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) 416-1801jagreco@miamigov.com

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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) 416-1801jagreco@miamigov.com

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: ebluestein@fdlaw.net.E-mail: rrosenblum@fdlaw.net

William G. Wolk, Esq.Eaton & Wolk,PLOne Biscayne Tower2 South Biscayne Boulevard, #3100Miami, FL 33131E-mail: WWolk@eatonwolk.comE-mail: vabreu@eatonwolk.com

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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