City of Hialeah Gardens v. Dade County

348 So. 2d 1174, 1977 Fla. App. LEXIS 16413
CourtDistrict Court of Appeal of Florida
DecidedJuly 12, 1977
Docket76-946
StatusPublished
Cited by4 cases

This text of 348 So. 2d 1174 (City of Hialeah Gardens v. Dade County) 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
City of Hialeah Gardens v. Dade County, 348 So. 2d 1174, 1977 Fla. App. LEXIS 16413 (Fla. Ct. App. 1977).

Opinion

348 So.2d 1174 (1977)

CITY OF HIALEAH GARDENS et al., Appellants,
v.
DADE COUNTY et al., Appellees.

No. 76-946.

District Court of Appeal of Florida, Third District.

July 12, 1977.
Rehearing Denied September 9, 1977.

*1176 Warren S. Wepman, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Neil Flaxman, South Miami, for appellants.

Steel, Hector & Davis and Darrey A. Davis, Coral Gables, Stuart L. Simon, County Atty., Miami, Lewis I. Horwitz, Bay Harbor Island, for appellees.

George F. Knox, Jr., City Atty. and Eugene Steinfeld, Asst. City Atty., for City of Miami as amicus curiae.

Before HENDRY, C.J., and BARKDULL and NATHAN, JJ.

PER CURIAM.

This appeal stems from the dismissal of the City of Hialeah Gardens' suit to enjoin Metropolitan Dade County from receiving any part of the revenue collected by Florida Power and Light Company (FP&L) from inhabitants of Hialeah Gardens. Dade County has cross-appealed from the trial court's modification of its final order after a hearing on motions to intervene and for rehearing which were brought by the Village of Virginia Gardens.

In 1960, the Board of County Commissioners of Dade County passed an ordinance granting FP&L a thirty year non-exclusive franchise to provide electricity to the residents of Dade County. The ordinance, No. 60-16, in pertinent part reads as follows:

"Section 1. That there is hereby granted to Florida Power & Light Company ... the non-exclusive right, privilege or franchise to construct, maintain and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements and other public places in the unincorporated and incorporated areas of Dade County, Florida ... for the period of thirty years from the date of acceptance hereof . . for the purpose of supplying electricity to [Dade County], and its successors, the inhabitants thereof, and persons and corporations beyond the limits thereof, subject to all existing municipal franchises."

Other sections of the ordinance recite standards regarding the placement, construction and maintenance of transmission facilities and provide for the payment of a franchise fee to Dade County.

The ordinance was passed by a more than two-thirds vote of the members of the Board of County Commissioners and approved by a majority of the qualified electors of Dade County in accordance with Section 1.01(A)(14)(a) of the Dade County *1177 Home Rule Charter. Section 1.01 delineates the powers of the Board of County Commissioners, and Subsection 14 in particular deals with the power to grant franchises:

"SECTION 1.01. POWERS
A. The Board of County Commissioners shall be the legislative and the governing body of the county and shall have the power to carry on a central metropolitan government. This power shall include but shall not be restricted to the power to:
* * * * * *
14. Regulate, control, take over, and grant franchises to, or itself operate gas, light, power, telephone, and other utilities, sanitary and sewage collection and disposal systems, water supply, treatment, and service systems, and public transportation systems ..."

Hialeah Gardens initially brought suit against FP&L claiming that FP&L had since 1960 been wrongfully paying to Dade County part of the revenue derived from the sale of electricity to inhabitants of Hialeah Gardens. The City therefore sought to have FP&L enjoined from making any further payments to Dade County. In its subsequent amended complaint, Hialeah Gardens included Dade County as a party defendant. The original allegations and requests for relief were restated but in addition, a temporary injunction was sought barring the County from exercising any rights under its franchise agreement with FP&L or from interfering in any way with Hialeah Gardens' attempts to negotiate its own franchise with FP&L. This latter request was premised upon the contention that the County had exceeded its authority in granting the county-wide franchise.

FP&L moved to dismiss the amended complaint, while Dade County filed a counterclaim against Hialeah Gardens and a crossclaim against FP&L seeking a declaration of its rights, privileges and powers under the franchise agreement. Specifically, the County alleged that Ordinance No. 60-16 was preemptive, barring franchise contracts between FP&L and those municipalities in Dade County which had not established such relationships prior to the effective date of the ordinance.

The trial judge ultimately dismissed Hialeah Gardens' complaint against both the County and FP&L. The court held that the Metro charter authorized the County to grant county-wide franchises, subject to the conditions for approval mandated by Charter Section 1.01(A)(14)(a), which conditions had been performed. The court further ruled that Ordinance No. 60-16 was preemptive in nature and that FP&L was consequently barred from entering into franchise agreements with Dade County municipalities subsequent to May 24, 1960, the date that the ordinance went into effect. The court's order stated the discerned prohibition applied not only to those municipalities which had no contractual relationships with FP&L on May 24, 1960, but also to those whose contracts would expire between May 24, 1960, and May 24, 1990.

Hialeah Gardens' petition for rehearing was denied. However, a second petition for rehearing was filed by the Village of Virginia Gardens along with a motion to intervene as a party plaintiff for the purpose of presenting the petition for rehearing and participating in any appeal. Virginia Gardens had a franchise agreement with FP&L which was entered into prior to May 24, 1960, but which would expire before 1990. Accordingly, the Village would be directly affected by the court's order, although neither it nor any other municipality with a pre-1960 franchise had been joined as parties to the suit. Virginia Gardens therefore argued that the trial court had erred in entering a ruling adjudicating the rights of municipalities in this class and requested that references to existing franchise agreements be deleted from the order.

After a hearing, the trial court granted Virginia Gardens' motion to intervene. In addition, the court modified its final order:

"(a) The penultimate sentence in the final paragraph of the order reading as set out below is stricken:
* * * * * *
*1178 `It appears to this Court that the language of the aforesaid Section 1 of County Ordinance No. 60-16 is preemptive in nature and bars the Florida Power & Light Company from entering into subsequent franchise agreements with those municipalities in Dade County (a) with which it had no contractual relationships on May 24, 1960, or (b) whose municipal franchises with the Florida Power & Light Company would expire between May 24, 1960 and May 24, 1990.'
(b) It is replaced by the following two sentences:
`It appears to the Court that the language of the aforesaid Section 1 of County Ordinance No. 60-16 is preemptive in nature and bars the Florida Power & Light Company from entering into subsequent franchise agreements with those municipalities in Dade County with which it had no contractual relationships on May 24, 1960. The Court feels and states as a matter of dictum without specifically so ruling that the language of the aforesaid Section 1 of County Ordinance No.

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Bluebook (online)
348 So. 2d 1174, 1977 Fla. App. LEXIS 16413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-hialeah-gardens-v-dade-county-fladistctapp-1977.