There are new requirements from the State of Florida and the Insurance Services Office (ISO) that every fire department, regardless of size, must have a minimum of 4 firefighters responding on the initial alarm to all reported structure fires (see ISO).
Using those new staffing standards, the ISO conducted the scheduled review in October 2013 and, because the Upper Captiva Fire & Rescue District could afford only 2 firefighters responding on the initial alarm, tentatively rated the District at Public Protection Classification 10 (the same as no fire department), rather than the improvement from PPC-7 (our last community rating) to PPC-4 that our score indicated.
Unfortunately, there just wasn't enough money in the ad valorem tax to fund 4 responding firefighters 24 hours per day, 7 days per week, 365 days per year. The monies raised by the special assessment are being used to hire the additional 2 firefighters and the related costs.
With the approval of the Special Assessment Referendum by the voters of the District on 8 July 2014, ISO approved the implementation of our improvement plan in October 2014 and we received the letter to us confirming our new and improved rating to PPC-4, dated 26 January 2015. Our new PPC-4 rating will be published with the State and insurance companies, with an effective date of 1 May 2015 for homeowner fire policies.
Frequently Asked Questions About The Approved Special Assessment
(Answers provided by Attorney Robert Pritt, at the request of the Fire Board)
1). When does the assessment become a lien upon the properties?
Answer: The Assessment became a lien upon the properties listed in the Final Assessment Roll upon filing with the vice chair of the Final Assessment Roll March 15, 2014, or at the latest, upon certification of the results of the election, which was on July 11, 2014. In my opinion, it would be July 11, 2014.
2. If a property is/was sold thereafter, how does a seller/buyer know about the lien?
Answer: Real Estate agents, real estate attorneys, title companies, and property sellers and buyers are charged by law with notice (constructive notice) of all liens upon their subject properties, whether recorded or unrecorded. That is part of a title search for all sales and purchases. The process includes a check of all recorded liens in the public records and a communication with all local governments for any “estoppels” including water, sewer, local assessments, code enforcement, etc. liens.
As to this local assessment, although not required by law, I sought and received approval from the Fire Board at the meeting of 9/27/14 to record a Notice of Lien for this assessment in the public records of Lee County Clerk of Circuit Court, so that it will show up in a competent title search. That was filed in the public records and is in the District office records. Thus, there is no viable claim that someone (whether a buyer or seller) is excused from paying the lien amount because of insufficient notice.
3. What happens if a lien is not timely paid (by December 15, 2014)?
Answer: The District has a statutory duty to enforce its liens. The Fire Board may authorize sending delinquency notices prior to suit, but if the lien is not paid, ultimately the District should enforce the lien by filing a foreclosure lawsuit upon the lien and having it paid out of the proceeds of a potential sale of the property. Of course, like any lawsuit, the property owner must be served with the Summons and Complaint.
4. Is it likely that the District will be able to recover the amount of the lien in a lien foreclosure lawsuit?
Answer: Yes. Liens for unpaid property taxes and assessments are the highest priority, even above preexisting mortgage liens.
5. Would the cost of litigation exceed the amount of the lien, making it a waste of District money?
Answer: No. The District would also recover the filing fees, court costs and attorneys’ fees. These would be paid out of the proceeds of sale.
6. Can an owner successfully challenge the assessment process in a lien foreclosure suit?
Answer: Very unlikely. While it is common for a defendant to try to do so, there is case law that has held that the failure to object during the assessment process precludes a later challenge to the assessment process. In a case that I defended for another local government a month or so ago, the circuit court so held, based upon precedent from previous reported case law.
The statute also so provides. The time for challenge to the assessment came and went 30 days after the adoption of the Final Assessment Resolution and transmission of the Final Assessment Roll to the Vice Chair. Resolution 14-03 containing the Final Assessment Roll was adopted March 15, 2014.
Any argument that the challenge time would be extended since this Final Assessment Resolution was subject to a referendum vote, should still fail, because the challenge was not made within 30 days after the certification of the referendum vote.
Of course, the outcome of any particular claim or defense is uncertain.
7. Will this method of direct billing and collection be used for the entire remaining years of the Fire Service Assessment?
Answer: No. The only reason that this method is being used this year is that the required referendum was approved in July, which was eight months after the deadline for being able to get it put onto tax bills.
It has been and is still the intention to put the future assessments on the property tax bills. The procedure for doing so entails Notice of Intention to do so (News Press each week for 4 weeks), a public hearing on the proposal, a Resolution to do so and an agreement with the Lee County Property Appraiser and Lee County Tax Collector.
The first Notice is scheduled to appear in the News Press on November 18, 2014. Notice is also scheduled to be advertised on November 25, December 2 and December 9.
The hearing will be at the regular Fire Board meeting at the district office (Fire Station) on December 20, 2014 at 10:00 A.M.
8. If the Fire Service Assessment is placed on the 2015 tax bills and future tax bills, how will the Assessment be enforced?
Answer: The same way that unpaid and taxes are collected, which is the sale of the tax certificates at a sale in May. Investors buy the certificates and if the taxes and assessments remain unpaid for two years the holder of the tax certificate can apply for a tax deed to the property. This triggers (after notice to owner) a sale of the property with the proceeds going to the lien holders in the order of preference of liens (again taxes and assessments have highest priority).
9. Does the District have to hire and pay for an attorney to do this collection when the assessment goes onto the tax bills?
Answer: No. The Tax Collector handles collections.
10. Are there statutory references?
Answer: Yes. Sec. 191.011(7) & (10), Florida Statutes, for lien imposition and status. Sec. 197.3632, Florida Statutes, for placing assessment upon the tax bills. Chapter 197, generally as to collection.
Any federal tax advice contained herein or in any attachment hereto is not intended to be used, and cannot be used, to (1) avoid penalties imposed under the Internal Revenue Code or (2) support the promotion or marketing of any transaction or matter. This legend has been affixed to comply with U.S. Treasury Regulations governing tax practice.