Homestead Hosp. v. Miami-Dade County

NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, 2002

vs.

Appellants,

HOMESTEAD HOSPITAL, INC., a **

Florida non-profit
**
corporation, et al.,

MIAMI-DADE COUNTY, FLORIDA **
and the BOARD OF COUNTY

COMMISSIONERS OF MIAMI-DADE **

COUNTY, FLORIDA,
**

CASE NO. 3D02-179

LOWER
TRIBUNAL NO. 01-3259

Appellees.

Opinion filed September 4, 2002.

An appeal from the Circuit Court for Miami-Dade County, Jon I.
Gordon, Judge.

McDermott Will & Emery, Bruce J. Berman, Bryan T. West, and
Joshua M. Kaye, for appellants.

Robert A. Ginsburg, County Attorney, and Thomas W. Logue,
Assistant County Attorney, for appellees.

Before JORGENSON, GODERICH and SHEVIN, JJ.

GODERICH, J.

The plaintiffs, Homestead Hospital, Inc., a Florida non-profit

corporation; Mercy Hospital, Inc., a Florida non-profit

corporation; Pan American Hospital Corporation, a Florida non-

profit corporation; Tenet Hialeah Healthsystem, Inc., a Florida

corporation, d/b/a Hialeah Hospital; Tenet Healthsystem North

Shore, Inc., a Florida corporation, d/b/a North Shore Hospital;

Lifemark Hospitals of Florida, Inc., a Florida corporation, d/b/a,

Palmetto General Hospital; and North Miami Medical Center, Ltd., a

Florida limited liability corporation, d/b/a Parkway Regional

Medical Center [collectively referred to as “the Private

Hospitals”], appeal from an order granting final summary judgment

in favor of the defendants below, Miami-Dade County, Florida

[County], and the Board of Commissioners of Miami-Dade County,

Florida [County Commission]. We affirm.

In 1991, the Florida Legislature enacted section 212.055(3),

Florida Statutes, The Indigent Care Surtax [1991 Surtax Statute].

Section 212.055(3)(g) allowed “[a]ny county as defined in s.

125.011(1)” to levy a 0.5% surcharge to benefit public general

hospitals.1 Pursuant to section 212.055(3)(g)4., in addition to

1 Section 125.011(1), Florida Statutes (1991), provides:

“County” means any county operating under a home rule
charter adopted pursuant to ss. 10, 11, and 24 of Art.
VIII of the Constitution of 1885, as preserved by Art.
VIII, s. 6(e) of the Constitution of 1968, which county,
by resolution of its board of county commissioners,
elects to exercise the powers herein conferred. Use of
the word “county” within the above provisions shall
include “board of county commissioners” of such county.

the 0.5% surtax, the counties would still be required to contribute

each year at least 80% of what it had appropriated to its public

general hospital in the county’s fiscal year ending September 30,

1991. This minimum funding requirement is referred to as the

county’s “maintenance of effort” [MOE]. In addition, section

212.055(3)(i) provided that the surtax statute would be repealed on

October 1, 1998 [seven-year sunset provision].

A referendum was held in September 1991, in which the voters

of Miami-Dade County approved the 0.5% surtax. As a result of this

surtax, Jackson Memorial Hospital, which is the public general

hospital located in Miami-Dade County, has received millions in

additional funding. The parties involved concede that the 1991

Surtax Statute is a “general law” because it is applicable to more

than one county, Miami-Dade, Hillsborough, and Monroe Counties.

In 1992, after the referendum vote, the Florida Legislature

amended the 1991 Surtax Statute to delete the seven-year sunset

provision. Under this amendment, the surtax was renamed as the

“County Public Hospital Surtax” and renumbered as section

212.055(5) [1992 Surtax Amendment].

On May 5, 2000, the Florida Legislature enacted Section 10 of

Chapter 00-312, which amends section 212.055(5) [2000 Surtax

Amendment]. As a result of the 2000 Surtax Amendment, a portion of

the MOE dollars would be diverted from public general hospitals to

private hospitals.2 In order to administer the MOE dollars that

were being diverted away from the public general hospitals, section

212.055(5)(e) was added.3 Paragraph (e) provides that a “governing

board, agency, or authority” comprising of between five and seven

2 The 0.5% surtax was not affected by the 2000 Surtax
Amendment.

3 Paragraph (e) provides, in part, as follows:

(e) A governing board, agency, or authority shall
be chartered by the county commission upon this act
becoming law. The governing board, agency, or authority
shall adopt and implement a health care plan for indigent
health care services. The governing board, agency, or
authority shall consist of no more than seven and no
fewer than five members appointed by the county
commission. The members of the governing board, agency,
or authority shall be at least 18 years of age and
residents of the county. No member may be employed by or
affiliated with a health care provider or the public
health trust, agency, or authority responsible for the
county public general hospital. The following community
organizations shall each appoint a representative to a
nominating committee: the South Florida Hospital and
Healthcare Association, the Miami-Dade County Public
Health Trust, the Dade County Medical Association, the
Miami-Dade County Homeless Trust, and the Mayor of Miami-
Dade County. This committee shall nominate between 10
and 14 county citizens for the governing board, agency,
or authority. The slate shall be presented to the county
commission and the county commission shall confirm the
top five to seven nominees, depending on the size of the
governing board. Until such time as the governing board,
agency, or authority is created, the funds provided for
in subparagraph (d)2. shall be placed in a restricted
account set aside from other county funds and not
disbursed by the county for any other purpose.

1. The plan shall divide the county into a minimum of
four and maximum of six service areas, with no more than
one participant hospital per service area. The county
public general hospital shall be designated as the
provider for one of the service areas. Services shall be
provided through participants’ primary acute facilities.

members shall be established by the county. The governing board

would be responsible for “adopt[ing] and implement[ing] a health

care plan for indigent health care services.” As part of this

plan, the county would be divided “into a minimum of four and

maximum of six service areas with no more than one participant

hospital per service area.” Paragraph (e) also provides: “The

following community organizations shall each appoint a

representative to a nominating committee: the South Florida

Hospital and Healthcare Association, the Miami-Dade County Public

Health Trust, the Dade County Medical Association, the Miami-Dade

County Homeless Trust, and the Mayor of Miami-Dade County.” This

“nominating committee” would then nominate members for the

governing board, and the county commission would then confirm

between five and seven members.

In September 2000, the County gave notice in Ordinance 00-111

that it would not comply with Section 10 of Chapter 00-312, the

2000 Surtax Amendment, because it was an unconstitutional “special

law” or “general law” applicable only to Miami-Dade County. The

ordinance also provided that pursuant to its Home Rule Charter, the

County was abolishing the governing board created by the 2000

Surtax Amendment.

Thereafter, the Private Hospitals filed suit against the

County seeking declaratory relief as to the County’s obligation to

comply with the 2000 Surtax Amendment. The parties filed cross-

motions for summary judgment. The trial court entered its non-

final order on July 24, 2001, providing that Ordinance 00-111 was

null and void because the issue of whether a statute is

constitutional can only be determined by the judicial branch.

Nonetheless, the trial court granted summary judgment in favor of

the County finding that the Private Hospitals lacked standing to

sue for declaratory relief.

The Private Hospitals then filed a Second Amended Complaint

adding standing-related allegations, adding the County Commission

as a party, and adding a prayer for injunctive relief or mandamus

seeking to compel compliance with the requirements of the 2000

Surtax Amendment. The parties filed cross-motions for summary

judgment. The trial court entered an order dated December 18,

2001, granting summary judgment in favor of the County and County

Commission finding that the 2000 Surtax Amendment was “invalid,

unconstitutional, and unenforceable” on the ground that it is a

“special act which impermissibly applies only to Miami-Dade

County,” and alternatively, the County, under its Home Rule powers

may “abolish . . . all . . . authorities, boards, or other

governmental units whose jurisdiction lies wholly within Dade

County.” Final judgment was entered, and the Private Hospitals’

appeal followed.

The Private Hospitals contend that the trial court erred by

finding that the 2000 Surtax Amendment is a special law. We

disagree.

The 2000 Surtax Amendment, as written, is applicable only to

Miami-Dade County, and therefore, is an unconstitutional special

law. See State v. Cannon, 181 So. 2d 346, 347 (Fla. 1965), cert.

denied, 384 U.S. 981 (1966)(holding that following the adoption of

the home rule charter, the Florida Legislature is “not now

authorized to enact laws which relate only to Dade County.”); S &

J Transp., Inc. v. Gordon, 176 So. 2d 69, 70 (Fla. 1965)(holding

that following the adoption of the home rule charter, “the

Legislature may not lawfully adopt any act which relates only to

Dade County.”). Specifically, our decision is as a result of

paragraph (e) of the 2000 Surtax Amendment, which created a

“nominating committee” comprised of members appointed by the Mayor

of Miami-Dade County and by community organizations strictly

located within Miami-Dade County or South Florida.

The Private Hospitals argue, however, that if this Court finds

that the 2000 Surtax Amendment is an unconstitutional special law,

it may be saved by severing the provision regarding the “nominating

committee” from the remaining provisions. See Ray v. Mortham, 742

So. 2d 1276, 1280 (Fla. 1999)(“Severability is a judicial doctrine

recognizing the obligation of the judiciary to uphold the

constitutionality of legislative enactment where it is possible to

strike only the unconstitutional portions.”); Cramp v. Board of

Pub. Instruction of Orange County, 137 So. 2d 828, 830 (Fla.

1962)(holding that “the unconstitutionality of a portion of a

statute will not necessarily condemn the entire act.”); Dade County

v. Keyes, 141 So. 2d 819, 821 (Fla. 3d DCA 1962)(holding that

”[w]hen a portion of a statute or ordinance is declared invalid the

remaining portions therefore which are severable ordinarily should

be recognized as valid, and it is the duty of the court to preserve

their validity whether or not a severability clause was

included.”). However, we find that severance in this case is not

possible.

In Cramp v. Board of Public Instruction of Orange County, 137

So. 2d 828 (Fla. 1962), the Florida Supreme Court set out a four-

prong test for analyzing whether an unconstitutional portion of a

statute is severable from the remaining portions.

When a part of a statute is declared unconstitutional the
remainder of the act will be permitted to stand provided:
(1) the unconstitutional provisions can be separated from
the remaining valid provisions, (2) the legislative
purpose expressed in the valid provisions can be
accomplished independently of those which are void, (3)
the good and the bad features are not so inseparable in
substance that it can be said the Legislature would have
passed the one without the other and, (4) an act complete
in itself remains after the invalid provisions are
stricken.

Cramp, 137 So. 2d at 830. Severability is an option if the

legislature’s “clear purpose in enacting the statute” remains after

severing the unconstitutional portion. Richardson v. Richardson,

766 So. 2d 1036, 1041 (Fla. 2000)

In the instant case, a review of the legislative history4 and

4 The sponsor of the 2000 Surtax Amendment made several
representations to other legislators indicating that the 2000
Surtax Amendment applied only to Miami-Dade County. For example,
the sponsor stated,

Members, this is a general bill of local

the text of the 2000 Surtax Amendment clearly indicates that the

Legislature intended that this amendment would apply only to Miami-

Dade County. Therefore, severing the unconstitutional provision

regarding the “nominating committee” would defeat the Legislature’s

“clear purpose in enacting the statute.” Richardson v. Richardson,

766 So. 2d at 1041 (Fla. 2000). Further, during the 2001 session,

the Florida Legislature unsuccessfully attempted to re-write the

2000 Surtax Amendment by deleting the portion regarding the

“nominating committee.” CS/HB 475 (Fla. 2001 Legislative Session).

This failed attempt supports our conclusion that the Florida

Legislature would not have passed the “good” without the “bad.”

Cramp, 137 So. 2d at 830; Richardson v. Richardson, 766 So. 2d at

1041 (Fla. 2000)(refusing to sever unconstitutional provision from

statute where “Legislature’s clear purpose in enacting the statute”

would not be preserved).

Because the issues discussed above are dispositive, we do not

application. It applies only to Dade County. Dade
County currently generates for its public hospitals
certain tax revenues, a sales, and a maintenance of
effort from the County.

What this bill purports to do is to take a little
bit of that county match, that county maintenance of
effort, and spread it out to six districts in the
County to provide indigent health care.

Debate on the Floor of the House, CS/CS/CS HB 71, The Florida
House of Representatives, 2000 Regular Sess., Day 53 (April 28,
2000).

need to address the remaining arguments raised by the parties.

Affirmed.