East Naples Water Systems, Inc. v. Board of County Com'rs of Collier County, 83-1539

• Decision Date: 06 June 1984
• Docket Number: No. 83-1539,83-1539
• Citation: 457 So.2d 1057
• Parties: EAST NAPLES WATER SYSTEMS, INC., a Florida corporation, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1057

457 So.2d 1057

EAST NAPLES WATER SYSTEMS, INC., a Florida corporation, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, Florida, Appellee.

No. 83-1539.

District Court of Appeal of Florida Second District.

June 6, 1984.

Rehearing Denied Sept. 13, 1984.

James H. Siesky, P.A., Naples, for appellant.

R. Bruce Anderson, Asst. County Atty., Naples, for appellee.

RYDER, Acting Chief Judge.

East Naples Water Systems, Inc. (Water Systems) seeks review of a final order dismissing its suit with prejudice. We reverse.

Water Systems began operation of its water and sewage treatment facilities in Collier County in 1975. On December 21, 1976, the Board of County Commissioners of Collier County (Collier County) enacted Ordinance No. 76-71 which was titled as follows:

An Ordinance relating to regulation of water and sewerage systems and bulk water utilities in Collier County, Florida; providing for definition of terms used in the ordinance; authorizing the Board of County Commissioners to prescribe classes and conditions of service, to set rates and charges for services, to adopt rules and regulations for administering this ordinance, to grant franchises for water and sewerage systems, to prescribe conditions for such issuance, to evaluate property for rate purposes, to inspect utility property, to modify rates and charges, to invoke penalties and revoke franchises under certain conditions; requiring furnishing of service by such utilities; prohibiting rates and charges not approved as provided in this ordinance; providing exemptions and penalties; providing that this ordinance shall be applicable to all public utilities now or hereafter operating under a franchise granted by the Board of County Commissioners of Collier County; repealing laws in conflict; authorizing the County of Collier to expend public funds for a fire hydrant system and providing for the repayment by property owners of the cost thereof; providing an effective date.

In May 1982, Water Systems filed a complaint for declaratory and/or injunctive relief. In Count I, Water Systems alleged that Ordinance 76-71 addresses three subjects, thereby violating the Florida Constitution. In Count II, Water Systems alleged that Ordinance 76-71, in its title, provides that the ordinance applies to all utilities operating under a franchise granted by Collier County; however, the terms of the ordinance "appear to be possibly applicable to non-franchised utilities." It was alleged that the title did not sufficiently apprise the public of the purported scope of the ordinance, requiring that the ordinance be declared unconstitutional or be strictly construed to apply only to franchised utilities. In Count III, Water Systems challenged, inter alia, the "emergency" enactment of the ordinance. Water Systems alleged that no emergency actually existed. In Count IV, Water Systems alleged that Collier County "has, by inaction, unconstitutionally delegated its legislative authority to its Utility Director" and has failed to prescribe reasonable rules regulations and procedures for franchise applicants.

In November 1982, the trial court ordered Water Systems to apply to Collier County for a rate increase, and ordered Collier County to hold a hearing and set Water Systems' "final rates." The court added that "the authority to set rates and collect revenues for utility services shall not be denied on the ground that the Board of County Commissioners has not previously granted a written franchise to the utility or to any of its predecessors." It was noted by the court that neither the rate increase proceedings nor the court's order shall be construed so as to prejudice Water Systems or waive Water Systems' rights to challenge Ordinance 76-71, or the applicability of the ordinance to Water Systems.

Collier County issued its water and sewer rate order concerning Water Systems in December 1982. No appeal was taken from that order.

In May 1983, Collier County filed a motion to dismiss Water Systems' complaint stating: "That the issue of the constitutionality of County regulation raised in Plaintiff Utilities Complaint is now moot, inasmuch as Plaintiff's application for review of its water and sewer rates was acted upon by the County on December 20, 1982, and Plaintiff has not appealed the County's decision."

After the trial court granted Collier County's motion to dismiss with prejudice, this appeal was filed.

Initially, we note that the validity of an ordinance may be tested in an action for declaratory relief. Robinson v. Town of Palm Beach Shores, 388 So.2d 314 (Fla. 4th DCA 1980); City of Miami v. Franklin Leslie, Inc., 179 So.2d 622 (Fla. 3d DCA 1965). Of course, the question raised must be "real and not theoretical" and the party raising it must have "a bona fide and direct interest in the result." City...