Opinion 94 - 7


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 

AMBULANCE SERVICES -- Fees (imposition of fees for services of an emergency rescue and first aid squad)

LOCAL LAWS -- Fees (for services of emergency rescue and first aid squad) -- Pre-emption (fees for services of emergency rescue and first aid squad)

GENERAL MUNICIPAL LAW, 209-b(4); MUNICIPAL HOME RULE LAW, 10(1)(i), (ii)(a)(9- a): A village is prohibited by General Municipal Law, 209-b(4) from imposing fees upon users of emergency or general ambulance services provided by a village fire department and may not supersede the prohibition contained in General Municipal Law, 209-b(4) pursuant to its home rule powers.


You ask whether a village board may impose fees upon users of ambulance services provided by the emergency first aid and rescue squad of the village fire department.

General Municipal Law, 209-b relates to the provision of emergency and general ambulance service by emergency rescue and first aid squads of municipal and fire district fire departments and companies. A squad generally may render emergency ambulance service in cases of fires, accidents, calamities or other emergencies in connection with which its services may be required (General Municipal Law, 209-b[1][a]). In addition, the governing board of a city, village or fire district which has in its fire department a squad composed mainly of volunteer firefighters, upon consent of the department, company and squad, and after public hearing, may authorize the squad to furnish general ambulance service (General Municipal Law, 209-b[2][a],[d],[e]).

With respect to the imposition of fees, subdivision 4 of section 209-b provides, in pertinent part, as follows:

Emergency and general ambulance service authorized pursuant to this section shall be furnished without cost to the person served.

The purpose of this provision is to expressly prohibit charges for either general or emergency ambulance service by emergency rescue squads (see Memorandum of Joint Legislative Committee on Fire Laws, re: L 1957, ch 849, McKinney's Session Laws of 1957, p 2171; 1992 Opns St Comp No. 92-45, p 114). Thus, a village may not impose a fee upon users of ambulance services provided by the village fire department unless the village may supersede section 209-b(4) by local law.

Municipal Home Rule Law, 10(1) authorizes local governments to adopt local laws, not inconsistent with any general law or the Constitution, relating to their property, affairs or government. In addition, except to the extent restricted by the State Legislature, local governments may adopt local laws, not inconsistent with general laws and the Constitution, relating to certain enumerated subjects, whether or not they relate to property, affairs or government. One such enumerated subject is the "[f]ixing, levy, collection and administration of local government rentals, charges, rates or fees ..." (Municipal Home Rule Law, 10[1][ii][a][9-a]).

The doctrine of pre-emption, however, represents a fundamental limitation on home rule powers (Albany Area Builders v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627). Where the State Legislature has clearly evinced a desire to pre-empt an entire field and preclude any further regulation, a local law regulating the same subject matter is considered inconsistent and will not be given effect (Incorporated Village of Nyack v Daytop Village, Inc., 78 NY2d 500, 577 NYS2d 215; see also Albany Area Builders, supra). The intent to preempt may be express (see Jancyn Manufacturing Corp. v County of Suffolk, 71 NY2d 91, 524 NYS2d 8) or may be inferred from a comprehensive, detailed statutory scheme (see Daytop Village, supra; Albany Area Builders, supra). Based on express language in section 209-b and a review of the statutes governing emergency first aid and rescue squads, it is our opinion that the provisions of General Municipal Law, 209-b are intended to be pre-emptive.

On its face, section 209-b(1) applies to all municipal and fire district fire departments or fire companies. Section 209-b(2) also applies to all cities, towns, villages and fire districts "except where the provisions of a general or special law expressly prohibit the rendition of general ambulance service by an emergency rescue and first aid squad ..." (General Municipal Law, 209-b[2][j]; emphasis supplied). Since only the State Legislature may enact general and special laws, the statutory language of section 209-b clearly suggests that it is only the State Legislature which may supersede the provisions of that section.

Further, section 209-b and a number of other statutes describe in considerable detail the circumstances under which an emergency rescue and first aid squad may provide both emergency and general ambulance service (see, e.g., General Municipal Law, 122-b[1][e], 209, 209-d; Town Law, 176[22], 184[1]; Village Law, 4-412[3][9]; see also Not-For-Profit Corporation Law, 1402[e][3]; Public Health Law, art. 30; 1989 Opns St Comp No. 89-52, p 118; 1987 Opns St Comp No. 87-55, p 83). For example, section 209-b(2) contains extensive procedures for authorizing an emergency rescue and first aid squad to provide general ambulance service, including as noted above, procedures for obtaining the consent of the department, company and squad and for conducting a public hearing. Town Law, 176(22) and 184(1), Village Law, 4-412(3)(9), and General Municipal Law, 209-d describe the specific circumstances when a fire district, town on behalf of a fire protection district or village may contract to receive ambulance services, the consents necessary to provide the services and the portion of the consideration under the contract which may be paid to the fire department or company. General Municipal Law, 122-b, which authorizes municipalities to provide emergency medical and general ambulance services and to establish fees or charges for the use of such services, expressly prohibits emergency rescue and first aid squads from providing service pursuant to that section (General Municipal Law, 122-b[1][e]). In our view, the above cited provisions collectively constitute a comprehensive, detailed statutory scheme governing the procedures for the provision of emergency and general ambulance service by emergency rescue and first aid squads, intended to pre-empt local laws in this area.

Accordingly, a village is prohibited by General Municipal Law, 209-b(4) from imposing fees upon users of emergency or general ambulance services provided by a village fire department and, in our opinion, may not supersede the prohibition contained in General Municipal Law, 209-b(4) pursuant to its home rule powers.

July 8, 1994
James L. Breen, Esq., Village Attorney
Village of Farmingdale