Metropolitan Dade County, Fla. v. Eisenberg

• Decision Date: 09 October 1990
• Docket Number: No. 90-1844,90-1844
• Citation: 567 So.2d 1021
• Parties: 15 Fla. L. Weekly D2522 METROPOLITAN DADE COUNTY, FLORIDA, A Florida Chartered County; and the Board of County Commissioners of Dade County, Appellants, v. Leslie EISENBERG, Appellee.
• Court: Florida District Court of Appeals

Page 1021

567 So.2d 1021

15 Fla. L. Weekly D2522

METROPOLITAN DADE COUNTY, FLORIDA, A Florida Chartered County; and the Board of County Commissioners of Dade County, Appellants, v. Leslie EISENBERG, Appellee.

No. 90-1844.

District Court of Appeal of Florida Third District.

Oct. 9, 1990.

Robert A. Ginsburg, County Atty., and Cynthia Johnson-Stacks, Asst. County Atty., for appellants.

Susan E. Hicks, Tampa, for appellee.

Before BARKDULL, COPE and LEVY, JJ.

PER CURIAM.

Dade County appeals the entry of an Order Granting Plaintiff's Motion for Temporary Restraint.

The Dade County Airport Region Taxicab Service ("ARTS") Program, the subject of this action, was created by resolution in 1983, by the Dade County Commission, and is administered by the Passenger Transportation Regulatory Division, Consumer Services Department of Dade County. Through the ARTS Program, twenty five (25) for-hire license holders will be selected by lottery and issued permits to provide transportation to and from certain zones within Miami International Airport. The permits are to be awarded by an annual random drawing. The first twenty five (25) drawn will receive permits, and the remaining will be designated as backup. The licensees who are selected enter into a franchise type relationship with Dade County, lasting for a period of one year.

This year, pursuant to the general terms and conditions of the ARTS Program as promulgated by the Consumer Services Department, all applications, together with a non-refundable fee of twenty five dollars ($25.00), had to be received by the County no later than July 15, 1990, which was a Sunday, a day that the Consumer Services Department, where the forms were to be received was closed for business. A Consumer Services employee was informed at home, on the evening of July 13, 1990, that the deadline date fell on a Sunday. Thereafter, a decision was made to extend the deadline to Monday, July 16, 1990, and all potential applicants, including appellee, Eisenberg, were notified by phone on July 14, 15, and 16, 1990.

As of July 13, 1990, the last business day prior to the deadline, twenty (20) applications, including nine by the appellee, had been filed for participation in the program. Appellee, Eisenberg, had previously operated nine (9) for-hire licenses under the ARTS Program. On Monday, July 16, 1990, after the Consumer Services Department had extended the deadline, fifty-six (56) additional applications were received. On July 30, 1990, Eisenberg filed a Complaint for Injunctive Relief and a Motion for Temporary Restraint, seeking to enjoin the ARTS Program from holding its lottery to award twenty-five (25) permits from a pool of seventy-six (76) applications. After an evidentiary hearing, the trial court entered an order granting Eisenberg's Motion for Temporary Restraint, and held that Eisenberg should be awarded the nine (9) ARTS permits for which he had applied and the remaining sixty-seven (67) applicants were to participate in the lottery for the remaining sixteen (16) ARTS permits. On August 2, 1990, the day the injunction was granted, Dade County canceled the lottery, which was scheduled for the following day, until such time that the issues before this court were settled by appeal or otherwise. Dade County appealed the order granting Eisenberg's Motion for Temporary Restraint.

There is nothing in the record that shows that when the return date for applications falls on a Sunday, the return date automatically goes over to the next business day, and there is nothing in the record to show that any one administering the ARTS program had the right to extend the date for receiving applications. We therefore affirm the entry of the temporary injunction recognizing that after the final hearing it might be altered as a result of evidence that may be produced. See and compare State v. Smith, 160 So.2d 518 (Fla.1964); Newsom v. State, 54 So.2d 58 (Fla.1951); Sea-Land Service, Inc. v. International Longshoremen's Association of New York, New York, 625 F.2d 38 (5th Cir.1980); Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974). ¹

Affirmed.

BARKDULL and LEVY, JJ., concur.

COPE, Judge (dissenting).

I respectfully dissent.

Appellee Leslie Eisenberg, who was plaintiff below, is the President of Yellow Cab Corporation. He acts as the authorized agent for certain holders of Dade County taxicab licenses. See Metropolitan Dade County Code § 31-82.

Metropolitan Dade County regulates for-hire motor vehicles, including taxicabs. See Metropolitan Dade County Code § 31-81--31-115. In 1983 the County Commission established by resolution the Airport Region Taxicab Service Program, referred to as "ARTS." Under this program, each year the County issues permits to twenty-five taxicabs, chosen by lottery. Permit holders have special authorization to provide short-haul service for a flat rate.

The County has promulgated a document entitled "General Terms and Conditions," which governs the ARTS program. Licensees who wish to participate must submit an application for an annual drawing and pay an application fee. The first twenty-five licensees selected receive a one-year permit. The next seventy-five licensees are placed on a standby list for backup service.

For the 1990 cycle, the Dade Consumer Services Department issued registration forms which indicated that the forms would be accepted through July 15, 1990, and that forms received after July 15, 1990 would be ineligible for the drawing. Prior to the July 15 deadline, the Department realized that July 15 fell on a Sunday, when County offices are closed. The Department extended the deadline through Monday, July 16, 1990 and gave telephone notice to all potential applicants (the holders of existing taxicab licenses), including Eisenberg.

At the close of business on Friday, July 13, 1990, twenty applications for the lottery had been received, including applications for the nine licensees represented by Eisenberg. On July 16 fifty-six additional applications were filed.

Two weeks went by. On July 30, three days before the long-scheduled August 3, 1990 lottery, Eisenberg filed a complaint for injunctive relief. He sought an order requiring Dade County to exclude from the August 3 drawing all applications received after July 15, 1990.

The trial court conducted an emergency hearing on August 2, 1990. Notwithstanding that the action was before the court on an application for a temporary injunction, the court proceeded to grant Eisenberg final relief. The court ordered Dade County to issue permits for each of the nine applications submitted by Eisenberg. The court denied the motion of another applicant to intervene. The court then ordered that the lottery could proceed with regard to the remaining sixty-seven applicants for the remaining sixteen permits.

For two separate reasons, the temporary injunction should be reversed. First, in order to obtain the temporary injunction Eisenberg had to show, among other things, a substantial likelihood of success on the merits. See, e.g., Oxford Int'l Bank & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, 374 So.2d 54 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1199 (Fla.1980). That he cannot do.

In this case, the County had the authority to set the deadline date for applications for the ARTS program. Since it had the authority to set the deadline in the first instance, it also impliedly had the authority to change that deadline. Cf. State ex rel. Johnson v. Vizzini, 227 So.2d 205, 207 (Fla.1969) ("Municipalities have only such powers as are granted ... in express terms or arise by implication as an incident to powers expressly granted."). Indeed, Eisenberg concedes that the County has the authority, where there is good reason to do so, to reject all of the applications entirely and begin the permitting process anew. Because of the confusion associated with the 1990 deadline date, the County could have started the entire process over. It was both reasonable and appropriate for the County to take the less drastic step of extending the deadline by one day. All of the potential applicants were given notice of the extension, and Eisenberg has shown no prejudice whatsoever to his rights by this extension.

Useful by way of loose analogy is Robinson Electrical Co. v. Dade County, 417 So.2d 1032 (Fla. 3d DCA 1982). In that case the County had advertised for competitive bids for a construction contract. The low bidder submitted a cashier's check instead of the required bid bond. The County waived the irregularity, and this court agreed that the County had the power to do so. The court reasoned that the County had the power to waive minor irregularities in order to secure the lowest responsible offer,...