Desiderio Corp. v. City of Boynton Beach

39 So. 3d 487, 2010 Fla. App. LEXIS 9870, 2010 WL 2675237
CourtDistrict Court of Appeal of Florida
DecidedJuly 7, 2010
DocketNos. 4D09-58, 4D09-1384
StatusPublished
Cited by2 cases

This text of 39 So. 3d 487 (Desiderio Corp. v. City of Boynton Beach) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Desiderio Corp. v. City of Boynton Beach, 39 So. 3d 487, 2010 Fla. App. LEXIS 9870, 2010 WL 2675237 (Fla. Ct. App. 2010).

Opinion

GROSS, C.J.

This appeal concerns a special assessment the City of Boynton Beach imposed on all improved property within city limits to fund its integrated fire rescue department. Desiderio Corporation, Ewell Mil[489]*489ler, and Sir Electric, Inc., property owners in Boynton Beach, filed suit to challenge the special assessment. They sought a declaration that the assessment was unlawful and an injunction preventing the City from billing or collecting it. After a three-day, non-jury trial, the judge concluded that the special assessment was valid.

The property owners appeal from that final judgment. They attack the special assessment on the following grounds: (1) the assessment was for services that did not specially benefit the burdened properties; (2) the City’s apportionment methodology was arbitrary; and (3) the City im-permissibly spent the assessment funds on unauthorized services and capital projects. We affirm the final judgment as to each argument.

Facts

The City’s fire department was an integrated fire rescue and emergency medical services program. The firefighters were “cross-trained,” which means they “can provide firefighter duties and emergency medical services duties,” with an “apparatus that can support both functions.” Each firefighter is either an EMT or a paramedic.

In 2000, the City Commission determined that the fire department’s infrastructure should be improved. The Commission decided to fund improvements through a special assessment against real property. To develop the assessment, the City hired Government Services Group, Inc. (“GSG”), a consulting group that specialized in advising local governments on alternative revenue sources, such as special assessments. Camille Tharpe, a GSG senior vice president, had primary responsibility for overseeing the special assessment project. She testified at trial on what GSG did to develop the assessment at issue in this case.

After the City provided Tharpe with a list of objectives, GSG collected data to formulate a methodology for the assessment. From the City, she received much information on the resources and operations of the fire department. GSG staff visited each of the City’s stations, evaluated the premises and equipment of each, and looked at the surrounding neighborhoods to determine the kinds of properties the stations were servicing. From the property appraiser, Tharpe received tax records for properties within the City. GSG also collected fire incident data from the Florida Fire Incident Reporting System (FFIRS), which was maintained by the State Fire Marshal.

In a report delivered in June, 2001, GSG outlined a proposed special assessment and described the methodology used to arrive at it. GSG acknowledged that any special assessment would have to comply with this court’s decision in SMM Properties, Inc. v. City of North Lauderdale, 760 So.2d 998 (Fla. 4th DCA 2000). In that case, this court held that the EMS portion of an integrated fire rescue program did not provide the special benefit to property required for a special assessment. Thus, GSG advised the City to exclude the cost of EMS services from the special assessment.

The City’s fire department had one budget, which did not distinguish between money going toward fire protection services and money going toward emergency medical services. GSG developed a complicated methodology to determine which department costs were for fire protection services and which were for EMS. Tharpe did this to “allocate[] the costs of [each] line item” in the program’s 2000-2001 adopted budget. What made that allocation difficult was the integrated nature of the program, where some line items were used for both fire protection services and [490]*490EMS. Tharpe looked beyond the line items to the “back up information” describing “the different purchases they were going to be making [with] ... those line items.” Accordingly, Tharpe developed a methodology with 3 factors that could be applied to properly allocate the cost of each line item.

The first factor was direct allocation. Sometimes, a line item was devoted entirely to either fire protection services or EMS. In those cases, allocation was easy. For example, “[b]unker gear” is used only for fire protection services, so the entire cost of that line item was allocated to fire protection services, and not EMS. In contrast, “[t]he medical director ... is a requirement to provide EMS services, so the medical director is 100 percent EMS.”

The second factor was based on administrative functions, or how personnel spent their time. Tharpe developed this factor in response to the line items for which she could not allocate the entire cost to either fire protection services or EMS. This “administrative factor” was based on how personnel were assigned during their shifts. According to the city manager, firefighters worked 24-hour shifts, with 22 firefighters working each shift. Out of those 22, 13 were assigned to fire vehicles and 9 were assigned to EMS vehicles. Consequently, in any 24-hour shift, firefighters spent 59.09% of their time “in non-EMS related activities.” Tharpe applied the administrative factor’s percentage to “mixed” line items to identify the EMS portion of the cost.

The third factor in GSG’s methodology was the “operational factor.” As opposed to the administrative factor, which described how personnel .spent their time, the operational factor was “applied to those line items that are more related to the number of calls that you’re making.” For example, if 80% of the calls dispatch received were for EMS, then 80% of the dispatch costs should be EMS-related. Another application of the operational factor was to vehicle maintenance: Tharpe explained that “if you don’t have good data regarding [ ] maintenance of your vehicles and 80 percent of your calls are EMS calls, [] probably 80 percent of your maintenance costs should be EMS costs.”

Similar to the administrative factor, Tharpe computed a percentage for the operational factor. Based on the data it had compiled, GSG concluded that, in 2000, the fire department responded to 9,673 incidents. GSG then weeded out the calls to cities that had contracted with the City for services, resulting in a total number of 9,251 calls. GSG then filtered out calls it designated EMS incidents.

How Tharpe sorted EMS from non-EMS calls is a point of contention in this appeal. In Florida, fire departments use the FFIRS to classify by codes the worst situation they find upon arrival at a scene. Tharpe obtained an electronic database of the City’s situation found code data. A printout of the Excel database, which contained a line for each incident the department responded to in 2000, was admitted at trial. Tharpe did not receive printouts of individual incident reports.

The City defined EMS, and thus the codes to be excluded from the special assessment funding, as rescue call (insufficient information); inhalator call; emergency medical call; search; and water rescue. The FFIRS Coding Guide defined emergency rescue calls as including “checking for injuries, treatment for shock, and the like.” Tharpe testified that these EMS calls amounted to 5,254, or 56.79%, of those calls. That left 3,997 non-EMS calls, or 43.21%, which was the percentage used for the operational factor.

[491]*491At trial and on appeal, appellants attack the inclusion of certain non-EMS codes in the special assessment, arguing that those specific codes represent services that do not benefit property.

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Bluebook (online)
39 So. 3d 487, 2010 Fla. App. LEXIS 9870, 2010 WL 2675237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desiderio-corp-v-city-of-boynton-beach-fladistctapp-2010.