Can a Florida water authority created by interlocal agreement use Chapter 153 liens for unpaid bills?

Plain-English summary

The Big Bend Water Authority, created by an interlocal agreement between Taylor and Dixie Counties, wanted to know if it could use the automatic lien in section 153.67, Florida Statutes, to collect unpaid water and sewer bills (and charges for damage to its property). Attorney General Pam Bondi answered no.

The section 153.67 lien is a tool the Legislature gave to water and sewer districts formed under Part II of Chapter 153, the County Water and Sewer District Law. The Big Bend Water Authority was not formed that way; it was created under Part I of Chapter 163, Florida Statutes, the part that authorizes interlocal agreements. An entity created by interlocal agreement has only the powers expressly granted to it or necessarily implied, and Chapter 163 does not grant a lien power. The opinion added that an interlocal entity cannot levy taxes or financially obligate its member governments, and that signing an interlocal agreement with a Chapter 153 district would not clothe the authority with that district's lien powers.

Currency note

This opinion was issued in 2015. 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.

What the opinion addressed

Special district and water authority officials

The opinion turned on how the entity was created. Only districts formed under Part II of Chapter 153 hold the section 153.67 lien and the related assessment and taxing powers. An authority formed by interlocal agreement under Chapter 163 does not, and cannot acquire those powers by contract.

Government attorneys

The opinion applied the settled rule that administrative entities exercise only expressly granted or necessarily implied powers and cannot expand their authority beyond the statutory grant. It also pointed to section 163.01(7)(c), which bars an interlocal entity from levying any tax, issuing bonds in its own name, or financially obligating a member government.

Utility customers

For customers of an interlocal water authority, the opinion meant the authority could not automatically attach a Chapter 153 lien to their property for unpaid charges; the authority would need a different, properly authorized collection mechanism.

Common questions

Q: What is the section 153.67 lien?
A: It is an automatic lien that water and sewer districts formed under Chapter 153 can place on a property when its water or sewer charges go unpaid, with priority on a par with county taxes.

Q: Why couldn't the Big Bend Water Authority use it?
A: Because it was created by interlocal agreement under Chapter 163, not as a Chapter 153 district. The lien power is specific to Chapter 153 districts.

Q: Does partnering with a Chapter 153 district transfer those powers?
A: No. The opinion concluded that entering an interlocal agreement with a Chapter 153 district does not give the Chapter 163 authority the same powers.

Q: Can an interlocal authority levy taxes or issue its own bonds?
A: No. Section 163.01(7)(c) prohibits an interlocal entity from levying taxes, issuing bonds in its own name, or financially obligating its member governments.

Background and statutory framework

Florida creates special-purpose water and sewer service in more than one way. Part II of Chapter 153 (the County Water and Sewer District Law) lets county commissions establish districts with defined powers, including levying assessments and the section 153.67 lien. Part I of Chapter 163 lets governments jointly create separate entities by interlocal agreement to exercise common powers, but section 163.01(7)(c) expressly withholds taxing and bonding authority from those entities. The difference in enabling statute is what decided this opinion.

Citations and references

Statutes:

• § 153.67, Fla. Stat. (district liens)
• § 163.01, Fla. Stat. (interlocal agreements)

Cases:

• State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974), district court of appeal; agencies have only granted or implied powers
• State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So. 2d 787 (Fla. 1st DCA 1982), district court of appeal; agencies cannot expand their authority
• Seitz v. Duval County School Board, 366 So. 2d 119 (Fla. 1st DCA 1979), district court of appeal
• Department of Transportation v. James, 403 So. 2d 1066 (Fla. 4th DCA 1981), district court of appeal

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/water-and-sewer-districts-special-assessments
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1530

Original opinion text

Mr. Terry J. Harmon

General Counsel

Big Bend Water Authority

123 North Monroe Street

Tallahassee, Florida 32301

RE: WATER AND SEWER DISTRICTS – COUNTIES – SPECIAL ASSESSMENTS – LIENS – authority of water district created by interlocal agreement to use lien provisions in Chapter 153, Florida Statutes. ss. 153.67, 163.01, Fla. Stat.

Dear Mr. Harmon:

On behalf of the Big Bend Water Authority, you ask the following question:

May the Big Bend Water Authority utilize the lien provisions in section 153.67, Florida Statutes, and, if so, may a lien be imposed for charges to a customer for damages to the authority’s water and sewer property?

In sum:

The lien provision in section 153.67, Florida Statutes, may only be used by water and sewer districts created pursuant to Part II, Chapter 153, Florida Statutes, and, therefore, is not available to the Big Bend Water Authority which was created by an interlocal agreement under Part I, Chapter 163, Florida Statutes.

You state that the Big Bend Water Authority (authority) was created by an interlocal agreement between Taylor County and Dixie County pursuant to Part I, Chapter 163, Florida Statutes. The purpose of the district is to provide water and sewer services to customers located in unincorporated areas of both counties. The authority’s governing board is contemplating the adoption of policies to address unpaid fees, rates, and charges for water and sewer services, including charges for damages to authority water and sewer property. The board questions whether the authority has the power to attach a lien for unpaid fees or for damages to authority property as provided in section 153.67, Florida Statutes.[1]

Part II, Chapter 153, Florida Statutes, is the “County Water and Sewer District Law.”[2] Section 153.53, Florida Statutes, sets forth the procedure for a board of county commissioners to establish one or more water and sewer districts in unincorporated contiguous areas of the county. As an alternative means to create a district, a petition signed by persons owning not less that 10 percent of the property within the boundaries of a proposed district may be filed with the property appraiser, requesting the county commission to call and provide for a referendum election to determine whether such district should be created and call for the election of a governing board.[3]

Pursuant to section 153.62(4), Florida Statutes, districts created pursuant to the act are, among other things, authorized:

“To levy and assess ad valorem taxes without limitation of rate or amount on all taxable property within said district for the purpose of paying principal of and interest on any general obligation bonds which may be issued for the purposes of this law, not in excess of the total amount of such general obligation bonds provided for in subsection (3).”[4]

Moreover, a Chapter 153 district may

“fix and collect rates, fees and other charges to persons or property or both for the use of the facilities and services provided by any water system or sewer system or both and to fix and collect charges for making connections with any such water system or sewer system and to provide for reasonable penalties on any users or property for any such rates, fees or charges that are delinquent.”[5]

Section 153.67, Florida Statutes, recognizes:

“In the event that the fees, rates or charges for the services and facilities of any water or sewer system shall not be paid as and when due, any unpaid balance thereof and all interest accruing thereon shall be a lien on any parcel or property affected thereby. Such liens shall be superior and paramount to the interest on such parcel or property of any owner, lessee, tenant, mortgagee or other person except the lien of county taxes and shall be on a parity with the lien of any such county taxes. In the event that any such service charge shall not be paid as and when due and shall be in default for thirty days or more the unpaid balance thereof and all interest accrued thereon, together with attorneys fees and costs, may be recovered by the district in a civil action, and any such lien and accrued interest may be foreclosed or otherwise enforced by the district by action or suit in equity as for the foreclosure of a mortgage on real property.”

The “Water and Sewer District Law” further states that a district “may provide for the construction or reconstruction of assessable improvements as defined in s. 153.52, and for the levying of special assessments upon benefited property for the payment thereof, under the provisions of this section.”[6] (e.s.) Such assessments are collected by the tax collector of the county in which the district is located and “shall constitute a lien upon the property so assessed from the date of confirmation of the resolution ordering the improvement, of the same nature and to the same extent as the lien for general county taxes falling due in the same year or years in which such assessments or installments thereof fall due . . . .”[7]

Section 153.62(10), Florida Statutes, provides that a district created under Chapter 153 may “join with any other district or districts, cities, towns, counties or other political subdivisions, public agencies or authorities in the exercise of common powers.”

As noted above, however, the Big Bend Water Authority was created by interlocal agreement under Chapter 163, Florida Statutes. While the Water and Sewer District Law recognizes that a district created under its provisions may enter into an interlocal agreement with an authority, they may do so only in the exercise of a common power. There is nothing contained in the statutes which indicates that an authority created by interlocal agreement under Chapter 163 which enters into an interlocal agreement with a district created under the Water and Sewer District Law would be imbued with the same powers as a Chapter 153 district as a result of the contractual relationship. Moreover, while water and sewer districts created under Chapter 153, Florida Statutes, are authorized to levy and assess ad valorem taxes, section 163.01(7)(c), Florida Statutes, states:

“No separate legal or administrative entity created by an interlocal agreement shall possess the power or authority to levy any type of tax within the boundaries of any governmental unit participating in the interlocal agreement, to issue any type of bond in its own name, or in any way to obligate financially a governmental unit participating in the interlocal agreement. . . .”

As an administrative agency created under the terms of Chapter 163, Florida Statutes, the Big Bend Water Authority may exercise only those powers which are expressly granted under its empowering legislation or by implication those necessary to carry out its express power.[8] There is no apparent or implied power contained in Chapter 163, Florida Statutes, for the authority to attach a lien to property which is delinquent in its payments or for damage to authority property. Moreover, administrative agencies are constrained not to expand their authority beyond that provided in the statutory grant.[9]

Accordingly, it is my opinion that the Big Bend Water Authority may not utilize the lien provisions in section 153.67, Florida Statutes.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] There is no assertion or indication that the Big Bend Water Authority was created pursuant to the provisions in Part II, Ch. 153, Fla. Stat., governing county water and sewer districts.

[2] Section 153.50, Fla. Stat.

[3] Section 153.53(2)(a) and (c), Fla. Stat.

[4] Section 153.62(3), Fla. Stat., provides that “the total amount of all general obligation indebtedness of the district issued pursuant to this law shall not exceed 15 percent of the assessed value of the taxable property in the district at the time of the creation of such district, to be ascertained by the assessed valuations for county taxes in effect at the time of the creation of such district.”

[5] Section 153.62(6), Fla. Stat.

[6] Section 153.73(1), Fla. Stat.

[7] Section 153.73(11)(c), Fla. Stat.

[8] See State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla. 1974).

[9] See State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So. 2d 787 (Fla. 1st DCA 1982), pet. for rev. den., 436 So. 2d 98 (Fla. 1983); Seitz v. Duval County School Board, 366 So. 2d 119 (Fla. 1st DCA 1979); Department of Transportation v. James, 403 So. 2d 1066 (Fla. 4th DCA 1981).