479 So.2d 810 (Fla.App. 3 Dist. 1985), 84-1782, Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd.
|Citation:||479 So.2d 810, 10 Fla. L. Weekly 2720|
|Opinion Judge:||Author: Nesbitt|
|Party Name:||TECHNICABLE VIDEO SYSTEMS, INC., Appellant, v. AMERICABLE OF GREATER MIAMI, LTD. and Miami Tele-Communications, Inc., Appellees.|
|Attorney:||Henry Thompson, for appellant.|
|Case Date:||December 10, 1985|
|Court:||Florida Court of Appeals, Third District|
Henry Thompson, Miami, for appellant.
Shutts & Bowen and Stephen B. Gillman and Lee D. Mackson, Myers, Kenin, Levinson, Frank & Richards and William M. Grodnick and James Wing, Miami, for appellees.
Before SCHWARTZ, C.J., and NESBITT and PEARSON, DANIEL S., JJ.
Technicable Video Systems, Inc. (Technicable) appeals an order dismissing its complaint with prejudice. We affirm in part and reverse in part.
City of Miami Ordinance No. 9332 grants Miami Tele-Communications, Inc. (MTC) and Americable of Greater Miami, Ltd. (Americable) a nonexclusive license to operate and maintain a cable television system within the City of Miami (City). Section 1106 of the ordinance is entitled "Minority business enterprise participation." This section requires the licensee to "make reasonable and good faith efforts to procure from or use, on an annual basis during the term of the license, qualified minority business enterprises, ... for twenty (20) per cent of the total dollar amount of any and all contracted expenditures by the licensee." The section also establishes a presumption that the "twenty (20) per cent figure shall be allocated equally between black-and hispanic-owned minority business enterprises."
Technicable is a 100% black-owned business and, thus, qualifies as a minority business enterprise (MBE) which, under the license, is defined as a business at least 51% of which is owned by minorities. Technicable alleges in its complaint that it has tried on numerous occasions to engage MTC and Americable in negotiations for an agreement to provide goods and services necessary to the execution of the license. Technicable alleges that such attempts have been futile and that the defendants are presently engaged in the construction of the cable system without the required minority business enterprise participation.
Technicable alleges that the defendants' failure to make reasonable and good faith efforts to meet the 20% requirement is a breach of the agreement with the City and that it, as a third-party beneficiary of the agreement, is entitled to relief. Technicable also attempts to state a cause of action under 42 U.S.C. § 1983 for a violation of its civil rights and prays that the trial court order the defendants to engage its services or, in the alternative, award it damages for income lost over the fifteen-year period of the license.
The defendants' motion to dismiss for failure to state a cause of action was granted with prejudice.
When a contract creates a right in favor of a third person, it is presumed that the parties intended to confer a benefit on him and he may sue for breach of the contract. Hialeah Hospital, Inc. v. Raventos, 425 So.2d 1205 (Fla. 3d DCA 1983); see also Marianna Lime Products Co. v.
McKay, 109 Fla. 275, 147 So. 264 (1933) (when a contract manifests an intent to benefit a third party, that party may sue for breach of the contract). It is not necessary that the third party be specifically named. It is sufficient if the claimant is a member of the limited class which was intended to benefit from the contract. Organization of Minority Vendors, Inc. v. Illinois Central Gulf Railroad, 579 F.Supp. 574 (N.D.Ill.1983); Western Union Telegraph Co. v. Massman Construction Co., 402 A.2d 1275 (D.C.Ct.App.1979)...
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