THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA

v.

THE CITY OF MIAMI BEACH, FLORIDA

Third District Court of Appeal

State of Florida

Opinion filed February 24, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1128 Lower Tribunal No. 17-672

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The School Board of Miami-Dade County, Florida,

Appellant,

vs.

The City of Miami Beach, Florida,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Walter J. Harvey, School Board Attorney; Brett Little P.A., and Susan M. Seigle (Gainesville), for appellant. Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael T. Burke (Fort Lauderdale), for appellee. Before LOGUE, LOBREE, and BOKOR, JJ. LOGUE, J.

In the underlying case, the City of Miami Beach sued the School Board

of Miami-Dade County to demand the School Board pay municipal

stormwater utility fees. The School Board moved to dismiss on the basis that

sovereign immunity barred the City’s claim. The trial court denied the motion

to dismiss and the School Board now appeals that nonfinal order. We

conclude that this case is governed by our prior precedent of City of Key

West v. Florida Keys Community College, 81 So. 3d 494 (Fla. 3d DCA 2012),

in which we held that a community college is protected by sovereign

immunity from paying municipal stormwater utility fees because Chapters

180 and 403, the current expressions of the Legislature’s authorizations for

municipalities to levy such fees, did not waive sovereign immunity.

Accordingly, we reverse.

FACTS AND PROCEDURAL HISTORY

Like other municipalities in Florida, the City of Miami Beach is

empowered to create a stormwater utility program and to collect stormwater

utility fees. As the Supreme Court explained:

Stormwater runoff may cause flooding and threatens water quality in urban areas. Therefore, stormwater must be collected, conveyed, treated, and disposed of. Florida law requires local governments to establish stormwater management programs. To fund such programs, local governments may “[c]reate one or more stormwater utilities and adopt stormwater utility fees sufficient to plan, construct, operate, and maintain stormwater

management systems set out in the local program required pursuant to [section] 403.0891(3).”

City of Gainesville v. State, 863 So. 2d 138, 141 (Fla. 2003) (internal citations

omitted). Chapter 403 contains an express authorization in this regard that

includes the power to fund

a stormwater management program by assessing the cost of the program to the beneficiaries based on their relative contribution to its need. It is operated as a typical utility which bills services regularly, similar to water and wastewater services. § 403.031(17), Fla. Stat. (2020).

In 1996, pursuant to sections 403.0891 and 403.0893, Florida

Statutes, the City created its stormwater management system funded by

stormwater utility fees assessed on owners of developed property within the

City. The City’s stormwater management system collects stormwater runoff

drained from developed properties. The stormwater is then transported

through a network of pipes and eventually discarded into Biscayne Bay.

The School Board owns ten developed properties which operate as

public schools in the City. The School Board uses the City’s stormwater

management system to drain stormwater runoff from its ten properties. There

is no written contract or agreement between the City and the School Board

for the payment of stormwater utility fees. Nevertheless, the School Board

had paid stormwater utility fees assessed by the City for many years.

In May 2012, the School Board stopped paying the City stormwater

fees after this Court issued its decision in Florida Keys Community College,

which held that a community college, a state entity, enjoyed sovereign

immunity from suit for non-payment of the City of Key West’s stormwater

utility fees whether the municipality claimed Chapter 180 or Chapter 403 as

the basis of its authority to charge a stormwater utility fee. 81 So. 3d at 497–

98.

The City then sued the School Board to collect the stormwater utility

fees. As mentioned above, the School Board moved to dismiss on the

grounds of sovereign immunity. The trial court denied the motion and

specifically found the School Board “is not entitled to sovereign immunity as

a matter of law pursuant to Section 166.042, Florida Statutes and Section

167.01, Florida Statutes (1971).” The School Board timely appealed.

ANALYSIS

We have jurisdiction to review appeals of nonfinal orders that “deny a

motion that . . . asserts entitlement to sovereign immunity.” Fla. R. App. P.

9.130(a)(3)(F)(iii). Based on the newly amended rule, “our jurisdictional

inquiry now focuses not on the challenged order, but rather on the motion

that the order adjudicates.” City of Sweetwater v. Pichardo, 45 Fla. L. Weekly

D2756 (Fla. 3d DCA Dec. 9, 2020).

Although a stormwater utility fee is not a tax, but is instead a user fee

that a party can avoid by declining to use the service that the fee funds, City

of Key West v. Key West Golf Club Homeowners, 228 So. 3d 1150, 1155

(Fla. 3d DCA 2017), the district courts have uniformly held that State entities

that use a municipal stormwater utility infrastructure to manage their

stormwater runoff have sovereign immunity from being charged stormwater

utility fees and such immunity has not been waived by either Chapter 180 or

Chapter 403, the current legislative expressions of the municipal authority to

charge stormwater utility fees.

In Florida Keys Community College, for example, this Court rejected

the City of Key West’s argument that the Legislature had waived sovereign

immunity in Chapters 403 and 180 “with respect to imposition of stormwater

fees.” 81 So. 3d at 497. This Court reasoned “the waiver of sovereign

immunity as to certain enumerated utilities in section 180.13 cannot and does

not by inference apply to the City’s stormwater utility fees.” Id. at 498–99.

And accordingly, because “Chapter 403, which specifically relates to

stormwater utility fees, does not expressly waive sovereign immunity for

stormwater utility fees, it is clear that the State has not waived sovereign

immunity in Chapter 403.” Id. at 498.

In doing so, this Court cited City of Gainesville v. State Department of

Transportation, 920 So. 2d 53 (Fla. 1st DCA 2005), review denied, 935 So. 2d 1219 (Fla. 2006). In Gainesville, the First District affirmed a trial court’s

dismissal of the City of Gainesville’s action to collect stormwater utility fees

from the Florida Department of Transportation. Like here, there was no

written contract between the parties to collect stormwater utility fees

authorized under Chapter 403. After rejecting the argument that “since DOT

is a person within the meaning of chapter 180, Florida Statutes, sovereign

immunity is waived, and the City [of Gainesville] does not need a contract to

collect stormwater utility fees,” the First District held:

Statutes purporting to waive sovereign immunity are strictly construed in favor of the State, and must be clear and unequivocal. Waiver of sovereign immunity will not be implied.

Here, the City refuses to accept that chapter 180 has a very specific listing of the municipal services included within its scope. One municipal service not included in that list is stormwater runoff. The Legislature, for whatever reason, decided not to include stormwater runoff within the scope of chapter 180. We are unable to rewrite the chapter to provide the relief sought by the City. Because chapter 180 does not provide a waiver of sovereign immunity for utilities authorized pursuant to chapter 403, the parties’ circumstances have not changed since the first appeal.

Consequently, although the stormwater fee may be a valid utility fee, consistent with our previous opinion, before the City can sue to collect the fee, it must have a written contract. See City of Gainesville v. Fla. Dep’t of Transp., 778 So. 2d 519, 530 (Fla. 1st DCA 2001). Since the City

acknowledges it does not have a written contract, the trial court properly dismissed the City’s complaint with prejudice.

Id. at 53–54 (internal citations omitted). Gainesville has been cited with

approval to reject similar attempts by municipalities to collect stormwater

utility fees by the Second District¹ and the Fourth District.2

The City attempts to avoid these cases by going back in time and citing

section 167.01, Florida Statutes (1971), as the basis for its authority to

charge stormwater utility fees. The City contends section 167.01 constituted

an express, clear, and unequivocal waiver of sovereign immunity as it relates

to every person (and governmental entity) that uses a municipality’s

stormwater management system and receives a benefit from such use.

Section 167.01 read:

The city or town council may . . . construct drains and sewers . . . and charge upon those benefited such reasonable assessments as may be agreed upon by said council and the

said party or parties . . . and every person who enters his particular drain into the main drain, or common sewer, and receives a benefit therefrom draining his land, shall pay to the city or town his proportional part of making or repairing the same.

§ 167.01, Fla. Stat. (1971). This statute, however, was repealed by the

Municipal Home Rule Powers Act in 1973. Nevertheless, the City cites to the

following existing statutory language indicating that the repeal of section

167.01 was not intended to prevent it from exercising powers it had

authorized:

It is the legislative intent that the repeal by chapter 73-129, Laws of Florida, of chapters 167 . . . of Florida Statutes shall not be interpreted to limit or restrict the powers of municipal officials, but shall be interpreted as a recognition of constitutional powers . . . . It is, further, the legislative intent that municipalities shall continue to exercise all powers heretofore conferred on municipalities by the chapters enumerated above . . . . § 166.042(1), Fla. Stat. (2020).

Without delving too deeply into this novel argument, we decline to

accept that a repealed statute provides the clear and unequivocal legislative

expression of intent needed to waive sovereign immunity, American Home

Assurance Co. v. National Railroad Passenger Corp., 908 So. 2d 459, 471

(Fla. 2005), in light of the district court cases uniformly holding the

Legislature did not waive sovereign immunity in Chapters 180 and 403, the

current statements of municipal authority to charge stormwater utility fees.

Reversed and remanded.