Florida Transp. Service, Inc. v. Miami-Dade County

Decision Date07 April 2008
Docket NumberCase No. 05-22637-CIV.
Citation543 F.Supp.2d 1315
CourtU.S. District Court — Southern District of Florida

Jeffrey B. Crockett, Esq., Mark A. Journey, Esq., Coffey Burlington Wright Crockett, et al., Miami, FL, for Plaintiff.

Craig E. Leen, Esq., Steven B. Bass, Esq., Miami-Dade County Attorney's Office, Miami, FL, for Defendant.



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 stated below, summary judgment on liability is entered in favor of Florida Transportation for the claims based on the denial of stevedore permits in 2003, 2004, and 2005. Summary judgment is entered in favor of the County as to all other claims.


This dispute arises out of the 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 [D.E. 169] and the undisputed record.


A stevedore loads and unloads cargo in a port [D.E. 169 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 a permit issued by the port director. As is relevant here, § 28A-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." A number of additional factors to be considered before a permit is issued, in addition to the "needs determination," are set forth in § 286.4(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).

The stevedore permits for the Port of Miami expire on January "fifteenth annually." See § 28-A-6.6. Upon expiration, a permit may be renewed by the port director when all the applicable requirements and procedures set forth in "[§§] 28A-6.1 through 28A-6.8 [and other applicable requirements] ... have been met." See id.


The Port of Miami competes with other ports in the United States and Latin America [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. Since the formation of POMTOC, the Port's cargo capacity has significantly increased [Id. at ¶¶ 21-22]. POMTOC now operates one of the Port's three main cargo terminals. 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 — there were nine stevedore companies permitted 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. 96-31].

A number of the permitted stevedore companies are owned by or are affiliated with the Port's cargo carriers. For example, Universal Stevedoring is wholly owned by Maersk [Id. 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].


Florida Transportation is a stevedore company based in Broward County. It provides stevedore services at Port Everglades in Fort Lauderdale. Florida Transportation is also a cruise 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 a stevedore permit to work at the Port of Miami.


Florida Transportation applied for a stevedore permit on June 30, 1999. On July 1, 1999, a former port employee granted the permit application, erroneously assuming that he was reviewing an application for renewal. Once the error was discovered, the port director sent a letter to Florida Transportation holding the permit in abeyance [D.E. 108, 144 at ¶¶ 11-12].

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 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].

On August 12, 1999, the port director sent a letter to Florida Transportation denying its June 1999 application. The stated reason for the denial was that there was no need for an additional stevedore company at the time and that Florida Transportation was not competent to work at the Port [Id. at ¶ 17].


On January 14, 2000, Florida Transportation filed another application for a stevedore permit. 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. 133-2 at 1].

Florida Transportation filed a petition in state court for a writ of certiorari, alleging that the denial of its permit application violated the U.S. and Florida constitutions [D.E. 104-15 at 24]. The state trial court denied Florida Transportation's petition for certiorari, and the state appellate court affirmed [D.E. 169 at ¶ 37].


On January 8, 2001, Florida Transportation again applied for a permit. The port director denied this application on June 11, 2001, stating that there had been "no significant change at the Port of Miami with respect to the need for additional stevedores to adequately service the lines calling at Miami" [D.E. 104-20]. Florida Transportation appealed the denial to the Board of County Commissioners, but the denial was affirmed upon the recommendation of the County Manager [D.E. 169 at ¶ 38; D.E. 104-21].


On January 24, 2002, Florida Transportation filed yet another application. This time the application was denied based on a 2002 need assessment, which found that there was no need for new stevedores at the Port [D.E. 96-31]. Pursuant to a new review procedure, Florida Transportation appealed the denial of its application to an administrative examiner and not to the Board of County Commissioners. In its appeal, Florida Transportation argued, among other things, that the stevedore permit ordinance was invalid under the Florida Constitution [D.E. 106-2 at 3]. The administrative examiner held a three-day evidentiary hearing, at which Florida Transportation was allowed to present witnesses and documentary evidence in support of its position, cross-examine any witnesses offered by the County, and provide argument from counsel [D.E. 105-106]. After the evidentiary hearing, the County's administrative examiner affirmed the denial of the stevedore permit. Among other things, the administrative examiner found that "no need analysis is done" for renewal applications, and that "once a permit has been issued it will continue to be issued unless and until just cause exists for non-issuance of the permit" [D.E. 106-2 at 13]. Florida Transportation did not appeal the administrative examiner's decision [D.E. 169 at ¶ 39].1

5. THE 2003, 2004, AND 2005, PERMIT APPLICATIONS

Florida Transportation applied for permits again in 2003, 2004, and 2005. The port director denied these applications, and Florida Transportation did not appeal these denials [Id. at ¶¶ 41-43].


In the last ten years, the port director has not denied any stevedore permit application filed by an out-of-state applicant [D.E. 169 at ¶ 47]. Seaboard Marine — which is owned by Seaboard Ltd., a Kansas corporation — was the last, and only out-of-state stevedore to receive a stevedore permit in the last ten years [D.E. 131-2 (Aff. of Ray Mauri) at ¶ 10]. The record is silent as to when Seaboard Marine obtained its permit, but it was prior to June of 2002 [D.E. 96-31].


Florida Transportation filed this action in October of 2005 against the County and the port director. In its one-count complaint, Florida Transportation alleges that the County's permit ordinance violates the dormant Commerce Clause. Florida Transportation seeks declaratory relief, permanent injunctive relief, and damages under 42 U.S.C. § 1983.

On February 16, 2005, Florida Transportation voluntarily dismissed, with prejudice its claims against the port director [D.E. 21].


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3 cases
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