       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 23, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-1382
                          Lower Tribunal No. 11-1364
                             ________________


                                City of Miami,
                                    Appellant,

                                        vs.

Cheryl K. Haigley, individually and on behalf of all others similarly
                             situated,
                                    Appellees.


     An Appeal from the Circuit Court for Miami-Dade County, Marc
Schumacher, Judge.

      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.
      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.”).1 The trial court struck the non-resident surcharge, finding in part that

it is an unauthorized tax, not a user fee, and that even if the higher fee charged

non-residents for the use of the City’s emergency medical transportation services

constitutes a user fee, it must be stricken because it violates the plaintiffs’ rights to

equal protection under Florida’s Constitution and unconstitutionally impairs

intrastate travel. Because we conclude that the fee charged non-City residents who

use the City’s emergency medical transportation services is a user fee, not a tax,

and it does not violate the constitutional guarantee of equal protection or

unconstitutionally burden intrastate travel, we reverse the trial court’s order

entering final summary judgment in favor of Cheryl K. Haigley, individually and

on behalf of all others similarly situated (“the plaintiffs”), and remand with

directions to enter final summary judgment in favor of the City.

1 The City also appealed an order granting class certification and an order granting
the plaintiffs’ motion to amend the summary judgment order. As the City has not
raised any issues relating to these orders, we conclude that the City has abandoned
any issues concerning these orders. See City of Miami v. Steckloff, 111 So. 2d
446, 447 (Fla. 1959) (“An assigned error will be deemed to have been abandoned
when it is completely omitted from the briefs.”); N.W. v. Dep’t of Children &
Families, 865 So. 2d 625, 626 (Fla. 4th DCA 2004) (holding that issues not raised
in the initial brief are deemed abandoned).
                                           2
      HISTORICAL BACKGROUND OF THE CITY’S EMERGENCY
           MEDICAL TRANSPORTATION SERVICES FEE

      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:

      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.



                                        3
      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.

     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.

2 See § 401.23(7), Fla. Stat. (2013) (defining “basic life support”); § 401.23(1), Fla.
Stat. (2013) (defining “advanced life support”).
3 The fees listed in section 2-234(a) have since been increased pursuant to section

2-234(b).
                                           4
      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.

                           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

                                         5
       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:

       [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
                                             6
      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

availability of the service, but rather for the service that was actually provided to

her. Accordingly, we conclude that the City established the first prong set forth in

City of Port Orange.
                                         7
      (2) The emergency medical transportation services benefited Haigley in a
         manner not shared by other members of society

      In addressing the second prong set forth in City of Port Orange, the trial

court concluded:

      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
                                         8
others.   In reaching this conclusion, this Court specifically noted a decision

rendered by the Arizona Supreme Court, which held in part as follows:

      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

                                          9
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:

      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.




                                          10
Id. at 668 (emphasis added). As the Second District aptly recognized: “Many user

fees are similar in that a true choice does not exist. One cannot realistically choose

to forego water or sewer service to a home or avoid user fees for garbage pickup. .

. . These realities do not transform the charges for these services into taxes.” Id. at

668 n.4.

      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.




                                          11
      As the Second District noted in Gargano, while the option may not appear to

be a realistic one, it is nonetheless an available option. Haigley’s choice whether

or not to enter the City does not differ from that of Ms. Gargano, who had to

choose whether to move from Sanibel Island, never leave Sanibel Island to enter

the mainland, or pay the toll to travel to and from Sanibel Island. Haigley’s choice

is certainly an easier and more realistic one to make than Ms. Gargano’s choice or

the choice to forego water and sewer services to avoid a service fee. The City has,

therefore, established the third prong set forth in City of Port Orange.

      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

                                          12
question did not constitute an unconstitutional tax on their face.         Id. at 748.

Further, the Court found:

      [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 section 2-234(a).



                                         13
    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.

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.
                                         14
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., 194 So. 368, 377 (Fla. 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.

    A. Equal Protection

      Haigley argued below, and the trial court found, that the application of

section 2-234(a)(9), which provides for an additional fee to be paid by non-

residents who use the City’s emergency medical transportation services, violates

Florida’s constitutional guarantee of equal protection. Art. I, § 2, Fla. Const. We

disagree.

      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

                                         15
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. Anderson, 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.”)




                                         16
      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

                                          17
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 already contributed to the funding of the City’s

Fire-Rescue Department. Residents pay for the services provided by the City’s

Fire-Rescue Department regardless of whether or not they ever use these services.

Residents who use the City’s emergency medical transportation services are

charged a user fee in addition to the ad valorem taxes they have already been

assessed to ensure the availability of such services. Requiring non-residents,

who use and personally benefit from the service provided to them by the City, to

pay an additional $100 for the service furthers the City’s interest of being able to

continue providing emergency transportation services to everyone in need of the

services, regardless of whether the person is a resident or a non-resident.

      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




                                         18
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, 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

                                          19
Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2609 (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. 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.




                                        20
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

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durational requirements or determinations made based on the time the individual

migrated into the state.

      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
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      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



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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.




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