382 So. 2d 307 | Fla. Dist. Ct. App. | 1979
Lead Opinion
Appellant Fish, representing a class of condominium unit owners and residents of the City of New Smyrna Beach, appeals from a circuit court judgment sustaining the City’s ordinances fixing garbage and trash collection rates for residential and business users. The issue is whether the City’s classifications and charges discriminate unconstitutionally against condominium residents and in favor of business users and residents of single family dwellings.
We find that the substantial difference in charges to condominium residents and to businesses, for the same service, is without a rational basis and is therefore constitutionally deficient. Although there is some apparent whimsy in the City’s charges to condominium residents, as contrasted with the charges to single family dwelling residents, the service to those classes is different, and appellant failed to show that the greater charges they pay are not reasonably related to the different service they receive. We therefore affirm in part, reverse in part, and remand.
For about a year before December 1976, the City’s garbage and trash collection ordinances differentiatéd in both service and charges between kinds of residential units as well as between residential and business units. Single family dwellings and duplexes in conventional New Smyrna neighborhoods require collection services for both garbage cans and uncontained trash at curbside, whereas condominium and apartment residents do not accumulate “trash”
In December 1976, to overcome a deficit in garbage and trash collection service, the City commission resolved that “all structures and units used for dwelling purposes should be served on an equal schedule and billed equally,”
There is a striking difference between the City’s charges under ordinance 45-75 for service to the dumpsters of businesses, and the City’s charges under ordinance 40-76 for the same service to similar dumpsters used by condominium residents. In February 1977 the 1,593 residential units in 24 New Smyrna condominium complexes collected their garbage and trash in 43 such bulk containers, typically of six cubic yards capacity, which typically were emptied twice weekly by the City. Whether at a condominium or business site, the dumpster is mechanically lifted and emptied into a City truck in the same way. But under ordinance 45-75 a business pays $45.00 per month for that service to one dumpster, while the 55 condominium residents in, say, Coronado Cove pay $220.00 for the same service to a single dumpster ($2.50 for garbage plus $1.50 for “trash” X 55). Thus in January 1977 condominium residents using 43 dumpters paid $6,372.00 for collection service, while the business users of 43 comparable containers paid $2,540.20 for the same service.
The City does not defend the disparity in charges on the basis of City costs in either collecting or disposing of refuse. The City has made no cost analysis on the subject, but the City’s financial director could suggest no difference between the City’s cost of service to business dumpsters and the City’s cost of service to condominium dumpsters.
The trial court’s judgment is without findings of fact which would assist us in reconciling the evidence and the judgment. See Surratt v. Fleming, 309 So.2d 614 (Fla. 1st DCA 1975). If possible we must interpolate the missing findings, to square the judgment with the evidence. Jacquin-Florida Distilling Co. v. Reynolds, Smith and Hills, etc., 319 So.2d 604 (Fla. 1st DCA 1975). That cannot be done in this case; there is no substantial evidence in the record suggesting that New Smyrna Beach rationally charges condominiums and businesses differently for the same service.
Ordinances 45-75 and 40-76 operate in an unlawful discriminatory fashion against condominiums in New Smyrna Beach. The established classifications and charges, though superficially plausible, are in fact not reasonably related to
. such factors as the cost of service, the purpose for which the service [is provided] . . ., the quantity or the amount [of service rendered], the different character of the service furnished; the time of its use or any other matter which presents a substantial difference as a ground of distinction.
12 MeQuillin, Municipal Corporations (3rd ed. 1970), section 35.37b, quoted with approval in Pinellas Apartment Association, Inc. v. City of St. Petersburg, 294 So.2d 676 (Fla. 2d DCA 1974). See also 567 Island Corp. v. North Bay Village, 236 So.2d 467, 468 (Fla. 3d DCA 1970), cert, den., 240 So.2d 637 (Fla.1970) (upholding garbage rate differentials justified by “the types of structures involved as located in the defendant city and the differences in the garbage service requirements as related thereto”): Clay Utility Co. v. City of Jacksonville, 227 So.2d 516, 518 (Fla. 1st DCA 1969) (holding it was not proved that the rate differential “cannot be justified on the basis of the cost of furnishing the commodity to the two different classifications of consumers”). Cf. Contractors & Builders Ass’n v. City of Dunedin, 329 So.2d 314 (Fla.1976).
The classification which burdens condominiums in this case is not similar to the
Appellant contends that condominium residents receive significantly less garbage and trash collection service than house residents and that the City unlawfully charges them the same fees. That position is not substantiated by this record. Admittedly, there is no separate collection of un-contained “trash” at condominiums, and each condominium residence pays $1.50 monthly for that service. It appears also that the time and labor required to empty a single six-yard container, serving 55 condominium families at Coronado Cove, is demonstrably less than the time and labor necessary to handle numerous garbage cans at the curbside of 55 single family residences in New Smyrna neighborhoods. Yet there are significant countervailing factors: individual homeowners must supply their own garbage cans, carry them to the curb and back, and wash, maintain, and replace their garbage cans; whereas the dumpsters used by condominiums and businesses are provided by the City, at a cost to the City of several hundred dollars each, and the City washes and disinfects the containers at each pickup. This record does not permit quantification of the similarities and differences in the cost of garbage collection from the dumpsters used by a given number of condominium units and the multiple cans used by an equivalent number of houses.
Whatever may be the City’s net cost similarity or differential between garbage collection from condominiums and garbage collection from houses, there is no uncertainty that ordinance 40-76 imposes on condominium residents garbage collection fees which are disproportionately higher than the fees charged for the same service, rendered at the same cost, to businesses. These ordinances are unconstitutional in their preferential treatment of businesses as contrasted with condominiums, but not otherwise. The trial court’s judgment is therefore AFFIRMED in part, REVERSED in part, and the cause is REMANDED for further proceedings.
. Code section 13-11(b) defines “trash” as “yard clippings, small tree limbs, palm fronds, and small discarded household items of such size as to be unsuitable for containerization.”
. The key recital of ordinance 40-76 was
[T]he City Commission has determined that all structures that are used for dwelling purposes should be under a single classification and that it should be just and equitable to equalize the rates among all units or structures that are in fact used for dwelling purposes and that it is likewise proper and equitable and just to provide equal services and pick-ups within the said classification . . .
Concurrence in Part
concurring in part and dissenting in part.
I respectfully note my dissent as to one segment of the opinion now adopted. The ordinance, in my opinion, does not discriminate against, or subject to uneven tax consideration, those within the same classification. The majority holds it to be constitutionally permissible for the City to levy the
The ordinances equate in an evenhanded way to businesses, and that is a proper and distinct classification. In my view, logic does not permit equating the flat charge for garbage and trash service as to one place of business to that of collecting from one dumpster the garbage from 55 separate families living in one condominium.
The judgment here reviewed arrived at this forum clothed with the presumption of correctness. In my judgment, it is still graced with that garment.
. Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977).
Rehearing
ON MOTION FOR REHEARING
Pursuant to Article V, § 3(b)(8), Florida Constitution, and Fla.R.App.P. 9.030(a)(2) (A)(ii), it is certified that the Court’s decision in this cause passes upon a question of great public interest. In all other respects, the motion for rehearing is DENIED.