An attorney for the Whispering Sands condominium complex on the Key contends the county has no legitimate grounds for trying to collect $73,663.17 in water bills the county says the complex accumulated over several months when a meter was malfunctioning.
Michelle L. Klymko, of the Becker & Poliakoff law firm in Fort Lauderdale, has offered the county $25,000 to settle the matter, but she said Feb. 3 she had heard nothing yet from the Sarasota County Attorney’s Office.
“It’s going to be my recommendation that (the homeowners) appeal,” she said, if the offer were refused. “To have them pay that bill on a blatant error of the county is very unfair.”
In a letter she sent Jan. 6 to Tony Gipe, customer service manager in the county’s Utilities Department, Klymko wrote that the Whispering Sands Homeowners Association “was under-billed for a period of 11 months prior to August 2011 for water service. This error resulted in a $73,663.17 addition to the Whispering Sands water bill in September 2011.”
Klymko pointed out in the letter that a problem with the complex’s water meter was identified and reported to the Utilities Department in February 2009. At that time, she said, the department informed the homeowners association “that it was aware Whispering Sands was in need of a new meter; however, the installation of same would not occur for approximately two years.”
Gipe told the Pelican Press Feb. 3, “There was nothing wrong with the meter (in February 2009).”
Klymko wrote in her Jan. 6 letter that the association notified the Utilities Department of continued water-meter issues in May and June 2009.
“Despite this,” Klymko added, “no action was taken by Utilities to replace the obviously faulty meter.”
In her letter to Gipe, Klymko noted that a resolution approved by the County Commission Feb. 16, 2010, says the Utilities Department may not back-bill undercharges to a customer, because of department errors, for a period greater than 24 months from the time the problem was identified.
“Resolutions are different than ordinances … they’re not absolutes, like ordinances,” Klymko said.
She also wrote that the Utilities Department had provided no evidence of how it had calculated the charges totaling $73,663.17.
Referring to the back billing, Gipe said, “Those were valid bills. We can’t provide free service.”
Whispering Sands averages water use of 600,000 to 700,000 gallons a month, Gipe said, with the usage typically fluctuating between 400,000 and 1 million gallons a month. The meter showed the complex, which has 267 units, went over 1 million gallons in water usage for the first time in January 2009. The exact number, he said, was 1,064,000 gallons.
In March 2009, he said, the complex used 710,000 gallons. “(Usage) does vary depending on how the season hits.”
Gipe said that although the meter stopped working in June 2010, Utilities Department staff did not suspect a problem when the meter showed zero water consumption for that month, because that was not unusual for a condo complex on the Key in the summer.
In her letter to Gipe, Klymko wrote, “It should be noted that during the time period Utilities claims the meter was not working, the association was billed approximately $5,000 per month. As such, this is not a situation where the association failed to make payments during the (time the meter was malfunctioning and then broken).”
Klymko told the Pelican Press, “We’re of the position … that (the homeowners) were just paying what they owed, based on occupancy.”
Complex notified it has water-meter problem
An Aug. 31, 2011, letter from the Sarasota County Utilities Department to the Whispering Sands Homeowners Association, says, “While conducting an audit on your account, it was discovered that you were being billed with a meter that was stuck and/or slowing down, and the usage was no longer registering correctly, and we were billing you for the incorrect water usage.
“As of June 2010, there was little or no water usage registering on the meter, which means water was getting through your meter but was not actually registered and billed. To re-bill your water usage, we are using the same usage that registered the prior year for the same month.
“Your location has been under-billed for the past 11 months by $73,663.17, which we have added to your account balance and will be billed on your September 2011 bill … Because we have back-billed your location, we have also placed an 11-month extension on your account to allow you time to pay on the balance. We apologize for the error.
“Thank you for your understanding.”
BY THE NUMBERS
267 — Number of units at Whispering Sands
600,000 to 700,000 — average gallons of water used per month
1,064,000 — the number of gallons the condo used in January 2009
$73,663.17 — the amount the Utilities Department billed the condo for under-billing