City of Miami, Appellant, vs. Cheryl K. Haigley, individually and on behalf of all others similarly situated, Appellees.
No. 3D13-1382
Third District Court of Appeal State of Florida
Opinion filed July 23, 2014.
Not final until disposition of timely filed motion for rehearing.
Lower Tribunal No. 11-1364
Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, Warren Bittner, Deputy Emeritus, and Forrest L. Andrews, Assistant City Attorney, for appellant.
Eaton & Wolk, and William G. Wolk; Freidin Dobrinsky Brown & Rosenblum, P.A., and Eric Bluestein, for appellees.
Before ROTHENBERG, SALTER, and LOGUE, JJ.
ROTHENBERG, J.
In 1992, because “the cost of providing the highest possible fire safety and prevention services [was] steadily rising,” the City passed Ordinance 11007, which amended
Sec. 2-234. Emergency medical transportation service fee.
(a) There is hereby established a schedule of fees for use of the emergency medical transportation services of the department of fire-rescue. Such fees shall be charged to each person receiving basic and advance life support transportation service . . . ; such schedule of fees being as follows:
(1) Basic life support—Base rate .....$135.00
(2) Advance life support—Base rate.....235.21
(3) Oxygen .....22.00
(4) Mileage, per mile .....6.60
(5) IV solution .....22.00
(6) Cardiac monitoring .....22.00
(7) Cervical collar .....22.00
(8) Special handling (extrication, antishock trousers, nonbreathing patients and hare-traction splints) .....22.00
(9) Nonresidents of the City of Miami will be assessed a surcharge of .....100.00.
(b) The city manager shall increase the charges for services as set forth in this section when necessary to reasonably cover the cost of providing such services. Whenever such charges are to be increased, the city manager shall file a list of new charges which shall become effective no earlier than 30 days after such filing with the city clerk.
FACTS AND PROCEDURAL HISTORY OF THE PRESENT CASE
In March 2010, Cheryl K. Haigley (“Haigley“), a resident of St. Petersburg Beach, Florida, fell and injured herself while in the City of Miami. The City‘s Fire-Rescue Department responded, and Haigley was transported to a local hospital. The City billed Haigley a total of $445—a $330 “base rate” for “basic life support”2 services, $15 for mileage, and a $100 non-resident surcharge.3 Haigley paid the bill in full.
In January 2011, the plaintiffs filed an action against the City, seeking a declaration that the City‘s non-resident surcharge is unconstitutional because it violates the right to intrastate travel and the guarantee of equal protection secured by the Florida Constitution (Count I) and because the surcharge is an unauthorized tax, not a user fee (Count II). The plaintiffs sought the return of all non-resident surcharges collected by the City during the four years preceding the filing of the action.
STANDARD OF REVIEW
Our standard of review of an order granting summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). Additionally, constitutional challenges to statutes or ordinances involve pure questions of law, and therefore, the plaintiffs’ constitutional challenges are also reviewed de novo. See Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm‘n, 838 So. 2d 492, 500 (Fla. 2003); Kuvin v. City of Coral Gables, 62 So. 3d 625, 629 (Fla. 3d DCA 2010).
ANALYSIS
I. Are the Fees Charged to Non-City Residents Who Use the City‘s Emergency Medical Transportation Services a Tax or a User Fee?
A. The Three-Prong Test to Determine whether the Charge is a Tax or a User Fee
[A] tax is an enforced burden imposed by sovereign right for the support of the government, the administration of law, and the exercise of various functions the sovereign is called on to perform. . . .
User fees are charges based upon the proprietary right of the governing body permitting the use of the instrumentality involved. Such fees share common traits that distinguish them from taxes: [1] they are charged in exchange for a particular governmental service [2] which benefits the party paying the fee in a manner not shared by other members of society, and [3] they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge.
Id. at 3 (internal citations omitted); see also Collier Cnty. v. State, 733 So. 2d 1012, 1018, (Fla. 1999) (“[U]ser fees are similar to special assessments, in that the fee must result in a benefit not shared by persons not required to pay the fee.“); State ex rel. Gulfstream Park Racing Ass‘n v. Fla. State Racing Comm‘n, 70 So. 2d 375, 379 (Fla. 1953) (“In common parlance a tax is a forced charge or imposition, it operates whether we like it or not and in no sense depends on the will or contract of the one on whom it is imposed.“); City of Miami v. Quik Cash Jewelry & Pawn, Inc., 811 So. 2d 756, 758-59 (Fla. 3d DCA 2002). Therefore, in the instant case, if the emergency medical transportation services fee, which includes the non-resident surcharge, satisfies the three-prong test, it is a user fee, not a tax.
(1) The fee the City charged Haigley was in exchange for a particular governmental service provided to her by the City
It is undisputed that the City provided Haigley with a particular governmental service. The City‘s Fire-Rescue Department transported Haigley to a medical facility for emergency treatment. The charge assessed for this service was assessed solely to Haigley, not to a non-user of the emergency medical transportation services. Thus, the $445 the City charged Haigley was in exchange for a particular governmental service.
The City provides the same emergency medical transportation services to City residents and non-residents.
(2) The emergency medical transportation services benefited Haigley in a manner not shared by other members of society
The City of Miami non-resident surcharge does not provide a benefit to non-residents in a manner not shared by other users of the City of Miami emergency medical services. Even if the City uses most of the non-resident surcharge money collected to pay for a portion of the overall cost of providing Fire Rescue transportation services to everyone, the surcharge does not benefit the non-residents paying the charge in a manner not shared by others, which is the essence of the second prong of the Supreme Court‘s City of Port Orange user fee test.
The trial court unfortunately focused on whether the non-resident surcharge benefitted Haigley in a manner not shared by other members of society, rather than focusing on whether the emergency medical transportation services provided by the City benefitted Haigley in a manner not shared by other members of society. As to the emergency medical transportation services provided to Haigley by the City, the answer is obvious—the services Haigley received from the City‘s Fire-Rescue Department solely benefitted her. No other member of society received or was billed for the services provided to Haigley.
In Quik Cash Jewelry, 811 So. 2d at 759, this Court reversed the trial court‘s order finding that the fees imposed by the City on pawnshop operators were unconstitutional. This Court, however, found that the fees were user fees, not taxes, because the fees benefitted pawnshop owners in a manner not shared by
We think it is clear that the payment which plaintiff is seeking to recover is in no sense a tax, but is rather a fee. In the first place, the necessity of its payment does not arise unless and until the individual requests the public authority to perform some particular service. So long as the service is not asked, the money will never be demanded. In the second place, the service which is requested of the defendant is one which obviously and admittedly will confer a particular benefit on plaintiff alone, and upon no other person, natural or artificial. We hold, therefore, that the amount in controversy was collected from plaintiff as a fee and not as a tax, and as such is not subject to the constitutional inhibitions imposed upon taxes, but rather to such as may exist as against fees.
Quik Cash Jewelry, 811 So. 2d at 759 (footnote omitted) (quoting Stewart v. Verde River Irrigation & Power Dist., 68 P.2d 329, 334 (Ariz. 1937)). Similarly, Haigley paid directly for the emergency medical transportation services provided to her and her alone. Thus, the second City of Port Orange prong is also satisfied.
(3) Haigley paid the emergency medical transportation services fee by choice
In addressing whether Haigley paid the emergency medical transportation services fee “by choice,” we must determine whether Haigley, as the party paying the fee, had “the option of not utilizing the governmental service and thereby avoiding the charge.” City of Port Orange, 650 So. 2d at 3; see also Quik Cash Jewelry, 811 So. 2d at 758 (“[O]ne can avoid a user fee by not seeking the governmental service for which it is charged.“). Of the three prongs set forth in
In Gargano v. Lee County Board of County Commissioners, 921 So. 2d 661, 667-68 (Fla. 2d DCA 2006), the Second District Court of Appeal specifically addressed this third prong—whether the fee is paid “by choice.” In Gargano, the issue was whether the toll charged to cross the bridge to or from Sanibel or Captiva Island in Lee County, Florida, was a user fee or a tax. Ms. Gargano argued that because she did not own a boat or a helicopter, and the only way she could reach her home on Sanibel Island was by using the bridge, she had no choice but to pay the toll, and thus, the toll constituted a tax. In rejecting this argument, the Second District stated the following:
It is true that anyone who lives on Sanibel Island or Captiva Island and does not own a boat or helicopter must pay this toll to reach their home from the mainland. This is not a situation in which the traveler has other, longer roadways to reach the same location. However, the concept of “choice” for defining user fees is designed to distinguish a tax whose payment can be compelled from charges for services that one can avoid. Ms. Gargano can live elsewhere in Lee County. She can choose to stay on the island and not visit the mainland. The County cannot compel her to use the bridge or pay the fee. As a practical matter, she may not see many available options, but as a legal matter this charge is not a tax.
Haigley clearly had a choice. The record reflects that she was conscious and not otherwise incapacitated when she was transported to the local hospital by the City‘s Fire-Rescue Department. Haigley, therefore, was able to elect whether to use the emergency medical transportation services offered by the City‘s Fire-Rescue Department.
Nonetheless, the incapacitation of an individual who may not be able to communicate with the City‘s Fire-Rescue personnel would not require a finding that the non-resident user of the City‘s emergency medical transportation services had no choice. As explained in Gargano, an individual can choose whether or not to enter a particular city. The choice is hers to make, not the City‘s. The City does not bar non-residents from entering or require that they use the City‘s emergency medical transportation services in the event they suffer an unfortunate accident, illness, or injury, and the City will provide the same emergency medical transportation services to residents and non-residents alike.
Because the non-resident surcharge satisfies the three-prong test set forth in City of Port Orange, it is a user fee, not a tax. We now address the plaintiffs’ remaining arguments.
B. The Transfer of the Collected Fees into the City‘s General Fund
Haigley contends that because the emergency medical transportation services fees collected by the City are placed into the City‘s General Fund, they are converted into a tax. However, the Florida Supreme Court in Crist v. Ervin, 56 So. 3d 745 (Fla. 2010), has already rejected this argument. In Crist, the Florida Supreme Court addressed whether several statutes that require that a portion of civil action filing fees be transferred into the State of Florida‘s general revenue fund imposed an unconstitutional tax and denied access to courts. The Florida Supreme Court, relying in part on City of Port Orange, held that the statutes in
[A] statutory filing fee is not considered an unconstitutional tax repugnant to court access if the fee is used to fund the costs of the administration of justice. There is no requirement in the Florida Constitution that the very money paid for filing fees be used to fund the administration of justice. Money is fungible. Once the filing fees are commingled with other state money in the general revenue fund, the filing fees lose their separate character and become interchangeable with the other state money. Therefore, the Legislature would be using the filing fees to fund the administration of justice if it funds the justice system at a level at least equal to the amount of filing fees that is commingled with other state money in the general revenue fund.
Crist, at 749 (emphasis added) (citations omitted). The Court also concluded that the statutes were constitutional as applied “[b]ecause the Legislature funded the cost of the administration of justice with far more than the amount of filing fees deposited into the general revenue fund.” Id. at 750.
In the instant case, it is undisputed that the City‘s Fire-Rescue Department budget comes from the City‘s General Fund. The collected emergency medical transportation services fees, including the non-resident surcharge, are transferred into the City‘s General Fund, and the collected fees are used to help offset the cost of providing Fire-Rescue transportation services and to help defray the costs of purchasing, maintaining, and repairing the equipment necessary to provide the emergency medical transportation services set forth in
II. Does the Higher Rate Charged to Non-Residents Who Use the City‘s Emergency Medical Transportation Services Violate Florida‘s Constitutional Guarantee of Equal Protection or Burden the Fundamental Right to Intrastate Travel?
The trial court also found that the non-resident surcharge, even if considered a user fee, violates Florida‘s equal protection clause and unconstitutionally burdens the fundamental right to intrastate travel. In performing our constitutional analysis, we begin, as we must, with our recognition that properly enacted acts of legislation, including ordinances, are presumptively constitutional. Kuvin, 62 So. 3d at 632 (holding that ordinances “enjoy a presumption in favor of constitutionality“); City of Pompano Beach v. Capalbo, 455 So. 2d 468, 469 (Fla.
A. Equal Protection
Haigley argued below, and the trial court found, that the application of
The Florida Constitution‘s Equal Protection Clause provides, in relevant part: “All natural persons, female and male alike, are equal before the law . . . . No person shall be deprived of any right because of race, religion, national origin, or physical disability.”
When determining whether the legislation survives the highly deferential rational basis test, the first step is to “identify[] a legitimate government purpose which the governing body could have been pursuing.” WCI Cmtys., Inc. v. City of Coral Springs, 885 So. 2d 912, 914 (Fla. 4th DCA 2004). “The second step of the rational basis test asks whether a rational basis exists for the enacting government body to believe that the legislation would further the hypothesized purpose.” Id.
In passing Ordinance 11007, which increased fees related to emergency medical transportation services and added the non-resident surcharge, the Commission of the City of Miami recognized that the “City must increase specific fees in order to continue to provide said services.” The distinction that the City‘s Commission has drawn between residents and non-residents by charging non-residents an additional $100 for their use of the City‘s emergency medical transportation services certainly “bear[s] some rational relationship to a legitimate
The City‘s residents, users and non-users of emergency medical transportation services alike, more than make up for the additional $100 surcharge charged non-resident users by contributing a far greater amount to the City‘s overall emergency services budget. The base rate paid by individuals using the City‘s emergency medical transportation services is insufficient to cover the total cost, and the City could have properly determined that an extra $100 was necessary to offset that additional cost since non-residents do not contribute through the
The trial court below relied heavily on Hamilton v. Collins, 154 So. 201 (Fla. 1934), and Harper v. Galloway, 51 So. 226 (Fla. 1909), to support its conclusion that the ordinance violated the principles of equal protection. In Hamilton, the Florida Supreme Court found that the ordinance in question violated equal protection by allowing bread and pastry merchants with an established place of business within the city to pay a lower fee for their business license than bread and pastry merchants who did not have an established place of business within the city. Hamilton, 154 So. at 283-84. Similarly, in Harper, the Florida Supreme Court struck down a local Marion County game law requiring non-residents of Marion County to provide notice and pay a license fee to hunt game in Marion County. Harper, 51 So. at 228-29.
These cases, however, are distinguishable because they involve the payment of fees for a license to engage in independent activities (carrying on business and hunting) rather than the payment of a user fee for a service provided directly by the government (emergency medical transportation services). Additionally, although, Harper and Hamilton have not been explicitly overruled, their holdings and rationale predate the 1937 shift away from the courts’ laissez-faire attitude towards legislation, which heavily scrutinized economic regulations. See Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2609 (2012) (Ginsburg, J., concurring in
The City had legitimate objectives and a rational basis for passing the ordinance. Thus, the plaintiffs have been provided equal protection under the law.
B. Intrastate Travel
In State v. J.P., 907 So. 2d 1101, 1113 (Fla. 2004), the Florida Supreme Court concluded that the “right to intrastate travel in Florida is clear.” The Court poetically recognized that:
Hailing a cab or a friend, chatting on a public street, and simply strolling aimlessly are time-honored pastimes in our society and are clearly protected under Florida as well as federal law. All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest.
We conclude that the fee charged non-residents who use the City‘s emergency medical transportation services does not implicate the right to intrastate travel. The City‘s ordinance does not burden a non-resident‘s right to enter or freely move throughout the City. Rather, the challenged ordinance merely charges non-residents an additional $100 for emergency medical transportation services if they utilize such services when visiting the City. Unlike the curfew ordinance in J.P. that prohibited juveniles from being in or remaining in a public place between the hours of 11:00 p.m. and 6:00 a.m. and provided criminal sanctions for violations of the ordinance, the City‘s surcharge in the instant case does not legally or practically restrict a non-resident‘s right to move about the state of Florida or the City.
Historically, the cases in which the right to travel has been implicated generally involve residency requirements that burdened the right to migrate. The United States Supreme Court has consistently distinguished between requirements applied differently between residents and non-residents, and requirements such as
We have always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State.
Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 904 n.3 (1986).
Whereas durational residency requirements that deprive new residents of important benefits or penalize new residents for exercising their rights to migrate have been struck down, bona fide residence requirements have been found not to burden or penalize interstate (or intrastate) travel, because any person is free to move to a state (or city) to establish residence there. For example, the United States Supreme Court has found that even a temporary deprivation of life‘s necessities or important rights by a durational residency requirement may unconstitutionally penalize migration. See Dunn v. Blumstein, 405 U.S. 330, 333 (1972) (concluding that a durational residency requirement to establish the eligibility to vote was an unconstitutional burden on the right to migrate).
Conversely, residency requirements that are uniformly applied and which protect the services provided to state or city residents have generally been found not to burden or penalize interstate (or intrastate) travel.
A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring
that services provided for its residents are enjoyed only by residents. . . . [Such a requirement] does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there.
Martinez v. Bynum, 461 U.S. 321, 328-29 (1983) (footnotes omitted). For example, in Baldwin v. Fish & Game Commission of Montana, 436 U.S. 371, 391-92 (1978), the United States Supreme Court found constitutional Montana‘s recreational hunting licensing laws that limited the number of hunting licenses made available to non-residents and required non-residents to pay a higher fee for such license than Montana residents.
The City‘s ordinance in the instant case does not in any way restrict a non-resident‘s right to enter or move throughout the City or the state of Florida. The City‘s emergency medical transportation services are readily available to residents and non-residents alike. Thus, the City‘s ordinance does not unconstitutionally burden intrastate travel.
CONCLUSION
The City‘s emergency medical transportation services fee, including the $100 non-resident surcharge, is a user fee—not a tax—because it satisfies the three-prong test set forth in City of Port Orange. The City‘s ordinance is a valid user fee as it does not violate the constitutional guarantee of equal protection or unconstitutionally burden intrastate travel. Accordingly, we reverse the trial
Reversed and remanded with directions.