The Law Offices of Kevine T. Wells, P.A.
22 S. Links Avenue, Suite 301
Sarasota, Florida, 34236
February 28, 2008
Dear Mayor Martin and City Council Members:
This firm represents Bird Bay Condominium Association, Inc.
(herein, the "Association"). The Association has requested I contact the City of
Venice and take such action as necessary to recover the amounts that the
Association was overcharged for utility services.
Bird Bay Condominium is located within the city limits of the
City of Venice. The Bird Bay community is comprised of approximately 1,024
members. When the condominium was first developed back in 1978 or 1979, the City
of Venice made a mistake invoicing Building 29 in the condominium which contains
41 units. Simply put, the City double invoiced those 41 units for utility
services. Maria at the City of Venice admits to this mistake and agrees that the
Association has been overcharged for approximately 30 years by the City of
Venice.
When the Association requested a refund from the City, the
City refused and offered to refund only the 2007 overcharge in the amount of
$17,119.37 if and only if the Association accepted this offer within ten (10)
days.
As justification for its refusal, the City stated that Section
74-12 of the Venice City Code states the failure to file a written appeal of a
disputed charge no later than the due date stated on the bill resulted in a
waiver of the right to contest the bill. However, the City of Venice's utility
invoices only state on the backside of the invoices as follows: "The customer
has the right to appeal disputed charges if certain notice is received by the
Finance Director prior to the due date of the charges." Notably, this statement
does not advise the Association that it waives the right to contest the charges
if an appeal is not timely filed. Florida case law is clear that a waiver must
be knowing and intentional in order to be legally enforceable. Since the City's
invoices did not advise the Association that it was
waiving its right to contest these invoices, then no legal waiver has occurred
in this matter.
Section 95.11(3)(m), Florida Statutes, creates a four year
statute of limitations for any action for money paid to any governmental
authority by mistake or inadvertence. Importantly, Section 95.03, Florida
Statutes, states that any provision in a contract fixing the period of time
within which an action arising out of the contract may be begun at a time less
than that provided by the applicable statute of limitations is legally void.
Although the Association and its members have substantially
overpaid the City of Venice hundreds of thousands of dollars for 30 years' worth
of utility double charges' as a direct result of the City's initial invoicing
mistake, the Association hereby demands that the City of Venice reimburse it for
the over payments that occurred in 2004, 2005, 2006, 2007 and accrued interest.
According to the Association's payment records, the City owes the Association
the following sums:
|
Year |
Overpayment
amount |
Accrued
interest |
Total
amount due |
|
2004 |
$
9,928.56 |
$2,953.27 |
$12,881.83 |
|
2005 |
$10,336.92 |
$2,351.15 |
$12,688.07 |
|
2006 |
$10,858.44 |
$2,198.16 |
$13,056.60 |
|
2007 |
$17,119.37 |
$2,352.62 |
$19,471.99 |
|
TOTAL DUE: |
$58,098.49 |
Based upon the above, this is to demand that the City of
Venice reimburse the Association the utility overpayments for 2004, 2005, 2006,
2007 and accrued interest at the statutory rate for each year (through March 31,
2008), in the total amount of $58,098.49. If this amount is not received from
the City of Venice on or before March 31, 2008, the Association intends to file
a lawsuit against the City, notify the local newspapers of the injustice of this
case and contact all members of the Bird Bay community and encourage them to
contact their elected City Council Member regarding this matter.
The Association and its members hope the City will reconsider
its position in this matter and simply do the right thing and refund the double
charges that it mistakenly billed the Association over the last four years with
accrued interest.
I look forward to the City's response in this matter at your
earliest opportunity.
Very truly yours,
Kevin T. Wells, Esq.
