Fla. Transp. Serv. Inc. v. Miami–dade County, Case No. 05–22637–CIV.

• Decision Date: 02 November 2010
• Docket Number: Case No. 05–22637–CIV.
• Citation: 757 F.Supp.2d 1260
• Parties: FLORIDA TRANSPORTATION SERVICE, INC., Plaintiffv.MIAMI–DADE COUNTY, Defendant.
• Court: U.S. District Court — Southern District of Florida

757 F.Supp.2d 1260

FLORIDA TRANSPORTATION SERVICE, INC., Plaintiff

v.MIAMI–DADE COUNTY, Defendant.

Case No. 05–22637–CIV.

United States District Court, S.D. Florida,Miami Division.

Nov. 2, 2010.

Jeffrey Bruce Crockett, Mark Alan Journey, Robert Thomas Wright, Jr., Coffey Burlington Wright Crockett et al., Carmen Maria Rodriguez, Law Offices of Carmen Rodriguez, P.A., Miami, FL, for Plaintiff.Craig Edward Leen, Steven Barry Bass, Wifredo Antonio Ferrer, Dade County Attorney's Office, Miami, FL, for Defendant.

Amended Order on Motions for Summary Judgment ¹

ADALBERTO JORDAN, District Judge.

Florida Transportation has sued Miami–Dade County under 42 U.S.C. § 1983 for violations of the dormant Commerce Clause based on how stevedore permits are issued for the Port of Miami. Pending are Florida Transportation's motion for summary judgment on liability [D.E. 107] and the County's cross-motion for final summary judgment [D.E. 146]. For the reasons which follow, summary judgment on liability is entered in favor of Florida Transportation for the claims based on the County's denial of stevedore permits in 2003, 2004, and 2005, and summary judgment is entered in favor of the County as to all other claims.

I. Background

This dispute arises out of the application and enforcement of a County ordinance requiring a special permit for stevedores working in the County-owned Port of Miami. The following facts are based on the parties' joint stipulation of facts and undisputed matters in the record.

A. County Ordinance § 28A–6

A stevedore loads and unloads cargo and/or baggage in a port [D.E. 169 (Parties' Stipulation of Material Facts) at ¶ 10]. As a general matter, § 28A–6 of the Miami–Dade County Code governs the issuance of stevedore licenses and permits in the County. A stevedore license is sufficient to perform work anywhere in the County, except in the Port of Miami.

To work in the Port of Miami, a stevedore needs (in addition to a license) a permit issued by the port director. As is relevant here, § 28A–6.4(b) requires that the port director, “in making his determination as to the issuance or denial of the permit, shall [in addition to other factors identified in the ordinance] make findings as to the need or lack of need for such permit.” Other factors to be considered before a permit is issued, in addition to the “need determination,” are set forth in § 28A–6.4(c). One of these additional factors is “the inability or refusal of license or present permit holders, respectively, to adequately serve new or existing business.” See § 28A–6.4(c)(5).

Stevedore permits for the Port of Miami expire on January 15 of each year. See § 28A–6.6. Upon expiration, a permit may be renewed by the port director when all requirements and procedures set forth in “[§§ ] 28A–6.1 through 28A–6.8 [and other applicable requirements] ... have been met.” See id. Thus, the ordinance requires a need assessment for renewal applications too.

B. Stevedores at the Port of Miami

The Port of Miami competes with other ports in the United States and Latin America for cruise line and cargo work [D.E. 169 at ¶ 19]. The Port has invested millions of dollars on land, equipment, and facility development to attract cruise and cargo traffic [ Id. at ¶ 20].

Until 1994, the Port had several small cargo terminals competing for its cargo business. To improve the Port's cargo capacity and increase capital investment, the Board of County Commissioners approved the formation of POMTOC—a combination of small cargo terminal operators—to operate one of the Port's three main cargo terminals. Since the formation of POMTOC, the Port's cargo capacity has significantly increased [ Id. at ¶¶ 21–22]. The other two main cargo terminals are used almost exclusively by two carriers, Maersk and Seaboard Marine [ Id. at ¶ 18].

As of June of 2002—the date of the last need assessment of record—nine stevedore companies had permits to operate at the Port of Miami:

1. Biscayne Stevedoring

2. Eller–ITO Stevedoring Company

3. Florida Stevedoring, Inc.

4. Hallmark Stevedoring Company

5. Oceanic Stevedoring Company

6. P & O Ports of Florida, Inc.

7. R.O. White & Company, Inc.

8. Seaboard Marine, Ltd.

9. Universal Maritime Services

[D.E. 169 at ¶ 29; D.E. 96–30 (Port Director's 2002 Need Assessment Report) at 1].

A number of these permitted stevedore companies are owned by or are affiliated with the Port's cargo carriers. For example, Universal Stevedoring is wholly owned by Maersk [D.E. 96–30 at 3]; Eller–ITO is owned by two of the current owners of POMTOC; and Florida Stevedoring is an owner of POMTOC [D.E. 169 at ¶ 23]. The relevance of these relationships is explained later.

C. Florida Transportation and Its Permit Applications

Florida Transportation is a stevedore company based in Broward County, Florida. It provides stevedore services at Port Everglades in Fort Lauderdale, and also operates as a stevedore for the Disney cruise lines at Port Canaveral [ Id. at ¶¶ 1, 2, 4].

Florida Transportation's president, John Gorman, Jr., has had a stevedore license in Miami–Dade County since 1979 [ Id. at ¶ 13]. Neither Mr. Gorman nor Florida Transportation, however, has obtained stevedore permits to work at the Port of Miami.

1. The Permit Application in June of 1999

Florida Transportation applied for a stevedore permit on June 30, 1999. The following day, a former port employee granted the permit application, erroneously assuming that he was reviewing a renewal application. Once the error was discovered, the port director sent a letter to Florida Transportation holding the permit in abeyance [D.E. 108 (Florida Transportation's Statement of Facts) at ¶¶ 10–12; D.E. 144 (County's Corrected Response to Statement of Facts) at ¶¶ 10–12].

On July 12, 1999, Florida Transportation sued the County and the port director in state court, seeking reinstatement of its stevedore permit [D.E. 144 at ¶ 16]. This lawsuit was ultimately dismissed with prejudice because Florida Transportation had not first appealed to the Board of County Commissioners. The dismissal was affirmed on appeal [ Id. at ¶ 16].

The Southeast Florida Employers Port Association—an association representing the stevedores at the Port—sent a letter to the port director on July 15, 1999, concerning Florida Transportation's application. In its letter, the Employers Port Association “strongly object[ed]” to the application, expressed “grave concern” over “destructive competition,” and stated that no new stevedores were needed at the Port [D.E. 99–9 (Letter from Southeast Florida Employers Port Association to Port Director) at 1–2]. At his deposition, the port director acknowledged receiving the letter, which he understood as the existing stevedores “protecting their own business,” but said he did not consider it in evaluating Florida Transportation's application [D.E. 87–1 (Deposition of Charles Towsley) at 69–74].

On August 12, 1999, the port director sent a letter to Florida Transportation denying its June 1999 application. The stated reasons for the denial were that there was no need for an additional stevedore at the time and that Florida Transportation was not competent to work at the Port because it did not have trained employees who could operate the Port's cranes [D.E. 144 at ¶ 17; D.E. 103–7 (Port Director's August 1999 Denial Letter) at 1]. The port director explained that he had conducted a need assessment in August of 1999 by contacting the Port's top five cargo carriers and asking them a series of questions. Based upon this survey, the port director found that there were sufficient levels of current stevedore services to meet the Port's needs [D.E. 103–7, Exh. A (Port Director's 1999 Need Assessment Report) ]. At his deposition, the port director explained that, as he understood § 28A–6, the need requirement only applied to new applicants [D.E. 87–1 at 63].

2. The Permit Application in January of 2000

On January 14, 2000, Florida Transportation filed another application for a stevedore permit to work at the Port. The port director denied the application on March 1, 2000 [D.E. 169 at ¶ 37]. Citing the August 1999 need assessment report, he explained that “(as has been the case for a number of years) there is no need for additional stevedore permits at the seaport at this time” [D.E. 133, Exh. 17 (Port Director's March 2000 Denial Letter) at 1].

Florida Transportation filed an appeal from the denial. On July 25, 2000, the county manager wrote a memorandum to the Board of County Commissioners urging approval of an accompanying resolution denying the appeal. In that memorandum, the county manager explained that, based on the August 1999 need assessment, the port director had found that the current number of stevedores—nine—was the “optimal number” for efficient operations at the Port [D.E. 133–19 (County Manager's July 25, 2000, Memorandum) at 1]. The county manager further noted that this was not the first time that “a stevedore permit has been denied,” and that in prior years new entrants had to “buy a company with an existing permit” or wait until the port director determined there was a need [ Id.]. The county manager suggested that Florida Transportation's appeal be denied for the reasons stated in his memorandum [ Id.].

At the hearing before the Board of County Commissioners, which also took place on July 23, 2000, Florida Transportation argued that the port director was discriminating against the company because it used non-union labor and that he was improperly using need as a pretext for discrimination [D.E. 133–1 (Transcript of July 25, 2000, Hearing) at 12–13]. In response, the port director basically admitted that he used a need assessment only for new applicants like Florida Transportation, but argued that no new stevedores were needed [ Id. at 19].

On the same date, the Board of County Commissioners, by a vote of 11–0 (with 2 commissioners absent), approved the resolution proposed by the county manager,...