Williams v. Turrentine

• Citation: 266 So.2d 81
• Decision Date: 25 July 1972
• Docket Number: No. 71--522,71--522
• Parties: George WILLIAMS, Appellant, v. John W. TURRENTINE et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 81

266 So.2d 81

George WILLIAMS, Appellant, v. John W. TURRENTINE et al., Appellees.

No. 71--522.

District Court of Appeal of Florida, Fourth District.

July 25, 1972.

Rehearing Denied Sept. 22, 1972.

Herbert P. Benn, Lake Worth, for appellant.

Larry Klein, of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, and Stephen A. Spear, of Spear, Deuschle & Capp, Fort Lauderdale, for appellees City of West Palm Beach and West Palm Beach Marina, Inc.

MAGER, Judge.

George Williams, appellant, was the intervenor below in a suit instituted by John W. Turrentine against the City of West Palm Beach and West Palm Beach Marina, Inc., defendants below. Plaintiff Turrentine sought a declaratory judgment that the lease of certain city property to a private corporation was invalid. Williams moved to intervene as an additional plaintiff in the declaratory action which motion was granted. The trial court subsequently entered a summary judgment against Turrentine and in favor of the city declaring that the city was authorized by law to enter into the lease in question. In entering the order the trial court granted intervenor additional time to file affidavits and argument in support of his contentions that the lease was invalid.

The court ultimately entered a final judgment for the city in all respects, holding, in effect, that the lease and the ordinances relating thereto were valid.

Although the intervenor seeks reversal on various grounds the only contention which we feel has merit is the assertion that the 99-year lease executed by the city violates the state Constitution. ¹

The final judgments, the briefs of the parties and other documentary matter in the record suggest a lease was executed between the city and a private corporation involving some 10 acres of land, the apparent proposed purpose of such lease being to permit high-rise construction and multi-family dwellings. The city does not dispute the fact that this was the intended purpose for such lease. The trial court's order contains the following additional facts:

'. . . The property in question presently consists of a marina, gasoline service station, restaurant and metered parking lot, all owned or used by the city in a proprietary, rather than governmental, capacity. The city operates the marina and rents out boat space to the public in all material respects as a private marina. The gasoline service station is leased and operated by an oil company. The restaurant is leased and operated by a private individual. The city operates the metered parking lot. None of the property is being used or devoted to the carrying on of ordinary city business. . . .'

The only meritorious question for our consideration is the authority of the city to lease public lands to a private corporation; in particular, whether such lease is valid in light of applicable constitutional and charter provisions.

The city takes the position that the power to lease the property is specifically authorized under the provisions of its charter, specifically Section 1.03(4) which provides as follows:

'(4) The power to dispose of property shall embrace sale, exchange, lease, mortgage, pledge, or other encumbrance of any property, and also destruction, abandonment, or gift to charity of any property officially determined to be of no further use to the city and on nominal sale value or no value; provided, each sale of exchange of real property owned by the city other than delivery of a right of way deed or of a quitclaim deed or similar instrument for the purpose of removing a defect in or cloud on a title, and each lease of real property by the city as lessor for a period exceeding five years shall require approval by unanimous vote of the membership of the city commission or subsequent approval by vote of the city electors in a referendum election called and held as provided hereby.'

The provision of the Florida Constitution by which such charter authorization must be measured is found in Section 10, Article VII, F.S.A., which provides in part:

' § 10. Pledging credit.--Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; . . .'

The Supreme Court of Florida has, on many occasions, considered, interpreted and applied the substance of the foregoing constitutional provision. A listing of some of the pertinent decisions is as follows: City of Daytona Beach v. Dygert, 1941, 146 Fla. 352, 1 So.2d 170; Bailey v. City of Tampa, 1926, 92 Fla. 1030, 111 So. 119; State v. Town of North Miami, Fla.1952, 59 So.2d 779; Gate City Garage v. City of Jacksonville, Fla.1953, 66 So.2d 653; Adams v. Housing Authority of City of Daytona Beach, Fla.1952, 60 So.2d 663; City of Clearwater v. Caldwell, Fla.1954, 75 So.2d 765; City of West Palm Beach v. State, Fla.1959, 113 So.2d 374; Raney v. City of Lakeland, Fla.1956, 88 So.2d 148; Panama City v. State, Fla.1957, 93 So.2d 608; State ex rel. Ervin v. Cotney, Fla.1958, 104 So.2d 346; Panama City v. Seven Seas Restaurant, Inc., Fla.App.1965, 180 So.2d 190; State v. Clay County Development Authority, Fla.1962, 140 So.2d 576; State v. Jacksonville Port Authority, Fla.1967, 204 So.2d 881; State v. County of Dade, Fla.1968, 210 So.2d 200; State v. Ocean Highway and Port Authority, Fla.1968, 217 So.2d 103; and Bannon v. Port of Palm Beach District, Fla.1971, 246 So.2d 737.

The court has consistently held that unless the exercise of a municipal power is primarily for a Public or municipal purpose, a municipality's private commercial venture for profit is invalid. Bailey v. City of Tampa, supra; City of Clearwater v. Caldwell, supra; City of West Palm Beach v. State, supra; State v. Town of North Miami, supra.

In Adams v. Housing Authority of City of Daytona Beach, supra, the Supreme Court observed that:

'Incidental benefits accruing to the public from the establishment of some private enterprise is Not sufficient to make the establishment of such enterprise a public purpose . . .' 60 So.2d 669. (Emphasis added.)

See also Grubstein v. Urban Renewal Agency of City of Tampa, Fla.1959, 115 So.2d 745.

The court, however, has been careful to point out that if the paramount purpose of the governmental undertaking is a public purpose 'such project may as an Incident thereto lawfully benefit private corporations or individuals'. State v. Jacksonville Port Authority, supra; Gate City Garage v. City of Jacksonville, supra; State ex rel. Ervin v. Cotney, supra; Panama City v. State, supra; State v. Clay County Development Authority, supra. In particular, the decision in State ex rel. Ervin v. Cotney, supra, sets forth numerous examples where proposals had as their Primary undertaking a public purpose but where private enterprise was also incidentally involved.

In the case sub judice as far as we are able to evaluate the facts, the primary purpose of the lease in question is to permit high-rise construction and multi-family dwellings; the private interests to be served are more than incidental.

The facts in City of Clearwater v. Caldwell, supra, bear a marked similarity to those in the case sub judice. There the City of Clearwater attempted to lease a portion of land to a private individual for a period of fifty years; land which had previously been acquired by the city for municipal purposes. The city sought to lease the property to the private individual for hotel purposes; the city contending that it had the power to lease its lands for hotel and apartment purposes for private gain because it would serve a municipal purpose. The city did not have any express legislative authorization to lease its property for such purposes. In declaring such lease to be void the Supreme Court of Florida observed, 75 So.2d at p. 766:

'. . . It may be argued that it is desirable for the City of Clearwater to be granted the power by the Legislature to enter into the real estate business and lease its property for hotels, drug stores, department stores, grocery stores, clothing stores, shoe stores and other such enterprises, but the Legislature has not attempted any such delegation of power. Such a change in policy may well threaten the entire free enterprise system. If such a change in policy can be brought about in this case, with reference to hotels, by judicial decree or opinion, why not extend the policy to all private business.

'It would be a revolutionary change in municipal government for the Legislature to attempt to delegate any such power. Such a question is one of tremendous public importance and involves a change in policy. The Courts have no authority to change the policy with reference to municipal government as it has existed heretofore and adopt any such revolutionary policy. Such a change in policy can only be brought about by legislative action in some cases Or by action of the people in approving such change by the adoption of a constitutional amendment, in others. . . .' (Emphasis added.)

Although it might be suggested that the decision in the Caldwell case is distinguishable from the case sub judice because, here, the City of West Palm Beach had specific Charter authority to lease, such an assertion lacks merit for the reason that any legislative authorization whether by statute or charter must be measured by the constitutional limitations. In this regard the Supreme Court pointed out in State v. Town of North Miami, supra, 59 So.2d at pp. 784--785:

'. . . In none of the cases decided by this Court since the adoption of our present Constitution have we approved any special legislative acts which authorized any of the political subdivisions or governmental units of the State to acquire property and erect buildings...