FORT LAUDERDALE – Despite a potential lawsuit for overcharging residents and business owners for responding to false burglar and fire alarms, some city commissioners are looking for ways to increase the charges.
City Auditor John Herbst and other city staff have warned that the city’s charge to respond to false burglar and fire alarms has been higher than the city’s cost to provide the services.
Yet some commissioners said recently they want to increase the charges.
“I believe these costs are too low,” Commissioner Romney Rogers said at the Oct. 20 meeting, comparing the city’s fees to those charged by other municipalities.
Herbst also has said the overcharges were actually fines, and should have gone through a process that would have allowed offenders to challenge them. The city does not have such a process, which may be in violation of state law.
The exact amount of the overcharges has yet to be determined, but it could be in the millions of dollars.
In 2008 alone, the city overcharged or wrongly billed businesses and residents at least $460,595.54, according to internal data compiled by police and fire department personnel and the city’s auditor. The overcharges date back to at least 2004.
City staff members stood by their calculations at the meeting, and explained that the current fee structure was not based on any analysis, but was randomly taken from costs other cities charged. A majority of commissioners agreed to consider amending the ordinance that provides for the fees so that it reflects any increased costs or other changes.
Not all commissioners agreed to increase the fees, however.
“I’m not ready to put more burdens on the citizens here in Fort Lauderdale,” said Commissioner Bobby DuBose, adding that he prefers to reduce the fees.
Even though the billing discrepancy was brought to light nearly two years ago, it was not discussed by commissioners until the Oct. 20 meeting.
Commissioners did not discuss refunding the improperly levied fees or lifting liens placed on properties for non-payment. Instead, commissioners questioned the accuracy of the staff members’ data, and asked for a review to make sure they include all costs the city incurs.
“There is no real case law on the subject that I can find. There are tons of cases that say if you charge the cost of the service, that’s a fee,” City Attorney Harry Stewart told commissioners. “If you charge more than the cost of the service, that’s a tax, or a fine. And if it’s a fine then you’ve got to have a quasi-judicial process set up to challenge the applicability of the fine.”
The city has no such process.
Records and emails sent between city officials revealed that in fiscal year 2008 alone, the city overcharged or improperly levied fines on businesses and residences 2,480 times for a total of $453,595.54 to businesses and residents for police responses, and $7,000 to residents for fire department
Fort Lauderdale’s alarm fee ordinance was first approved decades ago. Commissioners voted to revise the language on Jan. 4, 2004, and again on Sept. 13, 2004 with the current fee structure.
The current ordinance mandates that all burglar alarms installed in buildings in the city’s limits must be registered, for a fee of $50. The fees are supposed to cover fuel for emergency vehicles, mailing of violation notices, staff time for processing and legal review, and other costs.
According to internal scenarios and projections that city managers compiled, it costs the city $140.19 for police to respond to each residential false alarm (compared to the maximum $200 charge per incident) and $200 for businesses (compared with the maximum $400 charge per incident).
Residents who are repeat offenders for false fire alarms have been charged as much as $400 per incident, in violation of the city’s ordinance, which does not allow residents to be charged for false fire alarms.
Residences were omitted from the fire alarm ordinance due to a typographical error, according to staff. Nevertheless, the city has collected $23,000 in such fees since 2004. Commissioners made no mention of refunding the money at their most recent meeting.
“The issue on the fire is we’ve got to clean up this ordinance,” Mayor Jack Seiler said. “That’s what we need to do.”
Business owners that are repeat offenders also have been charged as much as $400 per incident for false fire and police alarms, consistent with the ordinance.
For residential dwellings, according to the ordinance, the first false alarm for police is no charge. The second incident results in a charge of $50. The third incident results in a $75 charge. The fourth is $100, and the fifth is $200. The charge for every subsequent false alarm is $200 within a 12-month period.
For police to respond to businesses, the initial false alarm is no charge, and the second event is $100. The third is $150. The fourth is $200. The charge for the fifth and each subsequent event in a 12-month period is $400.
The South Florida Times is one of the false-alarm violators. The business was cited at least three times in 2007 for false burglar alarms at its former address, 105 NE Third St., for a total of $850.
“The city commission has not yet made a final decision on the proposed amendments to the alarm fee regulations in our code,” Seiler said in an email sent to the South Florida Times on Wednesday, Oct. 28, when asked if the city will refund any improper fees. “I expect that the fees and the other issues you raise in your email to be discussed at our November 17, 2009 commission meeting. The commission will make its determination after the matter is fully discussed and debated.”
At least one financial expert has warned that the city may face legal trouble if it continues to levy the overcharges.
In August, attorney Thomas Tew, a financial expert and senior partner in the Miami-based Tew Cardenas, LLP law firm, told the South Florida Times:
“What they are doing is walking into a re-run of Miami’s fire assessment fee catastrophe.’’
The city of Miami endured years of litigation from a class-action lawsuit filed over its implementation of fire assessment fees from 1997 through 2007.
The lawsuit alleged that since the assessments also funded emergency medical services, they were improper because emergency medical services do not benefit property, as state law requires. At a July 26, 2007 meeting, Miami city commissioners approved a $15,500,000 settlement that went toward refunds for property owners.
“I followed the Miami fire assessment case, and this is worse,’’ Tew previously told the newspaper. “If there is not aggressive action by the elected officials, it will default to the courts and to enforcement people. It’s ripe for a class-action evaluation and if that occurs, it should embarrass the elected officials and the sharks will be circling.’’