Devon-Aire Villas Homeowners Ass'n, No. 4, Inc. v. Americable Associates, Ltd.

• Decision Date: 17 December 1985
• Docket Number: DEVON-AIRE,No. 84-675,84-675
• Citation: 10 Fla. L. Weekly 2786,490 So.2d 60
• Parties: 10 Fla. L. Weekly 2786, 11 Fla. L. Weekly 482 VILLAS HOMEOWNERS ASSOCIATION, NO. 4, INC., a not-for-profit Florida corporation, Appellant, v. AMERICABLE ASSOCIATES, LTD., a Florida limited partnership, and Dade County, a political subdivision of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 60

490 So.2d 60

10 Fla. L. Weekly 2786, 11 Fla. L. Weekly 482

DEVON-AIRE VILLAS HOMEOWNERS ASSOCIATION, NO. 4, INC., a not-for-profit Florida corporation, Appellant, v. AMERICABLE ASSOCIATES, LTD., a Florida limited partnership, and Dade County, a political subdivision of the State of Florida, Appellees.

No. 84-675.

District Court of Appeal of Florida,

Third District.

Dec. 17, 1985.

Motions to Appear as Amicus Curiae

and Rehearing Denied Feb. 18, 1986.

Keith, Mack, Lewis & Allison and Robert A. Cohen, Miami, for appellant.

Fine, Jacobson, Schwartz, Nash, Block & England and Gary S. Brooks, Robert A. Ginsburg, Co. Atty., and Stephen P. Lee, Asst. Co. Atty., Miami, for appellees.

Frates, Bienstock & Sheehe and Terry S. Bienstock, Miami, and Alan D. Lash, for movants Storer Communications, Inc., Dade Cable Television of Florida, Inc. and Storer Cable TV of Florida, Inc.

Robert D. Zahner, City Atty., Coral Gables, for movant City of Coral Gables.

Catlin, Saxon, Tuttle and Evans and H. James Catlin, Jr., Miami, for movant Dynamic Cablevision of Florida, Inc.

Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The appellant, Devon-Aire Villas Homeowners Association No. 4, Inc., (Homeowners), is a not-for-profit corporation organized for the purpose of holding and operating certain lands as set forth in a recorded plat. ¹ Without the consent of Homeowners, and ostensibly pursuant to certain Dade County ordinances, the appellee, Americable Associates, Ltd. (Americable), entered upon Homeowners' lands and utilized certain easements dedicated on the plat for public utilities to install underground cable television equipment.

Homeowners sued Americable and the County for trespass. Homeowners asked that the court declare that (1) Americable is not a public utility and thus not entitled to use easements dedicated for the use of "public utilities," and (2) Section 8A-127 of the Dade County Code (pursuant to which Americable, a private entity, is licensed to use easements) is unconstitutional as depriving Homeowners of property without just compensation. Homeowners also requested that a mandatory injunction be entered requiring the removal of the cables. The trial court entered a summary judgment for Americable and the County, and Homeowners appeals.

Since the appellees concede that Section 8A-127 of the so-called Cable TV Ordinance authorizes cable television companies to use only those streets, rights-of-way and easements in which Dade County has an interest or which have already been dedicated to public use, ² and since it is undisputed that Americable used only platted public utility easements to install its cable television facilities, we need not concern ourselves with Homeowners' argument that the ordinance unconstitutionally gives to Americable rights to use the property of Homeowners without just compensation. ³ , ⁴ If cable television is, as Americable and the County urge, a public utility, then the cable television company may use the easement dedicated for the use of public utilities without any unlawful taking occurring; however, if cable television is not a public utility, then its use of this easement and entry upon Homeowners' land is a trespass which should have been declared and enjoined.

As will be seen, the phrase "public utility" eludes precise definition. Nonetheless, an examination of various statutory provisions and decisional law persuades us that a public utility is typically a creature of statute which is impressed with a public use, provides services generally considered essential to the society, and enjoys certain powers usually reserved to the sovereign. With these indicia in mind, we conclude that cable television is not a public utility and reverse the contrary judgment of the trial court.

I.

A.

We note at the outset that the Public Service Commission does not have jurisdiction to regulate cable television. Teleprompter v. Hawkins, 384 So.2d 648 (Fla.1980). Because, however, a public utility need not necessarily be under the auspices of the Public Service Commission, see Radio Telephone Communications v. Southeastern Telephone Company, 170 So.2d 577, 581 (Fla.1964) ("[T]he Legislature of Florida has never conferred upon the Florida [Public Service] Commission any general authority to regulate 'public utilities' "), the fact that it is not is concededly not dispositive of the question whether cable television is a public utility. But the fact that the Legislature, which traditionally has subjected public utilities to the jurisdiction of the Commission, has not seen fit to similarly subject cable television, strongly suggests that cable television should not be considered a public utility. As the court in Teleprompter noted:

"Community antenna television systems have never been defined as 'public utilities' by the legislature, nor is there anything in this record which would justify the conclusion that such systems are vested with the public interest; in actual fact, they may be of such character as to justify public regulation and control. That, however, is a matter for determination by the state legislature."

384 So.2d at 650.

B.

Apart from the various Florida Statutes which define certain entities as "public utilities" in the context of defining the jurisdiction of the Public Service Commission, ⁵ the term "public utility" is also found in statutes granting public utilities the right of eminent domain--that is, statutes permitting the taking of private property for the public good. ⁶ , ⁷ Cable television is not given the right of eminent domain in any of these statutes.

Under the Florida Constitution, eminent domain is "an inherent attribute of sovereignty to be exercised in case of public exigency or for the public good." Daniels v. State Road Department, 170 So.2d 846, 848 (Fla.1964). See Art. X, § 6, Fla. Const. A public utility granted the right of eminent domain may not exercise it absent a showing of "public use." See Clark v. Gulf Power Company, 198 So.2d 368, 371 (Fla. 1st DCA 1967). A public use, in turn, is "one which is fixed and definite, in which the public has an interest, and the terms and manner of its enjoyment must be within the control of the state." Id. at 371. A public use must be available to all people equally, although it is not essential that the benefits of the public use be received by the whole public or even a large part of it. Higgs v. City of Fort Pierce, 118 So.2d 582 (Fla.2d DCA 1960). That the Legislature has not granted the right of eminent domain to cable television companies as it has granted that right to specified public utilities, although again not dispositive of the question whether cable television is or is not a public utility, surely suggests that it is not.

Clearly the Legislature of this State has not as of this time seen fit to declare cable television a public utility. This legislative silence speaks eloquently that cable television is, in the eyes of the Legislature, not so necessary to the functioning of a modern society and not imbued with such publicness that it must be regulated by a public service commission, or invested with the power of eminent domain.

II.

We turn now to the question whether cable television should be considered a public utility as that term has been defined by the courts.

In Higgs v. City of Fort Pierce, 118 So.2d 582, the court held that the defendant-city did not have to submit a proposed gas utility to a referendum vote under a charter provision that required a vote if such a public utility already existed in private hands, since the local private gas dealers did not come within the court's definition of public utility:

"To constitute a 'public utility,' the devotion to public use must be of such character that the product and service is available to the public generally and indiscriminately, or there must be the acceptance by the utility of public franchises or calling to its aid the police power of the state....

"Aside from the statutory definition, the term 'public utility' implies a public use, carrying with it the duty to serve the public and treat all persons alike, without discrimination, and it precludes the idea of service which is private in its nature, whether for the benefit and advantage of a few or of many...."

Id. at 585 (citations omitted).

Similarly, in Village of Virginia Gardens v. City of Miami Springs, 171 So.2d 199 (Fla. 3d DCA 1965), this court, holding that the City of Miami Springs was not acting as a public utility when supplying water to the Village of Virginia Gardens for distribution to the village residents, and was thus not subject to the jurisdiction of the Public Service Commission, discussed the nature of a "public utility":

"[T]o fall into the class of a public utility, a business or enterprise must be impressed with a public interest and ... those engaged in the conduct thereof must hold themselves out as serving or ready to serve all members of the public, who may require it, to the extent of their capacity. The nature of the service must be such that all members of the public have an enforceable right to demand it."

Id. at 201 (citations omitted).

See also Department of Revenue v. Merritt Square Corporation, 334 So.2d 351 (Fla. 1st DCA 1976) (citing Section 366.02, Florida Statutes, and holding that under that statute a privately owned utility supplying electricity or gas and holding itself out to serve the general public is a public utility).

While an argument might be made that cable television should "be available to the public generally," 118 So.2d at 585, and is "impressed with a public interest," 171 So.2d at 201, we do not believe that the value and necessity of cable television is so self-evident that this court should arrogantly declare this newest rage of the media world to be the equivalent of, for example, electricity and water. As the court in Teleprompter v. Hawkins observed in a different context, if...