Can a Florida county forgive penalties and interest on delinquent special assessments it imposed by ordinance?

Subject

Counties, forgiveness on special assessment penalties

Plain-English summary

The Escambia County Attorney asked whether the county commission could forgive or waive penalties and interest on delinquent special assessments imposed on Santa Rosa Island leasehold property under a county ordinance, and if not, whether it could amend its ordinances to do so. The Attorney General's office first noted that interpreting local legislation is outside its formal role, since it opines on questions of state law, but it offered informal comments.

The county had imposed annual special assessments on island leaseholds through its code (creating a municipal services benefit unit), collected under the code rather than the uniform method in section 197.3632, with rate resolutions setting an 18% annual delinquency penalty. The office explained that, unlike a tax, a special assessment imposed by ordinance is a valid exercise of home-rule power. And a general rule applies: a legislative body that can create something by ordinance can, by implication, amend, modify, or repeal it by ordinance. So absent a statutory prohibition or contrary direction, the county appeared free to amend the ordinance imposing the assessment to alter the means of its collection, including the penalty terms. The office distinguished two earlier opinions where waiver was not allowed: AGO 90-52 (a Chapter 170 assessment whose governing statute mandated interest and provided no waiver) and AGO 2000-69 (a water control district, which has no home-rule powers).

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Santa Rosa Island is a barrier island the federal government conveyed to Escambia County with a restriction against conveying it in fee simple to anyone other than a state agency, so the county leases it for residential and commercial use. The Santa Rosa Island Authority, a dependent special district whose board the county commission appoints, manages the island and the leases under a 1947 special act (Chapter 24500, Laws of Florida). The county imposed the special assessments at issue through its own Code of Ordinances, creating a municipal services benefit unit and assessing leaseholds for the cost of services, and it collected those assessments under the code rather than the uniform method in section 197.3632.

The legal core was the difference between taxes and special assessments. Counties have no inherent taxing power and cannot create tax exemptions without authority from the state's organic law (the opinion cited Contractors and Builders Association of Pinellas County v. City of Dunedin and Belcher Oil Company v. Dade County). But the courts treat the imposition of a special assessment as a valid exercise of home-rule power, not taxation (City of Boca Raton v. State; Sarasota County v. Sarasota Church of Christ). Section 125.01(1) authorizes counties to levy special assessments to fund services through a municipal services taxing or benefit unit (Workman Enterprises, Inc. v. Hernando County), and a county that does not use the uniform collection method in section 197.3632 is not bound by that section's restrictions. Because the power to create by ordinance implies the power to amend or repeal by ordinance, the office concluded the county could amend the ordinance to change the assessment's collection, distinguishing the no-waiver outcomes in AGO 90-52 (statutory Chapter 170 assessment with mandatory interest) and AGO 2000-69 (water control district lacking home-rule powers).

Common questions

Is a special assessment the same as a tax?
No. The opinion stressed that a special assessment imposed by ordinance is a valid exercise of a county's home-rule power, while a tax is not. Counties have no inherent taxing power and cannot create tax exemptions without state authority.

Can Escambia County waive penalties on these delinquent assessments?
The office said that, because the county imposed and collects the assessment by ordinance, it can amend the ordinance to alter the collection terms, absent a statutory prohibition. That points toward the county being able to change or forgive the penalties by ordinance amendment.

Why couldn't a city or district waive assessments in earlier AG opinions?
In AGO 90-52, the assessment was imposed under Chapter 170, whose statute mandated interest and provided no waiver. In AGO 2000-69, a water control district could not waive assessments and, unlike counties and cities, had no home-rule powers. Those situations differed from an ordinance-based county assessment.

Does the uniform tax-collection method apply here?
No. The county collected the assessments under its code, not the uniform method in section 197.3632, so the opinion noted it was not bound by that section's restrictions.

Citations and references

• s. 125.01(1), Fla. Stat. (county authority to levy special assessments through a services unit)
• s. 197.3632, Fla. Stat. (uniform method of collecting non-ad valorem assessments; not used here)
• Ch. 170, Fla. Stat. (statutory assessment scheme distinguished in AGO 90-52)
• Ch. 24500, Laws of Florida (1947) (Santa Rosa Island Authority)
• Contractors and Builders Association of Pinellas County v. City of Dunedin, 329 So. 2d 314 (Fla. 1976)
• City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992); Sarasota County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1995)
• AGO 90-52 and AGO 2000-69 (distinguished; no waiver where statute mandated interest or entity lacked home rule)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/counties-forgiveness-on-special-assessment-penalties
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8147

Original opinion text

Ms. Alison Rogers

Escambia County Attorney

221 Palafox Place, Suite 430

Pensacola, Florida 32502

Dear Ms. Rogers:

On behalf of the Escambia County Board of County Commissioners, you ask whether the commission has the authority to forgive or waive penalties and interest on delinquent special assessments imposed on Santa Rosa Island property pursuant to a county code provision. If not, you question whether the commission may amend its ordinances to do so.

Initially, after reviewing the information you have forwarded, it does not appear that this is a matter upon which this office may formally comment. The Attorney General is statutorily limited to rendering legal opinions on questions of state law.[1] Questions requiring the interpretation or construction of local legislation, as you have asked, should be resolved by the attorneys for local governments who have expertise in such matters. However, while this office does not generally interpret local legislation, I offer the following informal comments in an effort to be of assistance to you.

You state that Escambia County, as a non-charter county, has imposed special assessments on leasehold property located on Santa Rosa Island pursuant to the county's code of ordinances. Santa Rosa Island is a barrier island conveyed to Escambia County by the United States Government, with a restriction that the property not be conveyed to anyone in fee simple other than a state agency. The county, therefore, has leased the property for residential and commercial uses. The Santa Rosa Island Authority, a board appointed by the Escambia County Commission, was created by the Florida Legislature as a dependent special district to oversee the management of the island and the leases.[2]

The information you have provided indicates that special assessments have been imposed by the county pursuant to the county's code of ordinances and are collected under the code's provisions, not by the uniform method prescribed in section 197.3632, Florida Statutes. County ordinance creates a municipal services benefit unit for portions of Santa Rosa Island in which the county has a proprietary interest and imposes an annual assessment for the cost of services provided to leaseholds on the island.[3] You state that rate resolutions enacted by Escambia County establish a penalty of 18% per year, calculated monthly, for delinquent payments of special assessments. At times, leaseholders have requested forgiveness or waiver of interest penalties accruing on delinquent special assessments, but the county commission is unclear of its authority to grant such requests.

It is well settled that counties, like other units of local government, have no inherent power to impose taxes, such that any taxing power for counties must be derived from the state.[4] Likewise, the authority to create exemptions from taxation or to otherwise affect the immunity of property from taxation must emanate from the organic law of the state.[5] In this instance, however, you are questioning the ability of a county to forgive interest penalties accruing on delinquent special assessments which have been imposed by ordinance and the collection of which is governed by ordinance. The courts have recognized that the imposition of a special assessment is a valid exercise of home rule power and is not an exercise of taxing power.[6]

Generally, when a legislative body has the power to create by ordinance, it has, by implication, the power to amend, modify, or repeal by ordinance.[7] Case law has recognized that counties are authorized by section 125.01(1), Florida Statutes, to levy special assessments to fund certain services provided through a municipal services taxing unit or a municipal services benefit unit.[8] Moreover, counties choosing to collect special assessments other than by the uniform collection procedures in section 197.3632, Florida Statues, are not bound by the restrictions of that section.[9]

I am aware of Attorney General Opinion 90-52, in which this office concluded that a municipality was not authorized to waive interest accumulated on unpaid special assessments imposed pursuant to Chapter 170, Florida Statutes. Unlike the instant situation, the special assessment was imposed under a statute which mandated that an interest penalty be added to amounts due and there was no provision for waiver or forgiveness of the penalty in the statute. In Attorney General Opinion 2000-69, it was determined that a water control district had no authority to waive delinquent special assessments, where the statute governing the imposition of the assessment set forth specific instances, not present the questioned situation, in which assessments could be corrected. Moreover, water control districts, unlike counties and municipalities, possess no home rule powers.

As you have stated, Escambia County has imposed a special assessment and specified the manner in which it is to be collected by ordinance. As discussed above, where a legislative body has the power to create by ordinance, it has, by implication, the power to amend, modify, or repeal by ordinance. Absent a statutory prohibition or direction to the contrary, it would appear that Escambia County may amend its ordinance imposing the special assessment to alter the means of its collection.

I trust that these informal comments will be of assistance to you.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] See Department of Legal Affairs Statement Concerning Attorney General Opinions, available at www.myfloridalegal.com.

[2] Section 3, Ch. 24500, Laws of Fla. (1947).

[3] Section 46-206, Part IV, Escambia County Code of Ordinances.

[4] See Contractors and Builders Association of Pinellas County v. City of Dunedin, 329 So. 2d 314, 317 (Fla. 1976), petition for cert. denied, 444 U.S. 867 (1979); Belcher Oil Company v. Dade County, 271 So. 2d 118, 122 (Fla. 1972); and Op. Att'y Gen. Fla. 06-05 (2006); Inf. Op. to The Hon. Heather Fiorentino, dated October 1, 1999 (right to pass an ordinance includes the power to repeal or modify it, provided no right secured by the Florida Constitution is violated; general rule that a local ordinance cannot be amended or repealed by a mere resolution, but must be accomplished by passage of a new ordinance).

[5] See Op. Att'y Gen. Fla. 93-35 (1993), in which this office concluded that a municipality may not waive past due public service taxes in order to compromise and settle the amount owed, absent statutory authority.

[6] See City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992) (municipality may impose special assessment by home rule power); Sarasota County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1995).

[7] See 12A Fla. Jur 2d Counties and Municipal Corporations s. 160, citing Miami-Dade Water & Sewer Authority v. Metropolitan Dade County, 503 So. 2d 1314 (Fla. 3d DCA, 1987).

[8] See, e.g., Workman Enterprises, Inc. v. Hernando County, 790 So. 2d 598 (fire rescue services); Water Oak Management Corporation v. Lake County, 673 So. 2d 135, 136 (solid waste disposal and fire protection services).

[9] Cf. Op. Att'y Gen. Fla. 02-41 (2002).