Santa Rosa County v. Gulf Power Co.
| Decision Date | 30 March 1994 |
| Docket Number | 92-3803,Nos. 92-3658,s. 92-3658 |
| Citation | 635 So.2d 96 |
| Parties | , Util. L. Rep. P 26,391, 19 Fla. L. Weekly D703 SANTA ROSA COUNTY, Appellant/Cross Appellee, v. GULF POWER COMPANY, BellSouth Telecommunications, Inc., d/b/a Southern Bell Telephone and Telegraph Company, and Escambia River Electric Cooperative, Inc., Appellees/Cross Appellants, and ESCAMBIA COUNTY, Appellant/Cross Appellee, v. GULF POWER COMPANY, Escambia River Electric Cooperative, Inc., Southern Bell Telephone and Telegraph Company, and Southland Telephone Company, Appellees/Cross Appellants. |
| Court | Florida District Court of Appeals |
Thomas V. Dannheisser, County Atty., Milton, for appellant/cross appellee Santa Rosa County.
Robert L. Nabors, Gregory T. Steward, and Thomas H. Duffy of Nabors, Giblin & Nickerson, P.A., Tallahassee for appellant/cross appellee Escambia County.
G. Edison Holland, Jr., and Teresa E. Liles of Beggs & Lane, Pensacola, for appellee/cross appellant Gulf Power Co.
J. Nixon Daniel, III of Beggs & Lane, Pensacola, for appellee/cross appellant BellSouth.
Thomas E. Wheeler, Jr. of Bell, Schuster & Wheeler, Pensacola, for appellee/cross appellant Escambia River Electric Co-op, Inc.
In these consolidated appeals, Santa Rosa County and Escambia County appeal certain portions of a final declaratory judgment, the net effect of which precluded the counties from imposing franchise fees on two telephone utilities and two electric utilities, operating within the respective counties, for using the counties' rights-of-way to construct or maintain the utilities' poles and lines. Certain of the utility companies, in turn, cross appeal from portions of the judgment holding that the counties possess the regulatory power to impose franchise fees. We affirm in part, reverse in part and remand with directions.
In 1989, Escambia County adopted Ordinances 89-37 and 89-39. The former granted a non-exclusive franchise to Gulf Power Company (Gulf Power) and imposed a franchise fee equal to five percent of its gross sales of electricity each month, and the latter granted a non-exclusive franchise to Escambia River Electric Cooperative (EREC), a rural electric cooperative, pursuant to the same general terms as that conveyed to Gulf Power. In 1991, Escambia County adopted Ordinances 91-19 and 91-22, purporting to convey non-exclusive franchises to BellSouth Telecommunications, Inc. (BellSouth) and Southland Telephone Company (Southland), permitting them to use the county's rights-of-way and imposing a franchise fee for such use equal to five percent of the revenues collected from the sale of local telephone services. In 1990, the Board of County Commissioners of Santa Rosa County approved Ordinances 90-01 and 90-02, also granting non-exclusive franchises to Gulf Power Company and EREC, with terms similar to those provided in the Escambia County ordinances.
Each ordinance contained a clause allowing any of the grantees to terminate its franchise if other utilities in the respective counties did not enter into franchise agreements, or if franchise fees were not imposed within two years of the effective date of the agreements. Both BellSouth and Southland declined to enter into the agreements, asserting that section 362.02, Florida Statutes, prevented the counties from requiring them to obtain a franchise. As a result of this refusal, the electric utilities, within the time specified in the agreements, ceased paying the franchise fees and declined to enter into other franchise agreements. Subsequently, the counties brought separate suits for declaratory judgments, later consolidated, to determine the validity of the various ordinances establishing the franchises in question.
After trial, the lower court entered final declaratory judgment, making the following pertinent rulings in the alternative:
1. Non-charter counties, such as Santa Rosa and Escambia, do not require specific authority from the legislature to impose franchise fees upon utilities for the use of their rights-of-way, as such power can be reasonably implied from the powers generally delegated to them, unless there is some general or special law inconsistent therewith.
2. The Public Service Commission (PSC) has not preempted the counties' right to convey franchises to electric utilities, because the PSC does not have unconditional authority to issue certificates of convenience and necessity to electric utilities.
3. Section 425.04(11), Florida Statutes, extended a contractual offer to rural electric cooperatives, such as EREC, which, once accepted, could not be impaired; therefore, the counties were precluded by the terms of the statute from imposing franchise fees upon EREC.
4. The counties have no authority to require franchise agreements from telephone utilities, because the PSC has exclusive jurisdiction to grant territorial certificates of necessity as to them pursuant to applicable Florida Statutes.
5. The counties were equitably estopped from imposing franchise fees upon Gulf Power as a result of resolutions passed in 1926 by Escambia County and in 1928 by Santa Rosa County, conveying to Gulf Power the right to occupy the counties' roads for the purpose of constructing and maintaining electric transmission and distribution lines, and, as such, the resolutions constituted a grant of a franchise with no fee. Additionally, because the resolutions gave rise to contractual obligations, the counties could not later validly adopt ordinances imposing fees, as such acts would violate the obligation of contracts clauses of the federal and state constitutions. As a consequence, Santa Rosa County Resolution 92-17, repealing its 1928 resolution, was void.
6. Each franchise fee was an impermissible tax, because the amount charged bore no discernible relationship to the cost to the counties for the use of their rights-of-way in that the counties did not provide sufficient evidence to show that the amount charged was reasonable.
7. The ordinances were void under their own terms in that all utilities had not executed franchise agreements within the two years required by the ordinances.
Both counties appeal from the portion of the final declaratory judgment pertaining to rulings 3, 5, 6 and 7. Escambia County only appeals from ruling 4, while all the utilities cross appeal ruling 1, and Gulf Power cross appeals ruling 2.
We affirm rulings 1, 2, 4 and 7, but reverse 3, 5 and 6, and remand the case with directions that judgment be entered in conformance with this opinion. Each of the court's rulings is discussed in the order as above listed.
In deciding that non-charter counties have home-rule authority to impose franchise fees, the trial court rejected the cross appellants' argument that the power to so act is lacking, because it is not specifically enumerated among those delegated to the counties by section 125.01, Florida Statutes (1989). We agree. Article VIII, section 1(f) of the Florida Constitution (1968) provides:
Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law....
(Emphasis added.) The statute broadly implements the constitutional provision by authorizing the governing body of a county, "[t]o the extent not inconsistent with general or special law," to exercise the power to carry on county government which includes, "but is not restricted to," certain enumerated powers. Sec. 125.01(1), Fla.Stat. (1989). Subsection (1)(w) gives counties the authority to "[p]erform any other acts not inconsistent with law, which acts are in the common interest of the people in the county, and exercise all powers and privileges not specifically prohibited by law." Finally, subsection (3) provides:
(a) The enumeration of powers herein shall not be deemed exclusive or restrictive, but shall be deemed to incorporate all implied powers necessary or incident to carrying out such powers enumerated, including, specifically, authority to employ personnel, expend funds, enter into contractual obligations, and purchase or lease and sell or exchange real or personal property.
(b) The provisions of this section shall be liberally construed in order to effectively carry out the purpose of this section and to secure for the counties the broad exercise of home rule powers authorized by the State Constitution.
(Emphasis added.)
The Florida Supreme Court has commented on the broad scope of home-rule authority conferred upon non-charter counties in no less than three opinions: Taylor v. Lee County, 498 So.2d 424 (Fla.1986); Speer v. Olson, 367 So.2d 207 (Fla.1979); and State v. Orange County, 281 So.2d 310 (Fla.1973). As the court recognized in Speer, 367 So.2d at 211:
The first sentence of Section 125.01(1), Florida Statutes, (1975), grants to the governing body of a county the full power to carry on county government. Unless the Legislature has pre-empted a particular subject relating to county government by either general or special law, the county governing body, by reason of this sentence, has full authority to act through the exercise of home rule power.
Thus, the specific powers enumerated under section 125.01 are not all-inclusive, and a non-charter county's authority comprises that which is reasonably implied or incidental to carrying out its enumerated powers. The only limitation on a county's implied power to act occurs if there is a general or special law clearly inconsistent with the powers delegated. As discussed later in this opinion, the only statutes which we find inconsistent with the authority of the counties to grant franchises and to impose fees thereon are those pertaining to the PSC's regulation of telephone utilities, which, we...
To continue reading
Request your trial
-
Lowe v. Broward County
...So.2d at 831 (citation omitted). Florida law recognizes two types of preemption: express or implied. See Santa Rosa County v. Gulf Power Co., 635 So.2d 96, 101 (Fla. 1st DCA 1994). For the legislature to expressly preempt an area, the preemption language of the statute must be specific; "ex......
-
City of Lakewood v. Pierce County
...County v. Florida, 737 So.2d 1065 (Fla. 1999) (franchise fees collected from utilities are not taxes); Santa Rosa County v. Gulf Power Co., 635 So.2d 96 (Fla.Dist.Ct.App. 1994) (franchise fee to use right-of-way is not a "tax"); City of Chicago v. Chicago Fiber Optic Corp., 287 Ill.App.3d 5......
-
Flores v. City of Miami
...granting use of this more valuable public property. See City of Plant City v. Mayo, 337 So.2d 966 (Fla.1976); Santa Rosa County v. Gulf Power Co., 635 So.2d 96 (Fla. 1st DCA), cause dismissed sub nom. Escambia River Elec. Co-op., Inc. v. Santa Rosa County, 641 So.2d 1345 (Fla.1994), and rev......
-
RAM OF SO. FL., INC. v. WCI Communities, Inc.
...contracts clause challenge to statute cutting off certain stale claims against real property); see also Santa Rosa County v. Gulf Power Co., 635 So.2d 96, 102 (Fla. 1st DCA 1994) (holding that grant of franchises by counties was "ultra vires and of no effect" and that subsequent imposition ......
-
A primer on counties and municipalities.
...2003). (5) FLA. CONST. art. VIII, [section] 1(g). (6) FLA. CONST. art. VIII, [section] 1(f). (7) Santa Rosa County v. Gulf Power Corp., 635 So. 2d 96 (Fla. 1st D.C.A. (8) Id. (9) FLA. CONST. art. VIII, [section] 1(e). (10) See FLA. CONST. art. VIII, [section] 1(d). (11) FLA. CONST. art. VII......