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
...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...
