Opinion
September 24, 2004
107-A SPECIAL DISTRICTS
LSA-R.S. 33:7726(A) provides no authority for Mosquito Abatement District to assert a lien or privilege against immovable property, nor with specific statutory authority for enforcement against structures or property.
Mr. Kenny Sharpe Livingston Parish Mosquito Abatement District 20180 Iowa Street, Room 106 Livingston, LA 70754
Reference is made to your request for an opinion of this office regarding an annual assessment of the Livingston Parish Mosquito Abatement District (the "District"), which was authorized by the voters of the District in the fall of 2003 under authority of LSA-R.S. 33:7721, et seq. which states, in pertinent part:
"A. A Mosquito abatement district created under the provisions of this Chapter may levy and collect special taxes, including monthly service charges to customers of waterworks districts within the mosquito control district, to finance its programs. It may use legal, proper, necessary, and expedient means to collect and enforce the collection of such taxes, including the contracting with a waterworks district located within the same parish to collect a monthly service charge for mosquito control.
B. Any monthly service charge so levied shall be uniform upon the customers of the waterworks district "
The proposition approved by the voters authorizes the District to levy and collect an assessment, as follows:
" an assessment of $2.50 per month, to be collected annually in the amount of $30.00, on each metered electric utility customer in the Parish of Livingston said assessment to be collected by the Livingston Parish Sheriff with assistance from the Livingston Parish Assessor and, in instances where multiple electric meters are located on the same property, said assessment will be limited to one assessment per property per utility customer "
Pertinently, your letter states:
"Does the language of LSA-R.S. 33:7726(A) authorizing the Mosquito Abatement District to "use legal, proper, necessary and expedient means to collect and enforce the collection of such taxes", mean that this $30.00 assessment can in effect be collected and enforced as if it were a special assessment assessed against any structure being serviced by the utility meter?"
In our opinion, LSA-R.S. 33:7726(A) does not provides any authority for a service charge or assessment levied thereby to be enforced against structures or property. Assessments such as those authorized by LSA-R.S. 33:7726(A) could only be enforced directly against structures and property if the Legislature had provided the District with a lien or privilege against immovable property, or with specific statutory authority for such enforcement, and in this case the Legislature has not done so. By way of example, we note that certain fire protection districts, with respect to service charges, have been statutorily authorized to perfect liens and privileges against property and to enforce such liens in the same manner as ad valorem taxes. Attorney General's Op. No. 96-427 .
In Attorney General's Op. No. 98-22 , we stated:
"'In Louisiana, no person is entitled to a lien unless specially granted the same by provision of the statutes of this State '. Jesse F. Heard Sons v. Southwest Steel Products , 124 So.2d 211 (La.App. 1960); see also: Burn Planting Co. v. Goldman Landing Co. , 112 So. 662 (1927), and McQuillin Mun. Corp, Sec. 35.35d (3d Ed) ('a municipality may not impose a lien upon property for delinquent service charges in the absence of express authority to do so.")
Most pertinently, in Attorney General's Op. No. 93-410 , we determined that a fire protection district given the authority to "use reasonable means to collect and enforce the collection of such service charges, including any means authorized by law for collection of taxes", did not grant implicit authority for the filing of a lien to establish a privilege for payment of service charges due the District. Therein, we stated:
"The jurisprudence of this state has clearly provided that liens and privileges are to be strictly construed, as they are in derogation of common rights, and may not be extended by way of construction to cover situations not clearly intended to be comprehended by them. Hebert Abstract v. Touchstone Properties, Ltd. , 914 So.2d 74 (5th Cir. 1990); Blasingame v. Anderson , 108 So2d 105 (La 1959); Southport Petroleum Co. of Delaware v. Fithian , 13 So.2d 382 (La. 1943); P. A. Well Service Inc. v. Blackie's Power Swivels Inc. , 507 So.2d 280 (La.App. 3rd Cir. 1987), writ denied, 513 So.2d 288 (La. 1987). In our opinion, a lien is not a collection procedure, but is instead a security interest in property, which would have to be specifically authorized by the statute in question. Unlike a collection procedure, a lien is a substantive liability imposed in connection with an obligation, as well as a substantive right granted in favor of an oblige. Attorney General's Op. No. 90-280 . It is our opinion that [the statute in question] does not expressly grant a lien or privilege for the service charges payable to the District, rather, the statute only authorizes the District to utilize 'collection' procedures as are otherwise utilized in the collection of taxes."
To reiterate, the statutory language of LSA-R.S. 33:7726(A) authorizing the District to "use legal, proper, necessary and expedient means to collect and enforce the collection of such taxes" does not grant authority for an assessment authorized thereby to be collected and enforced as if it were a special assessment assessed against structures serviced by the utility meter.
Your letter also states that if we determine that the currently authorized service charge cannot be assessed against structures serviced by utility meters, you would like us to address whether R.S. 33:7726 authorizes the District to go to the voters with a proposition allowing it to levy a special tax against every residential and commercial structure located in Livingston Parish, which special tax could be levied, collected and enforced against such structure in the same manner as, for example, fire protection district service charges under LSA-R.S. 40:1502.1 are levied.
As noted in our response to your first question, LSA-R.S. 33:7726(A), as adopted by the Legislature, provides no authority for the District to assert a lien or privilege against immovable property, nor with specific statutory authority for enforcement against structures or property. As such, the District is not authorized to go to the voters with a proposition allowing it to collect or enforce a special tax against every residential and commercial structure located in Livingston Parish in the same manner as fire protection district service charges are levied and enforced under LSA- R.S. 40:1502.1.
We trust the foregoing to be of assistance.
Yours very truly,
CHARLES C. FOTI, JR.
Attorney General
BY: ________________________________
JEANNE-MARIE ZERINGUE BARHAM
Assistant Attorney General
CCF, jr./JMZB/dam
xc: Michael Herbert