lessons:
1) If it starts with a taint, it’Äôs hard to get rid of the smell.
2) Operating a city as if it were a business works just so far.
3) Enough money can corrupt some of the best of us.
4) Collusion between both sides in a legal matter, especially when quarter-backed by an attorney who had been retained to represent the citizens, the taxpayers, the wronged public gives off a strong aroma, actually a stench, if you will.
It is too soon to tell if any of these lessons have been learned.
Back to top
Reprinted
from BHA News, Summer 2000
Controversial Fire Rescue Fee
Struck
Down
This
judicial ruling just in on a special assessment in North
Lauderdale nearly identical to Miami's "Fire Rescue Fee."
The word: illegal.
This has been BHA's belief, and the legal
position of the warriors at BHA ally, TTUFF (Tenants and Taxpayers
United For Fairness, Inc.), ever since the City enacted the fee
in 1998. TTUFF's subsequent class action suit against the City
of Miami has been slowly making its way through the legal process,
while in the meantime, Brickell residents and all other homeowners
in Miami have been paying an annual Fire Rescue Fee, now up to
$61 per household.
The mid-June Fourth District Court of
Appeal's finding, however, determined that the fee imposed by
the City of North Lauderdale was not a valid special
assessment.
All the Way To the Top
"The case has been
certified for hearing to the Florida
Supreme Court
as a matter of "great public importance,"
TTUFF reported, "a major victory for opponents of illegal
taxes disguised as special assessments."
The case hasn't yet made it to court in
Miami, however, this legal precedent in North Lauderdale has
spurred TTUFF to ask the City to discuss how to rectify the
situation.
"The City of North Lauderdale's special
assessment is identical to the City of Miami's special
assessment,"
TTUFF attorney Eric Lee wrote to
City Attorney Charles Mays in
late June. "The
City of Miami's special assessment includes
a
provision for emergency medical services. The Fourth District
found: 'as a matter of law, the emergency medical services component
of the integrated fire rescue program at issue in this case did
not provide a special benefit to the assessed properties,'"
Lee advised.
Refunds Could Break the Bank
Miami's motion for dismissal
will be thrown out, Lee asserts,
and with the
seeking of class certification "the implications
of this decision on the City of Miami are
enormous."
In consideration of not pursuing refunds
for the years the tax has been collected, TTUFF would like to
see the City agree to put a Charter change on the ballot that
would mean all future special taxes are possible only if they
gain voter approval at the polls. The City has not yet responded
to this notion.
Assessments like the Fire Rescue Fee have
become means for governments to increase revenues without exceeding
constitutionally mandated property tax caps. As stated the TTUFF
Web site by its president, Peter J. Clancy:
"A new and pervasive form of taxation
without representation has arisen in Florida. Under the guise
of special assessments and user fees, local governments have
found a remarkable new tool to circumvent constitutional millage
caps ... and they are using
it!"
TTUFF expects the City of Miami's Motion
To Dismiss and Summary Judgement to be denied in early August.
After that, City of Miami depositions will begin at which City
officials will be questioned on their knowledge of facts and
circumstances leading to adoption of fire fee special
assessment.
While questioning its constitutionality
from the beginning, readers may recall that BHA initially battled
the inequity of the Fire Rescue fee, assessed differently for
single-family and condo homeowners. Eventually, BHA prevailed
to win a more equitable levy, however, BHA directors never gave
up the battle over the legality of the fee, seeing it simply
as "an end-run around the ad valorem tax."
Many agree with TTUFF's synopsis of the
fee: "The fire rescue special assessment is no more than
a convenient means of generating new revenue for the City's general
fund. Of the $11 million raised in the current fiscal year, only
$4.2 million went directly to the Miami Fire Rescue Department
for equipment purchases. The remainder went into a general fund
used to run City government."
For more details, see
TTUFF Web site.
Reprinted
from BHA News, Spring 1998
Fire Rescue Fee: Reasonable or Dangerous
Precedent? Neighbors Fear Floodgate Opened
For some, the battle of the Fire Rescue
Fee is settled. The final amount of the fee seems much more
palatable
than the proposed $160 a year a mere $24
for condominium and
single-family
owners.
The tax
is also being imposed more equitably
than
originally proposed condo, apartment and single-family
owners will all pay, rather than just condo and apartment
owners.
Further,
the fee is being used for capital
improvements of
the fire rescue service (new trucks and renovated
stations), and will end in five years, Commissioner JL Plummer
said, which some find reassuring and reasonable.
But for many, the battle of the Fire Rescue
Fee is far from over. The legal challenges have begun by a number
of parties who contend the fee is an additional tax, "an
end run around ad valorem taxes," illegal and unconstitutional.
Any amount, even one penny, levied in this way is unacceptable,
opponents contend.
The Coalition of Real Estate Owners and
Organizations, CREOO, and Taxpayers and Tenants United For Fairness,
TTUFF, have filed suit and vowed to fight all the way to the
Florida Supreme Court. It may become a class action
suit.
The
Brickell Homeowners Association worked
with these
groups to help defeat the tax back in late February.
When the City Commissioners reinstated a reduced fee in April,
the coalition came together again.
The implications of this Fire Rescue Fee
"affects anyone in the city and in the state," Judy
Clark, a TTUFF leader said.
When the Florida Legislature passed the
bill in 1996 allowing "special assessments" the floodgate
was opened. "Any municipality or county can charge anybody
anything and can use it for any purpose," Ms. Clark said.
"Any fee, any time, no cap, no limit."
Indeed, that does seem to be the way the
language of the law reads. (See side-bar below.)
Are there really limits?
Opponents of the fee say that some of
the reassurances residents have been told are not actually the
case: The $24 per year amount could actually go up to $48 per
year. The Commission did not specify in the language of the
ordinance
that the collected revenues would only go
for capital improvements,
Ms. Clark said. Plus, the
five-year sunset can be lifted anytime
with a vote
by the Commission, she said.
Clearly it is Commissioner Plummer's intent
that the new revenue be used for new rescue vehicles and that
it is "guaranteed for five years only."
Ten new rescue trucks have been ordered
and another 10 will be ordered, Commissioner Plummer reported
to BHA Directors May 20th. Those trucks respond to 70,000 calls
a year. They need to be upgraded and kept current to keep the
excellent service they provide, the Commissioner said.
Pay and Protest
In the meantime, where does this leave
homeowners?
Homeowners should pay the fees while the
case makes its way through the legal system, Sheila M. Anderson,
a CREOO leader, advised. The legal victory may be a number of
years down the road and refunds would be made then. If the fee
isn't paid, an owner could have a lien filed against his or her
property, she explained, which no one wants.
Residents interested in joining the suit
are invited to call Ms. Anderson at (305) 579-0022.
West's
Florida Statutes Annotated
Title XII. Municipalities Chapter 170.
Supplemental And Alternative Method of Making Local Municipal
Improvements
170.201. Special
Assessments
(1) In addition to other lawful authority
to levy and collect special assessments, the governing body of
a municipality may levy and collect special assessments to fund
capital improvements and municipal services, including but not
limited to, fire protection, emergency medical services, garbage
disposal, sewer improvement, street improvement, and parking
facilities. The governing body of a municipality may apportion
costs of such special assessments based on:
(a) The front of square footage of each
parcel of land; or
(b) An alternative methodology, so long
as the amount of the assessment for each parcel of land is not
in excess of the proportional benefits as compared to other
assessments
on other parcels of land.
(2) Property owned or occupied by a religious
institution and used as a place of worship or education or by
a public or private elementary, middle, or high school shall
be exempt from any special assessment levied by a municipality
to fund emergency medical services if the municipality so desires.
As used in the subsection, "religious institution"
means any church, synagogue, or other established physical place
for worship at which nonprofit religious services and activities
are regularly conducted and carried on.
Courtesy of Atlas, Pearlman,
Trop, Borkman, et al
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