Cable Vision, Inc. v. Freeman

324 So. 2d 149
CourtDistrict Court of Appeal of Florida
DecidedDecember 9, 1975
Docket74-1408
StatusPublished
Cited by22 cases

This text of 324 So. 2d 149 (Cable Vision, Inc. v. Freeman) 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
Cable Vision, Inc. v. Freeman, 324 So. 2d 149 (Fla. Ct. App. 1975).

Opinion

324 So.2d 149 (1975)

CABLE-VISION, INC., a Florida Corporation, Appellant,
v.
William A. FREEMAN, Jr., et al., Appellees.

No. 74-1408.

District Court of Appeal of Florida, Third District.

December 9, 1975.
Rehearing Denied January 22, 1976.

*150 Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for appellant.

Horton, Perse & Ginsberg, Paul E. Sawyer, Key West, Robert L. Shevin, Atty. Gen., and Tom Harris, Asst. Atty. Gen., Tallahassee, for appellees.

Before PEARSON, HENDRY and NATHAN, JJ.

NATHAN, Judge.

Appellant, Cable-Vision, Inc., brings before this court for review, a final declaratory judgment arising out of a suit brought in the trial court by the Board of County Commissioners of Monroe County for the purpose of determining the rights of the county to construct and operate television broadcast translator stations.

The facts in this case, and the trial court so found, are not in dispute. The county, on March 9, 1965, granted to Cable-Vision an exclusive 30-year franchise to furnish a cable television system.[1] Apparently, and for good reason, there was some doubt as to the county's authority to grant such a franchise. Consequently, during the 1965 session of the Florida Legislature, Chapter 65-1916 was enacted specifically ratifying the March 9, 1965 franchise.[2] At the same *151 session of the Florida Legislature, Chapter 65-1927 was enacted, the effect of which purports to grant a non-exclusive franchise by the State of Florida to Cable-Vision to operate a cable television system in Monroe County for a period of 30 years.[3] The county, on May 22, 1973, enacted Ordinance No. 5-1973 which authorized the county to construct and operate television broadcast translator stations within the county for the purpose of providing direct television reception to its citizens.[4] The *152 trial court held that the county had the power to construct and operate television broadcast translator stations. It is from this final declaratory judgment that Cable-Vision appeals.

The first issue for our consideration is whether Cable-Vision has an exclusive franchise to furnish all forms of television in Monroe County, stemming, not only from the agreement granting the franchise, but from legislative enactments under Chapters 65-1916 and 65-1927, Laws of Florida. If this be so, then the county's resolution to construct, maintain and operate television broadcast translator stations would be invalid because it would violate the terms of such legislative enactments and, in addition, the ordinance would be an unconstitutional impairment of the obligations of an existing contract. Jarrell v. Orlando Transit Co., 1936, 123 Fla. 776, 167 So. 664.

Cable-Vision contends that it has an exclusive franchise from the county, and thus the county is barred from competing with Cable-Vision as well as from granting any competing franchises. We disagree. The county's agreement of March 9, 1965, purported to grant an exclusive franchise to Cable-Vision. This was, and obviously was so recognized, an ultra vires and invalid ordinance because, as the trial court declared, the power to regulate occupations and businesses by licensed franchises is a peculiar attribute of state sovereignty which requires state legislation. It would appear that this is why the Florida Legislature enacted Chapter 65-1916 which ratified the exclusive franchise agreement and subsequently enacted Chapter 65-1927 granting to Cable-Vision, by the State of Florida, a non-exclusive franchise. Since Chapter 65-1927 was the last expression of the legislature as far as the franchise enjoyed by the appellant is concerned, and since that act only granted a nonexclusive franchise whereas Chapter 65-1916 sought to grant or ratify an exclusive franchise granted by the appellee, the question arises as to which of the laws is paramount and which should be construed as controlling. The trial judge found that there was an inconsistency between Chapter 65-1916, Laws of Florida, 1965, and Chapter 65-1927. He construed the last expression of the legislature, to-wit: Chapter 65-1927, to be controlling and he did it upon the well recognized proposition of law that any such inconsistency should be resolved in favor of the last expression of the legislative will. In 30 Fla.Jur., Statutes § 210, Irreconcilable Provisions, it is stated:

"One important general rule in this regard (the reconciliation of inconsistent provisions) is that the last expression of the legislative will is the law, and that, therefore, the last in point of time or order of arrangement prevails. This rule is applicable where the irreconcilable provisions appear in different statutes, or in different provisions of the same statute."

See also: Johnson v. State, 1946, 157 Fla. 685, 27 So.2d 276; Overstreet v. Ty-Tan, *153 Inc., Fla. 1950, 48 So.2d 158; State v. Board of Public Instruction of Escambia County, Fla. 1959, 113 So.2d 368; Sharer v. Hotel Corporation of America, Fla. 1962, 144 So.2d 813. In view of the fact that Chapter 65-1916 provides for an exclusive franchise and Chapter 65-1927, which came after it, provides for a non-exclusive franchise, the court, under the statutory construction applicable, properly concluded that the franchise itself was not exclusive as to all forms of television reception. The franchise not being exclusive, it follows that the county agreement of 1965, and the legislative enactments do not give Cable-Vision an exclusive franchise to operate a cablevision system or a translator system. From the language of Chapter 65-1927, Cable-Vision only has a franchise to operate a cablevision system. Therefore, there can be no prohibition by virtue of the 1965 agreement and Chapters 65-1916 and 65-1927, for the county to construct, operate and maintain television broadcast translator stations. Cable-Vision contends that county ordinance 5-1973, authorizing translator stations is a constitutional impairment of contract. This is not so because the trial court found, after taking testimony, which was uncontroverted, that there was a distinct difference between a cablevision system and the operation of a television broadcast translator system. From the testimony it appears that a cable television system is a direct wire reception of television and a television broadcast translator system is an over-the-air broadcast facility which does not involve wire transmission by picking up television signals from the air for broadcast over the air. Furthermore, while it appears that the operation of translator stations could substantially harm Cable-Vision's business, there is no evidence in the record to this effect.

Cable-Vision next contends that the county did not have authority to authorize construction and to operate television broadcast translator stations; that Monroe County being a non-chartered county, has its power of self-government from Article VIII, § 1(f) of the 1968 Florida Constitution which provides:

"(f) Non-charter government. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law, but an ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict."

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Florida Department of Children & Families v. Adoption of X.X.G.
45 So. 3d 79 (District Court of Appeal of Florida, 2010)
Spradley v. Doe
612 So. 2d 722 (District Court of Appeal of Florida, 1993)
State, Dept. of Agriculture v. Quick Cash of Tallahasee, Inc.
609 So. 2d 735 (District Court of Appeal of Florida, 1992)
Palm Harbor Special Fire Control District v. Kelly
500 So. 2d 1382 (District Court of Appeal of Florida, 1987)
City of Coral Gables v. Coral Gables Retirement Board
16 Fla. Supp. 2d 71 (Florida Circuit Courts, 1985)
Ago
Florida Attorney General Reports, 1985
State, Department of Health & Rehabilitative Services v. Hartsfield
443 So. 2d 322 (District Court of Appeal of Florida, 1983)
Douglass v. Sepe
421 So. 2d 27 (District Court of Appeal of Florida, 1982)
State v. Marquez
638 P.2d 1292 (Wyoming Supreme Court, 1982)
Tele-Media Co. of Key West v. Monroe County
391 So. 2d 375 (District Court of Appeal of Florida, 1980)
Williams v. Hartford Acc. & Indem. Co.
382 So. 2d 1216 (Supreme Court of Florida, 1980)
Patch Enterprises, Inc. v. McCall
447 F. Supp. 1075 (M.D. Florida, 1978)
Peterson v. ST., DEPT. OF ENVTL. REG.
350 So. 2d 544 (District Court of Appeal of Florida, 1977)
Peterson v. State Department of Environmental Regulation
350 So. 2d 544 (District Court of Appeal of Florida, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
324 So. 2d 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cable-vision-inc-v-freeman-fladistctapp-1975.