Port Everglades Authority v. ILA

652 So. 2d 1169, 1995 WL 92606
CourtDistrict Court of Appeal of Florida
DecidedMarch 8, 1995
Docket94-1331
StatusPublished
Cited by13 cases

This text of 652 So. 2d 1169 (Port Everglades Authority v. ILA) 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
Port Everglades Authority v. ILA, 652 So. 2d 1169, 1995 WL 92606 (Fla. Ct. App. 1995).

Opinion

652 So.2d 1169 (1995)

PORT EVERGLADES AUTHORITY, Appellant,
v.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1922-1, Appellee.

No. 94-1331.

District Court of Appeal of Florida, Fourth District.

March 8, 1995.
Rehearing Denied April 27, 1995.

*1170 William R. Scherer and Valerie Shea of Conrad, Scherer, James & Jenne, Fort Lauderdale, for appellant.

Neil Flaxman of Neil Flaxman, P.A., Coral Gables, for appellee.

PARIENTE, Judge.

This appeal arises from a trial court's order entitled "Final Judgment as to the Claims of Plaintiff International Longshoremen's Association (ILA)" against Port Everglades Authority (the Port). The trial court found a violation of the Sunshine Law, section 286.011, Florida Statutes (1991), in the bidding and procurement process for the Port's contract for crane maintenance and, as a result, invalidated the award of the contract by the Port to G.F.C. Crane Consultants, Inc. (G.F.C.).[1] We affirm the trial court's final judgment finding a violation of the Sunshine Law and invalidating the contract awarded. However, we reverse that portion of the trial court's final judgment which retained jurisdiction to consider whether "any aspect of the Port's current contracting process for crane maintenance was tainted by the prior violative procedures."

A violation of the Sunshine Law occurred when the Port's Selection and Negotiation Committee (SNC) excluded other competing bidders from the committee meeting during presentations by competitors. The Port agrees that it would be a violation of the Sunshine Law to allow an agency to exclude competing presenters from a public meeting, whether for reasons of professional courtesy or otherwise. The Port's position is that the procurement officer did not exclude the competing presenters, but requested that the competing presenters voluntarily excuse themselves. The trial court expressly rejected this contention and made detailed findings of fact. We find that the trial court's order was supported by substantial, competent evidence that the actions of the Port amounted to a de facto exclusion of the competitors, especially since the "request" was made by an official directly involved with the procurement process.

We reject the Port's argument that, even if a technical violation of the Sunshine Law did occur, the trial court erred in finding that it required invalidation of the contract awarded as a result of the process. In Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974), the supreme court held that the "[m]ere showing that the government in the sunshine law has been violated constitutes an irreparable public injury so that the ordinance is void ab initio." See *1171 also Spillis Candela & Partners, Inc. v. Centrust Savs. Bank, 535 So.2d 694 (Fla. 3d DCA 1988) (upholding trial court determination that Dade County Board of Rules and Appeals violated Sunshine Law and invalidating the Board's resulting recommendation) and Blackford v. School Bd. of Orange County, 375 So.2d 578 (Fla. 5th DCA 1979) (overturning school board decision to close school when its decision was made outside of public eye).

The Port asserts that these cases are distinguishable because the meetings here were not "clandestine" and because, even if the Port's practice of requesting competing proposers to remain outside during a competing bid were a violation, it was an innocent, technical one with no prejudice resulting. However, the principle that a Sunshine Law violation renders void a resulting official action does not depend on a finding of intent to violate the law or resulting prejudice. Once the violation is established, prejudice is presumed. See Gradison.

Although a violation can be remedied by the governmental entity, a "cure" did not occur because the SNC, before whom the competitors were excluded, did not reconvene "in the sunshine" before the contract was awarded and the Port did not conduct a full, open hearing on the competing bidders for the contract, before ratifying the Committee's recommendations. See generally Tolar v. School Bd. of Liberty County, 398 So.2d 427 (Fla. 1981). The SNC ranked the bidders on the day of the meeting in which the Sunshine Law violation occurred, November 16, 1992. In this case, unlike Tolar, a separate committee determined the rankings and the Port commissioners ratified their actions. In fact, the trial court expressly found that the commissioners approved the SNC's rankings the very next day, November 17, 1992. Thereafter, the Port conducted negotiations only with the first ranked company, G.F.C. No further discussions concerning the rankings of the bidders occurred in the subsequent meetings. The trial court correctly concluded that the Port failed to effectuate a cure of the violation by independent action in the sunshine, even though it had the opportunity to do so and was aware of the violation. Compare Monroe County v. Pigeon Key Preservation Foundation, Inc., 647 So.2d 857 (Fla. 3d DCA 1995); BMZ Corp. v. City of Oakland Park, 415 So.2d 735 (Fla. 4th DCA 1982).

We next turn our attention to the portions of the final judgment wherein the trial court retained jurisdiction to monitor the ongoing contracting process. The Port brought this appeal as an appeal of a non-final order in favor of the party seeking affirmative relief pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), but asks us to review those portions of the final judgment, paragraphs three and four, wherein the trial court retained continuing jurisdiction. The April 19, 1994 final judgment provided that:

1. Final Judgment is entered in favor of Plaintiff, International Longshoreman's Association, Local 1922-1, and against Defendant, Port Everglades Authority, in accordance with the Court's Order of August 18, 1993 and November 10, 1993;
2. The Court retains jurisdiction to entertain any parties' Motion for an award of attorney's fees and costs;
3. The Court retains jurisdiction to consider the single remaining issue raised by the ILA in its March 4, 1994 Motion for Injunctive Relief: i.e. the allegation that the Port made a payment to GFC which was not for necessary crane maintenance at Southport;
4. The Court retains jurisdiction to consider any claim that any aspect of the Port's current contracting process for crane maintenance was tainted by the prior violative procedures; and
5. Nothing in this judgment should be considered as injunctive. (Emphasis added).

If we treat this as a non-final appeal of an order determining the issue of liability, we would be limited to reviewing the issue of liability. It would then be premature for us to determine whether the trial court, in this "final judgment," improperly retained jurisdiction. However, because we agree with the Port that the litigation regarding the single Sunshine Law violation had been concluded, *1172 we consider this case as a plenary appeal from a final judgment as between the Port and ILA.[2]

The test employed to determine the finality of an order is "whether the order in question constitutes an end to the judicial labor in the cause and nothing remains to be done to effectuate a termination of the cause as between the parties directly affected." S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla. 1972); see generally McGurn v. Scott, 596 So.2d 1042 (Fla. 1992).

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Bluebook (online)
652 So. 2d 1169, 1995 WL 92606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/port-everglades-authority-v-ila-fladistctapp-1995.