CopyCited 16 times | Published | Supreme Court of Florida | 1976 WL 352269
...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....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1981 Fla. App. LEXIS 18735
...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....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 17656, 2005 WL 2990640
...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....
