Council comments spark fire fee flare up

Turner Dowling, a firefighter/EMT from Station 3, right, gets his air tank changed out by Chris Reynolds, a fire equipment operator, left, at a simulated burning house during Ocala Fire Rescue fire ground engine company operations training on Southeast 13th Avenue in Ocala, Fla. on Friday, March 12, 2021. Ocala Fire Rescue was able to acquire the Murphy house for the training that allows firefighters to prepare for incidents in a more real setting than can be replicated in a training facility. Members of Ocala Fire Rescue completed non-destructive simulations that focused on search-and-rescue, salvage and overhaul, ladder operations and protection of exposures during the training from Wednesday, March 10 to Friday, March 12. In all, 7 Engines, 4 Rescues and a Tower went through the training for Ocala Fire Rescue. [Bruce Ackerman/Ocala Gazette] 2021.

Ocala Fire Rescue firefighter/EMT, Turner Dowling, right, gets his air tank changed by Chris Reynolds left, during a training session on March 12. The city’s method of paying for a portion of the fire services was recently deemed illegal, prompting a judge to order refunds to residents. [Bruce Ackerman/Ocala Gazette] 2021.

Derek Schroth wants a judge to stop city council members from making further public statements about the case and have the council take back what he calls “false and misleading” comments.

The case dates to 2014, and while a court already ruled the fire fee was an illegal tax and ordered repayment of the illegally collected money, the two sides are arguing over how much is due. The city could have to refund as much as $80 million to nearly 80,000 members of the class action.

Schroth filed a motion on March 9, calling into question statements by councilmen at the Jan. 19 city council meeting.

At that meeting, Councilman Jaye Musleh, spoke out about his frustration over the case.

“You deserve to fully know how we’re being, and I don’t know if I want to use the word extortion or not, but it, it, it feels like it,” Musleh said at the meeting while addressing the public.

Musleh reminded those in attendance that the suit was brought “by an attorney who does not live in this town.”

Council President Justin Grabelle said the only one who will benefit from the lawsuit is the lawyer.

“What you’re seeing (in the class action) is a community who is being used as an ATM by somebody who doesn’t live here,” Grabelle said.

Councilmen also used the city meeting to encourage those in the class action suit to become advocates for the city.

“You’re going to have an opportunity to go before this court and talk about the fees and the fairness aspect of that. You can have an opportunity to tell the judge how you’re being affected by this,” Grabelle said. “Nobody in our community is being impacted positively by these action – they’re being negatively impacted – and I think it’s our job as a community to tell that story to the judge, so he understands when he makes that call what the ramifications are going to be.”

Brent Malever, council president pro tem, brought up the question of bankruptcy.

“I don’t want to see it bankrupt this city. I love it,” Malever said. “We cannot let it keep going and lose or fire department and have to shut these new buildings.”

In his motion, Schroth argued the councilmen’s statements, could coerce “new” class member to opt-out by painting a doomsday picture of the city’s finances.

The city previously said it would pay the refunds using a portion of city reserves and borrow the rest of the money.

He also argued that some of the council’s statements are flat out wrong and should be corrected using a “curative notice” listing the inaccuracies and the facts of the case.

He asks that the curative notice be read out loud by the city attorney at a council meeting, so it’s part of the official meeting minutes. The notice also should be prominently posted on the city’s main Facebook page and website for 30 days.

The overall language proposed in that curative notice reemphasizes the court’s findings as to the illegality of the tax, the benefit of the suit to those who were paying the illegal tax, and clarification that there will not be an opportunity for class members to talk to the judge.

Musleh said his remarks came from a sense of duty.

“I am not a lawyer. I spoke as a councilman and resident my honest thoughts, which I feel like I am required to do,” he said in response to the motion.

Robert Batsel, the city’s attorney, declined to comment on the motion. A hearing date on the motion is pending.

In 2006, Ocala began charging a fire fee bundled into the utility bills of city residents using Ocala Electric Utilities. At the time, the strategy was to spread the cost of paying for fire service among residents benefiting from fire service, instead of putting the cost solely onto property owners.

In 2014 Discount Sleep of Ocala LLC and Dale W. Birch challenged the fee. That lawsuit eventually earned class-action status, which includes current and past Ocala Electric customers who paid the fee.

In its June ruling, the 5th District Court of Appeal said Ocala’s fire service fee failed two of the three requirements to qualify as a valid service fee. The court ruled the refunds would cover the period from February 2010 to July 2020.