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:
