ROTHENBERG, J.
The City of Miami ("City") appeals the trial court's final summary judgment, which struck down a provision in section 2-234 of the City of Miami Code that requires non-residents of the City to pay $100 more than residents of the City who use the City's emergency medical transportation services ("non-resident surcharge.").
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 section 2-83.1 of the City of Miami Code. The ordinance increased the fees charged those who use the emergency medical transportation services provided by the City's Fire-Rescue Department. The ordinance, which is now codified in section 2-234 of the City of Miami Code, provides:
The City currently charges residents and non-residents who use the City's emergency medical transportation services in accordance with the fee schedule set forth in section 2-234(a)(1)-(9). The collected emergency medical transportation services fees are deposited into the City's General Fund.
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"
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
The plaintiffs and the City filed cross-motions for summary judgment. The trial court denied the City's motion, entered final summary judgment in favor of the plaintiffs, and struck down the provision in section 2-234(a)(9) that establishes the additional non-resident surcharge. The trial court also enjoined the City from further collection of the non-resident surcharge and ordered the City to reimburse the plaintiffs for all non-resident surcharges collected during the four years preceding the filing of the action. The City's appeal followed.
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).
In State v. City of Port Orange, 650 So.2d 1 (Fla.1994), the Florida Supreme Court established a three-prong test to determine whether a particular charge is a user fee or a tax. Specifically, the Court held:
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.
Haigley argues, and the trial court found, that the City did not provide her with a particular governmental service in exchange for the $100 non-resident surcharge. Haigley's argument is fatally flawed.
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. Section 2-234 merely charges residents and non-residents different rates for utilizing the emergency medical transportation services provided by the City's Fire-Rescue Department. Although the City charges residents and non-residents different rates for utilizing the same governmental service — emergency medical transportation services — non-residents are nonetheless receiving a particular governmental service in exchange for the fee charged by the City. In other words, Haigley was not charged a fee for the mere
In addressing the second prong set forth in City of Port Orange, the trial court concluded:
The trial court unfortunately focused on whether the non-resident
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 others. In reaching this conclusion, this Court specifically noted
Quik Cash Jewelry, 811 So.2d at 759 (footnote omitted) (quoting Stewart v. Verde River Irrigation & Power Dist., 49 Ariz. 531, 68 P.2d 329, 334 (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.
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 City of Port Orange, this prong is considered the least significant. See I-4 Commerce Ctr., Phase II, Unit I v. Orange Cnty., 46 So.3d 134, 136 (Fla. 5th DCA 2010) (noting that of the three requisite traits for a valid user fee set forth in City of Port Orange, the "most significant of these traits" are the first two).
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:
Id. at 668 (emphasis added). As the Second District aptly recognized: "Many user fees are similar in that a true choice does
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.
As the Second District noted in Gargano, while the option may not appear to be a realistic one, it is nonetheless an
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.
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 question did
Crist, 56 So.3d 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 section 2-234(a).
The City's costs to fund the Fire-Rescue Department substantially outweigh the amount collected under the surcharge. In 2010, the City spent nearly $8.2 million on Fire-Rescue services. Of that amount, only $42,000 came from non-resident surcharges — less than one percent of the total expenditure. Although the record is somewhat sparse, based on the City's responses and the limited financial information in the record, it is undisputed that the City funds its Fire-Rescue Department at a level far in excess of the amounts collected by the City through the fees it charges users of its emergency medical transportation services. Based on the analysis set forth in Crist, we conclude that the collected user fees, including the non-resident surcharges, are not transformed from a user fee into a tax simply because the collected fees are deposited into the City's General Fund.
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. 4th DCA 1984) ("Because a municipal council, like the legislature, would not knowingly enact an unconstitutional measure, appellate courts will indulge every reasonable presumption in favor of an ordinance's constitutionality."); see also State v. Sawyer, 346 So.2d 1071, 1072 (Fla. 3d DCA 1977). Accordingly, the party "challenging the constitutionality of an ordinance has the burden of proving its invalidity." Gates v. City of Sanford, 566 So.2d 47, 49 (Fla. 5th DCA 1990); see also City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368, 377 (1940) ("One attacking the validity of an ordinance has the burden of establishing its invalidity when such ordinance appears on its face to have been regularly enacted."). Haigley has not satisfied her burden for either of her constitutional challenges.
Haigley argued below, and the trial court found, that the application of section 2-234(a)(9), which provides for an additional
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." Art. I, § 2, Fla. Const. "`Equal protection [however] is not violated merely because some persons are treated differently than other persons. It only requires that persons similarly situated be treated similarly.'" Troy v. State, 948 So.2d 635, 645 (Fla.2006) (quoting Duncan v. Moore, 754 So.2d 708, 712 (Fla. 2000)); see also Jackson v. State, 137 So.3d 470, 474 (Fla. 4th DCA 2014) ("Equal protection does not require identity of treatment. It only requires that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate as to be wholly arbitrary." (quoting State v. Andersen, 208 So.2d 814, 820 (Fla.1968))). Indeed, all legislation classifies and discriminates against a distinct group of individuals: Florida's criminal laws discriminate quite harshly against murderers and thieves, while zoning ordinances may negatively impact large business owners. However, because the judiciary defers to the legislature to determine which groups and conduct to regulate, we uphold legislation that has "some rational relationship to a legitimate state purpose," id. (quoting Westerheide v. State, 831 So.2d 93, 110 (Fla.2002)), unless the legislation's classification is based on a suspect classification or a fundamental right. Estate of McCall v. United States, 134 So.3d 894, 901 (Fla.2014) ("Unless a suspect class or fundamental right protected by the Florida Constitution is implicated by the challenged provision, the rational basis test will apply to evaluate an equal protection challenge.")
The basis of Haigley's equal protection challenge is the disparate treatment between residents and non-residents of the City. However, residency (or non-residency) is not a suspect classification. See Art. I, § 2, Fla. Const. (defining the protected classes as "race, religion, national origin, or physical disability"). Accordingly, the rational basis test applies, and the ordinance will be upheld unless it has no rational and reasonable relationship to a legitimate state objective or it is found to be arbitrary or capricious.
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 state purpose." Estate of McCall, 134 So.3d at 927 (quoting Duncan v. Moore, 754 So.2d 708, 712 (Fla. 2000)). Namely, through the payment of ad valorem taxes, the City's residents have
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 payment of ad valorem taxes. Thus, the ordinance satisfies the rational basis test, and therefore, there is no equal protection violation.
The trial court below relied heavily on Hamilton v. Collins, 114 Fla. 276, 154 So. 201 (1934), and Harper v. Galloway, 58 Fla. 255, 51 So. 226 (1910), 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, ___ U.S.___, 132 S.Ct. 2566, 2609, 183 L.Ed.2d 450 (2012) (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) ("Since 1937, our precedent has recognized Congress' large authority to set the Nation's course in the economic and social welfare realm."); see also Honeywell, Inc. v. Minnesota Life & Health Ins. Guar. Ass'n, 110 F.3d 547, 554-55 (8th Cir.1997) (explaining that prior Supreme Court holdings, although never explicitly overruled, were no longer instructive based on the Court's shift in economic jurisprudence following the Lochner era in 1937); Sasso v. Ram Prop. Mgmt., 431 So.2d 204, 211-216 (Fla. 1st DCA 1983) (discussing the history and evolution of both the federal and Florida equal protection clauses).
The City had legitimate objectives and a rational basis for passing the ordinance.
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:
Id. (emphasis in original) (quoting Wyche v. State, 619 So.2d 231, 235 (Fla.1993)). Thus, the Florida Supreme Court in J.P. examined the burden placed on a juvenile's right to privacy, freedom to associate with persons of his or her own choosing, and freedom of movement when determining the constitutionality of an ordinance establishing a curfew for juveniles. Id.
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 durational requirements or determinations made based on the time the individual migrated into the state.
Attorney Gen. of N. Y. v. Soto-Lopez, 476 U.S. 898, 904 n. 3, 106 S.Ct. 2317, 90 L.Ed.2d 899 (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, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (concluding that a durational residency requirement to establish the eligibility to vote was an unconstitutional burden on the right to migrate).
Martinez v. Bynum, 461 U.S. 321, 328-29, 103 S.Ct. 1838, 75 L.Ed.2d 879 (1983) (footnotes omitted). For example, in Baldwin v. Fish & Game Commission of Montana, 436 U.S. 371, 391-92, 98 S.Ct. 1852, 56 L.Ed.2d 354 (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.
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 court's order entering final summary judgment in favor of the plaintiffs and remand with directions to enter final summary judgment in favor of the City.
Reversed and remanded with directions.