Miami Tele-Communications, Inc. v. City of Miami
| Decision Date | 19 July 1990 |
| Docket Number | No. 90-0517-CIV.,90-0517-CIV. |
| Citation | 743 F. Supp. 1573 |
| Parties | MIAMI TELE-COMMUNICATIONS, INC., Plaintiff, v. CITY OF MIAMI; Xavier Suarez, in his official capacity as Mayor of the City of Miami; Miller J. Dawkins, in his official capacity as Vice Mayor of the City of Miami; J.L. Plummer, Jr., Miriam Alonso and Victor De Yurre, in their official capacities as Commissioners of the City of Miami; Jorge L. Fernandez, in his official capacity as City Attorney for the City of Miami; and Cesar Odio, in his official capacity as City Manager of the City of Miami, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
John T. Kolinski, Miami, Fla., for plaintiff.
Charles C. Mays, Miami, Fla., for defendants.
FINAL JUDGMENT
This cause is before the court upon conclusion of a nonjury trial. After careful consideration of the parties' memoranda and the evidence and arguments presented at trial, the court concludes that the City of Miami's imposition of a penalty against the plaintiff is improper, and the plaintiff is entitled to a declaratory judgment and injunctive relief.
In 1980, the Miami City Commission "the city commission" or "the commission" adopted Cable Television License Ordinance No. 9223 "the enabling ordinance" which set forth the general terms, provisions, and conditions pursuant to which the City of Miami "the city" would grant a cable television license to an approved licensee. After enactment of this ordinance, the city requested competitive bids for the award of the license, which it ultimately granted to the plaintiff Miami Tele-Communications, Inc. "Miami TCI" or "the licensee" or "the cable company" and its joint venture partner, Americable of Greater Miami, Ltd. Pursuant to the terms of the enabling ordinance, the agreement reached between the city and the licensee was subsequently embodied as Ordinance No. 9332 "the licensing ordinance" or "the ordinance" and adopted by the commission in 1981. In 1987, Miami TCI purchased the interest of its joint venture partner, with the city's approval, and has been the sole operator of the cable television franchise since that time.
On December 7, 1989, a commission meeting was held, during which time certain questions and concerns were raised regarding Miami TCI's performance under the licensing ordinance. As a result of that meeting, key executives of Miami TCI who were not present were invited to appear before the commission at a later date to address these concerns. At a commission meeting held on January 11, 1990, executives from Miami TCI appeared before the commission and the matters raised at the previous meeting were discussed. Before the conclusion of that meeting, and without providing prior notice that the imposition of a penalty would be considered, the commission adopted Resolution No. 90-0028, which found Miami TCI in violation of the licensing ordinance and assessed a penalty of $2,500 per day against the cable company. Pursuant to the resolution, the penalty became effective immediately and was to continue until the city manager determined that Miami TCI was in compliance with the provisions that it had allegedly violated.
Thereafter, Miami TCI filed a multi-count complaint in this court seeking various forms of declaratory and injunctive relief from the imposition of the penalty.
The issue before this court, simply stated, is whether the city's imposition of a penalty against Miami TCI was proper. In challenging the penalty, Miami TCI first asserts that the procedure by which it was assessed violated the fourteenth amendment's guarantee to due process of law. Miami TCI also challenges the constitutionality of sections 1104 and 1106 of the licensing ordinance, the provisions upon which the penalty was based,1 by asserting that these provisions violate the equal protection clause of the fourteenth amendment and are unconstitutionally vague. Alternatively, Miami TCI asserts that the assessment of a penalty is violative of Florida contract law. Each of these arguments will be addressed in turn.
The fourteenth amendment provides that "no State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. It is well-settled that:
prior to deprivation of life, liberty or property, due process requires that a governmental entity must provide a citizen adequate notice, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), as well as ample opportunity to be heard at a meaningful time and in a meaningful manner appropriate to the nature of the case. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950).
Chicago Cable Communications v. Chicago Cable Com'n, 879 F.2d 1540, 1545 (7th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 839, 107 L.Ed.2d 835 (1990).
Miami TCI maintains that because the city commission adopted Resolution No. 90-0028, which assessed a daily penalty of $2,500 without prior notice that the imposition of a penalty would be considered, and without a meaningful opportunity to be heard, the city failed to afford the due process of law required by the fourteenth amendment. The city does not dispute the general proposition that it is required to provide due process before depriving a citizen of a property right. Nor does the city dispute that Miami TCI was not afforded due process before the penalty at issue was imposed. Instead, the city asserts that it was not required to provide Miami TCI with due process under the circumstances of this case because the cable company waived its right to be afforded due process when a penalty is assessed by the city commission.
Although the constitutional right to due process may be waived, the waiver of a constitutional right must be voluntary, knowing, and intelligent. Fuentes v. Shevin, 407 U.S. 67, 94-95, 92 S.Ct. 1983, 2001, 32 L.Ed.2d 556 (1972); D.H. Overmyer Co. v. Frick, 405 U.S. 174, 185, 92 S.Ct. 775, 782, 31 L.Ed.2d 124 (1972); Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1094 (3rd Cir.1988); and Gonzalez v. County of Hidalgo, 489 F.2d 1043, 1046 (5th Cir.1973).
Before considering the validity of a waiver, however, the court must make a threshold determination as to the existence of a waiver. Fuentes, 407 U.S. at 95, 92 S.Ct. at 2001, 32 L.Ed.2d 556. "We need not concern ourselves with the involuntariness or unintelligence of a waiver when the contractual language relied upon does not, on its face, even amount to a waiver." Id. "A waiver of constitutional rights in any context must, at the very least, be clear." Id. (emphasis in original). Thus, a waiver must be established by "clear" and "compelling" evidence, Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967); Erie Telecommunications, 853 F.2d at 1094, and courts must "indulge every reasonable presumption against waiver of fundamental constitutional rights." Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937).
To establish the existence of a waiver, the city first relies on the language of the licensing ordinance itself. The city asserts that the ordinance, which embodies the terms of the parties' agreement, established two separate and distinct mechanisms for assessing a penalty against the licensee, one of which required that due process be provided and one that did not. Thus, the city asserts that the language of the ordinance is consistent with an occurrence of waiver because the ordinance does not require that due process be afforded when a penalty is imposed by the city commission. Miami TCI maintains, however, that the ordinance does not support the city's waiver argument because nothing in the language of the ordinance indicates that the city commission is exempt from that section of the ordinance requiring the city to provide notice and an opportunity to be heard before imposing a penalty.
Construction of municipal ordinances is a question of law for the court. See Clark v. Kreidt, 145 Fla. 1, 199 So. 333 (1940); City of Homestead v. Levy, 444 So.2d 1074 (Fla. 3d DCA 1984). Thus, this court must construe the terms of the ordinance to determine whether the city commission is required to provide the licensee with due process of law prior to assessing a penalty.
A review of the relevant provisions of the licensing ordinance indicates that section 1001 requires the licensee to establish and maintain a security fund against which penalties may be exacted for the licensee's failure to comply with the ordinance. City of Miami, Fla., Cable Television License Ordinance No. 9332, 10-19-81, § 1001. Section 1002 delineates seven specific violations of the ordinance for which penalties are to be assessed against the licensee's security fund. Id. at § 1002. Section 1003 provides that in addition to the penalties set forth in section 1002, the city commission may impose a penalty not to exceed $2,500.00 per day for a willful and/or repeated violation of any provision of the ordinance. Id. at § 1003.
Although section 1003 empowers the city commission to assess penalties against the licensee, it does not set forth the procedure by which the commission may impose a penalty. Indeed, the only section of the ordinance addressing the procedure governing the imposition of penalties is found in section 1004.2 That section, which is entitled "Procedure for assessing penalties" provides that:
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