Pizza Palace of Miami, Inc. v. City of Hialeah, 70--174
| Decision Date | 08 December 1970 |
| Docket Number | No. 70--174,70--174 |
| Citation | 242 So.2d 203 |
| Parties | PIZZA PALACE OF MIAMI, INC., a Florida corporation, Appellant, v. CITY OF HIALEAH and Department of Water and Sewers, a political subdivision of the City of Hialeah, Appellees. |
| Court | Florida District Court of Appeals |
Seymour London, Miami, for appellant.
Harold P. Kravitz, Hialeah, for appellees.
Before CHARLES CARROLL and HENDRY, JJ., and MARTIN, HENRY F., Associate Judge.
Appellant-plaintiff ('Lessee') asserts, on his appeal from an adverse final judgment that the circuit court erred in determining that a 'sewer connection charge' was a 'service charge' properly added to his monthly water bill. We must determine whether the charge involved is, in reality, a charge for services or an assessment.
Appellees-counter-plaintiffs laid sewer pipe abutting Lessee's rented business property. Shortly after the appellees laid the pipe, they sent Lessee a final notice for about Two Thousand Dollars as a 'sewer connection charge'. However, Lessee, a consumer of water, has never been connected to the sewer and continues to use a septic tank. Lessee filed a complaint and petition for a temporary injunction, to which the semi-autonomous Department of Water and Sewers of the City of Hialeah counterclaimed for its charge. Lessee contended that the sewer charge was, in reality, an assessment against the land properly chargeable to the property owner, especially because the connection charge was computed on the basis of $16.00 per front foot and was not a continuing charge. The appellees asserted it was a regular charge for sewer services properly added to the monthly water bill.
There are several problems involving the nature of this charge denominated a 'sewer connection charge'. Appellant speaks in terms of dilemmas, and his argument is more easily visualized when set out in outline form:
I. Either the 'sewer connection charge' is a service charge under the Charter of the City of Hialeah, or it is a special assessment.
A. If the 'sewer connection charge' is a service charge under the Charter, it is unauthorized as to Appellant-Lessee upon statutory and constitutional grounds because: (a) it is not continuing in nature, (b) its computation is unreasonably based upon front footage of the entire tract and not just the leasehold, and (c) is properly chargeable to the fee owner and not the lessee under a tenancy from year to year.
B. If the 'sewer connection charge' is a special assessment it is not payable by the Appellant-Lessee, upon statutory and constitutional grounds, but such assessment is properly payable by the fee owner and not a lessee under a tenancy from year to year; moreover, the Appellees cannot disguise a special assessment under the name of a 'sewer connection charge.'
To prove the first assertion, that the connection charge is a service charge, Lessee merely states that this is the position of the appellees, and he will accept such characterization for the purpose of argument. To prove the second assertion, that the connection charge, no matter what it is called, is a special assessment Lessee argues that any other classification is unreasonable (especially because the charge is computed by multiplying $16.00 by the front footage of the entire tract and not just the leasehold) and that the inherent nature of the charge is to confer added value to the land (and in comparison to the benefit to the remainder interest, no such value is added to his tenancy from year to year).
Before exploring the merits, we note that three charges related to the operation of a sewer system must be enumerated to avoid confusion. First, there is the...
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Contractors and Builders Ass'n of Pinellas County v. City of Dunedin
...371 (Fla.4th Dist.1975) aff'g Janis Development Corp. v. City of Sunrise, 40 Fla.Supp. 41 (17th Cir. 1973); Pizza Palace of Miami v. City of Hialeah, 242 So.2d 203 (Fla.3d Dist.1972); and Venditti-Siraro, Inc. v. City of Hollywood, 39 Fla.Supp. 121 (17th Cir. 1973). The Pizza Palace case is......
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City of Dunedin v. Contractors and Builders Ass'n of Pinellas County
...the court properly characterized the fee as a tax which was beyond the city's authority to impose. In Pizza Palace of Miami, Inc. v. City of Hialeah, Fla.App.3d, 1970, 242 So.2d 203, our sister court held that a sewer connection fee could not be charged against a lessee because the ordinanc......