Judges: Robert A. Butterworth Attorney General
Filed Date: 2/22/1990
Status: Precedential
Modified Date: 7/5/2016
Mr. Neil R. Arther City Attorney City of Kissimmee Post Office Box 1608 Kissimmee, Florida 32742-1608
Dear Mr. Arther:
You ask the following question:
May the City of Kissimmee allow water and sewer customers to pay their impact fees in several payments over time provided that proper interest is added, without violating s. 10, Art. VII, State Const.?
In sum, I am of the opinion:
The adoption of a plan whereby customers pay impact fees in several payments, rather than one payment, with interest added does not violate s. 10, Art. VII, State Const.
You state that the City of Kissimmee provides water and sewer services, both within the city and in some areas of the county. The city imposes impact fees to assist in funding the expansion of the water and sewer systems necessitated by the demands placed upon the systems by new construction and development.1
You ask whether permitting customers to make installment payments constitutes the "giving, lending or use of [the city's] taxing power or credit to aid any person" as prohibited by s. 10, Art. VII, State Const. Since you have not supplied any details as to the proposed plan, the comments of this office must be general in nature.2
Section 10, Art. VII, State Const., provides in part:
Neither the state nor any . . . municipality . . . or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person . . . .
Many of the cases relating to the above constitutional provision (and its predecessor, s. 10, Art. IX, State Const. 1885)3 have stated that the purpose of this provision is "to keep the State out of private business; to insulate State funds against loans to individual corporations or associations and to withhold the State's credit from entanglement in private enterprise."4
The constitutional provision must be considered in light of the evils it was intended to correct.5 This office, in considering s. 5(a), Art. II, State Const., has, for example, stated that a school board could accept partial payment of the purchase price of surplus real property and defer the balance on an installment payment basis without loaning or pledging the public credit.6
Impact fees are not taxes but are imposed as regulatory fees to assist in funding the expansion of governmental services necessitated by the demands placed upon such systems by new construction and development.7 Funds expended by a municipality to expand the water and sewer systems are for a public, not a private purpose.
The authority of a state Legislature, or a municipal corporation when authorized by charter or statute, to provide for the payment of assessments in installments and to attach reasonable conditions for the privilege of so paying has generally been recognized.8
Under s. 2(b), Art. VIII, State Const., as implemented by the Municipal Home Rule Powers Act, Ch.
In light of the above, I am of the opinion that a municipality, pursuant to its home rule powers, may adopt a plan authorizing customers to pay impact fees in installments, with interest added, without violating s. 10, Art. VII, State Const.
Sincerely,
Robert A. Butterworth Attorney General
RAB/tjw
[D]uring the years immediately preceding its adoption, the state and many of its counties, cities, and towns had by legislative enactment become stockholders or bondholders in, and had in other ways loaned their credit to, and had become interested in the organization and operation of, railroads, banks and other commercial institutions. Many of these institutions were poorly managed, and either failed or became heavily involved, and, as a result, the state, counties, and cities interested in them became responsible for their debts and other obligations. These obligations fell ultimately on the taxpayers. Hence the amendment, the essence of which was to restrict the activities and functions of the state, county, and municipality to that of government, and forbid their engaging directly or indirectly in commercial enterprises for profit.
Contractors & Builders Ass'n v. City of Dunedin , 329 So. 2d 314 ( 1976 )
DADE COUNTY, BD. OF PUB. INSTR. v. Michigan Mut. Liability ... , 174 So. 2d 3 ( 1965 )
Hollywood, Inc. v. Broward County , 431 So. 2d 606 ( 1983 )
Gray v. Bryant , 125 So. 2d 846 ( 1960 )
Bailey v. City of Tampa , 92 Fla. 1030 ( 1926 )
City of Orlando v. Northern Invest. Corp. , 116 Fla. 766 ( 1934 )
Home Bldrs. and Contractors Ass'n v. Bd. of Palm Beach Cty. ... , 446 So. 2d 140 ( 1983 )