March 6, 2009 at 4:19 pm #2759
A lawsuit has been filed demanding the return of all "fire fees" paid to the Diamondhead Fire Protection District since 1993. If you are interested in joining this suit you may contact the Kulick Law Firm. To comment on this case please use this thread.March 7, 2009 at 11:45 am #2758
Whats right, is right, whats wrong is wrong. It does not depend on what is, is. Similar to haveing to have 80 – 85% of a vote to accomplish change here in diamondhead. Thats just not realistic, even our screwed up congress dosent have unatainable requirements like that. Its so unrealistic its probably not legal, its similar to usery in lending practices. The fire district Officials and County Supervisors should have obtained AG openions prior to collections to assure the citizens were not being overly abused by bureacracy and inept power freaks. Of course the question remains, “How will the fire stations be funded”? Be careful for what you wish.March 7, 2009 at 1:35 pm #2760
"How will the fire stations be funded?" How about from the 4 mil it lawfully gets from the ENTIRE county.March 7, 2009 at 3:07 pm #2761
Sounds good to me, do you think they can get enough out of that to pave those pot holes next to the parking at the offices?March 8, 2009 at 9:44 am #2763
I’m personally disappointed in everyone involved in this law suit. The Fire District did get an opinion from the Attorney General prior to beginning assessing fees. The opinion at the time was "it is legal".
Historically the Fire Commissioners have done good things and bad things for the department and community, but their saving grace was they always did have the best interest of the community at the heart of their decisions. The current board does not seem to have that agenda but they are not the Fire Department. They are not the people that knock on your door when a family member is having a heart attack and they are not the ones that pull the hose when your house is on fire. They are not the ones that NEED the tools and funding to do their job right.
If this lawsuit is decided against the Fire District. The department will no longer be able to maintain the high standards it has achieved. It will no longer be able to provide the citizens of this community with the quality of service we have come to take so much for granted. It will not be able to continue growing with the community. The fire rating will probably go up meaning our insurance premiums will go up….and I assure you….the increase in insurance premiums will be a lot more painful than what we are investing now in fire fees. But you know, I’m talking dollars, what bothers me is lives. Peoples property and lives depend on the quality of our fire department and this law suit endangers both.
I find this lawsuit to be an extension of the ills already plaguing the current board of Fire Commissioners. Someone has their own agenda with reckless disregard for what is best for the community and the lives of the people. This lawsuit scares me more than any evils the POA perpetuates on us. This lawsuit could cost me my house or cost the life of someone I love.
SHAME ON THE PEOPLE INVOLVED! I’m ashamed to call you neighbor.March 8, 2009 at 1:38 pm #2764
I certainly appreciate your interest in making sure Diamondheadâs fire protection is the best it can be. According to the same neighbors you now want to disown, your husband was an exemplary public servant and would have been an extraordinary asset to any fire department as their Chief. This suit isnât about hurting the men who have done or are doing the work of fire protection, itâs about doing whatâs right under the law and keeping government in check. It would become a very slippery slope if every state agency were allowed to assess fees to augment their budgets.
When the resolution was passed to allow the fee assessment back at the end of 1992, the stated purpose of the assessments were to be for âcapital improvementsâ. Capital improvements are buildingsânot salaries and equipment.
You mention that the Fire District received a letter from the Attorney General saying the fee assessment was ok. Letâs take a look at that transaction. Sylvia Pross was the Secretary of the District in 1990âthree years before the assessments began. Until that time the POA was apportioning dues to help support the District.
Reading the letter that Sylvia Pross wrote to the Attorney General back in November of 1990 and the response by the AG, I can see why you have the opinion you do about the âlegalityâ of the fees. see Nov. 1990 AG Opinion.
Sylvia asked if the Fire Protection District could assess fees for âservicesâ. Indeed, the statute allows fees for servicesâservices rendered. The Attorney General stated in response the following:
"Section 19-5-177(e) states in part that a district has the power: [T]o fix, maintain, collect and revise rates and charges for services rendered by or through the facilities of such districtâ. We take this to empower any of the districts listed by Section 19-5-175 of the Mississippi Code of 1972, including fire protection districts, to so fix rates or charges for services rendered."
Services rendered is not the same thing as services. âRenderedâ is clearly past tense. Conceivably the Fire District could charge after they put out a fire for the cost of water, the extra fuel, the inspection fees to make sure there has been no foul play and so forth. The law does not allow for services which are in anticipation of providing those servicesâthatâs what the county funds through your ad valorem tax dollars. For example, the police do not assess charges for manning the station and waiting for calls to come inâyour taxes pay for that. Would you expect to get a bill from the police for chasing the burglar from your property? Clearly not.
In a later letter the Attorney General galvanized his opinion and even referred to the Pross letter of November, 1990. see AG Opinion 2005 . As you can see, whereas the Fire District may have used the AG response in Pross to justify the assessment, it is clear that the AG even at the time, did not mean to imply that charges for anticipated services were allowed under the law. It is really hard for me to believe that the Board of Commissioners of the District at the time wouldnât have made further inquiry as to the definition of âservices renderedâ when the statute states the concept as clear as day.
What it boils down to, is that no one, and especially state agencies, may decide what the law means to suit them. Interpretation of law is up to the courts. Misinterpretation of law by the District, however well meaning, is no excuse.
Itâs always the right time to do the right thing. Your neighbors should be thanked, not criticized for stepping up to the plate. We hope you too will decide to do the right thing and join us in correcting this 16 year wrong. You are welcome to keep giving the Fire District $240 a year if you want toâas long as it is a donation and not an illegal assessment.March 8, 2009 at 4:22 pm #2765
I know positively your post regarding the Diamondhead Fire Department is from your heart and to your credit you have been a long time supporter of the firefighters. I agree that we are very fortunate to have the dedicated firefighting professional serving the Diamondhead community. We are also lucky to have citizens like you rallying to their defense. They need community support. No one has a beef with these gentlemen and our suit is not about their service.
Our suit is against those persons who have instituted what we believe to be an unlawful tax masked as a "fee". The Diamondhead Fire District personnel are appointed members, not elected persons and, according to my research, have no authority under Mississippi law to create taxes.
Our suit is against those responsible for these unlawful fees and those who have used intimidation by threatening to suit residents who refuse to pay the fees and telling them they will have to pay late fees, attorney cost, have leans placed on their homes and ultimately will have to pay the fees.
Yes, these Diamondhead fire fighters save lives and property in our district, and we are proud of them for it, however so does the Bay St. Louis Fire department, the Waveland Fire Department, the Gulf Port Fire Department, etc. etc. save live and property in their districts. The difference is they do so without adding an extra tax.
The Sheriffâs Office, Bay St. Louis Police Department and the Waveland Police also serve the community, save lives and property and without charging an unlawful tax. They operate on the budget provided by the tax millage. Why can’t we do the same?
If the Diamondhead District needs additional funds to operate the Fire Department why don’t they ask for a millage increase? Explain why they need the extra funds and put the proposal on a ballot for us to vote on.
If they are able to convince the public an increase is needed I am sure they would get a postive vote from this community. This fee has been debated for many, many months. Two letters were sent, many months ago, to the Hancock County’s attorney questioning the legality of this "fee". He has not replied. The choice was clear. This is an issue that must be decided by a court of law. It is not about money but principal. We are a country of laws and no one should be above the law.
This is true for the Diamondhead Fire District Commission.March 11, 2009 at 3:29 pm #2781
I’m going out of town and therefore don’t have the time to fully address the previous comments.
I’ve read the AG’s letters, and yes, rendered is past tense. The dictionary at, http://www.thefreedictionary.com/render, defines render as “to give or make available; provide”. Is it in question that the fire department had not been making their services available long before they began charging fees? So the tense used in the word shouldn’t be an issue should it? To convince me this suit has merit you’d need to address the following:
1. The law has its own unique definition for “render” that is in opposition to a standard English dictionary
2. The fire dept. was not making their services available prior to 1990
3. The fire dept. does not provide their services when requested
Obviously the interpretation of these letters is a reflection of what the reader wants to see. You, as the lawyer in the case, will argue for whatever your client wants. Therefore your opinion doesn’t sway me, your argument to this point has definitely left me unimpressed and until the jury comes in I guess we’ll all just be wondering.
I’ll repeat I’m ashamed of the people who have filed this lawsuit and I’ll thank you to not patronizingly put words in my mouth. At no point did I imply or mention “disowning” anyone. I don’t disown my children and I don’t disown my neighbors. That would be rather immature behavior.
Commissioners have no right to assess taxes, but according to the AG they can charge fees for services rendered, which I already argued is what they do. If you honestly felt there was a question on this issue, why didn’t you retain an attorney to assist in getting the current AG’s opinion clarified? Was this the best way for the community?
It says something that you refer to Bay St. Louis, Waveland and Gulfport Fire Departments when speaking of Diamondhead, and perhaps that is because Diamondhead is every bit as good as those departments. But you know what, those aren’t Fire Districts, those are city departments financed by city taxes. They don’t need to assess fees to operate. Look at the Hancock County Fire Districts if you want to see how we “could be”. Look at the ones that are operating on the 4 mil. tax and donations and see what they have. Don’t you think if it were possible on a 4 mil. budget they would all have paid departments with a Town Class 6 Rating?
You also mention the sheriff’s department and I’m not sure, but I think Diamondhead could operate without charging fees if they, like the sheriff, received tax millage from every piece of property in Hancock County. Don’t think the Supervisors are going to go for that though.
Were you around prior to the fees? Back when the department’s income was 4 mil., POA subsidy, and the Ladies Auxiliary sold cook books, phone books and gladiolas on street corners, this paid for 1 fireman on duty per shift plus a chief, and those were not livable salaries. One fireman showing up at my house won’t be quite so bad, Dennis and I know how to operate the pump and pull hose, but the rest of you are in trouble.
You were in emergency services, didn’t you want to have backup if you needed it, or a reliable vehicle for patrolling? Don’t you think what is best for the department translates to what is best for the people in the community?
Another thought has come to mind. The water district charges a minimum fee if you go on vacation. That is a fee for what? They aren’t currently providing water, just maintaining its availability. The phone company does the same with your phone number but I hesitate to compare because they aren’t a governmental entity like the water dept. Just a thought….Why with all the BS around here, this was the issue you picked? You could have had my support on so many things.
While I’m on a binge….let me address the street paving issue also. That road alongside the fire station is private property. They (fire dept.) therefore cannot pave it anymore than they can pave someone’s driveway. The County cannot pave it, because it is private property. If it were legal, we could have all our roads in Diamondhead paved on the county nickel.
The road was owned by Purcell when they owned the shopping center. Whether the property was included in the sale of the shopping center needs to be determined. The Hancock County Tax Assessor can provide the identity of the owner but that doesn’t mean the owner will do anything to improve the situation. Then we’ll just know exactly who to gripe about.March 11, 2009 at 4:41 pm #2782
Dont mean to belabor this but another appropiate viewpoint of the pothole situation. The fire station employees and patrons use this private property to access the fire station and its office. a fair steward of the public interests would deliberate with the private property owner and compromise on an appropiate resolution to share in the pot hole problem elimination. The private owner appears to have paved the access areas for the leasors of the shopping center, from whom He collects rents. He collects no rents from the fire station, it would seem fair and appropiate to share the cost of maintainence to have the right to use the roadway for access. Leaders find ways to resolve problems and overcome challenges, Poor leaders are like the motor cycle rider that got run over by a truck, as the ambulace was takeing him to the hospital he kept hollaring, “But I Had The Right of way”.March 12, 2009 at 8:56 am #2783
We did have the law clarifed with the AG’s office and also spoke with the Office of State Auditor before filing this action. Both offices opine that the “fee” is unlawful and in fact this information was relayed recently to the country attorney via phone conversation. The issue has been ignored by the county attorney so the only alternative afforded to us was to bring the issue before the courts for a decision. Yes, there are many important issues to be resolved in the Diamondhead community particularly with the POA board, incorporation and the water district. But…..can fight only one battle at a time. You state if the fire district received 4 mils from every property owner in Hancock County, like the Sheriff’s Office does, then the fire district could afford to operate like the Sheriffs with his mils.. Correct me if I am in error, but I believe the Fire District does currently receive 4 mils from all property in Hancock County. My point is if 4 mils is insufficent then lets make the argument to the community, show them why an increase is necessary and solicit their support for the funds necessary. Lets not impose a “fee” of some amount taken out of the air and threaten our citizens with lawsuits, liens, etc. etc. if they do not pay. If the Commission can legally charge $20 what is stopping them from charging $50 or even $100. And if the fire department can legally charge a “fee” why can’t the Sheriffs office also charge a fee? Do you suggest they are answerable to no one and can set whatever amount they want to charge? Under your interpertation of the law this would be legal. Imagine an appointed body given authority to set any fee in any amount at their will and not be answerable to the voting public. I think we both know the answer to that question. My recommend procedure will fall under the law, the monies will be collected and distributed by the governing authority in accordance with budget request. If persons do not pay their property taxes the law has provision to address the matter. How can one argue against that? It is the way all goverment agencies conduct the publics business and the Fire District should not be an exception.March 13, 2009 at 11:24 am #2784
Since we are quoting from the dictionary how about this from Eycyclopedia Britannica: PAST TENSE – Time is frequently preceived as a continuum with three main
divisions; past, present and future. Past tense refers to any time BEFORE the present time. Future tense refers to anytime AFTER the present. Examples – The jury RENDERED its decision yesterday (past tense). The jury will RENDER its decision tomorrow (future tense). Or…..The fire department rendered first aid to a homeowner last week (past tense). The fire department will render any assistance it can in a disaster (future tense). According to the the AG’s office the district can charge a fee for the first aid services rendered but cannot charge a fee for the services it expects to render. At least this is my understanding of the AG’s opinion and I suspect the court will agree with the AG’s view.March 14, 2009 at 8:18 am #2785
Can someone please answer the following questions about this lawsuit?
Assuming that the FD loses the suit:
1) Where would the FD get $10 million to pay the judgement?
2) The contract that the lawyer asks you to sign sates that he would receive either 40% or 50% of the judgement, depending upon how the settment is reached. In addition the lawyer can file leins to pay for the judgement. If the $10 million is not available, does that mean that the lawyer can try to seize the fire trucks etc to pay the judgement?
3) It’s been suggested that if the FD department loses, the FD can hold a special election to try to raise the mils that are collected A) Who would pay for this election? B) Would the increase in mils be asked for everyone in Hancock County or just the people who live in Diamondhead?
4) I believe that the mils are received by the County when property taxes are paid. That would seem to mean that the FD would not receive the new taxes for up to possibly a year after the increase was approved by voters. What would happen to the FD between the time in which the judgement occurred and the time when the new taxes would be received? It seem like this could be longer than a year.
5) What would happen to the FD rating duirng this time?
6) What would happen to everyone’s homeowners insurance rates during the time that the FD could not provide the same level of service as they provide now?March 15, 2009 at 7:47 am #2786
Great questions. I will do my best to answer the concerns you raise. Outcomes are important. As Iâve said time and time again, our goal is not to shut down the fire department, only to stop the illegal assessment of taxes and to obtain a recovery for the residents who would like to be reimbursed the fees they paid each month under protest.
1) How will the District pay a large judgment?
The DFP District may have insurance for liability in these situations, but realistically, most insurance companies exclude illegal activities. The District may have a healthy rainy day fund which could pay the judgment. The District could borrow money secured by bonds to pay a sizeable judgment. Finally, if no other remedy is available to the District, by law, the State of Mississippi may be called upon to issue the refunds. Remember, while the total illegal assessment may be well over the 10 million dollar range, only the Plaintiffs in the lawsuit will have a recovery of past fees–those not involved will only benefit from the suit by having their future assessments stopped.
2) What about the lawyerâs contract and will he seize assets?
The contingency fee contract provides that each client will pay 40% of his or her recovery or nothing if there is no recovery. If the average plaintiff has only $2000 in actual damages, he or she will pay the attorney roughly $800. $800 is a bargain basement price to have an experienced lawyer working hundreds of hours for the benefit of each client. The fee escalates to 50% of the recovery if an appeal is necessaryâie. the District appeals a verdict and the plaintiff attorney has to work many additional hours to obtain a recovery. No one is talking about seizing trucks, but you are right, it could happen.
3) The Board of Supervisors can levy a special tax according to Mississippi Code Section 19-5-189 to help a district with special needs: â(1) (a) Except as otherwise provided in subsection (2) of this section for levies for fire protection purposes and subsection (3) of this section for certain districts providing water service, the board of supervisors of the county in which any such district exists may, according to the terms of the resolution, levy a special tax, not to exceed four (4) mills annually, on all of the taxable real property in such district, the avails of which shall be paid over to the board of commissioners of the district to be used either for the operation, support and maintenance of the district or for the retirement of any bonds issued by the district, or for both.â No election is necessary. The special tax for the District residents only would be imposed by the Board of Supervisors.
4) What about interim financing if a judgment compromises the operating budget temporarily?
The District is, and has always been allowed to seek bond financing to secure loans from the federal government. Usually amortized over many years, the District can legitimately seek funding for its long term needs by issuing bonds. Likewise, for those residents who want to do more, they can always make donations each year; those who donât wonât be forced by an illegal tax to do so.
5) Will our fire rating be affected?
Fire ratings have very little to do with the size of the fire department. Fire ratings are more dependent on the number of fire plugsâthe availability of waterâwhich make fighting a fire, even with volunteers, possible. Good building codes, and home preparation with such things as smoke detectors and fire extinguishers contribute more to a good rating than a full time staffed fire department. It is very unlikely ratings will change at all.
6) Will our insurance rates for fire escalate?
Insurance rates are also very unlikely to change as they are somewhat tied to the rating. However, many companies disregard Mississippi fire ratings altogetherâtake State Farm for example. According to Allstate Insurance, fire ratings would have to reach a 10 for an increase in premiums to occur. For most homeowners, fire coverage is usually only a 20% contributor to the total homeowner premium.
Thanks for asking the tough questions. No one likes to sue a neighbor, but the practice of imposing illegal taxes has gone on for long enough.
To find more information concerning this case and for information on how to join our suit and recover your money visit our website here:March 15, 2009 at 8:24 am #2787
My poa fees started out ,if I recall correctly, $42 a month(and I’ve only been here eight years). You know what it is today. Now, I dont’ golf, I haven’t played tennis here, and other than to give directions to delivery trucks and pass out car stickers, I haven’t seen any stops being made up front at our ‘gated’ community. So, if I were to grumble and sue over dues, those would be the ones I’d choose….especially since receiving my new membership card for the year yesterday. I wondered then and now, so which one do people show to use the amenities, this one or their silver slipper card? So, sorry, can’t get all in an uproar over $20 bucks for fire protection, especially since, not to disagree with other posters, but I do believe a much changed and suddenly poor fire dept. would definitely make our insurance go up. You should ask yourself, do those who say rates won’t go up stand to gain from this?March 15, 2009 at 8:47 am #2788
I canât believe this. Ever heard of taxation without representation? Do you possess any idea of how and why this country was founded? Are you aware of what country you live in? Nothing to gain? I guess all those soldiers who lost their lives in all those wars should have asked what is to be gained.
If we let every little bureaucrat tax us for everything they deem important we will wind up like every totalitarian regime we deplore.
This forum is the greatest tool to expose those who are simply not American.
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