Gray Line Tours of Ft. Lauderdale, Inc. v. Mason

• Decision Date: 31 March 1965
• Docket Number: No. 33946,33946
• Parties: GRAY LINE TOURS OF FT. LAUDERDALE, INC., a Florida corporation, Petitioner, v. Edwin L. MASON, Jerry W. Carter, and William T. Mayo, as Members of and Constituting The Florida Public Utilities Commission, Respondents.
• Court: Florida Supreme Court

Page 441

173 So.2d 441

GRAY LINE TOURS OF FT. LAUDERDALE, INC., a Florida corporation, Petitioner, v. Edwin L. MASON, Jerry W. Carter, and William T. Mayo, as Members of and Constituting The Florida Public Utilities Commission, Respondents.

No. 33946.

Supreme Court of Florida.

March 31, 1965.

Wm. P. Simmons, Jr., of Shutts, Bowen, Simmons, Prevatt, Boureau & White, Miami, for petitioner.

Minnet, Allsworth, Doumar, Schuler & Elliott, Fort Lauderdale, Lewis W. Petteway and Thomas F. Woods, Tallahassee, for respondents.

ROBERTS, Justice.

On petition for certiorari we here review an order of the respondent Commission, approving the transfer of the common stock of a corporation holding a Certificate of Public Convenience and Necessity, in a proceeding under Section 323.041, Florida Statutes, F.S.A.

Guye Line Tours, Inc., owned by Leo W. Guye and his wife, Dorothy P. Guye, had been issued a certificate on November 21, 1961 by Order No. 5286, which found that public convenience and necessity required the granting of the application for the proposed service and authorized Guye Line to transport passengers in sightseeing service over a specified route in Broward County, Florida. Guye Lines conducted tours in January, February and March of 1962. In June of 1962, because of illness of one of the owners, the carrier was permitted to suspend operations for six months. One week before the expiration of the six months period, Mr. Guye notified the Commission that he was ready to resume operations, obtained a cab card for his vehicle, filed with the Commission the required insurance and monthly mileage tax reports, and held the Guye Line tour service out to the public. The tour service, however, did not obtain any business. Thereafter, in July or August of 1963, the Guyes advertised the business for sale and found a purchaser, Richard Schwartz. The owners and buyer sought approval of the sale and transfer of the capital stock as required by Section 323.041 of the Florida Statutes, F.S.A. and thereupon the petitioner, Gray Line Tours, Inc., filed its protest on the ground that the certificate rights had become dormant and abandoned within the meaning of Section 323.041(3), Section 323.10(1), (2), (3), Florida Statutes, F.S.A., and contended that the rights of the applicants should be cancelled. Pursuant to statute a hearing was held on the proposed transfer and the examiner recommended denial of the application and cancellation of the certificate because of dormancy of more than fifteen months. The respondent Commission, however, entered Order No. 6473 approving the transfer of the capital stock. It equated Van Arsdale v. King, Fla., 149 So.2d 353, with the case sub judice stating, 'It is the opinion of this Commission that in light of the Van Arsdale case, to prove dormancy, one must prove abandonment' and that 'Had a ticket for a tour been purchased Guye Line Tours, Inc. was ready, willing and able to perform the service. Therefore, it is the opinion of this Commission that Guye Line Tours, Inc. has not abandoned its operations and therefore, its certificate was not dormant.'

We hold that the Commission departed from the essential requirements of law when it concluded under the facts here present that Guye Line Tours, Inc. had not permitted its certificate to become dormant. Section 323.10(1) of the Florida Statutes, F.S.A. provides that a certificate 'for the...