CopyCited 6 times | Published | Court of Appeals for the Eleventh Circuit | 1994 U.S. App. LEXIS 27669
...He [or she] must, instead, have a legitimate claim of entitlement to it." Roth,
408 U.S. at 577 ,
92 S.Ct. at 2709 (emphasis added). 12 James cites three Florida statutes as the source of her entitlement to continued water service: Fla.Stat. chs.
83.67(1),
180.135(1)(a), and
180.135(4) (1993). Section
83.67(1) prohibits a landlord from directly or indirectly causing the termination or interruption of a tenant's utility service. Section
180.135(1)(a) prevents a utility from disallowing service to an owner or a tenant based on nonpayment of service charges incurred by a former occupant of the rental unit. Finally, section
180.135(4) allows a landlord to begin eviction proceedings against a tenant who fails to pay for utility services and further states that "[n]othing in this section shall ... prohibit a municipality from disconnecting service to a tenant who is in arrears 30 days or more." Fla.Stat. ch.
180.135(4) (1993)....
...e utility. The statutes contemplate that someone--either the owner or a tenant--will comply with the City's procedures for initiating water service by requesting the service, agreeing to pay for the service, and paying the required security deposit. Section 180.135(3) of the Florida Statutes assumes there will be a security deposit, allowing a utility to apply the security deposit to delinquent account balances of any occupant or tenant. Fla.Stat. ch. 180.135(3) (1993)....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit
...He [or she] must, instead, have a legitimate claim of entitlement to it.” Roth,
408 U.S. at 577 ,
92 S.Ct. at 2709 (emphasis added). James cites three Florida statutes as the source of her entitlement to continued water service: Fla.Stat. ehs.
83.67(1),
180.135(l)(a), and
180.135(4) (1993). Section
83.67(1) prohibits a landlord from directly or indirectly causing the termination or interruption of a tenant’s utility service. Section
180.135(l)(a) *1307 prevents a utility from disallowing service to an owner or a tenant based on nonpayment of service charges incurred by a former occupant of the rental unit....
...Finally, section 180.-135(4) allows a landlord to begin eviction proceedings against a tenant who fails to pay for utility services and further states that “[n]othing in this section shall ... prohibit a municipality from disconnecting service to a tenant who is in arrears 30 days or more.” Fla.Stat. ch. 180.135(4) (1993)....
...y. The statutes contemplate that someone — either the owner or a tenant — will comply with the City’s procedures for initiating water service by requesting the service, agreeing to pay for the service, and paying the required security deposit. Section 180.135(3) of the Florida Statutes assumes there will be a security deposit, allowing a utility to apply the security deposit to delinquent account balances of any occupant or tenant. Fla.Stat. eh. 180.135(3) (1993)....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit
...20 Florida statutes provide residential tenants with various protections from the wrongful termination of utility services. For example, Fla.Stat. Sec.
83.67 prohibits a landlord from interrupting a tenant's water service, directly or indirectly. 6 Section
180.135(1)(a) proscribes a municipality's refusal or discontinuance of water service to a tenant for nonpayment of service charges incurred by a former occupant. 7 Additionally, section
180.135(4) allows a municipality to discontinue service to a tenant only where the tenant fails to make timely payment and the municipality provides the tenant with a thirty-day grace period....
...However, the laws which the DiMassimo court found as evidence of such "rights" were far less supportive of a protectable property interest than the laws discussed above. 10 Significantly, the Florida Legislature's recent addition in Fla.Stat. Sec. 180.135(4) providing that a municipal utility must give tenants a grace period of thirty days prior to canceling their service for nonpayment supports this conclusion....
...The statute proscribes a municipal utility's ability to terminate a tenant's service independent of the tenant's rights or remedies against the landlord. 25 Viewing the Florida statutes as a whole, in particular the tenants' thirty-day grace period required in Fla.Stat. ch. 180.135(4), along with this circuit's observation that an actual user has a protectable property interest in water service, id....
...at 1563 n. 15. 33 Furthermore, appellees' claim that James's October 18, 1990 agreement with the utility company provided her with the requisite notice is meritless. This is so because James was entitled to a thirty-day grace period under Fla.Stat. Sec. 180.135(4)....
...on four. Even though appellant agreed that her service would be canceled if she failed to pay the $212.50 within five days of commencement of water service at her residence, James did not waive her right to the thirty-day window under Fla.Stat. Sec. 180.135(4)....
...security deposit required by the City as a condition precedent to providing water service. The majority concludes that the notice given James of this cutoff was inadequate because James "was entitled to a thirty-day grace period under Fla.Stat. Ch. 180.135(4)." 47 It is doubtful that James's contact and subsequent agreement with the City gave rise to a constitutionally protected property interest in continued water service....
...as due. 50 Despite the fact that federal law determines the adequacy of process, Loudermill,
470 U.S. at 541 ,
105 S.Ct. at 1492 , the majority erroneously finds the answer to the question of what process was due in a Florida statute, Fla.Stat. Sec.
180.135(4)....
...riod for payment of a security deposit. 51 The statute provides, in pertinent part, "[n]othing in this section shall be construed to prohibit a municipality from discontinuing service to a tenant who is in arrears 30 days or more...." Fla.Stat. Sec. 180.135(4) (West Supp.1993) (emphasis added)....
...(5) A violation of this section shall constitute irreparable harm for the purposes of injunctive relief. (6) The remedies provided by this section are not exclusive and shall not preclude the tenant from pursuing any other remedy at law or equity which the tenant may have. 7 Fla.Stat. Sec. 180.135 (1991)--Utility services provides in part: (1)(a) Any other provision of law to the contrary notwithstanding, no municipality may refuse services or discontinue utility, water, or sewer services to the owner of any rental unit or to a tenant...
...83.51 (1982),
83.54 (1973) and
83.59 (1982) 10 Effective October 1, 1987, eleven months after DiMassimo, the landlord's inability to use utility cutoff as constructive eviction was codified in Fla.Stat. Sec.
83.67 (1991). See also recent changes in Fla.Stat. ch.
180.135 (1988) 11 Appellees argue that there was no contract--express or implied--granting James a property interest....
...Clause of the Fourteenth Amendment since it did not give pre-termination notice to the actual user and entitled the user to "federal judicial relief under the provisions of [42 U.S.C.] Section 1983." Davis v. Weir,
497 F.2d 139, 145 (5th Cir.1974) 1 Section
180.135(3) of the Florida Statutes specifically contemplates a security deposit. Fla.Stat. Sec.
180.135(3) (West Supp.1993) 2 While James received one day less notice than the court required in DiMassimo, this distinction is not meaningful 3 In fact, James received an injunction against her landlady on October 26, the same day she filed an acti...
CopyPublished | Court of Appeals for the Eleventh Circuit | 1993 WL 432521
...To do this, we begin with an examination of pertinent Florida law. Florida statutes provide residential tenants with various protections from the wrongful termination of utility services. For example, Fla.Stat. §
83.67 prohibits a landlord from interrupting a tenant’s water service, directly or indirectly. 6 Section
180.135(l)(a) proscribes a municipality’s refusal or discontinuance of water service to a tenant for nonpayment of service charges incurred by a former occupant....
...However, the laws which the DiMassimo court found as evidence of such “rights” were far less supportive of a protectable property interest than the laws discussed above. 10 Significantly, the Florida Legislature’s recent addition in Fla.Stat. § 180.135(4) providing that a municipal utility must give tenants a grace period of....
...The statute proscribes a municipal utility’s ability to terminate a tenant’s service independent of the tenant’s rights or remedies against the landlord. Viewing the Florida statutes as a whole, in particular the tenants’ thirty-day grace period required in Fla.Stat. ch. 180.135(4), along with this circuit’s observation that an actual user has a protectable property interest in water service, id....
...at 1563 n. 15. Furthermore, appellees’ claim that James’s October 18, 1990 agreement with the utility company provided her with the requisite notice is meritless. This is so because James was entitled to a thirty-day grace period under Fla.Stat. § 180.135(4)....
...section four. Even though appellant agreed that her service would be canceled if she failed to pay the $212.50 within five days of commencement of water service at her residence, James did not waive her right to the thirty-day window under Fla.Stat. § 180.135(4)....
...(5) A violation of this section shall constitute irreparable harm for the purposes of injunctive relief. (6) The remedies provided by this section are not exclusive and shall not preclude the tenant from pursuing any other remedy at law or equity which the tenant may have. . Fla.Stat. § 180.135 (1991)—Utility services provides in part: (l)(a) Any other provision of law to the contrary notwithstanding, no municipality may refuse services or discontinue utility, water, or sewer services to the owner of any rental unit or to a ten...
...§§
83.51 (1982),
83.54 (1973) and
83.59 (1982). . Effective October 1, 1987, eleven months after DiMassimo , the landlord’s inability to use utility cutoff as constructive eviction was codified in Fla.Stat. §
83.67 (1991). See also recent changes in Fla.Stat. ch.
180.135 (1988)....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 7879, 1990 WL 154893
...After it had done so, and the lessees had departed without paying the bills, the city, acting pursuant to its own ordinances, 1 filed liens for those services against Berke’s fee interest in the realty. He filed an action to discharge the liens essentially on the ground that they were proscribed by section 180.135, Florida Statutes (1987), which provided: 2 *109 180.135 Utility services; refusal or discontinuance of services for nonpayment of service charges by former occupant of rental unit prohibited; unpaid service charges of former occupant not to be basis for lien against rental property, exception....
...This section applies only when the former occupant of the rental unit contracted for such services with the municipality. In our view, an application of the terms of the statute to the present circumstances clearly demonstrates that Berke’s position was correct. In no uncertain terms, section 180.135 forbids the imposition of a lien against rental property for unpaid service charges when the “former occupant,” that is the previous lessee, has contracted for those services directly with the municipality....
..., we do not agree. But it is irrelevant whether we do so or not. We simply have no power to decline to enforce, for whatever reason, the clear terms of a dispositive statutory provision. 49 Fla. Jur.2d Statutes § 110. Because of the requirements of section 180.135, Florida Statutes (1987), the judgment below is reversed and the cause remanded to enter judgment for the plaintiff....
...t the real property aforesaid, and, until fully paid and discharged, shall remain liens equally in rank and dignity with liens acquired by virtue of the city charter. As applied to a case like this, a lien imposed under this ordinance is contrary to §
180.135, Fla.Stat. (1987) and is thus invalid. See Rinzler v. Carson,
262 So.2d 661 (Fla.1972). . Amendments to the statute, see Chs. 89-272, 88-332, Laws of Fla., enacted after the events in *109 issue here, did not materially alter this provision. See §
180.135, Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 20211, 2012 WL 5869997
PER CURIAM. The issue in this case is whether section 180.135, Florida Statutes (2010), precludes a city from requiring landlords, but not their tenants, to contract with the city for water and sewer services....
...The City acts under the authority of Section 70-4(c) of the City of North Lauderdale’s Code of Ordinances, which provides: Water, sewer and stormwater management accounts shall be established in the name of the property owner. Jass contends that the ordinance conflicts with section 180.135, Florida Statutes (2010), which provides in pertinent part: (l)(a) Any other provision of law to the contrary notwithstanding, no municipality may refuse services or discontinue utility, water, or sewer services to the owner of any re...
...tate statute impossible.” Jordan Chapel Freewill Baptist Church v. Dade Cnty.,
334 So.2d 661, 664 (Fla. 3d DCA 1976). If so, then the type of direct conflict exists that invalidates the ordinance. This case does not involve such a direct conflict. Section
180.135 does not expressly prohibit the City from declining to contract with tenants for water utility services and restricting service agreements to property owners....
CopyAgo (Fla. Att'y Gen. 1994).
Published | Florida Attorney General Reports
municipality, subject to the limitations of section
180.135, Florida Statutes, grant automatically perfected
CopyAgo (Fla. Att'y Gen. 1990).
Published | Florida Attorney General Reports
Mr. Richard R. Michelson City Attorney City of Lauderhill Suite 200 7101 West McNab Road Tamarac, Florida 33321 Dear Mr. Michelson: You have asked on behalf of the City of Lauderhill substantially the following question: Does s. 180.135 , F.S., prevent a municipality from accepting applications for utilities services only from the owners of rental property, excluding applications from tenants of such property? In sum: While s. 180.135 , F.S., on its face, does not contain a prohibition against municipalities restricting utility services to rental units only when the owner of the rental unit applies for the services, such action by a municipality would appear questionable in circumventing the purpose for the statute's enactment. Section 180.135 (1)(a), F.S., provides: Any other provision of law to the contrary notwithstanding, no municipality may refuse services or discontinue utility, water, or sewer services to the owner of any rental unit or to a tenant or prospective ten...
...any lien against the rental property or legal action against the present tenant or owner to recover such charges except to the extent that the present tenant or owner has benefited directly from the service provided to the former occupant. Thus, in s. 180.135 , F.S., the Legislature has limited a municipality's authority to refuse to provide or to discontinue utility services to the owners, tenants or prospective tenants of rental property, based upon the nonpayment for services by a previous tenant. Section 180.135 , F.S., on its face, does not address procedures or limitations which a municipality may impose upon applications for utility services to rental units, regardless of the previous tenants' payment history. It should be noted, however, that s. 180.135 , F.S., 1 was created in order to eliminate any liability of rental property owners who have tenants who default on service payments and to assure utility service to new tenants who move into a rental unit which was formerly occupied by a tenant in default. 2 The legislative history of s. 180.135 , F.S., reflects that rental property owners would benefit from passage of the legislation in that they historically were forced to pay delinquent utility charges of former tenants in order to avoid imposition of a lien 3 or in order to have the utility services restored for a new tenant. 4 Section 180.135 , F.S., was amended during the 1988 Legislative Session 5 in response to some municipal utilities requiring property owners to sign a contract agreeing to be liable for a tenant's utility bill as a precondition to providing services to a rental unit....
...es incurred" and to "close loopholes . . . used to force some property owners to pay for charges which they did not incur and over which they ha[ve] no control." 7 It would appear that one of the primary reasons for the creation and clarification of s. 180.135 , F.S., is to prevent the owner of rental property from being forced to assume liability for payment of services provided to tenants of the rental unit. Thus, to implement a plan as you propose would subvert the purpose for which s. 180.135 , F.S., was passed and would improperly result in allowing a municipality to do indirectly what it is statutorily prohibited from doing directly....
...Applying general principles of constitutional equal protection to such a situation would mean that all utility customers similarly situated, such as residential electrical customers, would be treated alike. 11 Accordingly, it is my opinion that, while s. 180.135 , F.S., on its face, does not address whether a municipality may restrict applications for utility services to owners of property, such restrictions would not be advisable in that they would subvert the purpose of the statute....
...by a court of competent jurisdiction. Sincerely, Robert A. Butterworth Attorney General RAB/tls 1 Section 1, Ch. 84-292, Laws of Florida, created s.
166.045 , F.S., as part of the Municipal Home Rule Powers Act; s.
166.045 , F.S., was renumbered as s.
180.135 , F.S....
...3 Section
159.17 , F.S., provides that any municipality issuing revenue bonds pursuant to Ch. 159 , F.S., shall have a lien on all lands or premises served by any water system, sewer system or gas system for all service charges for such facilities until paid. In AGO 85-70, this office concluded that s.
180.135 , F.S., operates prospectively and does not affect liens imposed prior to its effective date or liens resulting from nonpayment of services which were financed by revenue bonds issued prior to the effective date of s.
180.135 , F.S., pursuant to s....
CopyAgo (Fla. Att'y Gen. 1985).
Published | Florida Attorney General Reports
provisions of s.
180.135 is not limited to Ch. 180. Section
180.135, F.S. (1984 Supp.), clearly prohibits a municipality
CopyAgo (Fla. Att'y Gen. 1985).
Published | Florida Attorney General Reports
...Herbert Elliott City Attorney City of Tarpon Springs Suite 17, 101 West Court Street Post Office Box 1575 Tarpon Springs, Florida 34286-1575 Dear Mr. Elliott: This is in response to your request for an Attorney General's Opinion regarding substantially the following question: ARE THE PROVISIONS OF s 180.135 , F.S. (1984 SUPP.), APPLICABLE TO UTILITY SERVICE CHARGES INCURRED PRIOR TO THE EFFECTIVE DATE OF THIS SECTION? Section 180.135 , F.S....
...as benefited directly from the service provided to the former occupant. This section applies only when the former occupant of the rental unit contracted for such services with the municipality. The title of Ch. 84-292, Laws of Florida (codified as s 180.135 , F.S....
...s already existing; such statutes are generally held to operate retrospectively unless such operation or application would adversely affect substantive rights. See , 82 C.J.S. Statutes s 416; City of Lakeland v. Catinella,
129 So.2d 133 (Fla. 1961). Section
180.135 , F.S....
...Compare , AGO 70-49 which concluded that s
159.17 , F.S., did represent remedial legislation susceptible of retroactive application as this section provided an additional remedy for collecting utility service charges. I have examined the provisions of s
180.135 , F.S....
...the rental property except to the extent that the present owner or tenant benefited directly from the service provided to the former occupant. In sum, it is my opinion, until legislatively or judicially determined otherwise, that the provisions of s 180.135 , F.S....
...iscontinue utility, water or sewer services to the owner of any rental unit or to a tenant or prospective tenant of such rental unit for nonpayment of service charges incurred by a former occupant of the rental unit following the effective date of s 180.135 , F.S....
