Loxahatchee Recreation, Inc. v. Harrison

• Decision Date: 17 January 1979
• Docket Number: No. 77-1005,77-1005
• Parties: LOXAHATCHEE RECREATION, INC., Appellant, v. "Butch" HARRISON, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 237

367 So.2d 237

LOXAHATCHEE RECREATION, INC., Appellant, v. "Butch" HARRISON, etc., et al., Appellees.

No. 77-1005.

District Court of Appeal of Florida, Fourth District.

Jan. 17, 1979.

Rehearing Denied March 2, 1979.

John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for appellant.

Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellees.

DOWNEY, Chief Judge.

The focal issue involved in this appeal is whether an exclusive concession contract between the United States of America, United States Fish & Wildlife Service, Department of Interior and appellant, Loxahatchee Recreation, Inc., is valid so as to preclude any other person from operating a concession in the geographical area covered by said exclusive contract. The question arose as a result of a suit for injunction and damages brought by appellant to enjoin appellee from acting as a concessionaire in an area which appellant claims is subject to its exclusive franchise. The trial court denied the relief prayed for and this appeal ensued. We reverse for the reasons hereafter set forth.

A somewhat detailed resume of the background of the case is necessary to a complete understanding of the controlling facts. Thus, in 1951 and 1952 an agency of the United States Department of the Interior entered into contracts with the predecessor of the South Florida Water Management District ¹ pursuant to which the Department, or one of its agencies, was granted a license for the use of Conservation Areas One and Two as a wildlife refuge or management area. Then in 1959 the federal agency and the Florida Game and Fresh Water Fish Commission entered into a contract entitled, "Cooperative Agreement," which recited that in 1951 the federal agency obtained a license from the South Florida Water Management District for the use of Conservation Area One for a wildlife management area and in 1952 the Game and Fresh Water Fish Commission entered into a similar agreement with the South Florida Water Management District for the use of Conservation Area Two. The contract provided that the federal agency would enter into a joint concession agreement with a third party (subject to the approval of the State of Florida and the South Florida Water Management District), which would be exclusive within the designated area. Such authority providing for recreational facilities was derived from Chapter 25209, Laws of Florida (1949). Pursuant to this chapter the flood control districts were created for flood control, reclamation, conservation and Allied purposes. Said "allied purposes" enabled the districts to cooperate with the United States providing for "public health and welfare, or for public safety, utility and benefit." Thereafter in 1961 the federal agency entered into a contract with appellant which is the basis for this litigation. That contract granted appellant an exclusive right to operate recreational facilities, including food, drink, boating and fishing services and wildlife tours, in the designated area. It was specifically provided that no other parties would be granted concession rights therein during the period of the contract. Appellant was required thereunder to erect at its own expense buildings, parking facilities, boat ramps and numerous other improvements. For this franchise appellant agreed to pay a stated fee to the federal agency, plus a percentage of its annual gross income.

In August 1976 appellant brought this suit for injunction and damages against Appellee-Butch Harrison, ² alleging, among other things, that appellant had a contract giving it the exclusive right to operate concessions in Conservation Areas I and II and that appellee without authority was also operating concessions in said areas. It was alleged that appellee was substantially interfering with appellant's contract rights, depriving appellant of revenues and that appellant feared any attempt to prevent appellee from so operating might result in violence. After a trial by the court the judgment complained of was entered in which the court denied the request for injunction and damages on the ground that "the public agencies involved are subject to the principle that 'the authority to grant exclusive franchises inherently creating monopolistic privileges vested solely in the sovereign may be delegated only by express terms or by necessary implication' . . . and in the present case it is found that such authority was neither expressly granted nor necessarily implied."

Appellant contends the trial court erred in refusing the injunction because the rule relied upon applies only to exclusive franchises granted for the exercise of governmental function. See Colen v. Sunhaven Homes, Inc., 98 So.2d 501 (Fla.1957), relied on by the trial court. Appellant argues, however, that the franchise involved herein is for the performance of a proprietary function and thus a different rule applies. See Miami Beach...