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2003 Opinions

Date:   August 29, 2003
Prepared By:   Scott Odenbach
Phone:   (850) 245-0442
Suncom:   205-0442
Opinion No.:   03-08
Staff Contact:    
MEMORANDUM OPINION
TO: J. Jeffrey Wahlen, Esquire
Ausley & McMullen, P.A.
FROM: Daniel J. Woodring
General Counsel
SUBJECT: City of Tallahassee’s Fire Rescue Fee Imposed on Public School Property

QUESTION PRESENTED: Can the City of Tallahassee’s Fire Rescue Fee be an exempt “impact or service availability fee” or a “fee for an intangible service,” under Florida law?

DISCUSSION: The intent of the law in question, 1013.371(1)(a), Florida Statutes, appears to be primarily applying to construction of new schools. The “impact fees or service availability fees” are normally fees charged in connection with new hook-ups to city utilities during the construction phase. Therefore, this statutory section does not appear to contemplate a continuing fee such as the instant fire rescue fee.

However, the State Requirements for Educational Facilities (SREF) Section 1.2(46), defines these fees in part as those charged for “an intangible service which does not have a clearly established cost.” This definition arguably could encompass a fire rescue fee, based on the “historical demand and reasonable cost” method the city uses to apportion the fee, as described in your letter.

CONCLUSION: Consequently, while it appears the intent of Section 1013.371, Florida Statutes, is not to apply to other than “initial connect” fees, an argument could be made that the instant fee fits within the definition of a fee for an intangible service. While the better definition would not hold this to be an exempt fee, we would not foreclose the ability of a district to argue exemption from a comparable fee.

DJW/sol


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