
    Richard WILLIAMS, Robert French, William Kirchhoff, John Alexander and Harry Kwiatkowski, as and constituting the Board of County Commissioners of Seminole County of Florida, Appellants, v. Paula F. HAWKINS, William T. Mayo and Robert T. Mann, as and constituting the Florida Public Service Commission, Appellees.
    No. 78-1204.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Harry A. Stewart, County Atty., Sanford, for appellants.
    Prentice P. Pruitt, Legal Director and William E. Sundstrom, Staff Counsel for Florida Public Service Commission, Tallahassee, for appellees.
   DAUKSCH, Judge.

There is a genuine issue of material fact which was improperly decided by summary judgment in this case. The lawsuit is centered around whether a license fee the county would impose by ordinance was in fact an illegal tax. If the license fee was unconnected with the cost of regulating the utilities which would pay the fee then it is a tax and illegal. Bateman v. City of Winter Park et al. 37 So.2d 362 (Fla.1948); Broward County v. Janis Development Corp., 311 So.2d 371 (Fla. 4th DCA 1975). While it may appear from the pleadings the fee was a tax there is no evidence to support such a conclusion and a trial of the matter may reveal otherwise. The motion and order for summary judgment are totally unsupported by testimony, by affidavit or otherwise, and the only evidence in our record is the ordinance itself. The error is in granting a summary judgment without an evidentiary foundation to support it. It is not a question of whether or not the fee was a tax. That question cannot be decided by a review of the ordinance and the pleadings. There must be evidence to support the proposition the fee was in fact a tax. Perhaps affidavits and depositions may support a similar summary judgment later but there are none of record yet. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

DOWNEY, C. J., concurs.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting:

I dissent.

This is most obviously a tax, not a license fee. In fact the ordinance prior to the one at issue, called it a “tax”; however, a new ordinance has been substituted which uses the magic phrase “license fee.” I can discern nothing in this ordinance which renders it anything more than a revenue raising measure and there are no additional conditions to be performed by the utility company (see Bateman, supra) sufficient to raise an issue of material fact. I would affirm.  