Judges: Robert A. Butterworth Attorney General
Filed Date: 7/10/1990
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:
The City Commission of the City of Kissimmee has asked substantially the following question:
May the City of Kissimmee forgive or waive the one percent per month penalty for overdue payments required by s.
In sum:
The City of Kissimmee may not forgive or waive the penalty for overdue special assessment payments prescribed in s.
According to your letter, the City of Kissimmee frequently initiates street paving programs for some of the remaining non-paved streets within its boundaries, in addition to sidewalk construction projects. When it can be shown that certain properties adjacent to these streets or sidewalks receive a special benefit from having the street paved or sidewalk constructed, the city commission has utilized the special assessment method of funding the paving improvements provided for in Ch.
Many property owners in your city have either never made repayments on their assessments or have become extremely delinquent. Some of the accounts are so delinquent that the entire balance due consists mainly of interest and penalties. These property owners have approached the city commission, claiming that they now cannot repay their assessments because the penalties have inflated the total amount due. The city commission sees the imposition of the penalties as a hardship upon the delinquent property owners. The city commission would like to continue to utilize the special assessment method of funding public improvements provided in Ch.
Special assessments are charges assessed against the property of some particular locality because that property derives some special benefit from the expenditure of the money collected by the assessment, in addition to the general benefit accruing to all property or citizens.1 As this office has previously stated, the power to make special assessments can be exercised only for special improvements, and cannot be exercised to burden particular property and the owners thereof with the costs of general governmental benefits and expenditures. Thus, special assessments cannot be imposed to pay for an improvement which is primarily of general public benefit.2
Florida case law indicates that special assessments are levied under the taxing power and are "a peculiar species of taxation."3 The taxing power of municipalities is not derived from s. 2(b), Art. VIII, State Const.; rather, the origin of the municipal taxing power is found in ss. 1(a) and 9(a), Art. VII, State Const.4 Thus, municipalities possess no home rule power to levy special assessments. In the absence of specific statutory authority therefor, a special assessment cannot be imposed.5
Florida courts have stated that the authority given to municipalities to impose special assessments should be strictly construed.6 Any material departure from the express authority conferred on a municipality to impose such assessments is fatal to the validity of the special assessment.7 Therefore, in order that a special assessment be valid and enforceable, it must be made pursuant to legislative authority and in the manner or method prescribed by the Legislature.8
Section
Provide for the construction, reconstruction, repair, paving, repaving, hard surfacing, rehard surfacing, widening, guttering, and draining of streets, boulevards, and alleys and for grading, regrading, leveling, laying, relaying, paving, repaving, hard surfacing, and rehard surfacing of sidewalks[.]
Section
The special assessments shall be payable at the time and in the manner stipulated in the resolution providing for the improvement; . . . shall bear interest, at a rate not to exceed 8 percent per year, or, if bonds are issued pursuant to this chapter, at a rate not to exceed 1 percent above the rate of interest at which the improvement bonds authorized pursuant to this chapter and used for the improvement are sold, from the date of the acceptance of the improvement; and may, by the resolution aforesaid and only for capital outlay projects, be made payable in equal installments over a period not to exceed 20 years, to which, if not paid when due, there shall be added a penalty at the rate of 1 percent per month, until paid. However, the assessments may be paid without interest at any time within 30 days after the improvement is completed and a resolution accepting the same has been adopted by the governing authority. (e.s.)
It is the general rule, which Florida follows, that a special assessment for benefits bears no interest or penalty for nonpayment unless the law so provides.9 However, when a penalty for delinquency on payment of a special assessment is provided by a statute, it is an incident to the levy proper, or a part of the assessment, and when it attaches it becomes a part of the original obligation and the municipality is without power to remit it.10
The Legislature has used the word "shall" in mandating that the penalty be added for delinquency on payment for special assessments imposed pursuant to this chapter.11 It is the rule that a legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way.[12] Thus, by providing for the imposition of a penalty for delinquent payments of special assessments, the Legislature has prohibited the use of any other method to assure prompt payment and to compensate for possible injuries suffered by a delay in payment.
Therefore, it is my opinion that the City of Kissimmee may not forgive or waive the penalty imposed by s.
Sincerely,
Robert A. Butterworth Attorney General
RAB/tgh
Drury v. Harding , 461 So. 2d 104 ( 1984 )
Contractors & Builders Ass'n v. City of Dunedin , 329 So. 2d 314 ( 1976 )
STATE, DEPT. OF REV. v. Zuckerman-Vernon Corp. , 354 So. 2d 353 ( 1977 )
Simpson v. City of Brooksville , 137 Fla. 623 ( 1939 )
Town of Monticello v. Finlayson , 156 Fla. 568 ( 1945 )
Jackson v. City of Lake Worth , 156 Fla. 452 ( 1945 )
State Ex Rel. Board of Supervisors v. Caldwell , 160 Fla. 355 ( 1948 )