Merritt Island Sanitation, Inc. v. Green, 70--297

• Decision Date: 19 July 1971
• Docket Number: No. 70--297,70--297
• Citation: 251 So.2d 132
• Parties: MERRITT ISLAND SANITATION, INC., Appellant, v. E. L. GREEN, individually, and on behalf of others similarly situated, Appellees.
• Court: Florida District Court of Appeals

Page 132

251 So.2d 132

MERRITT ISLAND SANITATION, INC., Appellant, v. E. L. GREEN, individually, and on behalf of others similarly situated, Appellees.

No. 70--297.

District Court of Appeal of Florida, Fourth District.

July 19, 1971.

Rehearing Denied Aug. 25, 1971.

James R. Dressler, of Dressler & Thoburn, Cocoa Beach, for appellant.

Barbara T. Taylor, of Jamieson & Taylor, Cape Canaveral, for appellees.

OWEN, Judge.

Appellant, the owner-operator of a private sewerage facility in Brevard County, Florida, seeks review of a final judgment in a declaratory judgment proceeding, which judgment enjoined appellant from increasing its monthly rate to certain customers and ordered arbitration pursuant to the provisions of a written agreement executed by appellant.

The written agreement, executed in October, 1962 between appellant and a mortgage servicing company, was made for the benefit of the present and future customers of appellant. It specified the rates to be charged initially and provided that in the event the appellant utility desired to increase its rates the company would be required to give 90 days written notice to all of its customers after which the increased rate would go into effect unless within such 90-day period more than one-third of the customers signified in writing their opposition to the rate charge. If this occurred, the rate increase would be held in abeyance while the matter of the rate increase was either negotiated between the utility and its customers or settled by arbitration. Of particular importance to this suit was a provision whereby the written agreement was to terminate automatically at such time as 'the rates, services and operation of the company are placed by law under the jurisdiction of a regulatory commission or other governmental agency or body empowered to fix rates and to which a consumer of the company may seek relief.'

By letter dated July 10, 1969, appellant notified its customers of a proposed rate increase to become effective October 1, 1969. Within the 90-day period more than one-third of appellant's customers signed petitions in opposition to the proposed rate increase. Nevertheless, the appellant proceeded to put the rate increase into effect on October 1, 1969, whereupon appellee, for himself and others as beneficiaries under the agreement, brought this declaratory judgment action.

Appellant defended on the ground, among others, that Chapter 67--1145, Laws of Florida, Special Acts of 1967, granted to the Board of County Commissioners of Brevard County, Florida the authority 'to regulate the operation of all water supply systems and sanitary sewerage systems in the unincorporated areas of the county', and gave the Brevard County Commission the authority to regulate the rates, services and operation of the company. It was appellant's contention in the trial court (and is here) that upon Chapter 67--1145 becoming law on July 6, 1967, the agreement had by its own terms automatically terminated At that time and was not in effect at the time of the rate increase proposed for October, 1969.

The trial court found from the evidence that while the Board of County Commissioners of Brevard County had implemented a portion of the authority granted it under Chapter 67--1145, it had not effectively implemented that portion of the statute giving it authority to fix or regulate rates of privately owned utilities nor had it effectively set up the...