Florida/Georgia Personal Injury & Workers Compensation

...Leon Stromire, of Stromire, Westman, Lintz & Baugh, and William R. Clifton, of Antoon & Clifton, Cocoa, for appellee. SUNDBERG, Justice. This matter is before us upon appeal from the Circuit Court of the Eighteenth Judicial Circuit, in and for Brevard County, Florida, which upheld the constitutionality of Section 180.191, Florida Statutes....

...cause of action. On February 28, 1975, the circuit court granted the motion to dismiss without leave to amend. The court held (1) none of the adjusted rates charged non-city resident users exceeded 1.5 times the rate charged city resident users; (2) Section 180.191(1)(b), Florida Statutes, authorizes cities to charge non-city resident users 1.5 times the rates charged city resident users; and (3) plaintiffs had to seek their remedy in the Legislature and not in the court....

...Thereafter, plaintiffs filed a motion for rehearing and asked leave to amend their pleadings to at least allege the unconstitutionality of the statute. The lower court entered its order on May 12, 1975, granting plaintiffs' motion for leave to amend to allege the unconstitutionality of Section 180.191, Florida Statutes, and denying with prejudice plaintiffs' motion for rehearing and their prayer to declare the statute at issue to be unconstitutional. In addition to the constitutionality of Section 180.191, Florida Statutes, the points raised on this appeal are: (i) whether the allegations of the complaint state a cause of action and (ii) whether this suit may be maintained as a class action. *424 Section 180.191, Florida Statutes, reads in pertinent part: "Limitation on rates charged consumer outside city limits....

...rs of the water or sewer systems, owners, tenants, or occupants of property served or to be served thereby, and all others interested shall have an opportunity to be heard concerning the proposed rates, fees, and charges... ." Appellants submit that Section 180.191, Florida Statutes, violates Sections 2 and 9 of Article I of the Constitution of Florida....

...d to the common law rule that utility rates must be reasonable and nondiscriminatory on the premise that the Legislature had not acted to regulate utility rates. The nub of the question, then, is whether the Legislature has exceeded its authority in Section 180.191, Florida Statutes, by authorizing a municipality to add a surcharge of not more than 25% of municipally fixed rates to consumers outside the boundaries of the municipality. Under Subsection 180.191(1)(a), Florida Statutes, the rate to which the 25% surcharge may be added is the rate charged to consumers inside the municipal boundary. Whereas, under Subsection (b) of 180.191(1) the rate to which the surcharge may be added is to be a just and equitable rate which is based on the same factors used in fixing the rates, fees and charges for consumers inside the municipal boundaries. In the case of Subsection (b), the municipality is required to hold a public hearing at which all of the users of the service and all others interested shall have an opportunity to be heard. As a limiting condition on rates set under Subsection 180.191(1)(b), Florida Statutes, the Legislature has provided that the total of such rates for services to consumers outside the boundaries of the municipality shall not be more than 50% in excess of the total amount the municipality charges consumers served within the municipality for corresponding service....

...such additional costs exist, and that they include substantial expenditures for capital improvements which are brought about by the demand of non-city residents. We believe further that it was in response to this problem that the Legislature enacted Section 180.191, Florida Statutes, which authorizes a surcharge not exceeding 25%, but at the same time limits rates charged to consumers outside municipal limits to not more than 50% in excess of the rates charged consumers served within the municipality. This is not such unreasonableness or discrimination referred to in Tampa Electric Co. v. Cooper, supra , as to invoke action by the courts to hold Section 180.191, Florida Statutes, unconstitutional. Nonetheless, was the trial court correct in dismissing the appellants' complaint with *426 prejudice? We believe not. Subsection 180.191(1)(b), Florida Statutes, provides a procedure, after hearing, for establishing rates, fees and charges which are "just and equitable and which are based on the same factors used in fixing the rates, fees, and charges for consumers ins...

...tes for city customers. The trial judge apparently concluded that such allegations were immaterial because none of the adjusted rates charged non-city resident users exceeded 1.5 times the rate charged city resident users. But the requirements of Subsection 180.191(1)(b), Florida Statutes, are twofold: (1) The rates must be just and equitable and based on the same factors used in fixing the rates for consumers inside the municipal boundaries; and (2) The rates shall not be more than 50% in exces...

...as appropriate for the trial judge to deny a motion for summary judgment when there existed a genuine issue of fact as to whether the City could show that its 50% additional rate charged to non-city users was based on cost factors in compliance with Section 180.191, Florida Statutes. See Hunger v. City of Zephyrhills, 307 So.2d 487 (2d D.C.A.Fla. 1975). The appellants in the instant case have pleaded that the rates established by appellee failed to meet the first criteria of Subsection 180.191(1)(b), Florida Statutes, enumerated above....

...more nearly comports with practicality and the established rules affecting burden of proof. One who asserts a fact ordinarily has the burden of proving that fact. Additionally, we believe that a municipality which has utilized the provisions of Subsection 180.191(1)(b), Florida Statutes, should not be required to come forward to prove the efficacy of its rates unless and until a dissatisfied customer has made a prima facie showing based on competent evidence of invalidity. Regarding the remaining point raised in this appeal, although we observe no proscription in Section 180.191, Florida Statutes, against class actions by dissatisfied consumers, the propriety of a class action is not ripe for review in this appeal....

...due process clauses of the constitutions of the State of Florida and the United States and the equal protection clause of the constitution of the United States. We reject this contention. This Court, in upholding an analogous surcharge authorized by section 180.191, Florida Statutes (1973), held that a twenty-five percent surcharge on non-resident municipal water customers was not unreasonable, discriminatory, or unconstitutional....

...rates charged residents. A public hearing on the rates charged was required only if the surcharge exceeded twenty-five percent. We find that the surcharge authorized by the rule in the instant case is much more reasonable than the one authorized by section 180.191....

...Lavin, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellees. ANSTEAD, Judge. This is an appeal from an order denying an award of attorneys fees following a successful defense by appellant of an action brought by appellees pursuant to the provisions of Section 180.191, Florida Statutes (1973)....

...The appellees, representing all non-resident consumers of appellant's water and sewage services, sought to invalidate the higher rates charged by appellant to such consumers. After prevailing on the merits, the appellant sought attorneys fees pursuant to the provisions of Section 180.191(5)....

...The trial court denied appellant's request in a well-reasoned order which we quote and hereby approve in its entirety: The defendant, Village of Palm Springs, prevailed in this litigation and has moved the court for award of attorney's fees in excess of $220,000, pursuant to the provisions of F.S. 180.191(5)....

...e Legislature of the State of Florida: * * * * * * Section 5. In any action commenced pursuant to this act the court in its discretion may allow the prevailing party treble damages and in addition a reasonable attorney's fee as part of the cost." (F.S. 180.191(5)) The Supreme Court of the United States of America, in the case of Christianburg [ Christiansburg ] Garment Co....

...e. This court finds the situation so sufficiently analogous and written with such clarity, expansion or comment upon it would be acts of futility. Therefore, this court adopts the rationale and holding contained in the cited case and applies it to F.S. 180.191(5)....

...onable, without foundation, not brought in subjective bad faith or continued in bad faith, and it is thereupon ADJUDGED the claim by the prevailing defendant, Village of Palm Springs, for attorney's fees in this cause pursuant to the provisions of F.S. 180.191(5) is denied....

...It also was empowered to set and collect uniform rates for providing water and to readjust such rates or charges from time to time. We believe that the same principles apply when petitioner acted under the chapter as when a municipality acts under Section 180.191(1)(b), Florida Statutes (1975), where the question of burden of proof of reasonableness is concerned. Pursuant to Section 180.191(1)(b), Florida Statutes (1975), water rates charged by a municipality to non-city resident users must be, inter alia, "just and equitable." In a recent decision holding that the burden of proving injustice and inequity was upon the customer, we stated "... that a municipality which has utilized the provisions of Subsection 180.191(1)(b), Florida Statutes, should not be required to come forward to prove the efficacy of its rates unless and until a dissatisfied customer has made a prima facie showing based on competent evidence of invalidity." Mohme v....

...require Riviera Beach to charge a higher rate and there is no conflict. We accordingly reverse. The contract required Riviera Beach to furnish town residents with water service at "identical rates or charges." The statute relied on by Riviera Beach, section 180.191(1), Florida Statutes (2004), provides: (1) Any municipality within the state operating a water or sewer utility outside of the boundaries of such municipality shall charge consumers outside the boundaries rates, fees, and charges dete...

...rates charged by public utilities. Plantation v. Utils. Operating Co., 156 So.2d 842 (Fla. 1963); Tampa v. Tampa Waterworks Co., 45 Fla. 600, 34 So. 631 (1903). The town's response to this argument is that the statute on which Riviera Beach relies, section 180.191, does not require a twenty-five percent surcharge, but rather, by the use of the term "may," grants the city discretion to charge an increased rate not to exceed twenty-five percent of what it charges its own residents....

...sing the County’s extremely reduced rate for non-pressurized water. Additionally, we agree with the trial court that the City showed that using the County’s rate would force the City to charge higher rates to city residents, which is contrary to section 180.191, which allows a municipality to charge the same rate to water users outside its jurisdiction. § 180.191(1)(a), Fla....

Richard S. Amari City Attorney City of Cocoa QUESTION: Does s. 180.191 , F.S., limiting the rates municipal public works may charge consumers outside city limits for water and sewer services, apply to rates charged by the city to non-municipal users of water supplied from the city's water reclamation facilities? SUMMARY: A municipality which provides reclaimed water to customers outside the city limits and relies on Ch. 180 , F.S., for its authority to extend such services extraterritorially, is bound by the provisions of s. 180.191 , F.S., in setting rates for such services outside its corporate boundaries....

...ion of the public health, safety and welfare or for the accomplishment of the purposes of this chapter; provided, however, that said corporate powers shall not extend or apply within the corporate limits of another municipality. However, pursuant to s. 180.191 (1), F.S., a municipality which operates a water or sewer utility outside of the city limits is required to limit the rates charged to such consumers....

...rcise of extraterritorial power by municipalities, it is my opinion that a city which relies on Ch. 180 , F.S., for authority to provide a system for the reuse of reclaimed water outside its corporate limits is bound by those guidelines set forth in s. 180.191 , F.S., when setting rates. Such a reading of the statutes would not only allow ss. 180.191 and 403.064 (5), F.S., to be harmonized and reconciled so as to preserve the force and effect of each, 11 but the billing formulas set forth in s. 180.191 , F.S., have been found by the courts to be reasonable and constitutional limiting the possibility of legal challenge. 12 1 See , 62 C.J.S. Municipal Corporations s. 141. 2 See , s. 180.06 , F.S. 3 Section 180.06 (6), F.S. 4 Section 180.191 (1)(a) and (b), F.S....

...See also, Knickerbocker Trust Co. v. Green Bay Phosphate Co., 62 Fla. 519, 56 So. 699, 701-02 (1911). Notwithstanding, the City asserts that the provisions of Chapter 180, Florida Statutes (1999) which govern municipal public works apply and that rates must be set pursuant to subsection 180.191(1). However, subsection *773 180.191(1) is not applicable in this case, as subsection (3) of section 180.191 specifically provides that, "[t]his section shall apply to municipally owned water and sewer utilities...." The City is not the owner of the Utility; it is the court-appointed receiver....

Stat. 8 Section 180.191(1)(a), Fla. Stat. 9 Section 180.191(1)(b), Fla. Stat. 10 Section 180.191(1)(b)

...well as after, the City of North Miami Beach (“NMB”) owned the Norwood Plant. NMB operated the Norwood Plant, which treats and distributes water to Miami Gardens, as well as consumers in Miami Gardens and NMB. On January 7, 2003, NMB adopted an ordinance pursuant to section 180.191, Florida Statute (2003)....

...surcharges and other amounts payable.” After the Norwood Plant was privatized in 2017, NMB continued to charge Miami Gardens and Miami Gardens’ consumers, both residents and business entities, the 25% surcharge on water distributed from the Norwood Plant pursuant to section 180.191(1)(a), Florida Statutes (2003)....

...perating” water utilities it owns that are located outside its geographical bounds, may [NMB] lawfully charge a 25% surcharge on water provided to consumers within the City of Miami Gardens? (c) Does Section 180.191, Florida Statutes provide for the imposition of a 25% surcharge per billing cycle by [NMB] upon the City of Miami Gardens and the members of the class for water drawn from the aquifer located within...

...is processed in and never leaves the boundaries of the municipality? Miami Gardens further sought an injunction on the imposition of the 25% surcharge to Miami Gardens consumers, as well as attorneys’ fees and costs, as provided in section 180.191, Florida Statute (2003). In Count II of the complaint, Miami Gardens alleged a violation of section 180.191 because it claimed NMB was not operating the water utility as required by the statute and requested a refund of all surcharges unlawfully collected by NMB after the Norwood Plant was privatized. The action was abated for six months for the parties to resolve the dispute....

...In February 2020, Miami Gardens complied with the trial court’s request when it filed its Amended Class Action Complaint. In addition to re-alleging the first two counts it alleged in its initial complaint, Miami Gardens alleged a third count, this one for a refund pursuant to section 180.191. Thereafter, the action was briefly stayed for NMB to appeal the trial court’s order denying NMB’s motion to dismiss....

...pays the 25% surcharge; 2) dismissed the remainder of Count I as legally insufficient because the portions of Count I seeking a declaration that NMB’s surcharge is unlawful based on the location of NMB’s water utility is not supported by the plain language of section 180.191(1); 3) dismissed Count I seeking declaratory relief and Count III seeking a refund related to the 7 location of the water utility because Miami Gardens brought the action fifteen years afte...

...On appeal of a judgment granting a motion to dismiss, the standard of review is de novo. Andrews v. Florida Parole Com'n, 768 So. 2d 1257, 1260 (Fla. 1st DCA 2000). Miami Garden’s first issue on appeal is that sovereign immunity is not a bar to its claims against NMB. We agree. Section 180.191, Florida Statutes (2003), part of Florida’s Municipal Public Works Act, provides, in part: (1) Any municipality within the state operating a water or sewer utility outside of the boundaries of such municipality s...

...charges for said services to consumers outside the boundaries. ... 9 “Municipality” is defined as any city, town, or village duly incorporated under the laws of the state. § 180.01, Fla. Stat. (2003). Section 180.191 applies to “municipally owned water and sewer utilities within the confines of a single county and may apply, pursuant to interlocal agreement, to municipally owned water and sewer utilities beyond the confines of a single county.” § 180.191(3), Fla. Stat. (2003). Section 180.191(2) further provides that whenever “any municipality has engaged, or there are reasonable grounds to believe that any municipality is about to engage, in any act or practice prohibited by subsection (1), a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person or persons aggrieved.” §180.191(2), Fla....

...Stat. (2003). In addition, the statute provides that when an action is commenced under this section, “the court in its discretion may allow the prevailing party treble damages and, in addition, a reasonable attorney's fee as part of the cost.” § 180.191(4), Fla. Stat. (2003). The remedy provided for in section 180.191 was created to give consumers “protection from excess charges for utility services made by municipalities who exercise the exclusive privilege of providing the particular utility service”. Village of Palm Springs v. Retirement Builders, Inc., 396 So. 2d 196, 198 (Fla. 4th DCA 1981). 10  Furthermore, section 180.191 was declared constitutional by the Florida Supreme Court in Mohme v. City of Cocoa, 328 So. 2d 422, 425 (Fla. 1976) (25% surcharge is not unreasonable to meet the utility service demands of those outside the municipality). In Mohme, the Supreme Court of Florida stated that the Legislature enacted section 180.191 to allow municipalities operating utilities to recoup the costs of providing utility services to consumers outside the municipal limits, due to the “ever increasing demand for utility services from established municipal utility...

...Intent can be found when the legislature enacts a statute that expressly waives the doctrine of sovereign immunity, and it can also be found “without an express mention of sovereign immunity.” Id. 11  Here, the “clear, unambiguous legislative intent” of section 180.191, which applies solely to municipalities, is that a municipality would be named as a defendant in a claim under section 180.191 and that the municipality would be liable for money damages, as shown by the provision for treble damages in subsection (4) of the statute. Klonis, 766 So. 2d at 1190. Accordingly, NMB has no sovereign immunity protection here, as section 180.191(2) specifically authorizes an action against a municipality, which NMB is....

...nt. Sovereign immunity was one of the grounds for dismissal of Count III, thus, the trial court erred in basing its dismissal of Count III on sovereign immunity grounds. Count II of Miami Gardens’ Amended Complaint alleged a violation of section 180.191 that mandates that a municipality must be operating the water utility in order to be able to add a 25% surcharge on water provided to consumers outside of the municipality’s boundaries, in this case, Miami Gardens consumers. Miami Gardens alleged that since the time NMB entered into the water operation agreement, NMB no longer operated a water utility within the meaning of section 180.191....

...Under the statute, it is permitted to seek an award of compensatory damages beginning from May 22, 2017, through at least August 6, 2020, to, at a minimum, reimburse Miami Gardens and the plaintiff class for the 25% surcharges imposed by NMB during that period. Under section 180.191 and Bill Stroop, supra, NMB must refund the fees 14 illegally excised, if any. Further support is found in Mohme, where in addition to seeking declaratory and injunctive relief, the plaintiffs also sought money damages. The Mohme Court found that the trial court erred in dismissing the appellants’ complaint under section 180.191 and remanded to allow the case to proceed....

...The Court cited to Hunger v. City of Zephyrhills, 307 So. 2d 487 (Fla. 2d DCA 1975), in which the Second District Court of Appeal found that upon proper proof upon remand, the City was to refund any users who paid the excessive charge. Id. at 489. In addition, section 180.191 provides that the trial court in its discretion may award the prevailing party treble damages and reasonable attorney’s fees. § 180.191(4), Fla....

...Gardens had no grounds to claim that the 25% surcharge imposed on consumers who live closest to the utility was unlawful. On this point the trial court was correct. The clear and unambiguous wording of the statute allows NMB to impose a surcharge of not more than 25% under section 180.191(1)(a) to Miami Gardens consumers while NMB is operating the water facility, as the Miami Gardens customers are located outside the 15 boundaries of the NMB municipality....

...And, as NMB correctly contends, the Florida Supreme Court in Mohme did not consider proximity to the utility a factor in analyzing whether it was proper to impose a surcharge on consumers located outside the boundaries of the operating municipality. Thus, under the plain language of section 180.191(1)(a), we agree that NMB was permitted to charge the 25% surcharge during the period of time when NMB operated the Norwood Plant....

...and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”). Question (c) in Count I for declaratory and injunctive relief stated, “Does section 180.191 provide for the imposition of a 25% surcharge per billing cycle by NMB upon Miami Gardens and members.” Because the answer to this question is yes, the trial court was correct in dismissing that portion of Count I of Miami Garden...

...lities that it owns that are located outside its geographical bounds, may NMB lawfully charge 25% surcharge to Miami Gardens consumers? Both these questions set out causes of action for declaratory relief under section 180.191 and should not have been dismissed by the trial court....

...From March 22, 2017 (the time the operational agreement went into effect) to at least August 6, 2020 (the time when NMB alleges it terminated the operational agreement with CHM2), Miami Gardens alleges in its amended complaint that NMB was not operating the water facility as required by section 180.191....

...t, the trial court was correct in dismissing Count III for refund because it is based on Miami Gardens’ location theory and the proximity of Miami Gardens’ consumers to the Norwood Plant. As previously discussed herein, the plain language of section 180.191 does not support Miami Gardens’ position on this issue....

...Here, even though NMB stopped charging Miami Gardens the 25% surcharge on October 30, 2019, Miami Gardens does not know if the cessation of the 25% surcharge was permanent. Also, Miami Gardens claimed it was due a refund of the surcharges it paid and treble damages under section 180.191 for the time period that it alleges NMB was not operating the Norwood Plant, that being from May 22, 2017, through at least August 6, 2020....

stated: “1. Plaintiffs are proceeding under Section 180.191, Florida Statutes, which provides a civil action

...Appellants, who were the plaintiffs in the trial court and lived outside the City of Zephyrhills, filed a class action suit against appellee for themselves and on behalf of all other users of sewer and water services who live outside the limits of the City of Zephyrhills, claiming that the city had violated the provisions of Section 180.191, F. S.A., by charging out-of-city users higher rates than permitted by statute. Section 180.191 became effective on December 8, 1970, and placed a ceiling on rates which could be charged out-of-city users, but allowed a surcharge not to exceed 25 per cent above rates charged city users to be imposed without a public hearing, or,...

...w the date of reduction of the rate to 50 per cent. *489 Appellants have set forth several grounds of appeal, but we believe the only ones worthy of consideration are: (1) whether the trial court erred when it failed to find the city in violation of Section 180.191 for charging an additional excess charge of 100 per cent during the period from December 8, 1970, through April 1, 1971, to out-of-city users, and (2) whether the trial court erred when it failed to find the city in violation of Section 180.191, F....

Opinion 92-18, the City of Cocoa asked whether section 180.191, Florida Statutes, which limits the rates municipal

...ns which sell and distribute water to approximately 1800 customers who live outside Ormond Beach. The complaint further asserts that the rates charged by the City to the two private utilities were in excess of the maximum rates allowed under F.S. §,180.191 and that the City’s establishment of the rate differential between in-city and out-of-city purchasers *525 of water amounts to an arbitrary and unconstitutional classification....

HARRIS, Judge. In 1994, the legislature enacted Chapter 94^442, Special Laws of Florida, which exempted Brevard County from the general law expressed in section 180.191, Florida Statutes, and imposed the specific regulations and limitations of a “Distribution Differential Surcharge” in relation to Brevard County water utilities....