L.T. Case No. 11-1364...WARREN BITTNER, Deputy Emeritus JOHN A. GRECO, Deputy City Attorney Counsel...
Transcript of L.T. Case No. 11-1364...WARREN BITTNER, Deputy Emeritus JOHN A. GRECO, Deputy City Attorney Counsel...
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Filing # 18304833 Electronically Filed 09/16/2014 04:34:20 PM
RECEIVED, 9/16/2014 16:38:43, John A. Tomasino, Clerk, Supreme Court
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC14-1682
3RD DCA Case No. 3D13-1382L.T. Case No. 11-1364
CHERYL K. HAIGLEY,individually and on behalf
of all others similarly situated,
Petitioner,
vs.
CITY OF MIAMI,
Respondent.
RESPONDENT'S JURIDICTIONAL BRIEF
ON DISCRETIONARY REVIEWFROM THE THIRD DISTRICT COURT OF APPEAL
VICTORIA MENDEZ, City AttorneyWARREN BITTNER, Deputy EmeritusJOHN A. GRECO, Deputy City AttorneyCounsel for CITY OF MIAMI444 S.W. 2nd Avenue, Suite 945Miami, FL 33130-1910Tel.: (305) 416-1800Fax: (305) [email protected]
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TABLEOFCONTENTS
TABLE OF CONTENTS.......................................................ii
TABLE OF AUTHORITIES...................................................iii
STATEMENT OF CASE AND FACTS.....................................1
SUMMARYOFARGUMENT................................................2
JURISDICTIONALARGUMENT............................................3
JURISDICTION SHOULD BE DECLINEDBECAUSE THE DECISION OF THE THIRDDISTRICT DOES NOT CONFLICT WITH THERULINGS OF THIS COURT .................................3
CONCLUSION..................................................................10
CERTIFICATE OF SERVICE................................................11
CERTIFICATE OF COMPLIANCE.........................................12
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TABLE OF AUTHORITIES
CASES
Attorney General ofNew York v. Soto-Lopez,476 U.S. 868 (1986) .....................................................................................8-9
Baldwin v. Fish & Game Commission ofMontana,436 U.S. 371 (1977) .....................................................................................9
City ofGainesville v. State,863 So. 2d 13 8 (Fla. 2003)...........................................................................3-4
Collier County v. State,733 So. 2d 1012 (Fla. 1999).........................................................................3
Gargano v. Lee Cnty. Bd. ofCnty. Comm'rs,921 So. 2d 661 (Fla. 2d DCA 2006) ............................................................5-6
Jacksonville Port Authority v. Alamo Rent-A-Car,600 So. 2d 1159 (Fla. 1st DCA 1992)..........................................................4
State v. City ofPort Orange,650 So. 2d 1 (Fla. 1994)...............................................................................3-4
St. Lucie County v. City ofFort Pierce,676 So. 2d 35, 36 (Fla. 4th DCA 1996) .......................................................4, 6
Ostendorfv. Turner,426 So. 2d 539 (Fla. 1982)...........................................................................7-8
Weitzel v. State,306 So. 2d 188 (Fla. 1st DCA 1974)............................................................5, 9-10
OTHER AUTHORITIES
Section 2-83.1, Miami Code..............................................................................1
Section 2-234, Miami Code...............................................................................1, 4
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STATEMENT OF CASE AND FACTS
On October 8, 1992, the City enacted Ordinance 11007, amending
Section 2-83.1 of the Miami Code (1980) titled "Emergency medical
transportation service fees" by inter alia adding a one hundred dollar ($100)
surcharge for nonresidents of the City of Miami.¹
The Petitioner, Cheryl K. Haigley, is a resident of Pinellas County,
Florida, and is therefore a non-resident of the City of Miami. Haigley was
injured when she fell in the City of Miami. The City of Miami Fire Rescue
Department responded to the scene and transported her to Mercy Hospital.
The City provides emergency medical transportation services to City
residents and non-residents (who receive exactly the same emergency
medical transportation service); the only difference between the amount of
the bills received by the two is that the non-resident will be billed the $100
non-resident surcharge.
Cheryl K. Haigley was billed the base rate for basic life support
transportation services and the $100 "non-resident surcharge," which she
paid. The emergency medical transportation service fees collected by the
¹ Section 2-83.1, Miami Code (1980), was re-codified as Section 2-234,Miami Code (1997).
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City, including the non-resident surcharge, are used toward the cost of
providing Fire-Rescue transportation services.
The City and Haigley filed motions for summary judgment. The trial
court denied the City's Motion for Summary Judgment and granted
Haigley's Motion for Summary Judgment finding that the surcharge was an
invalid user fee, and further that the surcharge was unconstitutional. On
appeal, the Third District reversed, holding that the fee charged non-City
residents who use the City's emergency medical transportation services is a
user fee, not a tax, and that it does not violate the constitutional guarantee of
equal protection or unconstitutionally burden intrastate travel.
SUMMARY OF ARGUMENT
The decision of the Third District Court of Appeal does not expressly
or directly conflict with any decision of the Florida Supreme Court. The
City of Miami Emergency Medical Transportation Non-Resident Surcharge
of $100 is a valid user fee. The surcharge was in exchange for a particular
government service, and the service benefits the party paying the fee in a
manner not shared by other persons in the city. The surcharge is not an
unauthorized tax. The surcharge does not violate the Florida Constitution.
The right to intrastate travel is not implicated by the surcharge. The non-
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residency delineation is not a suspect classification. Under the rational
basis test, the non-residency surcharge is constitutional. Thus, the Supreme
Court should decline jurisdiction over this case.
ARGUMENT
JURISDICTION SHOULD BE DECLINEDBECAUSE THE DECISION OF THE THIRDDISTRICT DOES NOT CONFLICT WITH THERULINGS OF THIS COURT.
A. The District Court's Decision is not in Conflict with State v. CityofPort Orange and its progeny.
The City of Miami's emergency medical transportation charge is a
user fee, not a tax, pursuant to State v. City ofPort Orange, 650 So. 2d 1
(Fla. 1994), and its progeny. The Third District's decision is not in
conflict.2
In City ofPort Orange, the Florida Supreme Court held that a "tax" is
distinguishable from a "user fee" where: 1) the charge is in exchange for a
particular governmental service; 2) the service benefits the party paying the
charge in a manner not shared by other members of society; and 3) the party
paying the charge must have the option of avoiding the charge by not using
2 Neither is it in conflict with Collier County v. State, 733 So. 2d 1012 (Fla.
1999), or City of Gainesville v. State, 863 So. 2d 138 (Fla. 2003). CollierCounty involved a partial year assessment for ad valorem taxes. City of
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the governmental service. Id. at 3. The City's $100 Non-Resident
Surcharge for emergency medical transportation services is a "user fee" and
not a "tax."
First, the "user fee" is validly charged in exchange for a particular
governmental service, i.e., emergency medical transportation services.
Compare, St. Lucie County v. City ofFort Pierce, 676 So. 2d 35, 36 (Fla.
4th DCA 1996) (holding that fee charged by county for waste disposal
services was a valid user fee); Jacksonville Port Authority v. Alamo Rent-A-
Car, 600 So. 2d 1159 (Fla. 1st DCA 1992) (concluding that proposed
charge by city port authority of 6% of gross receipts to only off-site rental
car agencies was an authorized user fee and not an unlawful tax because the
rental car agency received the benefit of generating customers from the city
port authority).
Section 2-234, Miami Code, makes clear that residents and non-
residents utilizing "emergency medical transportation services" simply pay
different rates for the service provided. Charging a non-resident of the
City of Miami a higher rate for emergency medical transportation services
is no different than state universities charging different rates for college
Gainesville concerned whether a charge was a user fee or special assessmentand determined it was a valid user fee.
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tuition to different categories of resident students (e.g., resident students
who have established residence in the State of Florida in excess of twelve
months and resident students who have not established residence in the
State of Florida in excess of twelve months)-a judicially sanctioned
differentiation and a common practice. See Weitzel v. State, 306 So. 2d 188
(Fla. 1st DCA 1974) (rejecting challenge under Federal and Florida
Constitutions to a higher registration fee charged to Florida students who
were residents for less than one year).
Second, the government service (the ride in the Rescue vehicle)
provided to the party paying the fee (Haigley) only benefited the party
paying the fee (Haigley); it did not simultaneously benefit other members of
society (no one else but Haigley took the ride).
Third, Plaintiff had the option of not utilizing the government service
and thereby avoiding the fee. Plaintiff could have refused transport, called a
private ambulance, hailed a cab, or even walked to the hospital. Haigley
incurred the fee "voluntarily" and by her own "choice." In Gargano v. Lee
County Board of County Commissioners, 921 So. 2d 661 (Fla. 2d DCA
2006), the plaintiff resided on an island connected to the mainland by a toll
bridge. Id. at 663-664. The toll bridge provided the only roadway access to
the island. Id. at 664. The plaintiff alleged, among other things, that the
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bridge toll was an impermissible tax because she did not pay it "by choice."
Id. at 667-668. The Second District noted that although there were no
alternative roads to reach the island, and that the only way a traveler could
avoid the tax was to own a boat or helicopter, "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." Id. at 668. The
Second District then concluded:
[The plaintiff] can live elsewhere in Lee County.She can choose to stay on the island and not visitthe mainland. The County cannot compel her touse the bridge or pay the fee. As a practicalmatter, she may not see many available options,but as a legal matter this charge is not a tax.
Id. (emphasis added); see also City ofFort Pierce, 676 So. 2d at 36 (holding
that fees imposed by County for the City's use of its landfill was voluntary
as the fees were paid for several years and when it became too high, the City
chose to use an alternative landfill).
Here, similar to Gargano, even if a non-resident's options for
emergency medical transportation services may seem limited, impractical, or
inconvenient, it does not negate the fact that the surcharge for such a service
is completely voluntary since the City does not compel the use of the
emergency transportation service. Based on the foregoing, Haigley was
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charged for using a particular governmental service, which benefited her
only, and which she was free to decline. Therefore, the surcharge was a
valid user fee, not an invalid tax.
B. The District Court's Decision is not in conflict with Ostendorf v.Turner.
This Court's decision in Ostendorf v. Turner, 426 So. 2d 539 (Fla. 1982),
is not applicable to the bona fide residency requirement involved in this case.
Thus, the Third District's decision is not in conflict.3
Ostendorf involved a Florida Statute granting citizens with longer
duration as a resident a greater homestead tax exemption. That case
involved a tax, not a user fee. That case involved a durational residency
requirement, not a bona fide residency requirement (as in this case). There,
this Court found that the basis for distinguishing between residents of
different duration for purposes of granting homestead tax exemption was
not supported by a rational basis:
We fully realize that tax exemptions and disparity intaxes are not totally prohibited. [citation omitted]However, there must be at least a rational basis fordisparities to exist. None of the four bases argued by thestate and expressed in Speaker Haben's affidavit meetsthe rational basis test. First, it is constitutionallyprohibited for this state to impose different taxes on its
3 The Ostendorf decision was not cited in the Answer Brief. It was first
cited after oral argument in the Appellee's notice of supplemental authority.
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citizens based solely on their length of permanentresidence in the state. Second, it is not a legitimate statepurpose to reward certain citizens for past contributionsto the detriment of other citizens. Third, we find fiveyears is an unreasonable period of time to establish bonafide residency and is unnecessary to discouragefraudulent homestead exemption applications. ...
Id. at 545. Hence, Ostenforf concerned different treatment of residents of
different duration. That is not the situation in this case.
The United States Supreme Court has distinguished between
"durational residency requirements" and "bona fide residency
requirements." In Attorney General ofNew York v. Soto-Lopez, 476 U.S.
868, 903 (1986), the Court explained that only "durational residence
requirements" operate to penalize those who have exercised their right of
interstate migration and therefore are subject to heightened scrutiny. Id. at
903. "Bona fide residence requirements," on the other hand, which
differentiate between residents and nonresidents, implicate no "suspect"
classification; therefore, as long as the "service" that the state would deny to
nonresidents is not a fundamental right, the requirement is subject only to
rational level review.
More specifically, the Court in Soto-Lopez held:
A bona fide residence requirement, appropriately defined anduniformly applied, furthers the substantial state interest inassuring that services provided for its residents are enjoyed
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only by residents. Such a requirement with respect toattendance in public free schools does not violate the EqualProtection Clause of the Fourteenth Amendment. It does notburden or penalize the constitutional right of interstate travel,for any person is free to move to a State and to establishresidence there. A bona fide residence requirement simplyrequires that the person does establish residence beforedemanding the services that are restricted to residents. [Id. at328-9].
The disparity in contribution by non-residents is a valid consideration
under rational basis review. In Baldwin v. Fish & Game Commission of
Montana, 436 U.S. 371 (1977), Elk hunters, who were not residents of
Montana but wished to hunt in Montana, were required to purchase a
combination license at a cost of $225, while residents of Montana were not
required to purchase a combination license. If the residents did buy a
combination license it was at the cost of $9. The Court ruled "the State
constitutionally should be able to charge nonresidents, who are not subject
to the State's general taxing power, more than it charges its residents, who
are subject to that power and who already have contributed to the programs"
Baldwin at 369. The Court reasoned that "[t]he resident obviously assists in
the production and maintenance of big-game populations through taxes."
Id. Similar to the current case, the City classified residents and non-
residents for the purposes of funding, which was held to be within the
constitutional rights of a state-funded service provider. See also Weitzel v.
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State, 306 So. 2d 188 (Fla. 1st DCA 1974) (acknowledging that
achievement of partial cost equalization between those who have not
recently contributed to the state's economy through employment, tax
payments and expenditures therein has been held to be a constitutionally
valid rational).
CONCLUSION
Based on the foregoing, the City of Miami respectfully requests that
this Court decline discretionary jurisdiction over the decision of the Third
District Court ofAppeal.
Respectfully submitted,
VICTORIA MENDEZ, City AttorneyWARREN BITTNER, Deputy EmeritusJOHN A. GRECO, Deputy City AttorneyCounsel for CITY OF MIAMI444 S.W. 2°d Avenue, Suite 945Miami, FL 33130-1910Tel.: (305) 416-1800Fax: (305) [email protected]
By:Jol n GrecoFlorida Bar. No. 991236
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished to counsel listed below by email this 16* day of
September 2014:
Eric Bluestein, Esq.Randy Rosenblum, Esq.Freidin Dobroinsky, P.A.One Biscayne Tower2 South Biscayne Boulevard, #3100Miami, FL 33131E-mail: [email protected]: [email protected]
William G. Wolk, Esq.Eaton & Wolk,PLOne Biscayne Tower2 South Biscayne Boulevard, #3100Miami, FL 33131E-mail: [email protected]: [email protected]
By:JohqÁ. Greco, Deputy CitýAtty.
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CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief was prepared using Times New
Roman and the size is 14-point font.
By:Joh(A). Öreco, Deputy City Atty.
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